Who can move the Supreme Court on poll-postponement?

By N Sathiya Moorthy

With covid-threat still looming large, no political party or the civil society is talking about holding the ‘countermanded’ parliamentary polls any time soon. Yet, there are constitutional processes and procedures that cannot wait, nor allowed to be tampered with.

Article 70 of the Constitution sets out the procedure for the conduct of parliamentary polls or what otherwise is known as ‘General Elections’. But it has not provided for such exigencies and emergencies, such as a pandemic-threat of the incurable covid nature.

Maybe, the Constitution-makers always thought positively that they did not dare think about exigences and emergencies that could indefinitely delay parliamentary polls. It is anybody’s guess if the Steering Committee of the Constitution Assembly, which the dissolved Parliament converted itself into for drafting a new statute for the nation, even considered anything close to such a situation.

Today, all possibilities and probabilities about extending the polling date still remains a media question and social media speculation and rumours. Despite all that, no from the Government camp is talking about having an early election, for President Gotabhaya Rajapaksa to have a two-thirds majority in the new House. Now, however, all of it is also in the hands of Mother Nature, and covid pandemic.

Farcical, both…

Article 70 states that for the parliamentary poll process to begin, the President has to notify the same. It is not always that the President has to dissolve the incumbent House. As it happened this time, it is a political decision, left to the President to make.

All that 19-A did was to cut down the powers of the President to dissolve Parliament any time after the first year of the House, to six months before the due date for the new House to take over. There was no rationale for the first, there is no rationale for the second.

It is anybody’s guess why the ‘yahapalanaya’ (?) thought electoral reforms of the kind should stop with it, and not the wholesale end of decision-making of the dissolution kind. It is worse than the 19-A clause that provided for a ‘Government of National Unity’ and conferred powers for the President to have a larger Cabinet than otherwise. Farcical, both!

The question is about the Rajapaksas disposition to the matter, if they could get a two-thirds majority in Parliament, whenever elections are held. Will they revert to the JRJ norm of one-year-after….’, or scrap the Executive’s powers of dissolution, wholesale, or set out guidelines for such empowerment of the President?

If the last one is the choice, or even otherwise, there may require a provision for the Supreme Court to adjudicate on the fairness of the presidential decision, and within the shortest possible time, before the presidential gazette took actual effect in terms of the EC coming into the picture. Now that Government partners have gone to the Supreme Court, once already in end-2018 on the dissolution question, the future could throw up such other questions, both imaginable and not-so-imaginable at the time of Constitution-making or whatever…

EC, the final arbiter?

As for parliamentary polls are concerned, the Election Commission is the final arbiter. The EC enters the scene the minute the President orders fresh elections, and also fixes a date. In larger democracies like India, it is the EC’s job to fix the poll schedule(s).

It is another matter that in India, for instance, polling takes place on multiple dates, spread across the nation, and spread through six to eight weeks on occasions. Wind and weather apart, it is to ensure the mobility of security personnel from one region to another, one area in the same State/Province to another. Given the size of the nation, Sri Lanka did not require such a situation, despite JVP insurgencies and LTTE terrorism.

The Sri Lankan EC comes into the picture once the presidential notification is gazetted. From then on until the final results are announced, it is the EC’s job, right and responsibility. That includes the allotment of the ‘National List MPs’ from each party or cluster, derived from the poll-percentages in the particular election.

In the present case, the EC diligently followed up on the presidential notification on the dissolution of Parliament and the fixation of 25 April as the date for fresh elections. Once covid struck, the EC waited until the closing of nominations, before announcing the indefinite countermanding of polling proper.

The Constitution does not empower the President to do so, that is in the exclusive domain of the independent constitutional authority that the three-member EC now is. Having notified the postponement or countermanding of polling after the nominations had closed, the EC has indicated that only polling date will be rescheduled.

The EC has thus displayed have no intention to revisit the notification pertaining to the opening and closing of nominations, etc, etc. It is all in the exclusive domain of the EC, and it has exercised the power that the Constitution has conferred on it…

Cringing point

It is clear as crystal and no one has any doubt about it. The cringing point is about the other constitutional provision that the nation should have a new Parliament within three months of the dissolution of the existing House. Herein lies the crunch. Given the covid threat and spread, it is anybody’s guess if the EC could conclude the poll process by the beginning of June, which is when the deadline ends.

