By Skandha Gunasekara The apex court of the country – the Supreme Court (SC) – last Friday (23) concluded arguments related to the reference application forwarded by President Maithripala Sirisena seeking an opinion regarding the holding of provincial council (PC) polls, with parties arguing both affirmatively and negatively over the issues raised. Thirteen intervenient petitions had been filed, with the majority of submissions by both the official (i.e. Attorney General [AG]) and non-official bar, responding to the three questions posed by President Sirisena in the negative with the remaining in the affirmative. In addition, counsel appearing for the AG informed the SC that the enactment of the Provincial Councils Elections (Amendment) Act No. 17 of 2017 had come into operation from the date certified by the Speaker and as a result, the provincial council (PC) elections cannot be held under the previous system i.e. proportional representation (PR). Thus, it was further argued that PC polls can be held under the previous system only through an amendment or repeal brought before Parliament. Meanwhile, out of 13 intervenient petitions, policy think tank Centre for Policy Alternatives (CPA) argued in the affirmative to the President’s questions while the Bar Association of Sri Lanka (BASL) responded in the negative. Sovereignty of the People – CPA The CPA, in its observations submitted to the SC, has recommended that the Court direct the President that “elections for the relevant provincial councils should be held without any further delay”. A: Violation of sovereignty With regard to its argument that a delay in holding elections would violate the sovereignty of the citizens of Sri Lanka, the CPA cites Article 3 of the Constitution: “In the Republic of Sri Lanka, sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights, and the franchise.” As well as Article 4 (e), which states: “The franchise shall be exercisable at the election of the President of the Republic and of the Members of Parliament and at every referendum by every citizen who has attained the age of 18 and who, being qualified to be an elector as hereinafter provided, has his name entered in the register of electors.” The CPA then pointed out that the SC, on multiple occasions, had upheld the position that simply because PC and local government elections were not mentioned in Article 4 (e), it did not mean that voting in those elections wasn’t part of the franchise stipulated in Article 3. “Your Lordships’ Court has, in several cases, upheld the position that merely because PC and local authorities are not specifically mentioned in Article 4 (e) of the Constitution, does NOT mean that voting in those elections are NOT part of the franchise recognised by Article 3.” B: Power to issue a proclamation publishing the delimitation committee report Pertaining to point B of its petition, the CPA noted that the review committee appointed had a period of only two months to submit a report to the President and that the two-month stipulation was mandatory. According to Section 3A (12) of the Provincial Councils Elections Act (as amended), the review committee is to be appointed in the instance where the delimitation report is not approved by Parliament. S 3A (14) states: “The review committee shall fulfil its responsibilities and duties in terms of Subsection (13), within two months of the Minister having referred the report for its consideration and thereafter submit its report to the President.” Such a review committee was appointed on 28 August 2018 by Speaker of Parliament Karu Jayasuriya. However, the CPA notes that it had been almost a year since the review committee was appointed and that a lack of a report from the review committee should not negate the ability for the people to exercise their franchise concerning the provincial polls. C: PC polls should be held immediately “As Your Lordships’ Court held in S.C. (SD) No. 20/2017 to S.C. (SD) No. 32/2017: ‘Delay in exercising the franchise will affect the fundamental rights of voters’.” D: S 6 (2) of Interpretation Ordinance does not apply In light of the above, it is respectfully submitted that elections for the relevant PC can take place under the existing law. Thus, the (final) question posed by the President becomes irrelevant. Protection of franchise in line with BASL’s stance In its application, the BASL responding negatively dealt with the questions referred by the President as follows: Question A Firstly, the review committee’s failure to submit a report in terms of Subsection 13 and Subsection 14 of S 3A of the Provincial Councils Elections Act No. 2 of 1988 as amended by Act No. 17 of 2017 does not in any way revive a report which has already been rejected by Parliament. Secondly, the non-submission of the report by the review committee within the given time frame in S 3A (14) of the aforesaid Act does not empower the President to act using a report rejected by Parliament. S 3A (15) has a precondition for the President to act; the precondition being the receipt of report of the review committee. Therefore, in the absence of the report by the review committee, S 3A (15), which empowers the President to issue a proclamation, cannot be resorted to by the President. This is so as Article 33 (2) (h) of the Constitution as amended by the 19th Amendment permits the President only to do all acts and things not inconsistent with the provisions of the Constitution or any other written law...the President is authorised or required to do. This means he cannot do something that is inconsistent with the Constitution or other written law. Accordingly, it is respectfully submitted that the answer to question “A” ought to be that, the President is not entitled to act on the report of the delimitation committee submitted to the Minister assigned to the subject of PCs which has been rejected by Parliament. Question B In view of the answer given above, it is respectfully submitted, question “B” does not arise since a proclamation cannot be made by the President unless the specific pre condition given in S 3 A (15) as amended by Act No. 17 of 2017 is satisfied. Question C This question, if framed properly, presupposes of an inability to hold PC elections. Firstly, S 3A, which introduces Subsection 15, is a new provision of law and it has not come in place of another provision of law which has been repealed. Therefore, when interpreting S 3A or any Subsection of that Section, S 6 (2) of the Interpretation Ordinance cannot be made use of. Secondly, the Amendment Act No. 17 of 2017 has already come in to operation. Due to this reason too, the question of applying S 6 (2) of Interpretation Ordinance does not arise. It is only the delimitation report that has been rejected by Parliament and not the Act itself. Therefore, it is respectfully submitted that question “C” too ought to be answered in the negative as S 6 (2) of the Interpretation Ordinance would not have any application to the present Act. Thus ideally, if the question had been posed with regard to how best the right of franchise of the people regarding the PC elections could be ensured, that aspect could have been gone into by Your Lordships’ Court. Had that question been posed, an amendment to the Act no. 17 of 2017 to dispense with the requirement of the review committee’s report and an amendment giving the right to the President to accept the delimitation committee’s report disregarding the rejection of it by Parliament, could have been suggested. This would have ensured the protection of the franchise of the people in line with what the BASL consistently stands for. We are ready: Polls Chief Meanwhile, the Election Commission (EC) Chairman told The Sunday Morning that it was ready to hold PC elections if the SC determined so. “If the SC gives a determination in favour of holding provincial polls, we are ready,” EC Chairman Mahinda Deshapriya said. Additionally, Deshapriya said that it would cost an estimated Rs. 4 billion.