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Constitutionality of Elections
without the Constitutional Council

"Necessity hath no law. Feigned necessities, imaginary necessities…are the greatest cozenage that men can put upon the Providence of God and make pretences to break known rules by." Oliver Cromwell

The hottest topic of the day is elections. A general election, under the law, is due early next year. The President can call for a Presidential Election soon after he completes four years in office shortly. People are anxiously awaiting the announcement of the dates for the elections. They are guessing which election would come first.

Politicians of all hues are getting ready to fight the elections. Those in power are trying to consolidate themselves by hook or by crook. Those in the opposition are seeking to empower themselves through rainbow coalitions. Both sides appear to be confident of victory. They are boasting about their success even before the elections are announced.

There is an incessant clamour for the appointment of the Constitutional Council (CC). Academics, human rights activists and the political opposition are vociferously canvassing the creation of a CC but the government, with impunity, is turning a deaf ear to them. The chances are that the Government would go through the elections, despite the sound and fury of the protesters. However, only a few appear to question the validity of an election held outside the purview of an Election Commission (EC) after it has been written into the Constitution.

A Constitutional obligation

The need of the hour is to take meaningful and effective steps to prevent the holding of elections without an EC. Creation of the EC would naturally entail the appointment of the CC. In the face of the Government’s intransigence, the only way out appears to be through recourse to the Judiciary. When action was taken to question the failure to appoint a successor to the first CC, the excuse was that a proper recommendation had not been made to the President by Parliament for the appointment. Hence the President had to fill the gap ‘under the law of necessity’.

That argument does not hold water any more. A proper recommendation is now before the President for the last several months but he has failed to act on it so far. The excuse given is that certain sectarian interests have protested against the inclusion of some of the names submitted. The crux of the matter is that the procedure adopted in nominating the members is in complete accordance with the Seventeenth Amendment (17A) to the Constitution and the amendment does not make provision for third party interference with the nominations.

Nor does 17A leave any discretion in the hands of the President in making the recommended appointments. Article 41A (5) of the Constitution lays down:

"The President shall upon receipt of a written communication of the nominations………..forthwith make the respective appointments."

This is not the first time that a President failed to make an appointment recommended under 17A. President Chandrika Kumaratunge failed to appoint Justice Dheerarathna as Chairman of the EC despite a recommendation to that effect from the CC. However the obligations of the President to act on the recommendations of the CC on appointing members of Commissions are not so specific as for the CC itself, except in the case of their Chairmen and that too in far less emphatic terms.

Presidential immunity

A President who fails to act on a proper recommendation under Art. 41A (5) of 17A, is clearly in breach of his Constitutional duty. Sadly no meaningful attempt has been made even to obtain alternative nominations for those challenged. Under normal circumstances such a breach can be rectified by recourse to the Judiciary. But a President is immune to judicial process under Art. 35 (1) of the Constitution which reads;

"While any person holds office as President, no proceedings shall be instituted or continued against him in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity".

It is debatable whether a failure to comply with a Constitutional mandate could come under ‘anything done or omitted’ by the President. My humble submission is that a failure of the President to comply with a Constitutional duty could not be held immune to the constitutional jurisdiction of the Supreme Court under Art. 125 and brushed off as ‘anything done or omitted to be done’ by the President.

Otherwise a President would be free to perpetuate a dictatorship by not summoning Parliament after a dissolution or by not dissolving Parliament after a Statement of Government Policy is rejected, (except at the commencement of its first session) or by dissolving Parliament after an impeachment resolution against him had been entertained by the Speaker. No one in his senses would seriously argue that these acts and omissions of a President are beyond judicial review.

It is not logical to presume that the Constitution permits one of its Articles to make way for the violation of another of its own Articles. All its Articles must be read together. They have to coexist without preferential treatment if the Constitution is to reign supreme. In the absence of such logic, a Constitution would be exposed to internal conflict and inconsistence, making it vulnerable, fragile and relative. Perhaps the former CJ Sarath Silva had these considerations in mind when he once remarked that the immunity of the President to litigation needed examination.

Act here and now

Be that as it may, it is my view that at this stage, the President would not come into the picture in a determination relating to the interpretation of the Constitution on the issue in question. The question here is not the failure of the President to appoint the CC but the legality of an election held without an EC, after all the conditions for its appointment have been satisfied. In the alternative, this matter may be canvassed by a person in his personal capacity or in the public interest as a violation of his fundamental right to vote. Such action is best taken as an imminent threat to franchise. Avoidable complications could arise after an election has been called.

Human Rights activists and public interest groups ought to have taken prompt action when President Kumaratunge refused to appoint Justice Dheerasekara as Chairmen of EC. Perhaps they were dissuaded by misapprehensions about Presidential immunity. That diffidence has now led the way to a failure to appoint the CC itself. If this impunity is allowed to escalate unchecked, the day the death knell of Democracy is tolled could not be far away.

Opposition Parties are trying to bring the house down from political platforms on the non-appointment of the CC. Unfortunately so far their best if not the only weapon has been their voice. In the circumstance, it is earnestly hoped that public spirited individuals and organizations interested in transparency and good governance would flex their muscle and rise to the occasion.

The situation calls for the mustering of the cream of legal wisdom available to ensure that ‘D.E.M.O.’Cracy’ does not become the subject of a second obituary notice. The chances are that if the preemptive challenge is solid and high profile, its very initiation may forestall an election without an EC.

Legal challenge apart, it behoves the Government itself to reflect on the wisdom of holding an election without an EC in place. The President and his party appear to be confident of resounding victory at the elections. Why then should they worry about the prescribed constitutional constraints that bind elections?

The natural impression would be that these constraints are being throttled to gain an undue advantage for the Government. That would cast a very sad reflection on the Government nationally and internationally. That is a contingency that has to be devoutly avoided at any cost, at least to protect the good name of the country that has been seriously maligned of late.

Besides, if the Government is returned to power on its own steam at an election declared by it but unsupervised by an EC, its triumph would be seriously marred by allegations of undue influence and corruption, not to mention vexatious litigation challenging the constitutional validity of the election. Winning an election riddled with such embarrassment would finally turn out to be a Pyrrhic victory!

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