Sri Lanka Draft Constitution Ch 13

Tamils - a Trans State Nation..

"To us all towns are one, all men our kin.
Life's good comes not from others' gift, nor ill
Man's pains and pains' relief are from within.
Thus have we seen in visions of the wise !."
- Tamil Poem in Purananuru, circa 500 B.C

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Chandrika's 'Devolution Proposals'

Draft Sri Lanka Constitution - March 1997

Franchise and the Elections

100. Every person shall, unless disqualified as hereinafter provided, be qualified to be an elector at the election of Members of Parliament and of Members of a Regional Council and to vote at any Referendum:

Provided that no such person shall be entitled to vote unless his name is entered in the appropriate register of electors.

101. No person shall be qualified to be an elector at an election of Members of Parliament or Members of a Regional Council or to vote at any Referendum if he is subject to any of the following disqualification, namely

(b) if he has not attained the age of eighteen years on the qualifying date specified by law under the provisions of Article 114; or

(d) if he is serving or has during the period of seven years immediately preceding completed serving of a sentence of imprisonment (by whatever name called) for a term not less than six months imposed after conviction by any court for an offence punishable with imprisonment for a term not less than two years or is under sentence of death or is serving or has during the period of seven years immediately preceding completed the serving of a sentence of imprisonment for a term not less than six months awarded in lieu of execution of such sentence:

Provided that if any person disqualified under this paragraph is granted a free pardon such disqualification shall cease from the date on which the pardon is granted;

(i) the last of the dates, if any, of his being convicted of any offence under section 66 or 76 of the Parliamentary Elections Act, No. 1 of 1981, or of such offence under the law for the time being relating to Referenda or the election of the President, or of Members of Parliament or of Members of Provincial Councils or Regional Councils, as would correspond to an offence under either of the said two sections;
(ii) the last of the dates, if any, of his being convicted of a corrupt practice under the Parliamentary Elections Act, No. 1 of 1981, or of such offence under the law for the time being relating to Referenda or the election of the President or of Members of Parliament or of Members of Provincial Councils or Regional Councils, as would correspond to the said corrupt practice;
(iii) the last of the dates, if any, being a date after the commencement of the Constitution, of a report made by a Judge finding him guilty of any corrupt practice under the Parliamentary Elections Act, No. 1 of 1981 of 1981, or under any law for the time being relating to Referenda, or of Members of Parliament or of members of Provincial Councils or Regional Councils'
(iv) the last of the dates, if any, of his being convicted or being found guilty of bribery under the provisions of the Bribery Act or of any future act as would correspond to the Bribery Act;

(i) the last of the dates, if any of his being convicted of an offence under the provisions of sections 77 to 82 (both inclusive) of the Local Authorities Elections Ordinance or for such offence under any future law as would correspond to any offence under the said sections' or
(ii) the last of the dates, if any of his being convicted of an offence under the provisions of sections 2 and 3 of the Public Bodies (Prevention of Corruption) Ordinance or of such offence under any future law as would correspond to the said offence;

(i) the last of the dates, if any of his being the Parliamentary Elections Act, No. 1 of 1981, or of such offence under the law for the time being relating to Referenda, or of Members of Parliament or of members of Provincial Councils or Regional Councils as would correspond to the said illegal practice;
(ii) the last of the dates, if any, being a date after the commencement of the Constitution, of a report made by a Judge finding him guilty of any illegal practice under the Parliamentary Elections Act, No. 1 of 1981, or under any law for the time being relating to Referenda, or of Members of Parliament or of members of Provincial Councils or Regional Councils;

(h) if a resolution for the imposition of civic disability upon him has been passed in terms of Article 93 and the period of such civic disability specified in such resolution has not expired;

