• EC Chair notes only EC or Judiciary can order Returning Officers
• SJB files SC writ against letter, Sajith warns of people’s fight to protect franchise  
• BASL notes impact on rule of law, democracy, urges Prez., Govt. to refrain from interference
• JVP/NPP’s Anura says Prez. violating Constitution ‘impeachable’
• PAFFREL calls for legal action against Ministry Secy. Hapuhinna

 While noting that there is no authority except for the Election Commission (EC) and the Judiciary to issue orders or instructions to Returning Officers after their appointment, the EC stated that it will summon the Public Administration, Home Affairs, Provincial Councils and Local Government (LG) Secretary Neel Bandara Hapuhinna to inquire about the letter which the latter had issued to all District Secretaries (DSs) on Tuesday (10) advising them to refrain from accepting bail deposits for the LG election but which was withdrawn within a few hours after being issued.

During a media briefing held yesterday (11), the media queried the Chairman of the EC, Attorney Nimal G. Punchihewa as to whether the EC expected to take any action regarding the controversial letter in question. Responding to the query, Punchihewa said: “We came to know that the Ministry Secretary (Hapuhinna) has issued a letter to the DSs. He had then withdrawn the letter within a few hours of its issuance, but we are working to summon him and inquire about it. The Returning Officers are appointed by the EC as per the Constitution. All five of us (EC members) signed the relevant gazette notice in that regard. After the Returning Officers are appointed, there is no other authority except the Judiciary to issue orders, instructions and other such aspects regarding elections. The responsibility regarding election related matters rests with the EC. Our view on the matter is such, and the EC expects to inquire from him about it.”

Meanwhile, Samagi Jana Balawegaya (SJB) General Secretary and Parliamentarian Ranjith Madduma Bandara had filed a writ application before the Supreme Court (SC), requesting to quash the letter sent to the DSs by Hapuhinna. A total of 85 individuals including the Secretary to the Cabinet of Ministers W.M.D.R. Fernando, Hapuhinna, the Cabinet, Prime Minister and Public Administration, Home Affairs, Provincial Councils and Local Government Minister Dinesh Gunawardena, Punchihewa and EC members, all Returning Officers, and the Attorney General (AG) have been named as respondents in the petition. Madduma Bandara who highlighted that the issuance of such a letter is completely against the law also emphasised that the same violates the right of universal suffrage and the fundamental human rights guaranteed under the Constitution. Accordingly, the petitioner has sought a writ order to dismiss the relevant letter, and an interim order preventing the implementation of the same until the verdict on the petition is delivered.

Furthermore, the Bar Association of Sri Lanka (BASL) yesterday stated that any attempt to interfere with the exercise of the franchise and any attempt to prevent people from exercising their sovereign right to choose their representatives is a blatant attack on democracy and the rule of law in Sri Lanka. The BASL, raising concerns about the issuance of the letter in question, stressed that this move could result in the nomination process to the LG Authorities being brought to a standstill, thus effectively overturning the decision of the Returning Officers and the EC to receive nominations, and thereafter conduct the LG election. The BASL stated that it is firmly of the view that the EC should be allowed to exercise its powers, mandated under the Constitution and the law, without interference, urging the President and the Government to refrain from taking any steps which could be construed as an interference with the independent functions of the EC and with the exercise of the franchise by the people. The BASL also called on Punchihewa and the EC members as well as all public officers to continue to act according to the Constitution and the law in order to ensure that the franchise of the people is protected.

On Tuesday, Fernando had made a communication to Punchihewa, with copies to the Secretary to the President, the AG, the Secretary to the Premier and the Minister of Justice, Prisons Affairs and Constitutional Reforms, on the upcoming LG election. The said letter, which was seen by The Morning, read: “The President apprising the Cabinet on the discussion he has had with the EC members with regard to the actions taken so far by the EC on the LG election, stated that according to the matters that transpired, there appears to be no majority agreement among the EC members pertaining to the conducting of the LG election. The President further stated that since the EC is an independent entity, the Government does not intend to intervene in the activities of the EC, but however, he has requested the EC members to reach a consensus and seek the advice of the AG on the future course of action to be taken in view of the applications before Court pertaining to the matter and to inform the Government of the outcome in order to consider providing the required funds within the available limited fiscal space and to facilitate the conducting of a free and fair election.” 

The letter further stated that after discussions and taking into consideration the circumstances referred, the Cabinet has decided to consider the provision of the required funds for the LG election, once the EC informs the Government of the outcome on the action taken as per the aforesaid matters, and to instruct Hapuhinna to direct all DSs and Government Agents not to accept bail deposits from candidates for the LG election until further notice, and to treat the said decision as confirmed and to authorise Fernando to convey the same to the relevant authorities for necessary action. On the same day, Hapuhinna had issued a letter to all DSs, informing them that the Cabinet had informed him to order all DSs to refrain from accepting bail deposits pertaining to the LG election 2023, until further notice.

The Commissioner General of elections Saman Sri Ratnayake had also issued a letter to all District Returning Officers on the same day, with copies to the Secretary to the EC, all District Deputy and Assistant Returning Officers, and all staff officers of the EC Headquarters. The letter issued by Ratnayake, which was also seen by The Morning, read: “In terms of the powers vested in the EC by Section 4(1) of the Local Authorities elections Ordinance (Local Authorities elections [Amendment] Act, No. 16 of 2017), you have been appointed as the Returning Officer of each District by Extraordinary Gazette Notification Number 2311/26 dated 21 December, 2022. Therefore, I would like to emphasise that it is your responsibility to take necessary steps to accept the bail deposits if political parties or independent groups make such for the LG Bodies in relation to the LG election to be held. Further, it is your responsibility to accept the nominations between 18 and 21 January 2023 as has been notified to you.”

