The SC Determination on the Local Government Bills

By Ruana Rajepakse

The next round of elections, which are likely to be held in the first quarter of 2011, will be for local government authorities, i.e. municipal councils, urban councils and pradeshiya sabhas. Local authority elections, like all elections in Sri Lanka, were originally held according to the "first past the post" system, with each ward in a local authority electing a member. Thereafter, as with the Parliamentary and Provincial Council elections, the local government elections were converted to the "proportional representation" system with each political party furnishing a list of candidates from which a given number of persons would be selected according to the proportion of votes obtained by the party, and the number of preference votes obtained by the particular candidate.

As is well-known, the "PR" system has come under heavy criticism for destroying the link between the member and his electorate; forcing candidates to contest over large areas which requires heavy funding from dubious sources; and creating bitter rivalries and intra-party violence, to add to the inter-party violence which is also at high levels.

The Parliamentary Select Committee on Electoral Reforms chaired by Minister Dinesh Gunawardena which submitted its report in June 2007 after receiving oral and written representations from a large number of persons and associations, recommended that the "ward system" should be re-introduced for local government elections. However, the Select Committee qualified this proposal by adding that 30 per cent of local government representatives should be elected under the PR system so as to ensure the representation of minority communities and other unrepresented parties.

In October 2010 the Government gazetted a "Local Authorities (Elections)" Bill and a "Local Authorities (Special Provisions)" Bill, which taken together sought to give effect to the changes recommended by the Parliament Select Committee, albeit with a few additions and variations.

As permitted by Article 121 of the Constitution, a number of individuals and citizen groups filed petitions in the Supreme Court against various clauses of these Bills. The Attorney-General’s Department had the task of defending the Bills, while a significant number of persons who had not initially filed petitions sought to intervene either for or against the Bills.

In the best tradition of the Supreme Court, Counsel representing all parties were given an opportunity to be heard despite the constraints of time that the Constitution imposes on such hearings. The Bench comprising Justices Shirani Bandaranayake, P.A. Ratnayake and S.I. Imam sat from 10 am to 4 pm with only two five-minute breaks in order to allow time for a comprehensive hearing, after which an opportunity was given to all Counsel to file written submissions.

Several issues arose for argument. They included (1) whether the Bill dealt with a subject on the Provincial List as per the Thirteenth Amendment and, if so, whether there had been a valid referral of the Bill to each and every Provincial Council before being tabled in Parliament; (2) whether the right to vote at local government elections are part of the "franchise" that is protected by Articles 3 and 4 of the Constitution; (3) the constitutionality of clause 22(2B) of the Bill which did away with the mandatory quota for "youth" candidates which had been introduced after the youth uprising of the 1980s and instead made provision for a non-binding 25 per cent quota for "women and youth"; and a number of other issues which were dealt with briefly, namely the establishment of a Delimitation Committee, an increase in deposits for nominations, the lack of provision for by-elections, and a 5 per cent cut-off point.

This week we will look at the Supreme Court’s response to issues (1) and (2) mentioned above, which are linked.

Thirteenth Amendment

The Thirteenth Amendment introduced in 1987 added a Ninth Schedule to the Constitution, in terms of which subjects of government were divided into a Provincial Council List, a Reserved List (i.e. reserved for the Government to determine) and a Concurrent List.

Following this Amendment, Article 154G of the Constitution states that no Bill in respect of any matter set out in the Provincial Council List shall become law unless such Bill has been referred by the President (after publication and prior to being placed on the Order Paper of Parliament) to "every Provincial Council for the expression of its views thereon".

Where every Provincial Council agrees to such Bill, the Bill becomes law when it is passed by a majority of Members of Parliament present and voting. When one or more Provincial Councils do not agree to the Bill, it can only be passed by a two-thirds majority in Parliament, provided that where only some of the Councils have agreed to the Bill such Bill becomes law only in those Provinces where the Councils agreed to the passing.