(i) the date of his being convicted of any offence under the provisions of sections 188 to 201 (both inclusive) of the Penal Code or for such other offence under any future law as would correspond to any offence under the said sections; or
(ii) the date of his being convicted of an offence of contempt against, or in disrespect of, the authority of any Special Presidential Commission of Inquiry consisting of such member or members as are specified in Article 93 by reason of -
(1) the failure of such person, without cause which in the opinion of such commission is reasonable, to appear before such commission at the time and place mentioned in any summons which such commission is empowered by law to issue; or
(2) the refusal of such person to be sworn or affirmed, or the refusal or failure of such person, without cause which in the opinion of such commission is reasonable, to answer any question put to such person touching the matters directed to be inquired into by such commission; or
(3) the refusal or failure of such person, without cause which in the opinion of such commission is reasonable, to produce and show to such commission any document or thing which is in the possession or power of such person and which in the opinion of such commission is necessary for arriving at the truth of the matters to be inquired into by such commission;

(j) if the period of his disqualification imposed under Article 158 has not elapsed.

Qualification for election as Member of Parliament. 102. (1) Every person who is qualified to be a elector shall be qualified to be elected as a member of Parliament unless he is disqualified under the provisions of paragraph (2).

(2) No person shall be qualified to be elected as a Member of Parliament or to sit and vote in Parliament - (a) if he is or becomes subject to any of the disqualification specified in Article 101;

(i) stands nominated as a candidate for election for more than one electoral district at a General Election, (ii) stands nominated as a candidate for election by more than one recognised political party or independent group in respect of any electoral district,
(iii) stands nominated as a candidate for election for an electoral district and before the conclusion of the election for that electoral district,, stands nominated as a candidate for election for any other electoral district, (iv) being a member of Parliament, except in the circumstances referred to in Article 83 (6) or Article* stands nominated as a candidate for election for any electoral district;
(c) if he is the President of the Republic;
(d) if he is the Governor of a Region;
(e) if he is -
(i) a Judicial Officer; (ii) the Parliamentary Commissioner for Administration (Ombudsman);
(iii) the Secretary General of Parliament or a member of his staff;
(iv) a member of the National Public Service Commission, or the Finance Commissioner the National Police Commission or a Regional Judicial Service Commission or a Regional Public Service Commission or a Regional Police Commission;
(v) the Commissioner of Elections or a member of the Election Commission;
(vi) the Auditor General;
(vii) a public officer holding any office created prior to November 18, 1970, the initial of the salary scale of which was, on November 18, 1970, not less than Rs. 6,720 per annum or such other amount per annum as would, under any subsequent revision of salary scales, correspond to such initial;
(viii) a public officer holding any office created after November 18, 1970, the initial of the salary scale of which is, on the date of creation of that office, not less than the initial of the salary scales applicable, on that date, to an office referred to in item
(vii) or such other amount per annum as would, under any subsequent revision of salary scales, correspond to the first mentioned initial;
(ix) an officer in any public corporation holding any office created prior to November 18, 1970, the initial of the salary scale of which was, on November 18, 1970, not less than Rs. 7,200 per annum or such other amount per annum as would, under any subsequent revision of salary scales, correspond to such initial, (x) an officer in any public corporation or of any Regional Public Service, holding any office created after November 18, 1970, the initial of the salary scale of which is, on the date of creation of that office, not less than the initial of the salary scale applicable on that date to an office referred to in item (ix) or such other amount per annum as would, under any subsequent revision of salary scales, correspond to the first mentioned initial, (xi) a member of the Regular Force of the Army, Navy or Air Force, or (xii) a police officer or a public officer exercising police functions;

(f) if he has any such interest in any such contract made by or on behalf of the State or a public corporation as Parliament shall by law prescribe;

(g) if he is an undischarged bankrupt or insolvent, having being declared bankrupt or insolvent;

(h) if during the preceding seven years he has been adjudged by a competent court or by a Special Presidential Commission of Inquiry to have accepted a bribe or gratification offered with a view to influencing his judgement as a Member of Parliament or as a member of the legislature prior to the commencement of the Constitution.

