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Ex-Chief Justice Sarath Silva’s FR Petition Seeking Judicial Review of PC Elections Bill is Doomed to Fail.

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By Faizer Shaheid

Former Chief Justice, Sarath N. Silva has grown more and more politically inclined over the years, but his take on the Provincial Council Elections (Amendment) Act raises a little more than a few eyebrows. While the enactment itself is largely positive, the manner in which the Bill was passed has definitely shocked many people including those who endorsed the contents of the enactment.

Minister of Provincial Councils and Local Government, Faiszer Musthapha has been championing the cause of women participating in politics for some time. Therefore, when the Bill was introduced, the general consensus was to support his initiative to bring forth a guaranteed 25% quota for women. The Bill was introduced together with the proposed 20th Amendment, which was eventually struck down after the Supreme Court ruled that certain provisions require a referendum.

However, the Provincial Council Elections (Amendment) Act was given the green light to proceed, and subsequently, a major change was introduced to the Bill during the Committee Stage of the Bill. The Minister proposed inclusion of electoral reforms, and then heads began to crack.

Representation of women in politics

The final enactment introduces two major changes to the system of conducting elections, and Minister Faiszer Musthapha will go down in history as the first (and only person for now) to introduce De Jure affirmative action to ensure the participation of women in politics. The enactment introduces a guaranteed 25% quota for women in Provincial Councils and also introduced the mixed member proportional system as a form of conducting elections in Provincial Councils.

Personally, I do not endorse a quota system where there is a possibility of discrimination. By guaranteeing 25% of the seats for women, it is possible that a male who has earned a higher number of votes can be cast aside and a woman with a significantly lower number of votes can become a member of a Provincial Council. I believe in equality of opportunity, and such a quota system would ordinarily be violating the right to equality entrenched in Article 12 of the Constitution, but Article 12 (4) of the Constitution also specifies an exception if the purpose is to advance women, children and people with disabilities.

Furthermore, considering the statistics of Sri Lanka, participation of women in politics has never been as vibrant as it should have been. Each time a woman enters, mud is slung at them. Only a few survive this dirty game of politics. In the current Parliament, only 5.8% of the seats have been obtained by women, and in Provincial Councils, there are about 4%.

It was suggested in the Fourth World Conference on Women, in Beijing, in 1995 that a quota system ought to be introduced guaranteeing 30% of the seats for women. Today, the countries that introduced such a quota system have flourished tremendously. Furthermore, 24.2% of the households in Sri Lanka are headed by women according to the UNFPA (United Nations Population Fund), which means that women are the breadwinners in their respective families. Therefore, women are indeed capable of leadership.

Electoral reforms

The Provincial Councils will now also elect their members through a mixed member proportional (MMP) system, which is a marriage of the first-past-the-post system and the proportional representation system. The suggestion to have an MMP system was originally put forward by Dinesh Gunawardena during the reign of President Mahinda Rajapaksa.

Minister Faiszer Musthapha had introduced a 60:40 ratio through the Act, where 60% of the seats will be derived from the first-past-the-post system and 40% of the seats from the proportional representation system. Each of these systems have their benefits and shortcomings, and the idea of an MMP system is to optimize the benefits of both systems and minimize the shortcomings.

For example, the first-past-the-post system would elect a person of a particular region to represent that region, hence minimizing cost, limiting violence, and making the candidate more accountable. However, it does not include minority views nor does it accommodate minority parties. It also accounts for plenty of wasted votes. For example, in 1970, the Sri Lanka Freedom Party (SLFP) only won 48% of the votes, but obtained 76.7% of the seats. In 1977, when the United National Party (UNP) reclaimed power, they won only 50.6% of the votes, but earned 83% of seats in Parliament.

The proportional representation system was an improvement, but it had its shortcomings too. Under the proportional representation system, extremism grew and so did election budgets. However, it did accommodate minority views and policies as every vote was made to count.

