The right to the franchise is recognised as a core element of the sovereignty of the people embodied in Article 3 of the Constitution. As an integral part of the notion of sovereignty, the right to the franchise ensures that people have the power to elect representatives who are to govern them, albeit at different levels. It is to be remembered that Article 3 is entrenched in the Constitution, meaning that any change to Article 3 would require the approval of the people at a referendum.
Article 4 lays down the way in which the sovereignty of the people is to be exercised and enjoyed. According to Article 4(e), “the franchise shall be exercisable at the election of the President of the Republic and of the Members of the Parliament and at every referendum by every citizen who has attained the age of 18 years and who, being qualified to be an elector as hereinafter provided, has his/her name entered in the register of electors”.
It is important to note that Article 4(e), in describing the way that the right to the franchise is to be exercised, stipulates the occasions on which this right may be exercised. Taken literally, the right to the franchise would be confined to situations that are included under Article 4(e) which do not include electing councillors to a Provincial Council (PC) or councillors and members to Local Government (LG) Authorities.
This was discussed in the case of Atukorale vs. the Attorney General (AG) (Supreme Court [SC] Special Determination Number 2 of 1995 – Chief Justice [CJ] G.P.S. de Silva, and Justices K.M.M.B. Kulatunga and Pathmanathan Ramanathan) where the court opined that Article 4(e) explains how the right to the franchise is to be exercised, which is limited to the election of the President and Parliamentarians and every referendum. It does not cover the exercise of the franchise at elections pertaining to the Pradeshiya Sabhas (PSs), the latter which is an LG body. If Parliament desires the expansion of Article 4(e) by including the franchise exercisable at elections not specified therein, it can be appropriately amended, but, it is noteworthy that hitherto no such amendment has been affected.
The court, in the above case, also went on to note that even the right to the franchise with regard to PCs has not been specifically recognised under the Constitution and that while the Legislature had the opportunity of including such a right under Article 4(e) when it implemented the 13th Amendment to the Constitution, it had opted not to, and that that signifies an intention on the part of the Legislature not to include such a right within the ambit of the “right to the franchise” in Article 4. In arriving at this conclusion, the court referred to the decision with regard to the 13th Amendment, where the full bench which decided the case (CJ Suppiah Sharvananda and Justices, President’s Counsel (PC) Raja Sirimevan Wanasundera, Percy Colin-Thome, K.A. Parinda Ranasinghe [as he was then – later the CJ], E.A.D. Atukorale, Herbert Dharmarajah Tambiah [as he was then – later the CJ], Lucian Hector de Alwis, O.S.M. Seneviratne and Hethumuni Ananda Gunasena de Silva) was of the opinion that Article 4, which is not an entrenched Article in the Constitution, therefore, could have been amended by a two-thirds majority of Parliament without having recourse to a referendum, as long as such amendment did not infringe upon the sovereignty of the people as provided under Article 3.
However, the court in the case of Atukorale vs. AG did not go to the extent of discussing whether the inclusion of either PCs or PSs would not have infringed upon the sovereignty of the people as envisaged under Article 3. Further to this, in the case of Wijesekera and Others vs. the AG, the Court (SC Fundamental Rights [FR] 243-245/06 – CJ Sarath Nanda Silva PC and Justices Chandra Nihal Jayasinghe, Nissanka K. Udalagama, Mark Damien Hugh Fernando PC, and Ranasinghe Arachchige Nimal Gamini Amaratunga) opined that “the right to have a PC constituted by an election of the members of such council pertains to the franchise being a part of the sovereignty of the people and its denial is a continuing infringement of the right to the equal protection of the law guaranteed by law under Article 12(1)”. It is evident from this decision of the court that the arguments made in the former case do not hold water anymore.
Another point that can be highlighted regarding the arguments put forward in the decision of Atukorale vs. the AG is that Article 4(a), which deals with the exercise of the legislative power of the people, only includes the “Parliament, consisting of elected representatives of the people and by the people at a referendum”, and that it does not include PCs although PCs do exercise legislative power, which is evident from the three separate lists included in the Constitution after the 13th Amendment to the Constitution, where List One deals with exclusive subject matter falling within the legislative competencies of the PCs.
Another argument that may be put forward in support of denying a right to the franchise in a PS election is to de-link the FR from the franchise. This is because Article 3 recognises the right to the franchise separately from FR. One may therefore argue that the right to the franchise should be considered as a sui generis (of its/their own kind/in a class by itself/unique) right which should stand independently of fundamental rights (FR) and that an FR to the franchise is superfluous if such an independent right exists.
However, there have been instances in which the SC has utilised FR provisions in upholding and enhancing the right to the franchise. In the case of Karunathilaka and Another vs. Dayananda Dissanayake, Commissioner of Elections and Others (SC Application 509/98 – CJ G.P.S. de Silva and Justices Fernando PC and D.P.S. Gunasekera), the court opined that “the right to vote at an election is also a part of the right to the freedom of expression as guaranteed under Article 14(1)(a) of the Constitution which would be breached by not holding free and fair elections so as to enable the people to exercise their freedom of expression through a ballot paper at the Local Council elections”.
In linking the right to the franchise with the freedom of speech and expression, Justice Fernando PC opined that “the silent and secret expression of a citizen’s preference between one candidate and another by casting his/her vote is no less an exercise of the freedom of speech and expression than the most eloquent speech from a public platform”. Although the argument was put forward that a breach of the right to the franchise cannot be considered a breach of an FR since the right to the franchise does not appear under Chapter III of the Constitution, the court rejected this contention and declared that “concepts such as ‘equality before the law’, ‘the equal protection of the law’, and the ‘freedom of speech and expression, including publication’, occurring in a statement of constitutionally entrenched FR, have to be broadly interpreted in light of the fundamental principles of democracy and the rule of law which are the bedrock of the Constitution”.
