Postponed Provincial Council Elections: The importance of October 28th, 2018

If Parliament does not approve of the Delimitation Committee report in the manner prescribed in Act, No. 17 of 2017, the Speaker has to appoint a Review Committee

By C. A. Chandraprema-October 18, 2018

The Sabaragamuwa, North Central, Eastern, North Western and Central Provincial Councils have now ceased to exist and the Northern Provincial Council will stand dissolved next week, bringing the number of provinces without functioning Provincial Councils to six. Under normal circumstances, we would already have had elections to the Sabaragamuwa, North Central and Eastern Provinces and been preparing for the second leg with regard to the North Western, Central and Northern Provincial Councils. The law is very clear on when elections to Provincial Councils should be called. According to Article 154E of the Constitution, a Provincial Council will continue for a period of five years from the date of its first meeting and on the expiration of this period of five years shall operate as a dissolution of the Council. After the dissolution of the PCs in that manner, the provisions of the Provincial Councils Elections Act, No. 2 of 1988 come into operation and what should happen thereafter is as follows:

Within one week of the dissolution of a Provincial Council, the Commissioner of Elections is required by law to publish a notice of his intention to hold an election to that council and this notice will specify the period during which nomination papers shall be received by the returning officer of each administrative district in the province for which elections are to be held. The nomination period is to commence on the fourteenth day after the date of publication of the Election Commissioner’s notice and expire at twelve noon seven days later. Thereafter the returning officer of each district shall publish a notice in the Gazette specifying the date of poll, which has to be not less than five weeks or more than eight weeks from the date of publication of the notice announcing the election which was issued by the Elections Commissioner.

The reason why this entire process has not come into operation with regard to the five councils that have already been dissolved is the government introduced the Provincial Councils Elections (Amendment) Act, No. 17 of 2017, which changed the entire system of elections to the provincial councils and made necessary the demarcation of constituencies. It is due to the deliberate delay in the process of demarcating constituencies by the partners in the yahapalana government that no PC elections have been held since last year. According to the provisions of the Provincial Councils Elections (Amendment) Act, No. 17 of 2017, a Delimitation Committee has to be appointed by the President within two weeks of the commencement of that Act and the Delimitation Committee has to fulfil its responsibilities within four months of its appointment and thereafter submit its report to the Minister.

The Minister shall within two weeks of the receipt of such report, table it in Parliament for its approval by a two-thirds majority of the whole number of Members of Parliament (including those not present) voting in its favour. If Parliament does not approve of the Delimitation Committee report in the manner prescribed in Act, No. 17 of 2017, the Speaker has to appoint a Review Committee, consisting of five persons headed by the Prime Minister. This Review Committee has to fulfil its responsibilities within two months of the Minister having referred the report for its consideration and thereafter submit its report to the President. Upon the receipt of the report of the Review Committee, the President shall by Proclamation publish it, thus completing the delimitation process.

We are now at the stage where the Speaker has appointed the Review Committee headed by the Prime Minister and the latter are engaged in the review process. The Speaker appointed the Review Committee on the 28th of August this year and its two month period will be up on the 28th of October. According to the provisions of the Provincial Councils Elections (Amendment) Act, No. 17 of 2017 the two-month period of the Review Committee commences from the time the Minister refers the Delimitation Committee report for its consideration. After the Speaker appoints the Review Committee there is no provision in the Provincial Councils Elections (Amendment) Act, No. 17 of 2017 to extend the time given to the Review Committee any further. The only extra time the Review Committee can legally have is the few extra hours or days it took for the minister to refer the Delimitation Committee report to the Review Committee after the latter was appointed by the Speaker.

That is what gives the 28th of October 2018 special significance.

If by the 28th of October, give or take a few hours or days for the Minister’s delay in sending the Delimitation Committee report to the Review Committee, the latter is unable to submit its report to the President, then that means that the process has stalled and the operation of Provincial Councils Elections (Amendment) Act, No. 17 of 2017 is now officially in abeyance. The Interpretation Ordinance is very clear on when an amendment to a law takes effect. Section 6(2) of the Interpretation Ordinance states the following: "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."

Thus, if the Review Committee fails to submit its report to the President on or around the 28th of October this year, that will mean that the Provincial Councils Elections (Amendment) Act, No. 17 of 2017 is not operational and the provisions of the Provincial Councils Elections Act, No. 2 of 1988 described at the beginning of this article will come into effect not only with regard to the Provincial Councils that have already been dissolved, but with regard to the PCs that are to stand dissolved in the future as well, because for all practical purposes the Provincial Councils Elections (Amendment) Act, No. 17 of 2017 will be a dead letter and the provisions of Section 6(2) of the Interpretation Ordinance will come into effect. Everybody knows that the present government has been performing incredible contortions to avoid holding elections. So come the 28th of October, what could they do to prevent the electoral process from kicking in?

It may be possible for Review Committee to claim on or around the 28th October that the Minister in charge of the subject has not forwarded the Delimitation Committee report to them yet. The Minister in turn may claim that the dog ate the Delimitation Committee report. Given the absolute shamelessness displayed by this government in the actions they took to dodge elections, nothing should come as a surprise to the public. This is a government that stood the law making process on its head by changing the election laws to both the local government institutions and the Provincial Councils by bringing in committee stage amendments to Bills that had been presented to Parliament for totally different purposes. So anything is possible come the 28th of October.