Editorial/Opinion

Election heat returns; pendulum sways towards EC

o EC to discuss ground situ and call for report from health authorities
o Govt. to look at South Korean elections and Indian election model

Black Box by Capt. Vasabha

Despite the fate of the 2020 general election taking centre stage these days, last week witnessed one of the most low-key celebrations of the Sinhala and Tamil New Year in our times. It was a time for reflection, more than any other time.

Even the First Citizen, President Gotabaya Rajapaksa, celebrated the New Year at his private residence in Mirihana.

Traditional New Year celebrations in the hometown were not to be this year due to the lockdown in place in a bid to combat the Covid-19 global pandemic.

After the dawn of the New Year, the President wished his elder brothers Minister Chamal Rajapaksa and Prime Minister Mahinda Rajapaksa over the telephone and afterwards telephoned his younger brother, Basil Rajapaksa, who is the Head of the Presidential Task Force providing relief to the public.

Prime Minister Rajapaksa and his family spent the New Year at their hometown in Carlton House. Minister Mahinda Amaraweera, who was also in Tangalle for the New Year, had visited the Prime Minister on Tuesday (14) to extend warm wishes for the New Year.

The Premier, on Wednesday (15), had visited Medamulana to wish his elder brother Chamal.

The President and Basil Rajapaksa returned to work the following day to ensure the smooth functioning of the mechanism put in place to combat Covid-19.

The President’s public relations centre was flooded with many telephone calls from the public. With over 50 dedicated telephone lines and a staff of over 75 working 24 hours a day, the centre is now a hive of activity. As of last week, the President’s public relations centre had received over 35,000 telephone calls from the public expressing their grievances.

It is in this backdrop that the Government decided to explore the possibilities of resuming economic activities in the country in order to revive the country’s economy.

President Rajapaksa last week chaired a meeting to explore the possibility of the immediate resumption of day-to- day economic activities at provincial level in order to safeguard the national economy.

The President’s Media Division noted that several representatives of the health sector including all the provincial directors of health briefed the President on the current situation in the country, at the meeting held at the Presidential Secretariat.

Partial lifting of lockdown

While the Government contemplated the partial lifting of the lockdown and the President sought recommendations from the health sector on an exit strategy, United National Party (UNP) Leader, former Prime Minister Ranil Wickremesinghe stated that Sri Lanka should partially lift the lockdown imposed to combat Covid-19 in order to keep the economy going.

Wickremesinghe said during an interview with foreign media that it was necessary that Sri Lanka partially lift the lockdown for economic revival and keep rigorously testing like countries such as South Korea and Germany.

“This is the most challenging period after World War II; we are going to see a downside in the global economy. Furthermore, there is no visible global leadership in response to the pandemic.”

Speaking of the Government’s response to the coronavirus outbreak, he said the lockdown has been “successful so far”.

“The health sector and the military are doing a wonderful job.”

However, he said, the Government had lagged behind in terms of ensuring adequate stocks of testing kits, face masks, and more ventilators.

“The Government should have arranged these by January,” Wickremesinghe added.

Meanwhile, senior UNPers together with the Party Leader had also discussed how to extend support to the Government to combat Covid-19.

Apart from that, they also discussed the need to meet with the Election Commission (EC) to discuss the impending general election and concerns.

UNP Assistant Leader Ravi Karunanayake, in writing, requested a meeting from the EC.

Meanwhile, the Janatha Vimukthi Peramuna (JVP) and Samagi Jana Balawegaya (SJB) have also, in writing, requested for meetings with the EC to discuss the general election.

The EC has however maintained that discussions with political parties could be held only after discussing the current situation in the country with department officials and other relevant officials. Govt. and elections

Be that as it may, it is evident that the Government is keen on holding elections and having a new Parliament in place by the first week of June as legally stipulated.

When considering the holding of parliamentary elections, senior government officials have closely monitored the recently concluded general election in South Korea and the manner in which the election progressed despite the threat of Covid-19.

South Korea’s general election saw its left-leaning governing party achieving a landslide victory when results were announced on Thursday (16).

Foreign media reported that the victory showed the confidence of the public in President Moon Jae-in’s successes in containing the coronavirus.

Moon’s Democratic Party and its allies took 180 seats in the 300-member National Assembly, while the Opposition, United Future Party (UFP), won 103.

South Korea’s voting system combines direct and proportional votes.

