Govt.’s last desperate ploy to postpone PC elections


By C. A. Chandraprema

The news that the judiciary had determined a referendum was necessary if the 20th Amendment was to be passed into law was out in the public domain by Friday last week. The purpose of the 20th Amendment was firstly to extend the terms of the existing PCs until around October 2019 when the election to the last PC becomes due and secondly to postpone all the elections to PCs until that date. This was the provincial council equivalent of what the present government has already done to the local government elections. The LG elections which were due after March 2015 are yet to be held. It was possible to postpone the LG elections by simply delaying the delimitation process. In the case of the PCs however, there was no such readymade excuse available.

Furthermore, in the case of the provincial councils, under Article 154E of the Constitution, they stand automatically dissolved on the day they complete five years from their first meeting. If the PC elections are to be postponed, the first thing that needs to be done was to extend the terms of the existing PCs until an election is held. But, when the government gazetted the 20th Amendment for this purpose, there was an immediate rebellion within the SLFP, depriving the government of the two thirds majority needed to pass a constitutional amendment. Then the government decided to utilise the provisions of Article 154 G(2) of the Constitution, which allows an amendment to the chapter on provincial councils in the Constitution to be made with a simple majority in Parliament if all the provincial councils give their assent to the said Bill. On this basis, the President sent the 20A Bill to the provincial councils.

The North Central provincial council, which is among the first PCs to stand automatically dissolved, approved it. But then things went wrong when the Uva PC, which will be the last to be dissolved, voted against the 20A. Even though the whole purpose of the 20A was to buy time till the Uva PC also stands dissolved, the wording on the amendment said ‘not later than’, which means that it could be either the day on which the Uva PC stands dissolved or earlier. Due to the slight possibility that they could lose some time from their normal tenure, the Uva PC defeated the 20A with a two-thirds majority with even a group of UNP members and the chief minister himself voting against it. The Uva chief minister gave up a seat in parliament to become chief minister and he seems to be determined not to lose even a day of his chief ministerial tenure if he could help it.

The Northern PC also unanimously rejected the 20A on the principle that the power to dissolve PCs should not be given to Parliament. Under Article 154 G (2) if even one PC rejects a Bill to amend the provincial councils chapter in the Constitution, it cannot be passed without a two-thirds majority. So, the government came back to square one. In the meantime, the 20A was being scrutinised by the Supreme Court for its constitutionality. Since the Bill had already been certified as a Bill to Amend the Constitution the SC’s role was to determine whether it could be passed with just a two-thirds majority in Parliament or whether it needed a referendum in addition to that. Given the fact that a postponement of an election or the extension of the tenure of an elected body by legislative fiat naturally impinges on the franchise, which is guaranteed by Article 3, one of the entrenched provisions of the Constitution, it is only natural that a referendum is necessary to pass the 20A into law.

Now, the government has fallen back on the last desperate attempt to head off the PC elections – this is to give up the idea of extending terms of the existing PCs but to amend the Provincial Councils Elections Act No: 2 of 1988 so as to be able to postpone the PC elections. The advantage the government has here is that the PC elections law can be amended with just a simple majority. Due to their inability to amend Article 154E of the Constitution, the PCs will stand dissolved one by one as they complete their terms until there are no more PCs left in the country. But, the election to those PCs will be indefinitely put off by amending the PC elections law. The amendment they intend bringing to the PC elections law is to introduce the hybrid first-past-the-post and proportional representation system that has been introduced at the local government level, to the PC level as well.

Once this amendment goes through, the PC elections can be postponed indefinitely on the excuse that the delimitation of the constituencies is taking time. This was the same excuse that was used to postpone the LG elections. The way the government intends changing the PC elections law is also not through the front door by gazetting a new Bill and giving the Supreme Court time to scrutinise its constitutionality. Instead, they intend bringing in these changes through the back door in the form of committee stage amendments to a Bill that was gazetted some time ago, to increase female representation on provincial council election lists. This trick of introducing sweeping changes to Bills at the committee stage so as to be able to circumvent Supreme Court scrutiny is a new feature introduced by the good governance government. This was the means by which they recently amended the local government electoral system as well; they brought in committee stage amendments to a Bill drafted for a different purpose.

The bottom line is that the government can in fact make changes to the PC elections law with just a simple majority in Parliament. This will have the effect of indefinitely postponing the PC elections. But, due to the inability of the government to amend article 154E of the Constitution, the PCs will cease to exist one by one until there is not one left by the last quarter of 2019. This will be good news for all enemies of the 13th Amendment and the provincial councils system. The precedent thus created will be of immense use to them. The Eastern province PC will be among the first to cease to exist. The Northern PC will stand dissolved in 2018. The very system of devolution forced on Sri Lanka by India on 1987, will have been dismantled by a government that was installed in power by RAW! Of course the government will try to sweet talk the Northern and Eastern PCs by telling its councillors that this is only a temporary suspension and that with the promulgation of the new constitution, the PCs will be given even more powers and autonomy.

But, the new constitution is just a pie in the sky. If the government does not have a two-thirds majority for the 20 A, how will they muster a two thirds majority in Parliament for a new constitution? If the 20A is giving the SLFP group in the government cold feet, the presentation of a totally new constitution will send them into a blind panic because the new constitution will be such that it will restructure the whole Sri Lankan state in such a manner completely repugnant to the traditional SLFP voter. Every SLFP MP is acutely aware that he or she will have to get into Parliament the next time on SLFP votes. So, what is the likelihood of him voting for a new constitution that is being prepared by the UNP in collaboration with some foreign-funded NGOs? There is a strong possibility that if the existing PCs are allowed to stand dissolved and no elections are held immediately, that the PCs will permanently cease to exist.

The Mahinda Rajapaksa camp will have no incentive to revive the PCs because their people at the PC level can be taken into Parliament. SLFP provincial council members are largely with President Sirisena for reasons of power politics. The Rajapaksas can simply ignore the PCs altogether – and it won’t be them who will be responsible for having allowed the PC system to lapse – the good governance government will be responsible for that! Hence, every enemy of the 13th Amendment and the provincial councils system will be supporting the latest ploy of the government to avoid holding PC elections by allowing the PCs to stand dissolved but not having elections. Those who are for the provincial councils system will however raise a howl of protest saying that the government has decided that the electoral system for the PCs needs to be changed only at the eleventh hour when every other attempt at postponing the PC elections failed.

They will say that the government had nearly three years to change the system of elections for the PCs but they did not do so and now with just days to go for the first PCs to stand dissolved they are trying to bring amendments to the PC elections law through the back door so as to be able to put off elections to the PCs that will stand dissolved. Given this situation there is the possibility that the Northern and Eastern PCs will object to their PCs being allowed to lapse without elections being called immediately - so we have to see how things will work out in the end. In the meantime, the automatic dissolutions will begin next week with the Sabaragamuwa PC standing dissolved on 26 September followed by the North Central and Eastern PCs on the 30th and the 1st October. So the government will have to do some quick footwork if they are to head off the PC elections. In terms of the present PC elections law, the Elections Commission is obliged to call for nominations within a week of the dissolution of the PC.

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