(3) For the purposes of sub paragraph (h) of paragraph (2) of this Article, the acceptance by a Member of Parliament of any allowance or other payment made to him by any trade union or other organisation solely for the purpose of his maintenance shall be deemed not to be the acceptance of a bribe or gratification.

103. The voting for the election of the Members of Parliament and of Members of Regional Councils and at any Referendum shall be free, equal and by secret ballot.

104. (1) There shall be a Commissioner of Elections who shall be appointed by the President and who shall hold office during good behaviour.

(2) The salary of the Commissioner of Elections shall be determined by Parliament, shall be charged on the Consolidated Fund and shall not be diminished during his term of office. (3) The office of the Commissioner of Elections shall become vacant.

(d) on his removal by the President on account of ill health or physical or mental infirmity; or

(4) Whenever the Commissioner of Elections is unable to discharge the functions of his office, the President may appoint a person to act in the place of the Commissioner of Elections.

(5) The President may in exceptional circumstances permit a Commissioner of Elections who has reached the age of sixty years to continue in office for a period not exceeding twelve months.

105. (1) There shall be an Election Commission consisting of the Commissioner of Elections and such number of Deputy Commissioners and Assistant Commissioners as may be determined by Parliament.

(3) The Commissioner of Elections shall be the Chairman of the Election Commission.

(4) The President may remove a member of the Election Commission other than its Chairman, on a recommendation made by the Chairman.

(5) A member of the Election Commission other than the Chairman may resign from the Commission by letter addressed in that behalf to the President.

106. The Election Commission shall exercise, perform or discharge all such powers, duties or functions as may be conferred or imposed on or assigned to it by the law for the time being in force relating to election of Members of Parliament and of Members of Regional Councils, and to Referenda, or by any other written law.

107. (1) Within three months of the commencement of the Constitution the President shall for the delimitation of electoral districts for the election of Members of Parliament, establish a Delimitation Commission consisting of three persons appointed by him who he is satisfied are not actively engaged in politics. The President shall appoint one of such persons to be the Chairman.

(2) If any member of the Delimitation Commission shall die or resign or if the President is satisfied that any such member has become incapable of discharging his functions as such, the President shall, in accordance with the provisions of paragraph (1) of this Article, appoint another person in his place.

108. (1) The Delimitation Commission shall divide Sri Lanka into not less than twenty and not more than twenty-five electoral districts, and shall assign names thereto.

(2) Each region of Sri Lanka may itself constitute an electoral district or may be divided into two or more electoral districts.

(3) Where a region is divided into a number of electoral districts the Delimitation Commission shall have regard to the existing administrative districts so as to ensure as far as is practicable that each electoral district shall be an administrative district or a combination of two or more administrative districts or two or more electoral districts together constitute an administrative district.

(4) The electoral districts of each region shall together be entitled to return four members, (independently of the number of members which they are entitled to return by reference to the number of electors whose names appear in the registers of electors of such electoral district), and the Delimitation Commission shall apportion such entitlement equitably among such electoral districts.

(5) In the event of a difference of opinion among the members of the Delimitation Commission, the opinion of the majority thereof shall prevail and shall be deemed to be the decision of the Commission, where each member of the Commission is of a different opinion, the opinion of the Chairman shall be deemed to be the decision of the Commission. Any dissentient member may state his reasons for such dissent.

(6) The Chairman of the Delimitation Commission shall communicate the decisions of the Commission together with the reasons, if any, stated by a dissentient member to the President.

109. The President shall by Proclamation publish the names and boundaries of the electoral districts and the number of members, which each such electoral district is entitled to return by virtue of the provisions of paragraph (4) of Article 108 in accordance with the decision of the Delimitation Commission. The electoral districts specified in the Proclamation shall come into operation at the next ensuing General Election of Members of Parliament and shall thereafter be the electoral districts of Sri Lanka for all the purposes of the Constitution and of any law for the time being in force relating to the election of Members of Parliament.

Number of members to be returned by the several electoral districts and their apportionment among such electoral districts.

110. (1) The several electoral districts shall together be entitled to return one hundred and ninety-six members.