Strict safety measures were introduced by the South Korean authorities to ensure voters’ safety and prevent the spread of Covid-19 in the country.

Voters had their temperature checked on arrival and wearing masks and gloves was made compulsory.

According to foreign media, about 14,000 polling stations were open at 6 a.m. (0900 GMT) around the country after disinfection, and voters were required to wear a mask and have their temperature checked upon arrival. Anyone whose temperature was higher than 37.5 degrees Celsius (99.5 Fahrenheit) was led to a special booth.

All voters had to use hand sanitiser and plastic gloves when casting ballots and maintain one metre (40 inches) distance between each other.

Apart from the elections in South Korea, the President Rajapaksa-led Government is also looking at the manner in which elections are held in neighbouring India.

Elections in India are spread across several days and given the lockdown of several red zones in the country, the Government is also considering the holding of elections on a scattered basis.

Much emphasis has been laid on the fact that the authorities have managed to contain the spread of the virus to areas within the red zones.

Debate on elections

However, the EC is to meet tomorrow (20) to discuss the holding of the 2020 general election and its modalities. It is learnt that the EC is considering requesting a report from the health authorities on the latest situation of Covid-19 in the country before making a final call on when the election would be held.

The past few days have seen the EC coming under pressure from parties affiliated to the Government calling on the Commission to announce the date of the general election as is mandated by the Commission without trying to pass the buck to the Supreme Court to make an observation.

However, tomorrow’s meeting at the EC would see authorities representing key sectors like health, security, and public administration coming together to discuss the ground situation and whether it is conducive to hold elections. After this discussion, the EC is expected to request a written report from the Director General of Health before making a final call on Saturday (25).

In the event the health authorities give an all clear to hold elections, the EC is likely to announce a date to hold elections during the last week of May.

Meanwhile, Archbishop of Colombo Cardinal Malcom Ranjith last week joined a majority of Opposition political parties that have been calling for a further postponement of the general election until the Covid-19 threat is eliminated from the country.

Last Thursday (16), he urged the Government not to hold elections at this point due to the volatility of the coronavirus outbreak.

Addressing the media on the commemoration event of the anniversary of the Easter Sunday attacks, Cardinal Ranjith said that the Covid-19 situation in Sri Lanka was still not under control.

“I don’t think this is an appropriate time to hold elections. As of this morning, there were 238 Covid-19-infected persons and there are thousands more under quarantine in detention centres across the country. It is clear we have not been able to contain the situation,” the Cardinal said.

He said that the reports of new cases must cease before it could be considered that things are “under control”.

“When there has been a prolonged period of time without any reports of new Covid-19 cases, then we can say that things are better and the situation is under control. Therefore, I don’t think we should have elections at this point in time,” Cardinal Ranjith said, adding that elections are not and should not be the priority. Constitutional crisis

It is in this backdrop that former Speaker Karu Jayasuriya has urged the Government and the Opposition to put their differences aside and work toward avoiding a constitutional crisis.

Issuing a statement to the media, Jayasuriya said that the Government and Opposition must engage with the EC and with each other urgently and in good faith and if there are any precautions or new laws that the Commission determines would allow it to safely hold elections in time, these must be explored immediately.

“The Government is of the view that there is not necessarily any impediment to holding parliamentary elections on or before 28 May 2020.”

“It is the position of the Election Commission that the prevailing situation and logistical constraints prohibit parliamentary elections from being held in time for the new Parliament to be summoned to meet by 2 June 2020.”

He said in the event holding elections in time is not possible, a constitutional crisis must be avoided at all costs. Jayasuriya further warned that such a crisis entails the risk of delegitimising and destabilising the country and could gravely impact Sri Lanka’s prospects of obtaining economic relief.

Every country in the world is putting political differences aside and uniting to face this threat. Sri Lanka is the only democracy to face Covid-19 crisis without a legislature to pass laws and financial appropriations to combat the pandemic and its economic consequences, Jayasuriya added.

“In the interest of the nation, I appeal to the Government, Opposition, and other stakeholders to set aside their political differences and to take urgent and meaningful steps to avoid an unnecessary third crisis for our country,” Jayasuriya said.

Wijeyadasa faults EC

Former Justice Minister Dr. Wijeyadasa Rajapakshe PC, in a letter to the EC on Friday (17), said there is no need for the Government to seek the opinion of the Supreme Court on the date of conducting the general election. EC Chairman Mahinda Deshapriya, earlier this month, advised the President to seek the Supreme Court’s opinion, citing constitutional issues that can arise by delaying the general election as a result of the coronavirus outbreak in the country.