The Constitution-makers did not think of such exigencies, so the Constitution does not provide any solution. Yet, it is crystal clear that even if the EC notifies the elections, say, about a week or so closer to the D-day, the nation may not be able to or willing to participate in such an election.

One, political party and non-party candidates may be unwilling to risk their cadre-safety and their own in campaigning through the covid-clusters. Even for that to happen, the Government has to first feel confident to lift the nation-wife curfew, at  least in 80-90 per cent of the geographical space that constitute Sri Lanka. Even then a voter within the ‘curfew area’ can challenge the denial of his Fundamental Right to vote and participate in the democratic process…

Because the Constitution does not provide for the emergency, the option is either for the EC or the President to take a call. According to certain media reports, the EC has reportedly advised the President that it is his job. Or, is it?

According to news reports, the EC has also advised the President to seek the Supreme Court’s ‘advisory opinion’ in the matter, in the absence of any internal constitutional guidance in the matter. True or not, approaching the court for its view is the only available action – but who should initiate it?

Four options, but…

Media reports, quoting ‘sources’ say that the President should seek the Supreme Court’s ‘advisory opinion’ in the matter. Can the President do it? Yes and no. Because it is an unprecedented situation, the Supreme Court’s ‘advisory opinion’ may very much be in order, and only the President can seek the same. ‘No’, because in the context of the countermanded elections, the EC alone has the role, not the President.

In the eye of the Constitution, the reported possibility for he EC to report back to the President about its inability to conduct the polls as ordained, and the latter seeking the ‘advisory opinion’ of the Supreme Court may be ‘bad in law’. In practical terms, once the EC does it, whatever be the extraordinary circumstances as the one prevailing just now, in future, extraneous situations like political violence could well become a cause for EC’s consideration.

This is more so in a country where even presidential polls went on as scheduled, despite candidate-incumbent, Chandrika Bandaranaike-Kumaratunga suffering lie-threatening injuries in an LTTE bomb-attack, that too in an election rally of hers.  So whether it is the Supreme Court or Parliament or a Constituent Assembly, they need to frame guidelines for eventualities of the kind, as well.

Can the EC move the Supreme Court? Under the Constitution, the EC cannot move the Supreme Court to seek ‘advisory opinion’ of the kind. It is in the exclusive preserve of the President. But it is the EC that is burdened with the task. It can report back to the President the results of the election conducted, not tell the President that it could not couduct the polls, or is unlikely to conduct the same in the foreseeable future – whatever the reason.

That still may leave two options. One, it may be for the Attorney-General to report the ‘constitutional predicament’, as against a ‘constitutional deadlock’ to the Supreme Court, and seek its intervention and guidance in the matter. This again is a big ‘if’, in terms of locus standi, or the legitimacy of the Attorney-General to move the court – which again will have to decide on the matter, if the AG moves the same.

The fourth and the more feasible and legitimate option may be for a registered political party or even an individual voter, to move the court. They can either seek directions to the EC to delay the polling day, or for conducting the polls on the day already fixed. If it iis the latter, there may not be much time left for moving the Supreme Court.

If it is a voter or a political party that is moving the Supreme Court, then they can include the Elections Commission, the President and even the Attorney-General and registered political parties as among the respondents – basing the pliant on facts and law. It is likely that the inclusion of the latter group of respondents could make the court proceedings at times unwieldy. It can again be a matter for the court to decide, in the first instance, before proceeding further in the matter.

In the normal course, the Supreme Court should be going into summer recess. It is not unlikely that in the light of the covid crisis, the Hon’ble Justices may decide to revisit the issue. It may be true that in the aftermath of the pandemic, no Justice can be expected to go overseas in the short-term.

Yet, they should be given an advance, even if informal alert, if the ‘polling date issue’ is to come up before the Supreme Court, and the Hon’ble Chief Justice, in his wisdom decides, that the issued a Fuller Bench to hear the matter and pass appropriate orders. It is another matter that the EC cannot be left to wriggling its hands until then, what it needs to do next, when and how – but that is likely to happen if the court is not approached early on.

(The writer is a Distinguished Fellow and Head-Chennai Initiative, Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. Email: [email protected])

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