The attention of the entire country has been focussed on presidential elections which are due by early December but moves are already underway at the highest levels of government to attempt to conduct provincial council elections prior to that, confounding both ruling and opposition political parties.
These moves come even as the Sri Lanka Podujana Peramuna (SLPP) and the Janatha Vimukthi Peramuna (JVP) have now declared their presidential candidates, Gotabaya Rajapaksa and Anura Kumara Dissanayake respectively, and the United National Party (UNP) is grappling with the issue of selecting one.
It arises from a decision by President Maithripala Sirisena to refer the current impasse over provincial council polls to the Supreme Court for a decision. This situation arose because legislation governing provincial council elections, initially enacted through the Provincial Councils Elections Act No. 2 of 1988 was amended by the current Parliament through the Provincial Councils Elections (Amendment) Act No. 17 of 2017.
This amendment was passed by Parliament by a two-thirds majority. It was taken up for its second reading on September 20, 2017 and passed with 154 voting for and 43 against. At the end of the committee stage and third reading, the Bill was passed with 157 votes for and 37 against.
Proportional representation system
Instead of the proportional representation (PR) system in operation previously, it allowed for a ‘hybrid’ system that incorporated the election of candidates both on a PR system as well based on ‘electorates’ or ‘constituencies’ on a Westminster-style first-past-the-post system. The last local government elections in February 2018, were conducted under this ‘hybrid’ system.
The impasse arose in identifying these ‘electorates’. A Delimitation Committee was appointed for the purpose. They presented their report which was debated in parliament almost one year later, on August 24, 2018. It was defeated, with 139 votes against and none voting for adopting the report.
Voting against the report were the UNP, the Sri Lanka Freedom Party (SLFP), the Joint Opposition (JO) group and the Tamil National Alliance (TNA). The JVP was absent at the time of the vote. Even Minister Faiszer Mustapha, then Minister of Provincial Councils, voted against the report after presenting it to Parliament.
Thereafter, Speaker Karu Jayasuriya appointed a five-member parliamentary committee to make recommendations regarding conducting provincial council elections. This committee is yet to make those recommendations.
Legally, the government finds itself in a tight corner. It cannot hold elections to provincial councils under the current legislation because no ‘electorates’, required under the amended laws, have been identified. It cannot also hold polls under the previous system because that system has now been repealed by Parliament. Hence the decision by President Sirisena to clarify the issue from the Supreme Court.
The President has referred the issue to the Supreme Court under terms of Article 129(1) of the Constitution. This empowers him to refer to the Court when “a question of law or fact has arisen or is likely to arise which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court”. The President has asked the Court’s opinion on several issues. He has inquired whether he as President, “can by proclamation forthwith publish the new number of electorates, the boundaries and names assigned to each electorate so created in terms of the report of the Delimitation Committee” and whether elections can be held once this proclamation is published.
If this cannot be done, the President has inquired whether elections can be held under the law that was in force prior to the enactment of the Provincial Councils Elections (Amendment) Act No. 17 of 2017, which would be under the PR system. Already, a lawyer with close links to the SLPP has indicated he would make submissions as an intervenient petitioner seeking to have the presidential elections first.
A five-judge bench of the Supreme Court will hear the matter, commencing tomorrow. It will comprise Chief Justice Jayantha Jayasuriya and Justices Buwaneka Aluwihare, Sisira de Abrew, Prasanna Jayawardene, and Wijith Malalgoda. It has been indicated that a decision will be conveyed by the Supreme Court to the President by August 30.
Previously, Elections Commission Chairman Mahinda Deshapriya had said that Provincial Council elections have to be held by October 15 if the Supreme Court determines that the old electoral system is valid. If not, it would disrupt the Presidential elections expected to be held between November 16 and December 7 this year.
What is interesting though is the President’s sudden decision to attempt to expedite provincial council elections. Previously, when provincial council elections were being contemplated, the then ruling coalition comprising of both the UNP and the SLFP were accused by the SLPP of attempting to postpone the polls.
In fact, after its convincing victory at the 2018 February local government elections, there was a time when the newly-formed SLPP was agitating for provincial council elections. The SLPP accused both the UNP and the SLFP of trying to scuttle polls, saying the two parties feared another defeat at the provincial level.
Change of heart
Now though, both the UNP and the SLPP are wary about having to face provincial elections first, while only months away from the presidential election. President Sirisena, who was among those accused by the opposition of trying to postpone provincial polls nevertheless appears to have had a change of heart.
Previously, it was believed that President Sirisena’s moves to conduct provincial elections were an attempt to foster a relationship with the SLPP. This was at the time when the SLPP had not declared its presidential candidate and there was speculation that the President still nursed intentions of being a ‘common candidate’ of both the SLFP and the SLPP. The SLFP forging a political alliance with the SLPP, albeit for the purpose of provincial polls, would have promoted the agenda of a common candidate.
That is no longer the case. The SLPP announced its candidate, Gotabaya Rajapaksa, on August 11. This means that President Sirisena, if he wishes to contest the presidential election, will have to do so on his own steam, as the nominee of the SLFP and run against both Rajapaksa as well as the UNP-led alliance’s candidate.
Both the UNP and the SLPP are concerned about provincial council elections preceding the presidential election for good reason. That is because their respective party machineries are specifically being geared for a presidential election, where all their resources would be pooled towards promoting the image of a single candidate throughout the country.
Provincial council elections are an entirely different scenario. Candidates have to be selected at each provincial level, nomination papers have to be prepared and scrutinised and campaigns have to be run in each province, catering to the needs of the population of that particular region. It is not an easy task at the best of times.
With a presidential election only a few months away, this exercise can turn in to a nightmare and drain political parties of finances as well as the support of their volunteers, party workers and organisers. Funding two national elections months apart- with a general election also due in a few months- will also impose serious financial constraints in campaigning.
The SLPP has already made its opposition known. Its Chairman, G. L. Peiris has gone on record saying the country needs a presidential poll more than a provincial council election, and therefore, the former should be given priority.
The SLPP has other concerns as well. It has been suggested that, if there is violence during any provincial council election that is held now, this could be used as a reason to postpone presidential elections for security reasons. Some SLPP stalwarts see the push to hold provincial polls as a move in this direction, seeing it as a sinister move to create a climate of fear that will precede such a postponement.
Security environment
The Chairman of the Elections Commission Mahinda Deshapriya has dismissed such speculation stating that presidential elections will be held on schedule and will be concluded by December 7, no matter what the security environment of the country is.
The UNP will have particular reason to be disheartened if provincial elections are called now. Its presidential election campaign is yet to get off the ground, with there being differences of opinion regarding its candidate as both Prime Minister Ranil Wickremesinghe and Deputy Leader Sajith Premadasa stake their claims. In contrast, the campaigns of both the SLPP and the JVP are up and running. The longer the UNP takes to finalise its candidate, the more its factionalism will come to the attention of the public.
Conducting a provincial election campaign in such an environment, challenging as it is for any party, will be particularly difficult for the UNP. In such circumstances, it would be hoping that the Supreme Court verdict at the end of this month would restore the status quo and call for proper legislative clearance before elections. The move to seek the polls by the President at this critical juncture remains interesting. Having virtually called off his alliance with the UNP, having his overtures being rejected by the SLPP and with most of his own SLFP parliamentarians abandoning him at the eleventh hour of his presidency, this may well be President Maithripala Sirisena’s parting shot to his many detractors.
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