Social distancing and franchise for democracy

The fact that the eighth Parliament failed to deliver anything meaningful to the country and the fact that the seventh Parliament who were the framers of the 19th Amendment themselves admit its ambiguities and contradictions makes it a dangerous instrument in the hands of the frustrated. It is hoped the ninth Parliament would have the sagacity to make essential changes to remove such contradictions and ambiguities while remodelling the structures brought in by the 19th Amendment in a more meaningful and democratic manner

By Samantha Ratwatte PC

Sri Lanka, in the long title of the 1978 Constitution, is called “the Democratic Socialist Republic of Sri Lanka”. Though we persist with free health services and education, at best the term “Socialist” has been retained merely as a nostalgic reference to our past.

This becomes clear if one examines the manner in which we have conducted our economic affairs since 1977. Further, the Constitution itself does not contain anything to justify the use of the word “Socialist”, such as a goal based on “Socialism”. 

Thus, when Sri Lanka from the outset of the COVID-19 pandemic opted to save the lives of her people regardless of the consequences to the economy, unlike certain other countries, the decision was obviously based on our ancient values not yet dented by our “modern” ways and not related to describing ourselves as a “Socialist” State.

However, the terms “Democratic” and “Republic” in our title, have without doubt, been used with the specific intention of relying on the well-known fundamental principles of Democracy and Republicanism as the foundational basis of our Constitution.

Sovereignty that vests in the people (Article 3) is at the core of our Constitution as we are a Democratic Republic as opposed to a Constitutional Monarchy (Ruled by a King or Queen).

Article 3 also declares that Sovereignty which is inalienable is in the people and that it includes;



a) the powers of government

b) fundamental rights and 

c) franchise 



Thus the only way of handing over powers of government in trust to the President and Parliament is by the exercise of franchise (voting) at an election in terms of the law. Vide. Article 4(a), (b) and (e).



Once a mandate is given by the exercise of our franchise, the executive powers of government are exercised by the President while the legislative powers and judicial power through institutions established by Parliament are exercised by those elected to Parliament. 

Both these arms when given our mandate through the exercise of our franchise exercise “our” powers by representation.

This representation can only be as long as the mandate so given remains in force as per the rule of law.

This is the basic premise of our representative Democracy and it is inbuilt as part of the foundation of our Constitution as can be seen from the above mentioned Articles of the Constitution. 

Acting within the Constitution to preserve Democracy

The Constitution is deemed to be what we have given ourselves for orderly government while the laws made by Parliament are expected to assist in this regard. Therefore, the Rule of Law is embodied in the Constitution and the other laws of our country. All these factors play complimentary roles in our Democracy.

Pushing the country into a situation where the violation of the Constitution will be the inevitable result due to necessity, by not using the existing laws to protect the foundational basis of our Democracy, will have serious long-term consequences.

If we need to act outside the Constitution due to an absolute necessity that must be done as a last resort with utmost caution in a manner that causes the least amount of damage to the institutions and the structure of democratic governance created by us.

The challenge therefore, is for everyone to get together to act within the Constitution to preserve the foundational basis of our Democracy however difficult it may be whilst seeking to protect lives from COVID-19.

Holding the poll to have the ninth Parliament elected is vital to have the constitutionally agreed governance structure in place whatever misgivings one may have about the usefulness of Parliament itself.

As a permanent cure for the COVID-19 virus is not within sight the constitutionally mandated election must be held to be within the Rule of Law even before we think of economic revival. We cannot afford to go on with only an Executive arm of Government which has a mandate by the people.

Faulting institutions makes citizens lose faith

One may fault the Elections Commissioner for the omission in the gazette published purportedly under Section 24 of the Elections Act, or agree that the member of the Commission who is acting against national interests by refusing to follow simple ethical standards expected when holding public office, of casting aside personal views, likes and dislikes should be removed.

These matters, justifiable as they may be, do not serve the larger interests of the nation by enhancing the stature of the institutions concerned.

Faulting institutions due to the acts of individuals steering them serve no better purpose than the lame arguments put forward by those politically opposed to the President faulting him for declaring an election acting within the Constitution or making feeble attempts to convince him that the dissolved eighth Parliament should be summoned to make whatever possible political gains even at the cost of the Country.

Thus arguments faulting the Commissioner and the Commission will only make citizens lose faith in institutions supposed to foster democracy for the betterment of the nation.

Therefore, politicians and citizens alike must have sincerity of purpose when making suggestions or criticising. The suggestions we make must be for the betterment of the nation however disadvantageous they may be for the political camp we choose to support at a given moment. 

The views expressed in this article are penned down in that spirit.