In the midst of the issuance of the said series of letters, it was reported on Tuesday itself that Hapuhinna had withdrawn the letter issued by him to the DSs.

Meanwhile, making a special statement on the issuance of the letter in question by Hapuhinna, Opposition and SJB Leader, Sajith Premadasa said: "The EC has taken a clear decision to hold the LG election and install new LG Bodies by 20 March 2023. Against that backdrop, we hear that an order has been issued to all DSs to refrain from accepting bail deposits until further notice following a decision made by the Cabinet. We are not surprised by this because for a long time now there has been some kind of drama with comic scenes to postpone the LG election. Some Advisors of the Presidential Secretariat and some officials are engaged in this and we will reveal all of these step by step. They have implemented a grand, national conspiracy to prevent the LG election from being held. It is the result of the conspiracy that has been released today. I clearly say to the spineless and cowardly Government, hold the LG election immediately. You (the Government) have no right to insult the sovereignty of the people and destroy suffrage. The right to vote is a fundamental right of the people and it is not possible for a Cabinet to destroy it. I am giving a clear warning to the Government that we will take to the streets with tens of thousands of people for the right to vote. You cannot prevent the right to vote by appointing boards and conspiring in palaces. We will carry out a democratic and peaceful fight against it. We, the SJB, will definitely lead the people’s fight and make all possible sacrifices to win the voting rights democratically, freely and peacefully.”

Janatha Vimukthi Peramuna (JVP)-led National People's Power Leader and MP, Anura Kumara Dissanayake also made a special statement on the issuance of the letter in question on Tuesday, and said: “The regime of President Ranil Wickremesinghe and former President Gotabaya Rajapaksa has taken over a Government and a country like pirates took over a ship in Somalia; instead of holding elections properly and taking a mandate from the people. Therefore, we continuously pointed out that the Government is ready to carry out all kinds of conspiracies to postpone the upcoming LG election. All the conspiratorial measures that could have been passed through Parliament to postpone it have been defeated by now. Then, the Government tried to stop this through the Judiciary. I believe that the Judiciary will not give into that conspiratorial desire. After all, the Government is now violating the Constitution, exerting pressure on the EC and working to postpone the election. It is the EC that is responsible for holding elections. However, President Wickremesinghe is now using his power of coercion and using the Cabinet and Government officials who are obeying him and attempting to postpone the LG election. This is a direct violation of the Constitution by the President. One of the main reasons under which an impeachment motion against the President can be brought is the violation of the Constitution. Clearly, Wickremesinghe is violating the Constitution. What he usually says is that he is the President appointed according to the Constitution, but he violates the Constitution and gets Hapuhinna to inform all the DSs to refrain from accepting bail deposits”

He also revealed that in addition to President Wickremesinghe, Prime Minister Dinesh Gunawardena too has summoned the EC members on a number of occasions, and that their plan was to exert pressure on the EC and to postpone the LG election. Dissanayake further said: “We are thankful to the EC. It has clearly informed the Returning Officers that if political parties or independent groups make bail deposits for the LG election, it is their responsibility to take the necessary steps to accept them properly. It has been announced that the EC will not succumb to the illegal and unconstitutional action of the Cabinet. The EC, without falling, did not succumb to the pressure exerted on it by the President and the Premier. As the NPP, we have planned to make bail deposits in many districts tomorrow. We believe that the Returning Officers appointed by the EC will accept them. They are responsible not to the illegal orders of Wickremesinghe, Hapuhinna or the infant Cabinet which does not even know the Constitution and the law, but to the EC. Also, as a political Party, we are ready to take all possible measures to defeat the unconstitutional and illegal attempts to postpone the LG election.”

Meanwhile, polls monitor the People’s Action for Free and Fair Elections (PAFFREL) yesterday appealed to the EC and the Public Service Commission (PSC) in writing to take legal action against Hapuhinna. PAFFREL’s Executive Director Rohana Hettiarachchi told The Morning yesterday that it is very clear that the EC went within the legal frame and that therefore, the EC is duty bound to call the election and proceed with that under the provisions of the Local Authorities Elections Act and the Constitution. In a letter written to the EC, Hettiarachchi noted that Article 104(4)(b) of the Constitution stipulates that all public officers, including statutory board corporations, shall act in accordance with the instructions of the EC, and that disregarding the instructions of the EC without any just cause, is a failure to act accordingly. 

“It is stated under Article 104GG of the Constitution that it is an offence punishable with imprisonment for three years and a fine of not less than Rs.100,000. It appears that Hapuhinna, who is a senior official in the administrative service, has knowingly violated Article 104 of the Constitution by notifying all DSs through a letter not to accept the deposits related to the LG election. It cannot be taken for granted that Hapuhinna, who leads the entire administration including DSs and divisional secretaries in the process of public administration, commits such a mistake. Especially at a time when an election has been announced in which the democratic right of the people is being exercised, an administrative officer issuing such a letter is disrespectful to the entire public service and sets a wrong precedent for the future. We request Punchihewa and the EC members to take the necessary legal steps as per the Constitution against Hapuhinna who acted to advise the election officials without reasonable reason to act against your orders.” 

Hettirachchi further said that he had participated at a meeting held at the EC yesterday in which political party representatives were also invited along with election monitors during which nomination related proceedings and the relevant circulars were distributed to the political party representatives.