Even if one was to concede that FR and the right to franchise should be taken separately, as argued in Atukorale vs. the AG, if voting in a PS election is not a part of the exercise of the right to the franchise as envisaged under Article 4(e), it would be irrational to also argue that such voting would not be a part of the freedom of expression and speech. It would be against the notion of sovereignty not to ascribe any importance either in terms of Article 4(e) or the FR provisions of the Constitution, to the right of an individual to vote and elect councillors and members at the LG level, as the representatives so elected would have a say in the daily affairs of such voters.
In the case of Mediwake and Others vs. Dayananda Dissanayake, Commissioner of Elections and Others (SC Application 412/99 – Justices Fernando PC, S.W.B. Wadugodapitiya PC, and Ameer Ismail), the court opined that “the right to a free, equal, and secret ballot is an integral part of the citizen’s freedom of expression when he/she exercises that freedom through his/her 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), 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 (“The State shall promote international peace, security, and cooperation, and the establishment of a just and equitable international economic and social order and shall endeavour to foster respect for international law and treaty obligations in dealings among nations”)”.
In a slightly different context, in the case of Premachandra vs. Maj. Montague Jayawickrema and Another (CJ de Silva, and Justices Dr. Shirani Bandaranayake [as she was then – later the CJ] and Fernando PC), elaborating on the nature of the discretion given to a Governor of a PC under Article 154(F)(4), the court opined that “by the exercise of the franchise, the people of each province elect their representatives, for the purpose of administering their affairs”. What is significant about this portion of the judgement is that the court did use the word franchise to denote a right vested in the people to elect their representatives who would make decisions that would affect their rights. It was based on this rationale that the Governor was prevented from exercising his/her discretion in an arbitrary manner concerning the appointment of a Chief Minister in a province. The underlying idea was that the Governor was trusted with his/her authority to serve the people as a trustee of the power of the people.
The nexus between the concept of public trust and the franchise was explained in Azath Salley vs. the Colombo Municipal Council and Others (SC FR Application 252/2007 – Justices Dr. Bandaranayake [as she was then], Amaratunga and Jagath Balapatabendi), where the court opined that “the concept of public trust is an accepted doctrine that the resources of the country belong to the people. Sri Lanka’s sovereignty is in the people in terms of Article 3 and is inalienable and includes the powers of the Government, the FR, and the franchise, and the people have committed the care and preservation of their resources to the organs of the State, which are their guardians or trustees.” This clearly epitomises the fact that ensuring the right to the franchise is linked to the concept of public trust, in that the rulers of the country as trustees of the sovereignty that belongs to the people are required to ensure that the sovereignty is exercised by the people at an election (at whatever tier it may be) by electing their representatives who would make an impact on the daily affairs of their lives.
The lack of financial resources is one strong argument that could be put forward for the postponement of elections. Even if the right of the people to elect their representatives has been acknowledged as a part of the FR, it is possible to argue that such a right is curtailed by Article 15 by alluding to the financial difficulties involved in allocating resources for conducting an election – “a restriction in the interest of national economy”. However, it is to be noted that if such an argument is to be put forward, the fact that the lack of financial resources would constitute a ground for the curtailment of the FR would have to be prescribed by the law according to Article 15(7).
In simple terms, this would require that there be a specific law that allows the postponement of elections due to a lack of financial resources and that in the absence of such a law, such an argument cannot be sustained.
It is also important to point out that there can be no automatic application of Article 15(7) either. In considering whether the measures taken to curtail the FR, which are guaranteed under the Constitution, are justifiable, the principle of proportionality should be employed.
This was decided in the case of Sunila Abeysekera vs. Ariya Rubasinghe, Competent Authority and Others (SC Application 994/99 – Justices Dr. A.R.B. Amerasinghe, Wadugodapitiya and Lakshman Weerasekera), where Justice Dr. Amerasinghe held that “exceptions to Article 14(l)(a) must be narrowly and strictly construed for the reason that the freedom of speech constitutes one of the essential foundations of a democratic society”. He further noted that “proportionality is inherent in Article 15(7) read with Article 155(2) (“The power to make emergency regulations under the Public Security Ordinance or the law for the time being in force relating to public security shall include the power to make regulations having the legal effect of overriding, amending, or suspending the operation of the provisions of any law, except the provisions of the Constitution.”)”. The importance of this decision lies in the fact that where the proportionality of a decision is put into question, it would be for the decision maker to establish that the decision is proportionate and not for the claimant to prove that it is disproportionate.
In conclusion, it can be stated that while a literal reading of Article 3 in conjunction with Article 4(e) may lead to the conclusion that the right to the franchise is not available with regard to electing councillors to a PC or councillors and members to the LG Authorities since it is not specifically mentioned under Article 4(e), there is still scope for judicial activism. The Judiciary has a crucial role in such situations as identified in the case of Ven. Omalpe Sobhitha Thera vs. Dayananda Dissanayake and Another (SC FR 278/2005 – CJ Silva, and Justices Chandra Nihal Jayasinghe, Udalagama, Nimal Dissanayake, and Amaratunga), where the court held that “the judicial act of interpretation and appraisal is imbued with creativity and realism and since interpretation always implied a degree of discretion and choice, the court would adopt such particularly in areas such as constitutional adjudication dealing with social rights. Courts are held as finishers, refiners, and polishers of legislatures which give them a state requiring varying degrees of further processing”.
(Harankaha is the Head of the Commercial Law Department of the Law Faculty of Colombo University while Thilakarathna is attached to the Public and International Law Department of the same faculty as a lecturer [Unconfirmed])
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The views and opinions expressed in this article are those of the authors, and do not necessarily reflect those of this publication.