Legality and sequence of events

There is no debate regarding the legality and sequence of events given below;

a. The 19th Amendment to the Constitution brought in by the seventh Parliament was certified on 15 May 2015.

b. The eighth Parliament elected thereafter began sessions on 1 September 2015.

c. The President was constitutionally entitled to dissolve the eighth Parliament on any date after 1 March 2020 in terms of the proviso to Article 70(1) 

d. The President by Proclamation as constitutionally permitted dissolved the eighth Parliament on 2 March 2020.

e. In the said Proclamation dissolving the 8th Parliament as mandated constitutionally by Article 70(5)(a) he fixed the date for the holding of the election to elect members for the ninth Parliament as 25 April 2020.

f. Both Articles 70(5)(a) and 70(5)(b) entitles the President to fix several dates for an election.

g. As mandated by Article 70(5)(a) he also fixed 14 May as being a date within three months of the Proclamation for the ninth Parliament (new Parliament) to meet.

h. The President can vary the date fixed for the meeting of the ninth Parliament up to any date within three months of the 1st Proclamation made on 2 March 2020 in terms of Article 70(5)(c). This means he can vary this date to any date up to 2 June 2020.

As the Elections Commissioner has gone on record stating he needs five weeks to complete the process of elections, if the President exercising his powers under Article 70(5)(c) extends the date for the first meeting of the ninth Parliament to the maximum possible extent, the date would be 2 June 2020.

If so, the constitutional requirement on the part of the Elections Commissioner to conclude the elections in a manner that enables the new Parliament (ninth Parliament) to meet before 2 June 2020 could be met, as he has more than sufficient time based on his own assessment.

This will demonstrate that the President has fulfilled his primary duty cast on him by Article 33(1)(a) to the constitutionally permitted maximum level to ensure that the Constitution is respected and upheld.

This should be more than enough encouragement to the Commissioner to keep to the timeframes given in the Constitution provided he acts sincerely.

Conducting of polls

The poll itself can be held on several dates which will ensure social distancing by getting a lesser number of people to the polling centres at any given time. This can be achieved by the imaginative use of the law rather than using the law to stifle democracy itself.

The Elections Commissioner in terms of S24(1)(c) of the Elections Act is supposed to conduct the election on the day nominated by the President in terms of S10 of the Elections Act which is the same date given in terms of Article 70(5)(a) of the Constitution.

If the Elections Commissioner is unable to take the poll for the election on the said date in any electoral district due to any emergency or unforeseen circumstances he may specify a date for such poll in terms of S24(3) of the Elections Act No. 01 of 1981. 

However, the Elections Commissioner has not specified such a date regarding an alternative date in lieu of 25 April set out in the initial proclamation of the President.

As no contestant has opposed this move by the Commissioner, he can publish a gazette giving several dates instead of one day to ensure social distancing. He can also provide for more boxes and queues in the same polling stations.

In the alternative as no alternative date has been specified for the poll it can be taken (at least after 25 April) the election for all electoral districts has not been held.

In such a situation the President is empowered to act in terms of S113 of the Elections Act.

As it is possible under this Section by Gazette to issue another Order for an election to be held in a “district” such order can be made for all districts by separate gazettes.

Several dates and even different dates for separate districts can be given in order to assist the Commissioner to manage with the same human resources at his disposal.

Several dates being so given is envisaged even under Article 70(5) of the Constitution. The word “election” used in S113 and Article 70(5) should be taken to mean the “poll” when used in the correct context with regard to the date/dates of election.

The Health Minister can also assist by making Regulations in terms of S2 read with S3(2) of the Quarantine Ordinance for social distancing to be carried out by prescribing a maximum number of people who should be permitted to cast their ballots per box, the distance to be maintained between persons, etc..

The President can facilitate the conduct of the election (with the advice of the Elections Commission under Article 33(1) (d) of the Constitution) by providing necessary security and the resources to conduct the polling in that manner. 

By employing these strategies we can act within the law of the country and ensure the continuity of the governance structure by having the ninth Parliament in place within the stipulated timeframes.

Destabilising the country

One must be mindful that the LTTE terrorists who acted against the interests of Sri Lanka at every given opportunity aimed at destabilising the country first and dismembering it subsequently. 

The methods employed by them were diverse. However, their ultimate aim was to destabilise and then dismember the country. They not only targeted the infrastructure of the country by acts of terrorism but sought also to prevent effective rule by the State by their chosen method of dismantling governance structures through their proxies.

The international standing of the country was also targeted by them to achieve their eventual goal. 

One must be mindful when legislating and also when using the provisions of law not to give the impression to the public that certain public officials and elected representatives are in fact attempting to achieve what the terrorists aspired to achieve.

The imploring made to the President to exercise his discretion under Article 70(7) to summon the dissolved eighth Parliament together with the request made to the Elections Commissioner not to hold the poll to elect members to the ninth Parliament are suggestive of attempts to destabilise the country in my view.

