People’s Sovereignty Blatantly Betrayed
Nagananda Kodituwakku
It is sad but true that Sri Lanka could be the only country where the politicos simply disregard the rule of law and the Constitution with a scant respect to their obligations to the people. And the way things happening in this island nation, suggests that the general public is either unconcerned or their minds are preoccupied with other stuff. In this opportunistic backdrop the corrupt politicos makes a field day exploiting everything possible within their reach.
The currant Yahapalana regime elected to office in August 2015, promised the people a corrupt-free administration, which respects the rule of law. Yet, people have found those statement were meaningless and hollow. Within a short period of two years people have lost faith in the government, which has failed to realize the pledges made to the people, and hence becoming increasingly unpopular and reluctant to go before the people.
In this backdrop the Provincial Council election were due for the three Provincial Councils (North Central, Sabaragamuwa and Eastern) in the month of September 2017. The government was not willing to test the people’s pulses at all and preferred to postpone the elections yet the law did not permit it. The 20th Amendment Bill was brought in to the Constitution designed to have a breathing space with a new provision proposed (Article 154DD) to conduct the Provincial Council Elections on a ‘specified date’ as determined by the Parliament, which shall not be the later than the expiration of the term of the last constituted Provincial Council, which was the Uva Provincial Council due to expire in September 2019.
However, the Constitution did not permit postponing of any election beyond the specified date which tantamount to violation of the sovereign rights (franchise) of the people. When the 20A Bill was placed on the Order paper of the Parliament, many activists challenged it and the Apex Court on 08thSeptember 2017 ruled that postponement of the election violates the sovereignty in the people (Article 3) and their rights to equal protection of the law 12(1) and also freedom of Expression of the people (14) (1). Therefore, the Court ruled that it needs people’s approval at a referendum compelling the government to abandon it.
Yet, the government was not willing to face the elections and turned to adopt a different strategy. This time it relied on a Bill titled ‘Provincial Council Election Amendment’ Bill published in the Gazette on 07th July 2017, designed to increase the number of female candidates to not less than 30%. And no concerned citizen or activist did challenge the said bill, as it contained no provision that would affect any of the entrenched provisions in the Constitution.
To every concerned citizen’s dismay, after the second reading of the said Bill made on 20th Sep 2017 it was transformed into a completely a different Bill at the Committee stage proceedings, which is not permitted by the Parliamentary Standing Orders.
The original Bill passed at the Second Reading had been totally disregarded with a completely new set of provisions ‘smuggled in’ without following the due process established by Article 78 of the Constitution. These changes include the introduction of a delimitation committee under the new law, which would have to finish its task of carving electorates that would effectively postponed the elections for years. Already, the Chairman of the Election Commission has confirmed this fact. This wrongful act was clearly amounts to total disregard of the lawmaking process and negation of the Rule of law and the Parliamentary Standing Orders. And above all the betrayal of the trust placed in the Parliament and the Speaker by the people.
The speaker should have known better that he is not entitled to ratify a Bill that requires approval of the people at a referendum, yet he had ratified the Bill. The Attorney General, on the other hand [Article 77(2)], is not empowered to express any opinion about the requirement of the approval by the people at a referendum and he is only empowered to convey his opinion to the Speaker as to whether a Bill cannot be validly passed except by a special majority prescribed by the Constitution. However, it is apparent that the Attorney General has given the go ahead to the bundle of amendments proposed to the Provincial Councils Elections Bill, which had not been published in the government gazette, enabling judicial review of their constitutionality. Thus it is evident that the Attorney General has aided and abetted the Speaker to ‘smuggle in’ some clauses, which has the effect of postponing of the Provincial Council Elections. This had been previously ruled illegal by the Supreme Court when a similar attempt was made through the 20th Amendment to the Constitution. This unlawful process adopted by the so-called Yahapalana regime is a stumbling block against the conducting of the Provincial Council Elections, which violates the people’s power of franchise, one of the sovereign rights of the people.