(2) The apportionment of the number of members that each electoral district shall be entitled to return shall, in the case of thirty-six members, be determined in accordance with the provisions of paragraph (4) of Article 108.

(3) The apportionment of the number of members that each electoral district shall be entitled to return out of the balance number of one hundred and sixty members shall be determined in accordance with the succeeding provisions of this Article.

(4) The total number of electors whose names appear in the registers of electors of all the electoral districts shall be divided by one hundred and sixty. The whole number, resulting from such division (any fraction not being taken into account) is hereinafter referred to as the ``qualifying number''.

(5) The total number of electors whose names appear in the register of electors of each electoral district shall be entitled to return such number of members as is equivalent to the whole number resulting from the division of the total number of such electors in that electoral district by the qualifying number and the balance number of such electors, if any, after such division shall be dealt with, if necessary, in accordance with paragraph (6) of this Article.

(6) Where the total number of members to be returned by all the electoral districts ascertained by reference to the qualifying number in accordance with paragraph (5) of this Article is less than one hundred and sixty members, the apportionment of the entitlement among the electoral districts of the balance number of members shall be by reference to the balance number of such electors and in the case of any electoral district not entitled to return a single member according to the determination made under paragraph (5), the total number of electors whose names appear in the register of electors of such electoral district, the electoral district having the highest of such balance number of such electors or such total number of such electors, being entitled to return one more member and so on until the total number of members to be returned number one hundred and sixty.

(7) Where in making an apportionment under paragraph (6) of this Article an equality is found to exist between two or more balance number of such electors or two or more total number of such electors or any combination of them and the addition of one such elector would entitle one electoral district to return an additional member, the determination of the electoral district to which one such elector shall be deemed to be added shall be determined by lot.

(8) The Commissioner of Elections, as soon as possible after the certification of the registers of electors for all the electoral districts, shall, by Order published in the Gazette certify the number of members which each electoral district is entitled to return by virtue of the Proclamation under Article 109 and this Article.

(9) For the purposes of this Article ``the register of electors'' means the register of electors for the time being in operation on the basis of which an election is being held.

111. (1) At any election of Members of Parliament the total number of members which an electoral district is entitled to return shall be the number specified by the Commissioner of Elections in the Order published in accordance with the provisions of paragraph (8) of Article 110.

(2) Every elector at an election of Members of Parliament shall, in addition to his vote, be entitled to indicate his preferences for not more than three candidates nominated by the same recognised political party or independent group.

(3) Any recognised political party or any group of persons contesting as independent candidates (hereinafter referred to as an ``independent group'') may for the purpose of any election of Members of Parliament for any electoral district, submit one nomination paper setting out the names of such number of candidates as is equivalent to the number of members to be elected for that electoral district, increased by three.

(4) Each elector whose name appears in the register of electors shall be entitled to only one vote notwithstanding that his name appeared in the electoral register in more than one electoral district.

(5) The recognised political party or independent group which polls the highest number of votes in any electoral district shall be entitled to have the candidates nominated by it, who has secured the highest number of preferences, declared elected.

(6) (a) Every recognised political party and independent group polling less than one twentieth of the total votes polled at any election in any electoral district shall be disqualified from having any candidates of such party or group being elected for that electoral district.

(b) The votes polled by the disqualified parties and independent groups, if any, shall be deducted from the total votes polled at the election in that electoral district and the number of votes resulting from such deduction is hereinafter referred to as the ``relevant numbers of votes.''

(7) The relevant number of votes shall be divided by the number of members to be elected for that electoral district reduced by one, if the number resulting from such division is an integer, that integer, or if that number is an integer and fraction, the integer immediately higher to that integer and fraction is hereinafter referred to as the `` resulting number''.