It is a given that the actions of Parliament are not subject to Judicial scrutiny unlike the President’s actions which are subject to the Fundamental Rights jurisdiction in terms of the proviso to Article 35(1) brought in by the 19th Amendment.

There is also consensus even among the framers of the 19th Amendment that it contains many ambiguities and contradictions. 

If Article 70(7), is decided by a dissolved Parliament (once they are summoned) as being an Article that stands entirely independent from Article 155(4), it may be used to give them a license to go on in perpetuity. 

Though Article 70(7) refers to a requirement for the President to be “satisfied that an emergency has arisen “to summon a dissolved Parliament”, there is no provision for him to be “satisfied” that such emergency is no longer there unless this Article is read with Article 155(4) which relates to the invoking of emergency regulations.

As the only way for such a Parliament which has been summoned after a dissolution to end its term is “the termination of the emergency or the conclusion of the General Election” in terms of Article 70(7), such a Parliament can go on insisting that the said “emergency” is still there as long as the General Election is held in suspense.

If the President insists that Article 70(7) has to be read with Article 155(4) the 8th Parliament can insist it is not so and we would then have paved way for an eternal dispute between a President with an electorally sanctioned mandate and an expired Parliament, without such a mandate, that is standing in the way of electoral validation.

With the backing of the LTTE terrorist funded “international community” and certain hired NGOs, this is a sure-fire way of wreaking havoc in our country in a manner no terrorists could have dreamed of. 

They may well argue based on the same Constitutional Law wizardry through which they gave us the 19th Amendment, that this is the best formula for democracy in our country unless the President and the Elections Commissioner step in to protect our hallowed but battered democratic institutions.

In this light it is hoped the President would view the seemingly innocent request of summoning the dissolved eighth Parliament with necessary “seriousness” it deserves by having them investigated for any possible terrorist connections.

Sri Lankan elections

Sri Lanka has had elections in 1989 where no campaigning was possible by most opposition candidates and very little was possible even for the ruling party candidates who may have had some form of security, despite threats by the then formidable terror group of the JVP (in one of its previous incarnations) to chop off the fingers of the people who voted and actually carrying it out in some instances.

We have had a former President taking the correct but somewhat democratically incongruous decision to declare a British High Commissioner persona non grata for having complained of the ruling party supporters stuffing ballot boxes in the same election that was held when the country was engulfed in terror.

We have continued to hold elections despite widespread acts of terrorism by the LTTE till May 2009, when they were eventually defeated militarily. 

All these helped to preserve our democratic institutions in the long run despite shortcomings and the battering they received because we exercised some form of franchise until we ushered in the “franchise shy democratic era” in 2015.

Even then, despite the Provincial Council Elections being stymied ably assisted by the TNA stalwarts (Hope Prime Minister Modi will get to know this through the RAW before he tells us to implement the 13th amendment again) with yet another brilliant piece of “democratic legislation” and despite warnings of the “intellectuals” of the danger to democracy by the exercise of our franchise, we managed to “extract” an election and put in place the executive arm of government.

One may complain of a deficit in democracy in Sri Lanka due to these reasons but even the paragon of “democratic virtue“, the USA, preserved its highest democratic institution, the Presidency by ensuring there wouldn’t be a protracted assault on the institution by preventing a recount of the Florida votes in the year 2000. 

Today there is no threat to the election from any form of terror except perhaps the “terror of the result” in the minds of some members of the eighth Parliament.

The only requirement to hold the poll is to ensure maximum possible protection from a disease. This must be achieved by employing all possible means except the cancellation of the election which is essential to have the other arm of democratic governance in place.

The Elections Act of 1981, which has been observed in the breach all these years, as far as campaigning is concerned, could for the first time be enforced to the letter and the true spirit complying with the Rule of Law.

This Act, by its stringent rules against certain forms of campaigning will automatically assist social distancing. Candidates and political parties can avail themselves all types of media including electronic media to convince us why we should vote for them instead of getting their posters on our walls to do the talking.

The fact that the eighth Parliament failed to deliver anything meaningful to the country and the fact that the seventh Parliament who were the framers of the 19th Amendment themselves admit its ambiguities and contradictions makes it a dangerous instrument in the hands of the frustrated.

It is hoped the ninth Parliament would have the sagacity to make essential changes to remove such contradictions and ambiguities while remodelling the structures brought in by the 19th Amendment in a more meaningful and democratic manner.

It is also hoped the ninth Parliament will have the foresight to realise and those who come to the ninth Parliament from the pre-2015 era would use the benefit of their hindsight to realise that citizens seek a better system than what existed both post and pre-19th Amendment.