Local Authorities Elections Bill:

Intervenient petitioner makes submissions

by Sarath MALALASEKERA

On a direction by the Supreme Court the Intervenient Petitioner Edirisinghe Vithanage Prasad Rasanga Harischandra submitted his written submissions to court recently.

The Bench comprised Justice Dr. Shirani Bandaranayake, Justice S.I. Imam and Justice P.A. Ratnayake PC.

The petitioner is Vijitha Herath of Battaramulla and the Respondent is the Attorney General.

The Intervenient Petitioner Rasanga Harischandra is the National Organizer of the National Polls Observation Centre and an Attorney-at-Law. The Intervenient - Petitioner was engaged in monitoring Provincial Councils Elections, General Elections and Presidential Elections since 2008.

He states that his name was included in the candidates list as a youth candidate and was elected to the Weligama Pradeshiya sabha from April 2002 to March 2006.

The Intervenient Petitioner in his written submissions through Senior Attorney Priyantha Jayawardena states that a motion moved by the Leader of the House on April 4, 2006, Parliament resolved that a Select Committee of Parliament be appointed, pursuant to the Committee appointed by the Speaker submitted an interim report, to further consider reforms to the current system of Parliamentary, Provincial Councils and Local Authorities elections and other matters connected therewith and to make recommendations in respect of further changes considered necessary to the Constitution and the existing election laws and to report together with their observations and recommendations on the amendments necessary to the said laws.

In his written submissions the Intervenient-Petitioner further stated

Salient features of the proposed bills

It is submitted that the proposed amendment has the following main features;

(a) a mixed system, a hybrid of the first-past-the-post system and the proportional representation system which is the most suitable system for elections in the country.

(b) the proposed bill is necessary for the establishment of a stable government and a strong opposition, equitable representation to minority parties and communities, closer nexus between voters and their elected representatives and the democratic representation of the people's mandate. One member each will be elected for a division demarcated for local government bodies (if a multi member constituency, the required number)

(c) the amendments will eliminate or minimise violence, undue expenditure at elections and misappropriation of State resources at the time of elections,

(d) it will re-demarcate to form an electoral unit, which is territorially and demographically smaller than the present unit, to increase the participation of the community and community organizations and to facilitate the management and diversification of development and economic needs of the area and ensure a democratic representation of minorities and different communities.

(e) a "ward" system based on the first past the post system should be re-introduced for local Government elections with the possibility of electing 30% of representative under the proportional representation system based on the same principle involved in Parliamentary and Provincial Council elections in order to ensure the representation of minority communities or unrepresented parties.

(f) political parties can include provisions in their policies to ensure nomination of women candidates in order to guarantee better representation of women in Local Government bodies.

(g) it is mandatory to submit a statement of assets and liabilities within three (3) months of the submission of nomination paper,

(h) there are provisions to count votes polled in every polling station at the same polling station,

(i) to curb frivolous and bogus candidature that has been taking place during recent elections.

(j) the proposed Act will deal with poll disturbances that may arise during the day of the poll. Further this amendment will give power to the Elections Commissioner to declare the poll taken at any polling station void after making necessary inquiries.

(k) presently the High Court established under Article 154 p of the Constitution have the jurisdiction to try election petitions in respect of elections held under local Authorities Elections Ordinance. Such an election petition has to be filed in respect of an electoral area.

However, under the proposed amendment an election petition can be filed in relation to an election for any ward of an election area.

(l) the Counting Officer shall prepare a written statement giving details of votes polled by each political party or independent group. The said statement shall be certified by the counting Officer and witnessed by one of his Clerks and the Counting Agents who are present and who desire to sign the same.

Proposed local authorities elections

Amendment Bill

Proposed Clause 3A - Delimitation Commission

In the case of Athukorale Vs. Attorney - General (1996) 1 SLR 238 it was held that the power to vary the limits of and the number of members of a dissolved Pradeshiya Saba can be passed by Parliament with the special majority required under Article 84 (2) as the proposed legislation did not carry appropriate guidelines for the exercise of the powers of the Minister.

Therefore it is submitted that the proposed amendment is consistent with the Constitution.

