By Skandha Gunasekara Acting in line with the Supreme Court (SC) determination on President Maithripala Sirisena’s questions regarding the holding of provincial council (PC) elections would not be mandatory per se, but it would be persuasive nevertheless, The Sunday Morning learnt. The said determination was to be forwarded to the President along with a copy to the Speaker of Parliament by last Friday (30). Bar Association of Sri Lanka (BASL) Secretary Senior Attorney-at-Law Kaushalya Nawaratne told The Sunday Morning that the said determination, as is with all such determinations, would be more persuasive than mandatory. “It is not a Supreme Court ruling, but a determination. Therefore, it is not mandatory to follow its advice. It is more of a persuasive determination,” he said. As such, it is vital to focus attention upon the precedents contained in some of the intervenient petitions that responded either affirmatively or negatively to the questions. Franchise, a fundamental right – CPA Authoritative precedents highlighted by the Centre for Policy Alternatives (CPA): -- Wijesekera vs. Attorney General (2007) 1 SLR 38 (famous North and East demerger case) The petitioners, residents of Trincomalee and Digamadulla Districts within the Eastern Province, complained – the proclamation declaring the provisions of Section 37 (1) of the Provincial Councils Act shall apply to the Northern and Eastern Provinces, which resulted in these two provinces forming one administrative unit (i.e. merger) denying the petitioners equal protection of the law guaranteed by Article 12 (1).

In Somawathi De Zoysa alias Kumarasinghe vs. Jayasena Fernando 2005 1 SLR 10, the Supreme Court gave effect to the above principle albeit in a slightly modified manner. The Court opined: “The provisions of a statute must be construed with reference to the context and with due regard to the object to be achieved and the mischief to be prevented. Where two views are possible, an interpretation which would advance the remedy and suppress the mischief it contemplates is to be preferred.”

“The right to have a provincial council constituted by an election of members of such council pertains to the franchise being part of the sovereignty of the people, and its denial is a continuing infringement of the right to the equal protection of law guaranteed by Article 12 (1) of the Constitution. “Thus, the electoral and consultative processes being the vital concomitants of democracy ingrained in the name of the Republic in Article 1 of the Constitution, have been effectively stymied. “The infringement pleaded is the failure to constitute a provincial council for the Eastern Province as required by Article 154A (2) of the13th Amendment to the Constitution, and the continued denial to the electors of the Eastern Province including the petitioners the right to vote at an election for the members of such council…” --Mediwake and others vs. Dayananda Dissanayake (SC Application No. 412/99) The right to a free, equal, and secret ballot is an integral part of the citizen’s freedom of expression, when he exercises that freedom through his right to vote, it makes no difference whether that right is constitutional or statutory. That right is an essential part of the freedom of expression recognised by Article 14 (1 )(a) of the Constitution, especially in view of Sri Lanka’s obligations under Article 25 of the International Covenant on Civil and Political Rights and Article 27 (15) of the Constitution. --Mohamed Hussain Hajiar Muhammad vs. Election Commission of Sri Lanka (SC FR No. 35/2016) (Priyasath Dep PC CJ) “There is no justification in delaying the holding of elections. There is no provision in law to keep on extending the period indefinitely. Franchise would mean right to vote and citizens should not be denied of such right or privilege…Citizens expect to elect new members at the end of such period. That right should not be denied. In the case in hand as observed above, there could be impediments to hold elections and this court is mindful of same, but there cannot be an inordinate delay to hold elections. There is a legitimate expectation of the people to elect members…of their choice. “Franchise is a fundamental right enjoyed by people. Article 3 of the Constitution states: ‘In the Republic of Sri Lanka, sovereignty is in the people and is inalienable. Sovereignty includes the powers of the government, fundamental rights, and the franchise.’ Franchise is a fundamental right recognised under Article 10 and 14 (1) of the Constitution. The failure to hold elections on the due date or postponing is a violation of a fundamental right of the people. Under Article 4 (d) of the Constitution, the fundamental rights which are by the Constitution declared and recognised shall be respected, secured, and advanced by all organs of the government and shall not be abridged, restricted, or denied save in the manner and to the extent hereinafter provided. In the present case, the legislature as well as the Executive had violated this Article.”

According to the judgment in Sharif-ud-Din vs. Abdul Gani Lone AIR 1980 SC 303, it was held by the Supreme Court of India that, the word “shall” itself is not conclusive proof that a particular legislation is mandatory. In addition, in the case of Fernando vs. Ceylon Breweries Ltd. (1998) 3 SLR 61, it was held that when it was a question of jurisdiction, time frames have to be fulfilled. Arguing that the right to vote was an inalienable right enshrined in the Constitution, the petition stated that the BASL consistently stands for protection of the franchise of the people

In the Indian case Chief Justice of Andhra Pradesh vs. L.V.A. Dixitulu, cited in Bindra’s Interpretation of Statutes (Eighth Edition – p. 860), it is stated that: “Where two alternative constructions are possible, the Court must choose the one which will be in accord with the other parts of the statute and ensure its smooth, harmonious working, and eschew the other which leads to absurdity and confusion or friction, contradiction, and conflict between its various provisions or undermines or tends to defeat or destroy the basic scheme and purpose of the enactment. These canons of construction apply to the interpretation of our (i.e. Indian) Constitution with greater force, because the Constitution is a living integrated organism, having a soul and consciousness of its own. The pulse beats emanating from the spinal cord of the basic framework can be felt all over its body, even in the extremities of its limbs. Constitutional exposition is not mere literary garniture, nor a mere exercise in grammar.” In Somawathi De Zoysa alias Kumarasinghe vs. Jayasena Fernando 2005 1 SLR 10, the SC gave effect to the above principle albeit in a slightly modified manner. The Court opined: “The provisions of a statute must be construed with reference to the context and with due regard to the object to be achieved and the mischief to be prevented. Where two views are possible, an interpretation which would advance the remedy and suppress the mischief it contemplates is to be preferred.” Right of franchise, inalienable The Bar Association of Sri Lanka (BASL) in its application responding cited two authorities Fernando vs. Ceylon Breweries Ltd. (1998) 3 SLR 61 and Sharif-ud-Din vs. Abdul Gani Lone AIR 1980 SC 303 to the following question: “In view of the review committee failing to submit its report to me in accordance with Subsection (13) and (14) of Section 3(A) of the Provincial Councils Election Act No. 2 of 1988 as amended by Act No. 17 of 2017, whether, I, as President, can by proclamation forthwith publish the new number of electorates, the boundaries, and names assigned to each electorate so created in terms of the report of the delimitation committee submitted to the Minister assigned the subject of Provincial Councils.” According to the judgment in Sharif-ud-Din vs. Abdul Gani Lone AIR 1980 SC 303, it was held by the Supreme Court of India that, the word “shall” itself is not conclusive proof that a particular legislation is mandatory. In addition, in the case of Fernando vs. Ceylon Breweries Ltd. (1998) 3 SLR 61, it was held that when it was a question of jurisdiction, time frames have to be fulfilled. Arguing that the right to vote was an inalienable right enshrined in the Constitution, the petition stated that the BASL consistently stands for protection of the franchise of the people. “…the right of franchise of the people which is an inalienable right in terms of Article 4 (e) read with Article 3 of the Constitution would be affected by the non-holding of provincial council elections for whatever reason. “The use of legislative provisions or their abuse designed to violate the franchise of the people ought not be encouraged. Thus, ideally if the question had been posed with regard to how best the right of franchise of the people regarding the provincial council 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 report and an amendment giving the right to the President to accept the delimitation committee 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.”