As we go to press, the newsrooms are abuzz with the rumour that President Maithripala Sirisena is preparing to issue a gazette notification with regard to the holding of the long delayed Provincial Council elections (PC). Whatever the veracity of this gazette notification story is, that concerted efforts are being made in the presidential quarters to have the PC elections held before the presidential elections, is a certainty.
The government changed the electoral system for the PCs in 2017. With this change, Section 4 of the Provincial Councils Elections (Amendment) Act, No. 17 of 2017 stipulated that a Delimitation Committee be appointed by the President within two weeks of the commencement of that Act. This Delimitation Committee was to divide each administrative district into a number of electorates and complete this task within four months and submit its report to the Minister in charge of PCs.
The Minister was required to table the report in Parliament, within two weeks of the receipt thereof, for approval by not less than two-thirds of the whole number of Members of Parliament voting in its favour. If Parliament does not approve the report within one month as laid out in the amending law, the Speaker was to appoint a Review Committee, of five persons headed by the Prime Minister. This Review Committee could cause any alteration to be made to the names, numbers, and boundaries of any electorate. The Review Committee was to fulfil its responsibilities within two months of the Minister having referred the delimitation report for its consideration and, thereafter, submit its report to the President.
Upon receipt of the report of the Review Committee, the President was to by Proclamation publish the new number of electorates, the boundaries, names assigned to each electorate so created on the report submitted by the Review Committee. It should be noted that according to this procedure, the Delimitation Committee report was in the first instance supposed to be passed by Parliament with no less than a two thirds majority. However if this fails, it goes on to the next stage where a five member Review Committee is to be appointed. The report of this Review Committee does not have to be submitted to Parliament. It was to go directly to the President who would forthwith publish it in the gazette. All the procedures outlined in Section 4 of the Provincial Councils Elections (Amendment) Act, No. 17 of 2017 were fulfilled up to the appointment of the five-member Review Committee by the Speaker. This Review Committee however, has not submitted any report to the President.
According to the procedure laid out by Section 4 of the Provincial Councils Elections (Amendment) Act, No. 17 of 2017, once the Speaker has appointed the five-member Review Committee, the President can gazette only the report submitted to him by this Review Committee. The law does not say that if the Speaker’s five-member Review Committee does not complete its work the President can simply go ahead and gazette the original Delimitation Committee report that was submitted to Parliament but not passed.
SC’s consultative jurisdiction
How then is the President to gazette this delimitation report? If he does so, we may have a situation where for the second time petitions are filed in Courts against the holding of an election on the grounds that it is illegal! When the SLFP high command met last Thursday, their decision was that the President should seek the opinion of the SC on holding of PC elections. When the President seeks the opinion of the Supreme Court, it will be on the question whether the Provincial Councils Elections (Amendment) Act, No. 17 of 2017 which changed the provincial council elections system is operational or not. If the SC opines that it is not operational, then Section 6(2) of the Interpretation Ordinance, which says that whenever any written law repeals in whole or part a former written law and substitutes therefor some new provision, such repeal shall not take effect until such substituted provision comes into operation, will kick in, and clear the way for elections to the dissolved PCs to be held under the previous electoral system.
Invoking the consultative jurisdiction of the SC will certainly be a better option than gazetting a Delimitation Report that has got stuck half way through the laid out procedure and inviting litigation. If the President invokes the consultative jurisdiction of the Supreme Court under Article 129 of the Constitution as to whether the Provincial Councils Elections (Amendment) Act, No. 17 of 2017 is operational or not, the next question is how long the process will take and whether at the end of it, there will be sufficient time for the PC elections to be held before the presidential election. Under Article 129 of the Constitution, if at any time it appears to the President that a question of law or fact has arisen which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer that question to that Court for consideration and the Court may, after such hearing as it thinks fit, within the period specified in such reference or within such time as may be extended by the President, report to the President its opinion thereon.
This process is driven by the President who refers the matter to the Supreme Court and also stipulates the timeframe within which the SC has to deliver its opinion to him. The timeframe that the President may fix for the SC to report its opinion to him under Article 129 has not been laid down in the Constitution. When the Supreme Court is required to determine whether any Bill is inconsistent with the Constitution under Article 120 of the Constitution, it is required to arrive at a decision within three weeks. That is perhaps indicative of the time frame that the President may fix for the Supreme Court to deliver an opinion when its Consultative Jurisdiction is invoked.