In any event Article 95 of the present Constitution deals with a limitation Commission". Article 95 (1) states "Within three months of the commencement of the Constitution the President shall for the delimitation of the electoral districts, establish a Delimitation Commission consisting of three persons appointed by him who he is satisfied are not actively engaged in polities. The President shall appoint one of such persons to be the Chairman".

These results show that certain candidates have received negligible number of votes. In fact many abuse the present elections process for their advantage at the expense of public funds. In addition to this during the recent past we noticed some candidates coming forward to support the other candidates of their choice.

Further, when there are large number of candidates, with long ballot paper provided, the voters get confused when they cast their vote.

Thus, it is necessary to rectify these problems and the proposed legislation would remedy the problems encountered in the election process.

Therefore it is submitted that the proposed amendment is consistent with the Constitution.

(E) Proposed Clause 29 (1) (a) - Need to have reasonable deposits

As submitted above large number of candidates contests the elections. Some of those candidates are not serious in winning the elections but they have ulterior motives. All such candidates contest at the expense of public funds for their personal gains. Further, the voters get confused when there is a very long list of candidates.

Therefore it is necessary to have legislation to remedy the said problems and the intended legislation would rectify the problems encountered at present.

In any event Clause 24 provides provision to refund the deposits of the successful candidates. Therefore, it is submitted that no prejudice is caused to the genuine candidates.

Thus it is submitted that the proposed amendment does not violate the Constitution.

(F) Proposed Clause 28 (2B) Women and Youth

Article 12 (4) of the Constitution states "Nothing in this Article shall prevent special provision being made, by law, subordinate legislation or executive action, for the advancement of women, children or disabled persons."

However, this sub Article does not make it compulsory for the government to bring legislation in favour of women and children.

The said Article only allows the government to bring special legislation which would otherwise violate Article 12 of the constitution.

Further, the proposed legislation gives the discretion to the political parties or independent groups to decide the composition of women and youth in their respective nomination papers. This is advantageous for the minority or weaker parties to get their candidates elected as they can put forward the most popular candidate in a particular area.

In the circumstances it is submitted that the proposed legislation is consistent with the Constitution.

Further there is no ambiguity in the proposed amendment.

(G) Proposed Clause 48 - Filling of vacancies

Clause 48 of the bill provides provision for the Secretary of the relevant political party or the leader of the independent group to fill the vacancies occurring in local Authorities.

This provision is made taking into consideration of the fact that the candidates will contest either through a political party or as an independent group.

Therefore it is submitted that the proposed amendment is consistent with the Constitution.

(H) Proposed Clause 65 A - Need to have Multi-Member Wards

Proportionate system was introduced to have the minority representation in the administration. It is submitted that the word "minority" should not be given a narrow meaning. In fact minority includes certain ethnic, religious, class and caste etc. However, during the past it was observed that the current proportionate system of elections does not serve the intended purpose. For example:

(a) Colombo District has only one Muslim Member of Parliament and no Tamil Members,

(b) Kalutara District have only Sinhala representatives,

(c) Puttalam has only Sinhala representatives,

(d) Badulla has only Sinhala representatives.

Relevant Gazette are annexed hereto marked as "X3" and "X4"

The said results show that the present Proportionate system has not served the intended purpose. Thus, there is a need to change the existing election laws to have the minority representation in the administrative system.

Like in the earlier elections prior to the introduction of proportional representation system, under the proposed law there will be multi-member wards in the areas where minorities live. Therefore the proposed system will really and virtually enable the minorities to participate in the administrative process.

It is further submitted that the proposed changes are minority friendly as the minorities get a better opportunity to have their own representatives elected under the proposed amendment.

In any event, where the majority of the constituents belong to ethnic, religious or some other minority community in such a area they will be definitely represented by the members of the relevant minority community, e.g. Jaffna or a Catholic area. Likewise if a minority lives in an area where they are not the majority in that area, there too such minority will get an opportunity to have their representation under the proposed legislation.

In any event it is submitted that the proposed amendment does not contravene the Constitution.

(i) Proposed Clause 65 B (2) (b) - 5% Cut Off Point does not work to the detriment of small parties and groups.

At the time of introduction of the Proportionate Election system there was a cut-off point of 12.5%. the said cut off point was later taken off.

However, as time passes by it is evident as a result of the said removal of the said cut off-point it has become a problem to form a strong ruling party and also a strong opposition. Further, as a result of the said removal the real wishes of the voters are not reflected in the system. Therefore it is necessary to reintroduce a cut-off point.

