The contribution of the judiciary in upholding electoral democracy in Sri Lanka
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Date
2016-07-28
Authors
Mathan , K.
Journal Title
Journal ISSN
Volume Title
Publisher
University of Peradeniya, Sri Lanka
Abstract
Introduction
Election is the best democratic mechanism to uphold peeoples’ status as the repository of political power and it is institutionalized in Sri Lanka.1 Chapter XIV (as amended) of 1978 constitution titled ”The Franchise and Elections” provides inter alia the right to vote (Article 88), free and fair election process and equal treatment in elections.
The Supreme Court has the authority to hear and determine any legal proceeding relating to the Presidential election and any appeal from an order of the Court of Appeal in an election petition case (Article 130) and the Court of Appeal has the power to hear election petitions in respect of the General election (Article 144) Provincial Council elections (section 93, Provincial Council Election Act). Provincial High Court is authorized to hear local government elections petitions (part IV A Local Authorities Elections Ordinance).
The objective of the research is to explore the court’s jurisdiction and its contribution to upholding electoral rights of the people and its effectiveness.
Methodology
The research involves a qualitative study. The constitutional and statutory provisions relating to elections, case reports, reports on judicial performance and scholarly articles are analyzed.
Results and Discussion
The contribution of the judiciary on many aspects of electoral democracy is to be evaluated in this part. In respect of the right to be an elector, the judgment in Mudanayake v Sivanayanasundaram2 and Kodakkanpillai v Mudanayake3 posed a serious challenge. The denial of the right to be an elector, for the upcountry Tamils, was not considered discriminatory in light of Section 29(2) of the Soulbury Constitution. The legitimacy of the parliament to regulate the citizenship affairs of its nationals was endorsed4 which was criticized by many including Radhika Coomaraswamy. 5
With regard to the right to vote, the extension of the life of parliament to six years through referendum, not free and fair, instead of election is undemocratic.6 The approval of the same by the court is viewed as a result of sustained political barrage7.
The right minded decision in Karunatilake v Dayananda Disanayake8 case regarded right to vote as a fundamental right through broad interpretation of Article 14(1) (a). In addition to, Thavaneethan v Dayananda Dissanayake 9case declared the right to vote as a collective right and prevention of people from voting was declared severe infringement of fundamental rights. Further Supreme Court endorsed the right to vote of the disabled in the special determination on Elections (Special Provisions) (Amendment Bill)10. On the contrary the determination of the Supreme Court, in response to a FR petition filed by SLPF and SLNF, brought down a ruling imposing serious restrictions on the rights of Tamils in areas controlled by the LTTE to vote11, throws doubt on the functioning of the judiciary.
In Jayantha Liyanage vs Commissioner of Elections case decided on 17.12.2014, Court held that ordinary legislation cannot supersede the constitutional authorities. This judgment is significant as it protects the election rights from violations not only by election authorities but also from judiciary (Court of Appeal in this case). The right to form political parties is safe guarded. It was held in Warna Deeptha Rajapakse case, that the failure to follow due practices in expulsing a member from a political party is unconstitutional. Similarly the matter of cross over and expulsion from party membership was dealt with in light of the natural justice principle in Tissa Attanayake case (Supreme Court decision 5 May, 2015).
Though the approval of the 25 percent voluntary quota introduced for the political representation of women, in the special determination of Local Authorities (Special Provisions) and Local Authorities Elections (Amendment) Bill12 empowers women, the ruling that the ‘Constitution does not specifically provide for affirmative action’, reduces the value of the judgment.
The right to contest and the right to be elected is an important aspect of electoral democracy. Recently in the determination on Local Authorities (Special Provisions) and Local Authorities Elections (Amendment) Bill the 5 percent cut-off system was accepted without due attention to alleged violation of equality of small and minority political parties. In addition to this, the comments on the proposed constitutional reform in the same law, has led to a healthy dialog among stakeholders.13
In Sarath Fonseka vs Mahinda Rajapakse & Others, it was held that even the incidents of intimidation, bribery etc are proved by the petitioner , the failure to seek a declaration that the election was void in terms section 94(a) of Presidential Elections Act No.15 of 1981 precludes this court from granting a declaration that the election was void. The approach is highly technical and demolishing the purpose of the Constitutional authority.
The decision of the Supreme Court in the Centre for Policy Alternatives vs. Dissanayake and14case is commendable. The judgment is celebrated for reaffirming the supremacy of the people by declaring that only persons approved by the people can fill vacancies in provincial councils. However the dismissal of the case challenging the appointment of Members of Parliament via national list under Article 99A of the Constitution15 is disappointing. The appointment of defeated candidates at election as Members of Parliament via national list has been challenged16 and a purposive decision is expected.
The function of the Attorney General in election petition cases matters, and it must be in light with Mark Fernando J’s statement that Attorney General must present balanced, broad, thoughtful and fair approaches than defending the official position and the status quo which would have been the path of least resistance17. This is absent in Sri Lanka18.
Conclusion
The Sri Lankan judiciary has developed the concept of right to vote, especially of the minority communities. However the overall contribution falls short of standards and its subservient status to authoritarian rule is the cause commonly known. Only an independent judiciary in terms of structure and behaviour will be able to address the dilemma.
Description
Keywords
Electoral democracy
Citation
Proceedings of the International Conference on the Humanities and the Social Sciences (ICHSS) -2016 Faculty of Arts, University of Peradeniya. P. 156 -160