It is significant that the Government spontaneously referred these two Bills to all the Provincial Councils except for that of the Northern Province where no Council has yet been established, and where it was referred to the Governor who gave his assent. This appeared to be a tacit admission by the Government that they considered such referral necessary under the law.

However, at the Court hearing strenuous objection was taken by Counsel representing Northern-based political parties to the above procedure on the ground that what was envisaged was a consultative process between Parliament and the Provincial Council (both elected bodies) which could not be substituted by referral to the Provincial Governor who is an appointee of the Government.

At this point Counsel representing the Attorney-General, while maintaining that the consent of the Governor would suffice in a situation where there was no functioning Provincial Council, also pointed out that "elections to Parliament, Provincial Councils, Local Authorities and the office of President" is a subject on the Reserved List and therefore referral to the Provincial Councils was not in fact necessary and had been done only out of an abundance of caution.

Likewise, the constitution, form and structure of local authorities "shall be determined by law" which pre-supposes an Act of Parliament.

The Court upheld this argument and therefore the question of the non-existent Northern Provincial Council ceased to be relevant as far as this matter was concerned, although that does not preclude the issue from being brought up in other appropriate proceedings, especially given that an elected Eastern Provincial Council was set up relatively soon after the armed conflict ended in that province.

The more troubling question for those who value democracy at local level is the question of whether the right to vote at local elections is considered as part of the franchise guaranteed by the Constitution.

Article 3 of the Constitution declares that "in the Republic of Sri Lanka Sovereignty is in the People and is alienable." It goes on to say that Sovereignty "includes the powers of government, fundamental rights and the franchise".

If it had been left at that, there would have been no difficulty. However Article 4 goes on to state how the sovereignty of the People shall be exercised, and in the process appears to limit the franchise. Sub-article 4(e) declares that "the franchise shall be exercisable at the election of the President of the Republic and the Members of Parliament, and at every Referendum by every citizen who has attained eighteen years…….."

Since Municipal Councils had been in existence from pre-Independence times, and the Municipal Councils Ordinance of 1947 provides for elected Councils, the omission to include them in the franchise looks very much like an embarrassing oversight – rather like the omission of the "right to life" in the fundamental rights chapter of the Constitution.

Be that as it may, Article 4 now has to be accepted unless and until it is amended. Furthermore the omission occurs again in Article 88 of the Constitution which lays down the qualifications for an elector. However, this does not mean that the right to vote at local elections cannot be protected under the Constitution.

Such protection has to be sought under the fundamental rights chapter. For example, if a person or group of persons who are duly qualified to vote under the Local Authorities Elections Ordinance which is the law that lays down the voting procedure for such bodies, are wrongfully deprived of the vote, that would be a fundamental rights issue under the fundamental rights chapter of the Constitution, just like any other inequality inflicted by a State agency. In fact a number of local elections-related cases have been decided on the basis of the right to equality.

In any event, the arguments of the petitioners who sought to oppose the Bill on this ground related to the proposed change from the proportional representation (PR) system to a mixed system as outlined above. This is not a tenable argument because the PR system itself was introduced only a couple of decades ago, to replace the first past the post (FPP) system that had been in use for over thirty years preceding that change. It is universal adult franchise that is entrenched, not any particular voting system.

Ironically the Government is now making statements to the effect that it may not be possible to make the change in time for the upcoming round of local authority elections, which will have to be conducted under the existing and much disliked "manape" or preference vote system.

Yet that is the Government’s own fault. As stated at the beginning of this article, the Parliamentary Select Committee Report was published in June 2007. There was plenty of time to have amended the law and prepared the groundwork.

One cannot help wondering whether the real reason is that the PR system is what party hierarchies (on both sides of the divide) like because it strengthens the hands of the party leadership against grassroots activism. It also means good money for those who print and put up the hundreds of posters which are sometimes the only means for a candidate to make himself known across the length and breadth of a municipal council or pradeshiya sabha.

Next week: Quotas for Women and Youth?

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