{"id":55219,"date":"2017-09-17T23:22:04","date_gmt":"2017-09-18T03:22:04","guid":{"rendered":"http:\/\/dbsjeyaraj.com\/dbsj\/?p=55219"},"modified":"2017-09-17T23:36:28","modified_gmt":"2017-09-18T03:36:28","slug":"2-to-1-ruling-by-3-member-bench-of-supreme-court-on-20th-constitutional-amendment-bill-conveyed-to-president-and-speaker-on-september-14th","status":"publish","type":"post","link":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=55219","title":{"rendered":"2 to 1 Ruling by 3 Member Bench of Supreme Court on 20th Constitutional Amendment Bill Conveyed to President and Speaker on September 14th"},"content":{"rendered":"


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\n(Excerpts From the Political Column in the “Sunday Times” of September 17th 2017)<\/strong><\/em><\/p>\n

Plans are on the drawing board for the two coalition partners \u2013 the Sri Lanka Freedom Party (SLFP) and the United National Party (UNP) \u2013 to contest each other at an upcoming Provincial Council or Local Government election. It is most likely the PC polls will come first followed by elections to local government institutions.<\/p>\n

Such a poll will also break with the tradition of two major political parties vying with each other during past elections. Entering the fray will be a third formidable group, the result of changes in the political landscape after the presidential and parliamentary elections in 2015. This is the first time in two and half year that the SLFP and the UNP are parting ways for a poll which is significant. It will also be the first time that the coalition partners are seeking public approval for their two and half year Yahapalanaya or good governance rule.<\/p>\n

The SLFP will field candidates under the umbrella of the United People\u2019s Freedom Alliance (UPFA). The UNP has revived its grouping under the United National Front (UNF). Emerging as the third force is the group led by former President Mahinda Rajapaksa. Though he is the de-facto head of the Sri Lanka People\u2019s Party (SLPP), talks are under way to form an alliance under a new name. Also in the fray is the Janatha Vimukthi Peramuna (JVP). Though it does not have a reach countrywide, it has its voter base in many districts. The North is a different political scene with the Tamil National Alliance (TNA) dominating the area even though Provincial Council elections are not due there just yet. The Sri Lanka Muslim Congress (SLMC) has a foothold in the East, where PC elections are due.<\/p>\n

For all these parties and even the Elections Commission, the focus this week has remained the Supreme Court determination on the proposed 20th Amendment to the Constitution. A three judge bench \u2013 Chief Justice Priyasath Dep, Justice Anil Gooneratne and Justice Vijith Malalgoda \u2013 which examined the draft amendments has already delivered its determination under sealed cover to the Speaker with a copy to the President. The SC heard some 23 petitions from political parties, civil society organisations and NGOs challenging the 20A. The Court\u2019s determination \u2014 believed to be by majority 2-1 vote \u2014 was dispatched to the Speaker and the President on Thursday hours before Chief Justice Dep left for South Korea and then Japan to participate in the Chief Justices conference.<\/p>\n

<\/p>\n

20A\u2019s implications<\/strong><\/p>\n

In essence, the 20A seeks to hold elections for all PCs on the same date. A transitional provision empowers Parliament to dissolve all PCs on the specified date. Such a date is not to be later than the expiration of the term of last constituted PC. This is if the term of the PC concludes prior to the said specified date, the term of such PC to be extended beyond that date until the specified date. In the event of any Provincial Council being dissolved, the powers of such Council are to be exercised by Parliament.<\/p>\n

The SC determination will be made known to Parliament by Speaker Karu Jayasuriya on Tuesday (September 19) when he returns from an official visit to the House of Commons in Britain earlier this week and attending commemoration events connected with the 153rd birth anniversary of Anagarika Dharmapala in Buddha Gaya today. In this backdrop, political parties have been discussing possible scenarios based on what the SC may rule. One such possibility being discussed is a scenario where if the Court has declared that besides a two thirds vote to pass 20A, a referendum of the people is also required to extend the term of the PCs.<\/p>\n

Petitioners have argued before the SC that an amendment to Article 154 E of the Constitution, the five-year term of the PC which expires prior to the specified date being extended, would be without a mandate of the people in a province. They argued that the mandate given by the electors was for a term of five years for a PC and Parliament being allowed to extend its term of office was against such a mandate. They also pointed out that the Constitution at present has no provision for the extension of a term of a PC and only the Governor had the power to dissolve it prior to the expiration of the five-year term.<\/p>\n

Some petitioners alleged that the 20A is purposely coupled with political necessities, and is designed to safeguard the interests of the Government and repugnant to constitutional principles. They sought an SC directive that 20A does not become law unless passed by a two thirds majority and approved by the people at a referendum. Another scenario that is being looked at is the possibility of the SC determining that only a two thirds vote is necessary, and not a referendum. <\/p>\n