Further under the proposed amendment there will be no bonus seats. All the seats are allocated on the actual votes received by political parties or independent groups.

In any event introduction of such a cut-off point does not violate the constitution.

(J) Proposed Clause 65B (3) - Seats under the proposed PR system are adequate

The proposed legislation intends to give power to the voters to directly appoint their representatives. Therefore, any increase in the number of seats based on a proportionate system will take away the direct representation of the voters.

Further the proposed legislation would confer franchise on the voters to elect their representatives.

In any event it is a matter of policy of the government and does not violate any provision in the Constitution.

(K) Proposed Clause 66A (1) (a) - no need to have by-elections

It submitted that even at present there are no by-elections. In fact it is not possible to have by-elections in proportionate elections system. In fact the voters will vote either to a political party or to an independent group for a specified period. Since the votes are not cast purely for an individual the vacation of office by an individual does not warrant a by-election. Therefore, the question of having by-elections to fill vacancies does not arise.

In any event it is submitted that the said proposed amendment does not violate the Constitution.

(L) Proposed Clause 66B (1) and 66 C (1) are not contradictory

Clause 66 B (1) deals with a situation where a recognized political party or independent group HAS OBTAINED 50% or MORE of the total number of seats in a local authority and Clause 66 C (1) deals with a situation where such political party or group has obtained LESS than 50%

Therefore, it is respectfully submitted that there is no contradiction between the two clauses.

Article 154 A (3) states "Notwithstanding anything in the preceding provisions of this Article, Parliament may by, or under, any law provide for two or three adjoining Provinces to form one administrative unit with one elected Provincial Council, one Governor, one Chief Minister and one Board of Ministers and for the manner of determining whether such Provinces should constitute to be administered as one administrative unit or whether each such Province should constitute a separate administrative unit with its own Provincial Council, and a separate Governor, Chief Minister and Board of Ministers."

It is respectfully submitted that one cannot expect all the eight Provinces to function all the time as the Constitution provides for mergers of the Provinces.

Thus, in such a situation one cannot expect His Excellency the President to refer a Bill to a non-existent Provincial Council. Therefore, it is submitted that as held in the Agrarian Services (Amendment) Bill S.C. Special Determination No.2 and 4/1991 "Every" Council may well mean every Council in existence so that reference to a dissolved Council is unnecessary (unless perhaps such dissolution is being challenged as being nullity).

In the circumstances it is submitted that His Excellency the President is not required by law to refer the Bill under reference to refer the same to the non-existing Northern Provincial Council.

In any event the following legislation relating to the Local Government elections were passed after the 13th Amendment was introduced to the Constitution:

(i) Local Authorities Elections (Amendment) Act No.25/1990

(ii) Provincial Councils (Amendment) Act No.28 of 1990

(iii) Local Authorities Elections (Amendment) Act No.1 of 2002

(iv) Elections (Special Provisions) Act No. 14 of 2004

This demonstrates that an amendment to the election process of Local Authorities does not contravene the Constitution.

Local Authorities (Special Provisions)

(a) Local Authorities (Special Provisions) Bill deals with the composition, duration of office of the Councillors of a Council, filling of vacancies in a Council, composition of Municipal Councils and composition of Pradeshiya Sabhas.

Ninth Schedule of the 13th amendment to the Constitution - List 1 (Provincial Councils List) states inter-alia:

"4. Local Government -

4:1 Local authorities for the purpose of local government and village administration, such as Municipal Councils, Urban Councils and Pradehsiya Sabhas, except that the constitution, form and structure of local authorities shall be determined by law;

4:2 ...... "

Therefore, it is submitted that the said Local Authorities (Special Provisions) Bill deals with the structure of Local Authorities.

Thus the Parliament has the power to pass the proposed Bill. Further, it is submitted that the proposed Bill is not contrary to the Constitution.

In any event Court can make the suggestions if necessary

In any event if the Court is of the opinion that any part of the Bill is not consistent with the Constitution then, the Court has the power to make the appropriate suggestions. In fact in the case of Athukorale Vs. Attorney-General (1996) 1 SLR 238 the Court made the necessary suggestions that were needed to pass the proposed legislation.