“I emphasise the fact that your request to the President urging him to refer this matter to the Supreme Court seeking its opinion is highly unwarranted as the consultative jurisdiction vested in the Supreme Court under Article 129 is limited to the specific circumstances where the President is of the opinion that there is an important question of law or fact which has arisen or is likely to arise. Please note that when the law has completely provided for matters referred to above, seeking the opinion of the Supreme Court makes no sense,” Dr. Rajapakshe said in the letter.

He said the Commission was obliged to fix the new date for the election within the said time frame, enabling the President to summon the new Parliament on a day not exceeding three months from the date of dissolution as provided in Section 24 (3) of the said Act. Dr. Rajapakshe further noted that there was no ambiguity or uncertainty in the existing law relating to the conducting of the said election and urged the Commission to “perform its constitutional duties and obligations ensuring the sovereignty of the people which include their franchise and fundamental rights in terms of Article 2 of the Constitution”.

“The Commission would be responsible for its dereliction of duties and creating chaos in the country, especially at this critical juncture,” Dr. Rajapakshe pointed out. Following is Dr. Rajapakse’s letter to the EC:

Parliamentary election 2020

I write this letter as a citizen and a candidate of the parliamentary election which was scheduled to be held on 25 April 2020 and to insist on you to exercise the statutory duty and obligation cast upon your Commission to preserve the inalienable sovereignty of the people enshrined in Article 3 of the Constitution of the Republic of Sri Lanka by conducting the said election with due diligence and within the time frame stipulated in law. Although it is not necessary to elaborate here the relevant constitutional and statutory provisions in relation to the said election, I would like to draw your attention to the following legal provisions and circumstances for completeness of my stance and for clarity.

1. The President by exercising his prerogative powers under Article 70 (1) of the Constitution, dissolved Parliament by the proclamation published in the Gazette No. 2165/8 dated 2 March 2020 and fixed the date of election as 25 April 2020 and fixing the date of the commencement of the new Parliament as 14 May 2020 as required by Article 70 (5) (a) of the Constitution.

2. The President fixed the said date of summoning the new Parliament as he was obliged to fix a date not later than three months from the date of the proclamation in terms of Article 70 (5) (b) of the Constitution.

3. Your Commission after acceptance of the nominations published the Gazette No. 2167/12 dated 20 March 2020 specifying the requirements stipulated in Section 24 (1) of the Parliamentary Election Act No. 01 of 1981, but failed to specify the date of election in terms of Section 24 (1) (c) to be read with Section 10 of the said Act.

4. Although your Commission exercised the powers under section 24 (3) to postpone the election due to an emergency or unforeseen circumstances, you have failed and neglected to perform your constitutional and statutory duties and obligations by not fixing a new date of election, which should not exceed a period of three months from the date of the dissolution as it was a mandatory requirement in terms of Article 70 (5)

(c) of the Constitution.

5. Your Commission was obliged to fix the new date of election within the said time frame, enabling the President to summon the new Parliament on a day not exceeding three months from the date of dissolution as provided in Section 24 (3) of the said Act.

6. In the event the Health Authority completely rules out the possibility of conducting the election due to health hazard on the new day you fixed for the election, it is a matter to be addressed at that point, which is premature to address at this moment. Hence, I do not address here the remedy to be resorted to in such an event.

7. I emphasise the fact that your request to the President urging him to refer this matter to the Supreme Court seeking its opinion is highly unwarranted as the consultative jurisdiction vested in the Supreme Court under Article 129 is limited to the specific circumstances where the President is of the opinion that there is an important question of law or fact which has arisen or likely to arise. Please note that when the law has completely provided for matters referred to above, seeking the opinion of the Supreme Court makes no sense.

8. In terms of Article 103 (2) of the Constitution, the object of the Commission is to conduct free and fair elections and referenda and further in terms of Article 104 (B) (3), the Commission is responsible and answerable to the Parliament, and in turn to the people.

9. Please note that there is no any ambiguity or uncertainty in the existing law relating to the conduct of the said election and I urge that your Commission shall perform your constitutional duties and obligations ensuring the sovereignty of the people which include their franchise and fundamental rights in terms of Article 2 of the Constitution. The Commission would be responsible for its dereliction of duties and creating chaos in the country, especially at this critical juncture.