(8) The number of votes polled by each recognised political party and independent group (other than those parties or groups disqualified under paragraph (6) of this Article) beginning with the party or group which polled the highest number of votes shall then be divided by the resulting number and the returning officer shall declare elected from each such party or group, in accordance with the preferences secured by each of the candidates nominated by such party or group (the candidate securing the highest number of preferences being declared elected first, the candidate securing the next highest number of preferences being declared elected next and so on) such number of candidates (excluding the candidate declared elected under paragraph (5) of this Article) as is equivalent to the whole number resulting from the division by the resulting number of the votes polled by such party or group. The remainder of the votes, if any, after such division, shall be dealt with if necessary, under paragraph (9) of this Article.

(9) Where after the declaration of the election of members as provided in paragraph (8) of this Article there are one or more members yet to be declared elected, such member or members shall be declared elected by reference to the remainder of the votes referred to in paragraph (8) to the credit of each party or group after the declaration made under that paragraph and the votes polled by any party or group not having any of its candidates declared elected under paragraph (8), the candidate nominated by the party or group having the highest of such votes, who has secured the highest or next highest number of preferences being declared elected a member and so on until all the members to be elected are declared elected.

(10) (a) Where the number of votes polled by each recognised political party or independent group is less than the resulting number referred to in paragraph (7) of this Article the party or group which has polled the highest number of votes shall be entitled to have the candidate, nominated by that party or group (excluding the candidate declared elected under paragraph (5) of this Article) who has secured the highest number of preferences declared elected and if there are one or more members yet to be declared elected, the party or group having the next highest number of votes polled shall be entitled to have the candidate nominated by that party or group who has secured the highest number of preferences declared elected and so on, until all the members to be elected for that electoral district are declared elected under the provisions of this paragraph.

(b) After the determination under paragraph (a) if there are one or more members yet to be declared elected in respect, of that electoral district the provisions of that paragraph shall mutatis mutandis, apply to the election of such members.

(11) Where under paragraph (5) or (9) or (10) of this Article an equality is found to exist between the votes polled by two or more recognised political parties or two or more independent groups or any combination of them and the addition of a vote would entitle the candidate of one such party or group to be elected, the determination of the party or group to which such additional vote shall be deemed to have been given shall be made by lot.

(12) For the purposes of this Article the number of votes polled shall be deemed to be the number of votes counted other than rejected votes.

(13) (a) Where a Member of Parliament ceases, by resignation, expulsion or otherwise, to be a member of a recognised political party or independent group on whose nomination paper (hereinafter referred to as the "relevant nomination paper") his name appeared at the time of his becoming such Member of Parliament, his seat shall become vacant upon the expiration of a period of one month from the date of his ceasing to be such member.

Provided that in the case of the expulsion of a Member of Parliament his seat shall not become vacant if prior to the expiration of the said period of one month he applies to the Supreme Court by petition in writing, and the Supreme Court upon such application determines that such expulsion was invalid. Such petition shall be inquired into by three Judges of the Supreme Court who shall make their determination within two months of the filing of such petition. Where the Supreme Court determines that the expulsion was valid the vacancy shall occur from the date of such determination.

(b) Where the seat of a Member of Parliament (other than a Member declared elected under Article 112) becomes vacant as provided in Article 79 (other than paragraph (g) of that Article) or by virtue of the preceding provisions of this paragraph the candidate from the relevant recognised political party or independent group who has secured the next highest number of preferences shall be declared elected to fill such vacancy.

In this paragraph, "nomination paper" when used in relation to a recognised political party or independent group, includes a list submitted by that recognised political party or independent group under paragraph (2) of Article 112.

Election of Members of Parliament on the basis of the total number of votes polled at a General Election

112. (1) After the one hundred and ninety six members referred to in Article 110 have been declared elected at a General Election of Members of Parliament, the Commissioner of Elections shall forthwith apportion the balance twenty nine seats among the recognised political parties and independent groups contesting such General Election in the same proportion as the proportion which the number of votes polled by each such party or group at such General Election bears to the total number of votes polled at such General Election and for the purposes of such apportionment, the provisions of paragraphs (4), (5), (6) and (7) of Article 110 shall, mutatis mutandis, apply.

