Notwithstanding his political affiliations, former Chief Justice Sarath Nanda Silva’s fundamental rights petition challenging the enactment of the Provincial Councils Elections Amendment Act would no doubt be a landmark case. It is so, not only because it is a petition seeking the revocation of an enacted law, but also because it brings forth again the discourse on the separation of power among the organs of government, especially between the legislature and the judiciary.
It also reminds us of a similar incident that happened during the tenure of former Speaker Anura Bandaranaike when a temporary show down between the legislature and the judiciary was witnessed.
In his petition the former Chief Justice states that any failure on the part of the Elections Commission to hold elections promptly as and when they are due is a denial of the franchise which constitutes the sovereignty of the people. The allegation corresponds with the views expressed by Opposition political parties and the election monitoring non-governmental organizations which also allege that the government is using the Bill to postpone the provincial council elections.
Indeed, it was not the original Bill which was to provide for women’s representation that was challenged by the former Chief Justice, Opposition and the NGOs, rather it was the introduction of an amendment to the Bill to introduce the mixed electoral system for provincial council elections that is being questioned. The reason was that the amendment, once passed, would postpone elections for some of the provincial councils as it would necessitate a time-consuming process of delimitation.
The Bar Association of Sri Lanka (BASL) also had criticized the way the government had introduced the amendment to the Bill and the Prime Minister had said that the government was prepared to discuss the matter with the BASL.
Whatever the outcome of the fundamental rights case may be, an impression has already been created among the people that the amendment was brought in to postpone the elections for the three provincial councils that stood dissolved days ago. It has been built against a backdrop where the government was repeatedly subject to the same criticism during the long-drawn delimitation process for the local government elections and the recent saga over the 20th Amendment to the Constitution.
During that delimitation process, none other than the Chairman of the second delimitation committee, Asoka Peiris accused the two main political parties of wanting to postpone the local government elections and he was on record as having said that Provincial Councils and Local Government Minister Faiszer Musthapha wanted him to drag the delimitation process. Then the government introduced the 20th Amendment to provide for the holding of elections to all nine provincial councils on the same day, with a suggestion to postpone elections for some provincial councils and to advance the elections for the other councils. When the Supreme Court rejected the postponement along with some other provisions of the 20th Amendment Bill the government dropped the Bill altogether.
Elections Commission Chairman Mahinda Deshapriya also had cast doubts about the elections being held early next year and in a move that may be an embarrassment to the government said he had informed the government he would step down as Elections Commission Chairman if elections were not held before December 31, next year.
Needless to say government has very cleverly countered many allegations that it was going to postpone the local government and provincial council elections. When it was criticized for the delay in holding local government elections, the authorities said the delimitation process was the hitch. While the 20th Amendment was introduced, the government argued that it wanted to prevent the unnecessary waste of public funds by holding elections for all nine provincial councils on a single day. In respect of the latest issue, the government’s argument was that the mixed election system was brought in as an Amendment since it has to be introduced at all three levels of elections. That may be fine, but the message people get from the outcome of all these issues is that the government is hell-bent on postponing elections. Even the Elections Commission Chairman does not seem to believe what the government is saying. Therefore the onus is with the government to convince the country that it means business and nothing else.