Rumble in the House

The major debate in Parliament when the Bill was taken up before the House was the rushed manner in which it was passed. The usual procedure is for about a week gap at least before the second and third reading of the Bill. However, amendments were introduced during the second reading and concluded on the same date. While both features of the Bill were extremely positive, the issue was the rushed manner in which it was passed and even more so, whether it was possible for such a major amendment to be introduced during the Committee Stage.

This is not the first time that a Bill was passed in such a rushed fashion, and previous Bills such as the Divi Neguma Bill, the 18th Amendment Bill, among many others were all passed despite multiple flaws and conflicts with the Constitutional requirements.

However, we now have a group that identifies their government as a ‘Good Governance Government,’ and such a precedent cannot be set by the government.

However, while in Parliament, Musthapha pointed out that it was perfectly permissible to introduce amendments in accordance with Standing Order 56. “Any amendment may be made to a clause, or clauses may be deleted or new clauses may be added, provided the same be relevant to the subject matter of the Bill, and be otherwise in conformity with the Standing Orders.”
It is also noted that several other Standing Orders appear to permit amendments to be introduced during the Committee Stage.

For example, Standing Order 54 states that, “the Committee shall discuss its several provisions and proposed amendments.”

Even after the Committee Stage, any amendment can be introduced in accordance with Standing Order 59, which reads: “After a Bill has been read through in Committee, and while the Bill is still in Committee, any member may, with leave of the Chairman, move an amendment of any clause already passed.” Therefore, the passing of the amendment is entirely within the confines of the law making powers of Parliament, and the Certificate of the Speaker was eventually stamped, and the Bill has now emerged as law.

The Sarath N. Silva Petition

The former Chief Justice, Sarath N. Silva then filed a fundamental rights petition in the Supreme Court in accordance with the right to equality under Section 12 and with Section 79 of the Constitution, which requires the Speaker to certify a Bill only under certain circumstances. If a special majority is required, then the Speaker can only certify the Bill if that special majority is obtained, and if a referendum is needed, then the Speaker cannot certify the Bill without a referendum.

Sarath N. Silva is adamant that such a significant provision that completely transforms the nature of the Bill should not have been introduced during the Committee Stage. The problem here is the nature of the amendment and the seriousness of its implications.

Therefore, Sarath N. Silva seeks judicial review stating that the Bill had changed drastically since it has been published on the Order Paper.

Judicial review

Unfortunately for the former Chief Justice, his petition is doomed to fail. This is unless the Supreme Court chooses to completely transform the Courts jurisdiction on the issue and deliver a landmark judgement that could completely change the course of justice in Sri Lanka.

The problem is that judicial review is permissible only under limited circumstances. Article 80 (3) of the Constitution expressly prohibits any Court from questioning any Bill that has become law upon the certification of the Speaker. Article 121 (1) requires that if any Bill is to be challenged, it must be challenged only within one week of being placed on the Order Paper.

Sarath N. Silva appears to have filed a fundamental rights case under Article 126, but Article 126 may not suffice to expand the jurisdiction of the Supreme Court. The Constitution is clear that the judiciary must not undermine the authority of Parliament.

Conclusion

While Sarath N. Silva raises a valid point, the procedure that has been followed is perfectly legal. Yes, there were two monumental changes that came about due to this law, and such a change did not have to pass through in such a hasty fashion, but it is fully in conformity with the law. The matter does, however, raise a few issues in respect of judicial authority to call Bills into question. If in the future politicians exploit this loophole to their advantage, then the people will be seriously affected and there will be nobody to complain to.

Thankfully, Musthapha had introduced positive enactments through this loophole in the law, but judicial review is becoming increasingly mandatory for Sri Lanka. Whether or not a new Constitution becomes a reality, it is time that Parliament made a determined attempt to bring forth judicial review as an amendment to the Constitution.

Courtesy:Ceylon Today

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