Constitutional and legal deadlock over Provincial Councils


by C. A. Chandraprema

Last year, the government amended the Provincial Councils Elections Law by Act No: 17 of 2017. As a result of this amendment, elections have not been held to the Sabaragamuwa, Eastern and North Central provinces in the belief that the old law has been superceded by the new law and the new law requires the delimitation of constituencies which process is not yet complete and therefore no election can be held. According to Article 154E of the Constitution, a Provincial Council shall, unless sooner dissolved, continue for a period of five years from the date of its first meeting and at the expiration of this period of five years, the Provincial Council shall stand dissolved. At this moment the Sabaragamuwa, Eastern and North Central Provincial Councils have been dissolved in accordance with Article 154E but the holding of fresh elections is in abeyance.

 Under Section 10 of the provisions of the Provincial Councils Elections Act No: 2 of 1988, within one week of the dissolution of a Provincial Council by reason of the operation of article 154E of the Constitution, the Commissioner shall publish a notice of his intention to hold an election to such Council. The notice shall specify the period during which nomination papers shall be received by the returning officer of each administrative district. The nomination period commences on the fourteenth day after the publication of the notice of holding elections issued by the Elections Commi-ssioner.

 Once the nomination period is over, under Section 22(1)(c) of the Provincial Councils Elections Act No: 2 of 1988, the returning officer of each administrative district shall publish a notice in the Gazette specifying the date of poll, which shall not be less than five weeks or more than eight weeks from the date on which the Elections Commissioner published the notice announcing the election. It can be observed from the provisions of Article 154E of the Constitution and the Provincial Councils Elections Act No: 2 of 1988, that the holding of elections to provincial councils is basically an automatic process.

 When the five year term of a provincial council is up, it stands automatically dissolved. Thereafter, within a specified period of one week, the Elections Commissioner has to announce an election for that province and this notice has to include the dates on which nominations will be accepted. The Elections Commissioner has no discretion in the matter and the law lays out what he is mandatorily required to do. Once the nomination period is over it is the returning officer for each administrative district who will fix the date of the poll. So from the moment a Provincial Council stands dissolved, the holding of the next election takes place almost automatically.

 However this process did not kick in when the Sabaragamuwa, Eastern and North Central Provincial Councils stood dissolved around September/October last year because an amendment was passed to the Provincial Councils elections law. The question before us now is whether this amendment which was passed in the form of Act No: 17 of 2017 is legally operational and whether the Elections Commissioner is bound by it. What the Interpretation Ordinance says about enacting and repealing of laws is as follows:

=Section 3. No enactment shall in any manner affect the right of the State unless it is therein expressly stated, or unless it appears by necessary implication that the State is bound thereby.

= Section 6(2) Whenever any written law repeals in whole or part a former written law and substitutes therefor some new provision, such repeal shall not take effect until such substituted provision comes into operation.

 The question before us now is whether the Provincial Councils Elections (Amendment) Act No: 17 of 2017 which was passed last year is operational at all and whether the Elections Commission is bound by it. Section 4 of this amending Act envisages the creation of a Delimitation Committee which has to be appointed by the President within two weeks of the commencement of this Act, consisting of five persons. This Delimitation Committee’s task will be to divide each administrative district into such number of electorates as corresponds to fifty percent of the total number of members to be elected from such administrative district.

 Each electorate within an administrative district shall be entitled to directly return one or more members to a Provincial Council. The Delimitation Committee has to fulfill its responsibilities within four months of its appointment and thereafter submit its report to the Minister. When the Minister receives this report, he will table it in Parliament within two weeks. Thereafter the Delimitation Committee report has to be approved with a two-thirds majority in parliament. If Parliament does not approve of such report with a two thirds majority, within one month of it being tabled in Parliament, the Speaker will appoint a Review Committee, consisting of five persons, headed by the Prime Minister.

 The Review Committee is empowered to make any alteration to the names, numbers, and boundaries of any electorate and it has to complete its work within two months of the Minister having referred the report for its consideration and thereafter submit its report to the President. Upon the receipt of the report of the Review Committee, the President shall by proclamation publish the new number of electorates, the boundaries, names assigned to each electorate on the report submitted by the Review Committee.

 A Provincials Councils Delimitation Committee was appointed after the enactment of this Amending Act, and this Committee submitted its report which was duly tabled in Parliament in March this year and absolutely nothing has happened after that. According to the Provincial Councils Elections (Amendment) Act No: 17 of 2017, the Delimitation Committee report should have been approved with a two thirds majority within one month of it being tabled in Parliament. If that does not take place, a Review Committee should have been appointed under the chairmanship of the Prime Minister. But nothing has happened and the whole system is now in abeyance.

 In fact, virtually all the political parties represented in Parliament except the Sirisena-led SLFP are now having second thoughts about the whole system of elections that was introduced through this amending Act because of the disastrous result of the local government elections. Virtually everybody seems to prefer the old system to the new one introduced by this government. So the situation that we are now faced with is that the amending Act to the Provincial Councils election law that was passed last year, is not operational because the requirements relating to the delimitation of constituencies has not been completed.

 If the Amending Act is not operational, then in terms of Section 6(2) of the Interpretation Ordinance, it could be argued that the provisions of the old Act No 2 of 1988 are still valid and the next provincial council elections will have to be held according to the old law that we are all familiar with. If that is the case, when three more provincial councils including the Northern Provincial Council stands dissolved later this year in terms of Article 154E of the Constitution, then perhaps the Elections Commission should get activated under Section 10 of the Provincial Councils Elections Act No: 2 of 1988 as was the usual practice and set in motion the process of holding elections.

 Someone may suggest that a voter in the Sabaragamuwa, Eastern or North Central Provinces which are now without provincial councils should petition the Supreme Court asking for a clarification on this matter. The apparent indefinite postponement of PC elections to these provinces constitutes a violation of a fundamental right and there are grounds to petition the SC. But then again, someone else may suggest that the Elections Commission should simply go ahead and set in motion the process of holding elections in accordance with Sections 10 and 22(1)(c) and let the government go to courts get the process stopped if they can. Either way, something should be done to break the present deadlock.

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