Media reports said that National Elections Commission Chairman Mahinda Deshapriya had requested President Maithripala Sirisena to seek the opinion of the Supreme Court on the legal implications on the provincial council elections. He had made this request in the light of the arguments over the electoral system under which the provincial council elections could be held at the moment.   

Some people are of the view that the PC polls should be held under the mixed electoral system which had been promulgated in 2017, despite some of the requirements under the new law, such as the delimitation of wards have not been fulfilled. At the same time, some others argue that PC polls could be held under the old Proportional Representation (PR) system as the new law is not complete until the delimitation process is over, and there cannot be a period when the PC polls could not be held either under the new or old system.  

It is against this backdrop, the Elections Commission Chief has requested the President to seek the Supreme Court’s opinion as to which electoral system could be used for the polls at the moment.   

Already, the terms of office of seven out of nine provincial councils in the country have lapsed and elections for them are not in sight. Meanwhile, the terms of other two councils; the Southern and Western PCs are to expire this month, despite the authorities having created a mess over the polls.  

Parliament saw a blame game between the ruling party and the Opposition over the delay in holding the PC polls last week, with Minister Lakshman Kiriella arguing that it was the Opposition that was responsible for the delay as they wanted the polls to be held under the new mixed electoral system, while Hesha Withange was blaming the President for wanting the elections to be postponed. UPFA General Secretary Mahinda Amaraweera, a close ally of the President, while admitting that the President earlier wanted to postpone the elections however, the President too now wants the polls to be held soon.  

However, it is a well-known fact that it was the UNP that created this gridlock over the PC polls. The party sneaked in the mixed electoral system through an amendment to the PC election Amendment Bill during its committee stage debate in Parliamentary in September 2017. The UNP did this in spite of the Supreme Court having already decided that a Bill called the 20th Amendment to the Constitution was unconstitutional on the grounds that the Bill would result in the postponement of elections for some PCs. It had also ruled that procrastinating elections was against the people’s sovereignty.   

Ironically, but rightly, the same Court which heard a petition filed by the former Chief Justice Sarath N. Silva later ruled that the passage of the Provincial Council Elections Amendment Act which has led to the present PC poll mess was legally valid. The reason was that the passage of a Bill with any amendment made to it during the committee stage without being referred to the Supreme Court was valid. On the other hand, once a Bill was passed according to the law, it could not be challenged.  

The term of Eastern, North Central and Sabaragamuwa PCs had lapsed in September and October in 2017, and that of Central, Northern and North Western councils ended in October last year. All these councils are being run since by the respective Provincial Governors. And nobody seems to complain about the non-functioning of the PCs except for the politicians. There are no reports of any complaint that people have been affected by the postponement of the PC polls. This poses the question about the validity of the PCs.   

Provincial Councils were originally meant to devolve power, especially to the Tamil-dominated areas in order to address the ethnic issue. However, the Northern PC was used by the Tamil politicians who ran it for their political ends, rather than to address the issues that affected the ordinary citizens, and moreover, no Tamil leader questioned it. All these facts demand an in-depth social discourse on the validity of the PC system.