(2) Every recognised political party or independent group contesting a General Election shall submit to the Commissioner of Elections within the nomination period specified for such election a list of persons qualified to be elected as Members of Parliament, from which it may nominate persons to fill the seats, if any, which such party or group will be entitled to, on such apportionment. The Commissioner of Elections shall cause every list submitted to him under this Article to be published forthwith in the Gazette and in one Sinhala, Tamil and English newspaper upon the expiry of the nomination period.

(3) Where a recognised political party or independent group is entitled to a seat under the apportionment referred to in paragraph (2), the Commissioner of Elections shall by a notice, require the secretary of such recognised political party or group leader of such independent group to nominate within one week of such notice, persons qualified to be elected as Members of Parliament (being persons whose names are included in the list submitted to the Commissioner of Elections under this Article or in any nomination paper submitted in respect of any electoral district by such party or group at that election) to fill such seats and shall declare elected as Members of Parliament, the persons so nominated.

(4) The Commissioner of Elections shall before issuing the aforesaid notice determine whether the number of members belonging to any community, ethnic or otherwise, elected to Parliament under Article 111 is commensurate with the national population ratio and request the Secretary of such recognised political party or group leader of such independent group in so nominating persons to be elected as Members of Parliament to ensure as far as practicable, that the representation of all communities is commensurate with their national population ratios.

(5) Where the seat of a Member of Parliament elected under this Article becomes vacant, as provided for in Article 79 or subparagraph (a) of paragraph (13) of Article 111, the provisions of Paragraphs (3) and (4) of this Article shall, mutatis mutandis, apply to the filling of such vacancy.

For the purposes of this Article the number of votes polled at a General Election shall be deemed to be the number of votes actually counted and shall not include any votes rejected as void.

Penalty for sitting and voting in Parliament or Regional Council when disqualified.

(a) having been elected a Member of Parliament or a Member of a Regional Council but not having been at the time of such election qualified to be so elected, shall sit or vote in Parliament or such Regional Council, or

(b) shall sit or vote in Parliament or a Regional Council after his seat therein has become vacant or he has become disqualified from sitting or voting therein, knowing or having reasonable grounds for knowing that he was so disqualified or that his seat has become vacant, as the case may be, shall be liable to a penalty of five hundred rupees for every day upon which he so sits or votes to be recovered as a debt due to the Republic by an action instituted by the Attorney-General in the District Court of Colombo.

(b) the prescribing of a qualifying date on which a person should be resident in any electoral district to be entered in the register of electors of that electoral district;

(c) the prescribing of a qualifying date on which a person should have attained the age of eighteen years to qualify for the purposes of registration as an elector;

(e) the procedure for the election of Members of Parliament and of Members of Regional Councils;

(f) the creation of offences relating to such elections and the punishment therefore;

(g) the grounds for avoiding such elections, and where an election has been held void the manner of holding fresh elections;

(h) the form and manner in which vacancies shall be filled when all the candidates whose names appearing in the nomination paper of a recognised political party or independent group have been exhausted by election or otherwise;

(i) the manner of determination of disputed elections and such other matters as are necessary or incidental to the election of Members of Parliament and of Members of Regional Councils.

Provided that no such law shall add to the disqualification's specified in Articles 101 and 102.

(2) Until Parliament by law makes provision for such matters, the Parliamentary Elections Act. No. 1 of 1981 and the Provincial Councils Elections Act No. 1 of 1988 as amended from time to time, shall, subject to the provisions of the Constitution, mutatis mutandis, apply, to the election of Members of Parliament and to the election of Members of Regional Councils.

Public Officer or an Officer of a public corporation not to function during period of election.

115. When a public officer or an officer of a public corporation is a candidate at any election of Members of Parliament or of Members of a Regional Council, he shall be deemed to be on leave from the date on which he stands nominated as a candidate until the conclusion of the election. Such a public officer or an officer of a public corporation shall not during such period exercise, perform or discharge any of the powers, duties of functions of his office.