However, the President is now aware of the determination and would have passed the information to his Government partners before he emplanes for New York to attend the United Nations General Assembly sessions (UNGA).<\/p>\n

Why is the SC determination so important? It is on that ruling, that the Election Commission will discern which election would be held first, the three pending Provincial Councils \u2013 Sabaragamuwa, North Central and East or the Local Government polls. Should there be the necessity for a referendum, a Government source opined that they were likely to drop the idea of moving forward with a 20A. This is because the Government would then become helpless when it comes to end of terms and pending polls to the three PCs \u2013 Sabaragamuwa (September 26), <\/p>\n

Eastern (September 30) and North Central (October 1). The conduct of a referendum, a time consuming process, will not help put off these polls since a law to do so would not be in place. Thus, it would be impossible to apply the 20A to these PCs even if such an amendment is adopted.In such an event, the PC polls are most likely to come first. Elections Commission Chairman Mahinda Deshapriya has already made clear that he would await a communication from Parliament only till October 2. If there was no such intimation, he would issue a Gazette notification calling for nomination for elections to the three PCs. An official source said elections could be planned for December 9. Earlier, plans have been afoot to hold nominations for local bodies from around November 7 to 14 and conduct an election around January 8 next year. However, the situation may change in the light of the new developments.<\/p>\n

The recent delays over the Election Commission holding local counil or PC elections were the result of the Government\u2019s move to introduce the 20A. Prime Minister Ranil Wickremesinghe, backed by President Sirisena, recommended that this constitutional amendment be carried out. As revealed earlier, Premier Wickremesinghe gave four reasons why \u201cit is more logical, reasonable and appropriate to hold elections to all PCs on the same day, a day as decided by Parliament, between the Presidential and Parliamentary Elections, most probably an accepted procedure similar to mid-term elections in the United States (second year of each Presidential Term).\u201d<\/p>\n

Four Reasons<\/strong><\/p>\n

The four reasons given by him were (a) Efficient utilisation of State Resources on Elections, (b) Elimination of undue disruptions to day-to-day life of the General Public and State Service Deliveries, (c) Dissipation of energies and resources of political parties throughout the country, minimising election related violence and state resources utilisation by some candidates, and (d) Accurate using of public perception as a barometer to evaluate the conduct of the incumbent Government, enabling it to take corrective measures, if needed.<\/p>\n

However, there was also a slip when he said that there would be a \u201cdistortion of public perception in the country regarding the popularity\/unpopularity of a political party based on the outcome of the election held in a particular province that can be a deciding factor for the subsequent elections, having a chain-effect\u201d.<\/p>\n

At present, the term of a Provincial Council is five years and it cannot be dissolved prior to expiration of its term unless the Board of Ministers concurs to do so. It is mandatory for the Commissioner of Elections to call for nominations within one week from the date of such dissolution. In the event of the SC ruling that a referendum cum two thirds vote is required for 20A, it would be inevitable for the Elections Commission to conduct polls on staggered basis since current terms of PC would end on varying dates from September 2017 to October 2019.<\/p>\n

Notwithstanding logical arguments on why PC polls should all be held in a day, there are also other contributory factors which have necessitated the passage of 20A. It is no secret the Government has been fighting shy of polls. In the case of local government elections, one is a likely scenario where the UNP would secure control of more bodies than the SLFP. Such an eventuality could be worse for President Sirisena, the leader of the SLFP. The resultant embarrassment could be made worse if his own party, now facing internecine issues, falls behind the proposed new Opposition alliance. It could be the same fate in the PC elections too.<\/p>\n

On the other hand, for the UNP which is also facing accusations increasingly of bribery and corruption within its own ranks, the uphill task of winning the three PC polls as well as many local bodies, though challenging, would place it in an unenviable position, vis-\u00e0-vis its partner the SLFP.<\/p>\n

Thus, the question is not one of whether the SLFP or the UNP that would be ahead. Even more importantly, the polls campaign is likely to bring in an unwelcome divide between the coalition partners in Government. Each side is bound to put the blame on the other for its inability to fulfil promises made during the 2015 presidential and parliamentary elections exacerbating the existing tensions. This is in the backdrop of the MoU between the two sides lapsing last month, not being extended and both wanting to go their own way. Sirisena has already declared a decision would come in December this year. The UNP has set in motion its own plans.<\/p>\n

Mahinda Rajapaksa, now the de facto leader of the Opposition says he is confident the new alliance will make new strides at the upcoming polls. Who will become the casualty and how the political groups will re-align themselves remains a critical factor.<\/p>\n

Courtesy:Sunday Times<\/em><\/p>\n

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(Excerpts From the Political Column in the “Sunday Times” of September 17th 2017) Plans are on the drawing board for the two coalition partners \u2013 the Sri Lanka Freedom Party (SLFP) and the United National Party (UNP) \u2013 to contest each other at an upcoming Provincial Council or Local Government election. It is most likely …<\/p>\n

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