Arguably, delivering a consultative opinion on a matter such as determining whether a piece of legislation is operational or not is much less complicated and time consuming than determining the constitutionality of a Bill. Hence the President may be within his rights even if he fixes a period of a week or less to receive the Supreme Court’s opinion under Article 129. If the process of seeking the Supreme Court’s opinion on the operationality of the Provincial Councils Elections (Amendment) Act, No. 17 of 2017 is completed within the first two or three weeks of August, there is the possibility that there will be sufficient time for the long overdue PC elections to be held before the presidential election is declared.
As we pointed out last Sunday, the earliest date on which the Elections Commission can issue the gazette notification fixing the dates for nominations for the Presidential election will be the 9th September 2019. The latest date on which this can be done will be 23 October 2019. So the question is whether the PC elections can be held before the 9th September. Under Section 10 of the Provincial Councils Elections Act No: 2 of 1988 the Elections Commission has to call for an election to a provincial council within one week of its dissolution. This essentially means that the moment the Supreme Court decides that the Provincial Councils Elections (Amendment) Act No: 17 of 2017 is inoperational, the Elections Commission can commence the process of holding elections.
The nomination period has to commence on the fourteenth day after the notice of elections for the PC election is issued by the Elections Commission and end on the twenty-first day after the issuance of that notice. Thereafter the returning officers of the districts have to fix the date for the poll being a date not less than five weeks or more than eight weeks from the date of publication of the notice. What this means is that the elections to the PCs can be held as early as five weeks after the Elections Commission declares the PC election. Hence even if the provincial council elections are declared at the end of August this year, there will still be enough time to hold the PC elections before the Presidential elections this year.
Survival strategy for Sirisena
If President Sirisena can bring about a situation where elections to the Provincial Councils are held, that may give him an opportunity to demonstrate whatever strength he still has in the country. If he passively allows things to lead to the presidential elections, everyone wil operate on the assumption that Maithipala Sirisena and the SLFP are all but dead, and ignore them completely. However if they are able to force a PC election within the next few weeks and obtain a substantial number of votes countrywide, they will have some bargaining power at a presidential election that follows soon afterwards instead of being rendered completely irrelevant. The question then arises as to how many votes one has to get in order to be considered relevant? In the context of the presidential elections, even 10,000 votes would make one relevant and 100,000 votes countrywide would make you a force to reckon with.
At the 2018 local government elections, the SLFP/UPFA led by President Sirisena, along with several minority party allies in the East and the Up-country, obtained close to 1.5 million votes which works out to something like 12% of the valid votes cast at that election. A substantial part of those votes were not really SLFP votes but the votes of parties like the CWC, which contested under the UPFA banner, in certain districts. Virtually, all those parties have abandoned the SLFP by now. However, if the SLFP is able to command one third or even a fourth of their 2018 votes at a countrywide PC election, that will give them very considerable bargaining power at the presidential elections.
Given the circumstances, the President has little option at this stage but to see that a PC election is held by hook or by crook. If the present slide continues into the natural polarization that takes place at presidential elections, the SLFP is going to be obliterated. However at all other elections, the vote tends to fragment and it is very seldom that any party would get more than 50% of the vote at any election other than a presidential election.
At the 2018 local government elections, the SLPP votes when combined with those of the SLFP/UPFA votes would have led to an easy victory at a presidential election for a candidate who can command both vote banks. If by some chance a PC election is held on the threshold of a presidential election and the result still shows that combining the SLPP and SLFP votes will clinch a victory at the presidential election, that will increase Sirisena’s bargaining power exponentially. It is not that the SLPP is likely to concede the presidential candidacy to Sirisena even in such circumstances, but it will certainly improve his chances of getting more out of the SLPP than he otherwise would. As of now, he has no bargaining power worth talking about because everyone is expecting him to fade away into obscurity with the presidential elections. This situation will change radically if a PC election is held and he manages to demonstrate that he holds the key to an easy SLPP victory.
President Sirisena still has a several politicians with him who can command some votes and some capable officials. Not so long ago, he broke with tradition by appointing relatively young Governors to the provinces which were without provincial councils. In the absence of elected Councils, the Governors are all powerful in the provinces. The appointment of Governors in this manner took place at a time when Sirisena still harboured ideas of contesting the presidential election and his appointment of handpicked loyalists as provincial Governors seemed to indicate that these were his potential campaign managers in the provinces.
