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Constitutional paradox: There is no such thing called Election Commission
Published Date: 13/11/2018 (Tuesday)

By Jayampathy Molligoda

Hold the Parliamentary elections under pre19A

Our Constitution, which was certified by Parliament on 31 August 1978, has 19 amendments; the First Amendment to the Constitution was certified by the Speaker in the same year on 20 November. By the end of 1988, there had been 14 amendments made to the Constitution (within a 10-year period). The most recent amendment was the 19th Amendment which was passed in May 2015.

Chapter V11A of 19A deals with the setting up of a Constitutional Council and few other commissions including the Election Commission. In terms of the Article 41B (6) of the 19 A, all the commissions referred in this chapter, other than the Election Commission, shall be responsible and answerable to Parliament. How come only the Election Commission is not answerable to Parliament? 

Not properly constituted

When perusing the Constitution (vide Article 103), it is evident that the total number of members to the Election Commission has been reduced from five to three. As can be seen from the Article 104(1), the quorum shall also be three numbers. What is more concerning is that the Article 104(2) says that in the absence of the Chairman from any meeting of the Commission, a member elected by the members present from amongst themselves shall preside at such meeting. How can we have a commission consist of two when the quorum is three? These clauses are contradicting with each other. 

In view of the above, it is clear that the Election Commission is not properly constituted. The emoluments of the members of the Election Commission are charged on the ‘Consolidated Fund’ and as citizens, we pay heavy taxes including VAT, NBT, Income Taxes, etc. to meet the cost of the Election Commission, which is not in existence. As a taxpayer, having a PAYE tax file, am I entitled to a refund if a proper claim is submitted? 

Need to go back to pre-19A to hold elections

Another pertinent question that should be asked from the Election Commission is whether they will rectify the inconsistency and contradictory clauses by bringing an amendment to the Constitution. Until it is rectified, it can be argued that there is no such thing called the ‘Election Commission’ purportedly set up under provisions under 19A. (Reductoo qd Absurdum)

In the republic of Sri Lanka, sovereignty is in the people and is inalienable. Sovereignty includes franchise. The 1978 Constitution demands that the franchise shall be exercisable at the elections of the President and of the members of Parliament, and at every referendum. The writer is of the view that this is a serious violation of the people’s sovereignty and the fundamental rights. However, the Supreme Court shall have the sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution.

In the circumstances, the forthcoming Parliamentary elections would have to be held under the pre-19A conditions. There is an imminent infringement of my fundamental rights if they decided to hold the elections under the provisions set out in 19A through the present Election Commission, which is not properly constituted. Am I entitled to go to the Supreme Court in view of an imminent infringement of my fundamental rights under Article 126?

Source: Daily FT

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