EC has correctly set out legal position - Dr. JayampathyWickramaratne

COLOMBO: "The Election Commissioner has correctly set out the legal position with regard to the filling of vacancies in local authorities," said Dr. Jayampathy Wickramaratne.

A statement issued by Dr. Wickramaratne yesterday on the Elections Commissioner's guidelines on canvassing by political parties and independent groups at the upcoming remaining local government polls said:

"The provisions of the Provincial Councils Elections Act No. 1 of 1989 and the Local Authorities Elections ordinance relating to filling of vacancies are similar. When there is a vacancy the Secretary of the political party or the leader of the independent group is called upon to nominate a person to fill the vacancy.

Earlier, we saw parties and independent groups nominating persons who were not candidates at the election.

"But now the legal position has been clarified by the Supreme Court. In Centre for Policy Alternatives vs. Dayananda Dissanayake, Commissioner of Elections reported in (2003) Sri Lanka Law Reports, Volume 1 at page 277. The judgement is by Justice Mark Fernando with Justices D.P.S. Gunasekera and C.V. Wigneswaran agreeing".

"Justice Fernando held that the relevant provision in the Provincial Councils Elections Act (which is similar to the relevant provision of the Local Authorities Elections Ordinance) does not permit a person who was not a candidate to be nominated to fill a vacancy.

He stated at page 291 as follows: "What is involved is the right of the electorate to be represented by persons who have faced the voters and obtained their support, and that in my view is the general scheme of the Act."

"An interesting issue is as to what happens if all the candidates have resigned and there are no more candidates to nominate. According to the Act, the matter is then reported to the President. In the case of local authorities, the Minister will be informed.

The President (the Minister in case of local authorities) may direct the Commissioner to hold an election for the purpose of filing a vacancy. But this is not mandatory. If no election is held, still the Secretary or group leader cannot nominate someone from outside to fill a vacancy, with the result that the vacancy will remain unfilled.

Justice Fernando explained this position at page 290: "There is no provision that the President must act within a specified time or that if the President does not order a by-election, the Commissioner shall call upon the secretary to nominate a successor. Thus, the President may decide to wait until several vacancies have occurred before ordering a by-election. This provision ensures that vacancies will be filled, if at all, by persons elected by the people".

"Thus it is clear that no outsiders can be nominated to fill vacancies. A voter may cast a preference in favour of candidate X, thinking that X can be replaced by Y who is not even in the list.

But it will be X who goes to the Council. If X resigns, someone in the list has to be nominated. Y can never be nominated. If all candidates in the list resign, there is a real danger that the seats secured by the party or independent group will remain vacant. Voters need to bear this in mind," the statement said.