Herath says President has no role in deciding date of poll

MP Prof. Charitha Herath

President Ranil Wickremesinghe

• Responds to comments by President via Twitter that EC has ceased to function and only temporary commission accountable to Parliament is in place
• Opines not President’s job to inquire into any procedural issue with EC and such matters should be handled either in Courts or in Parliament
• Says it is inappropriate to summon members of EC to President’s office and inquire into minutes of meetings
• Cites constitutional provisions which state that matters relating to elections rests with EC and not Executive

MP Prof. Charitha Herath yesterday said President Ranil Wickremesinghe has no role in deciding the date on which an election is held and the sole authority rests with the National Election Commission.

“Calling for an election at the legally defined time (which is mentioned in the constitution or the act) is the job of the Election Commission. They have done it and published the Gazette notification with the signatures of all the members in the commission,” Herath said in a lengthy Twitter thread yesterday.

His remarks were in response to comments on the official Twitter handle of President Ranil Wickremesinghe in which he said that under the transitional provisions to the Constitution passed by the House, the members of the EC ceased to function and it is only a temporary commission accountable to Parliament that is in place and they should have engaged with Parliament to prevent procedural defects.

“AG, PM and I met with the EC not to postpone elections but to request unity in decision-making as there was disagreement about action being taken, and even on the key dates in the election process. AG was informed that the EC does not have minutes of the meetings held.

“The EC has failed to follow the rules of governance in handling the LG Elections. It has not maintained notes and minutes of its meetings. There was no quorum at the meeting that made a decision on the date of the election, thus raising questions about its validity,” the President said.

He added that funding requests have been received from officials who have not obtained the required legal authorisation and such demands cannot be met as doing so would expose those complying with disciplinary action.

“Violating rules of good governance would lead to further instability,” the President said.

However Herath in his response to the President said there is no legal impediment to holding the election. “Even if there’s an issue with the EC meeting procedure, it’s not the President’s job to inquire about such things using his powers. Such procedural issues should be handled either in courts or in Parliament,” he said.

Herath went on to remind that even though President Wickremesinghe was elected by Parliament under Article 40 of the Constitution, he is the leader of a party which is contesting the election.

“In such a situation, according to democratic norms, it isn’t appropriate to summon members of the EC to his office and inquire meeting’s minutes,” Herath, a SLPP National List MP who now sits in Opposition, said.

He added that in this context, even the Attorney General under the instructions of the President does not have any right to check the minutes of the meeting of an independent election commission, specifically when the president is a leader of a party contesting in the same election.

“Though he (the President) claims that the EC has violated the rules of Good Governance. In my opinion, the violation of Good Governance is mainly shown in the actions of AG, the Finance Secretary and the Government Printer,” Herath said.

He added that under Article 3 of the Constitution the “sovereignty of the Republic lies in the people of the country and there are 3 fundamentals of sovereignty; 1. Governing power 2. Fundamental rights and 3. People’s franchise, which are inalienable.”

“As per article 104(A) 1 in the constitution there are four types of elections (presidential election, general election, provincial Council and LG election) which should be conducted by the Election Commission. I think the EC has taken actions aligning with the Constitution and with the democratic norms of our country.

“What is unconstitutional is not to call for an election within the legal time frame and to react to such a legal initiative in a rather unconstitutional way,” he said.

Herath added that Article 104(B) 2 says that all the relevant officials including Secretary to the Ministry of Finance and the Government Printer should work according to the directives issued by the EC during the time of an election.

“I think what we should do in the context of this drama of election postponement is to investigate what the constitutional roles of AG/Finance Secretary and Government Printer are in relation to an election and  what are the democratic ways that the Executive President could engage in such an exercise,” Herath added.