GL challenges postponement of PC elections in SC

By S.S. Selvanayagam

Prof. G.L. Pieris yesterday filed a fundamental rights petition challenging the decision of the Elections Commission to indefinitely postpone the Provincial Council Elections which already stand dissolved.

 He is seeking an order from Court for steps to be taken to conduct the election for the Sabaragumuwa, North Central and Eastern provincial councils.

 He cited the Elections Commission Chairman Mahinda Deshapriya, the commission’s members, Speaker of Parliament Karu Jayasuriya and the Attorney General as respondents.

He states that the indefinitely postponing the elections for several  of the Provincial Councils which already stand dissolved by operation of Article 154E of the Constitution, constitute an infringement of the Fundamental Rights of the petitioner and of the people guaranteed by Articles 10, 12(1) and 14(1)(a) of the Constitution.

 He says that the presently constituted Sabaragamuwa Provincial Council, duly elected by the people in 2012, stood dissolved on 27 September 2017 and the North Central as well as the Eastern Provincial Councils stood dissolved on 1 October 2017.

The petitioner says that certain purported amendments surreptitiously introduced at the Committee Stage in Parliament to the Bill entitled Provincial Councils Elections (Amendment) on or about 20 September 2017 and passed by Parliament on the same day and a narrow interpretation thereof by the Elections Commission has resulted in the postponement indefinitely of the due conduct of the Provincial Councils Elections including inter alia the elections to the Sabaragamuwa, North Central and Eastern provincial councils.

The Petitioner states that the said Bill entitled ‘a Bill to amend the Provincial Councils Elections Act’, was published in the supplement issued on 10 July 2017 to Part II of the Gazette dated 7 July 2017, and placed on the order paper of Parliament on or about 26 July 2017.

The said bill did not in its long title state that it was intended to be a bill for the amendment of the Constitution, he states.

He states that the provisions of the said bill as placed on the Order Paper of Parliament pertained to certain amendments with regard to the representation of women in provincial councils.

 He states thereafter another bill entitled the ‘Twentieth Amendment to the Constitution’ was published in the supplement issued on 3 August 2017 to Part II of the Government Gazette dated 28-July 2017, and placed in the Order Paper of Parliament on 23 August 2017.

The petitioner states that the said bill entitled the ‘Twentieth Amendment to the Constitution’ was challenged by a large number of petitioners including himself, before the Supreme Court, on the grounds inter alia that the said Bill seeks to empower Parliament to extend or curtail the term of one or more provincial councils elected by the people in the exercise of their franchise which is included in the inalienable sovereignty of the people, and the said Bill is motivated by political expediencies of the Government and is irrational, arbitrary and capricious and is patently lacking in bona fides.

He says that the Supreme Court determined in the said SC SD 20-32/2017 that clauses 2, 3 and 4 of the said bill i.e. all operative clauses thereof, is inconsistent with Articles 3, 4, 12(1) and 14(1) of the Constitution and requires the approval of the people at a referendum by virtue of the provisions of Article 83.

 He states the said determination was communicated by the Supreme Court on or about 15 September 2017 and read in Parliament on 19 September 2017.

Shortly thereafter, on 20 September 2017, certain amendments were introduced at the Committee Stage in Parliament, to the said Bill entitled ‘Provincial Councils Elections (Amendment)’, which said Committee Stage amendments, sought to achieve indirectly what could not be achieved by the Government directly by the said 20th Amendment to the Constitution Bill, he asserts.

The said purported Committee Stage amendments, which were subsequently passed as pleaded below, would - if interpreted as sought to be interpreted by the Elections Commission or any one or more of them as pleaded below, in complete disregard of the overriding provisions of the Constitution and the Supreme Court’s determination would have the effect of suspending indefinitely the provisions of the Provincial Councils Act No.2 of 1982 and the holding of Provincial Councils Elections, in blatant violation of the sovereignty and franchise of the people preserved under Articles 3 and 4 of the Constitution, as well as the Fundamental Rights guaranteed to the petitioner and the people under inter alia Articles 10, 12(1) and 14(1)(a) of the Constitution.

He states the said bill, including the purported Committee Stage amendments, was passed in Parliament on 20 September 2017, by a special majority and certified by the Speaker as having been “duly passed by Parliament”, despite it contravening the provisions of Articles 82 and 83 of the Constitution.

 He states that the Speaker and the Attorney General have eroded and negated the effect of the constitutional right conferred on the people by Articles 120 and 121 to invoke the jurisdiction of Supreme Court to challenge any bill which is inconsistent with the provisions of the Constitution.

 He states the said decision of the Elections Commission that by reason of the provisions of the said Amending Act No.17 of 2017, the Provincial Council Elections cannot be held and steps cannot be taken as mandated by Section 10 of the Provincial Councils Elections Act No.2 of 1982 to conduct elections for the Provincial Councils, i.e. including inter alia elections for the Sabaragamuwa, North Central and Eastern Provincial Councils which already stand dissolved by the operation of Article 154E of the Constitution - is violative of Article 84(3) of the Constitution and is illegal, completely arbitrary, capricious, unreasonable and motivated by extraneous considerations and political expediencies of the Government, and constitutes an infringement of the fundamental rights of the petitioner and of the people guaranteed under Articles 10, 12(1) and 14(1)(a) of the Constitution, as well being inconsistent with Articles 3 and 4 of the Constitution. Such conduct on the part of the first to third respondents would erode the very foundation of the rule of law.