The same resources can be used at a PC election campaign. In fact it’s surprising that President Sirisena let things drift till the last moment without taking action earlier to force a PC election. If he however tries to issue a gazette notification publishing the original Delimitation Report and inviting litigation and stay orders, instead of taking the safer option of invoking the consultative jurisdiction of the Supreme Court regarding the PC elections, he may put his plans in jeopardy. In any event, President Sirisena’s actions with regard to the PC elections should be watched closely because this could be the wildcard that changes the game in significant ways in the coming weeks.
Sirisena in a glass house
Of course, there are so many ways in which this strategy can backfire on Sirisena and the SLFP. If he somehow manages to have a PC election held before the presidential election, in all likelihood he will have to contest it as a lone entity. An alliance with the SLPP for such an election may not be a practical proposition due to the difficulties that will emerge in sharing out nominations among the numerous partners of the Joint Opposition. The SLFP’s presence will be one too many and it will have to be ditched. Once they are out on their own they will have to jostle for opposition votes with the JO.
From January 2015, right up to this moment, the people of this country have not heard members of the JO going all out against Maithripala Sirisena. From the earliest days of the yahapalana government, Sirisena has been the leader of the SLFP and the UPFA and for that reason the all members of the JO have been in a state of captivity. Due to the risk of losing their seats in Parliament they do or say anything that would rub the de jure party leader on the wrong side. So for more than four and a half years, when they attacked the government, they mentioned only Ranil and the UNP. Sirisena was for the most part left alone. Even after Sirisena entered his last year in office and the Supreme Court confirmed that his tenure was only for five years and not six, the JO still did not target him so as to leave open the possibility of an alliance. Even at the local government elections of 2018, the JO did not target Sirisena as much as they did the UNP-led government.
An alliance of sorts did take place when President Sirisena appointed Mahinda Rajapaksa as the Prime Minister in October last year. That however fell apart and there is now no collaboration between the two factions. To this very moment the two sides have not started tearing one another apart due to the ongoing discussions to form one alliance for the presidential elections. However if an election has to be fought at this stage with the SLFP contesting separately and each doing its best to make a mark before the all important presidential election, then there may be a no holds barred offensive against Sirisena by the JO to prevent him from masquerading as a part of the opposition.
Already Sirisena is held in great mistrust by members of the JO because of his hardly disguised partiality towards Sajith Premadasa. If the latter gets the UNP candidacy, the likelihood is that Sirisena may take his side instead of seeking an alliance with the JO. Hence if a PC election precedes the presidential election, the JO will have to ensure that Sirisena gets as few opposition votes as possible. So an offensive campaign against Sirisena will be inevitable. The actual fact is that for every unsavoury thing that the UNP has done since January 2015, Sirisena also has to share the blame. Starting with the appointment of Ranil Wickremasinghe as Prime Minister on 9 January 2015 when he had only some 40 odd MPs in Parliament, appointing Arjuna Mahendran as the Central Bank Governor, getting the 19th Amendment passed in its present form, shielding the Central Bank bond scammers by dissolving Parliament in 2015 when the COPE report was about to be tabled, selling off the Hambantotota Port, changing the elections systems to local government institutions and provincial councils, were all done with the ready collaboration of President Sirisena.
These are just some of the transgressions that come readily to mind. President Sirisena also shares responsibility for capitulating in Geneva by co-sponsoring the US resolution against Sri Lanka, imprisoning and harassing prominent members of the armed forces on flimsy grounds, and trying to justify it in public. It was President Sirisena who bore the primary responsibility for failing to prevent the Easter Sunday bombings – not so much the UNP because the armed forces and police were under the President at the time. Furthermore, if any weakening of the armed forces has taken place during the past four and a half years, it has to be blamed on Sirisena as well.
Nobody is talking about these things from the public platform because the people who should be talking about them are in discussions to form an alliance with the SLFP. However if President Sirisena goes it alone at the PC or presidential elections without linking up with the SLPP, he will have to expect a barrage of criticism from the SLPP/JO side. The arrears of more than four-and-a-half years will be covered in as many months or weeks.