Supreme Court Petition for Local Government Elections Amendment Bill

IN THE SUPREME COURT OF THE DEMOCRATIC

SOCIALIST REPUBLIC OF SRI LANKA

In the matter of a reference under Article 121(1) of the Constitution.

S.C. Special Determination

1.         Women In Need}
65, Tickle Road,
Colombo 8.

2.      Women’s Development Centre – Kandy,
61, Mulgampala Road, Kandy.

  PETITIONERS

          Vs.

      The Attorney-General
Attorney-General’s Department
Hulftsdorp, Colombo 12.

 RESPONDENT

TO: THEIR  LORDSHIPS THE CHIEF JUSTICE AND THE OTHER HONOURABLE JUSTICES OF THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.

On this          day of October. 2010.

The petition of the Petitioners above named appearing by …………………….. their Attorneys-at-Law states as follows:

1.                  The Petitioners are all Sri Lankan organizations dedicated to the advancement of women and the protection of the rights of women, and not less than three-fourths of the members of each of the petitioner                                     organizations are citizens of Sri Lanka.  The Petitioners are  accordingly citizens of Sri Lanka for the purposes of Article 121 of the Constitution.

2. The Petitioners state that on or about                  2010 a Bill titled “Local Authorities Elections (Amendment)” was placed on the Order Paper of Parliament. The Petitioners annex hereto true copies of the said Bill in Sinhala and English marked respectively “P1(a)” and “P1(b)”.

3. The Petitioners state that the said Bill in its entirety and/or certain clauses of the said Bill are inconsistent with Articles 3 and 4(d) read with Article 12 and Articles 27(2)(a) and 27(6) of the Constitution for the reasons more fully set out hereinafter.

4. The Petitioners state that:

(a)                 while the population ratio of men and women in Sri Lanka is approximately equal (with women in fact outnumbering men by a small margin); and

(b)                 while there is little difference between the rates of literacy, and primary and secondary school enrolment between male and female citizens; and

(c)                 while adult men and women citizens of Sri Lanka have enjoyed the franchise since 1931; and

(d)                 while men and women have in theory had equal rights to be members of political parties, to stand for election to local authorities, Provincial Councils and the national Parliament, and to be elected to such bodies;

all major political parties have shown a marked reluctance to  give nominations to women candidates at all levels of elections including local government elections, resulting in the gross under-representation of women in such elected bodies. The Petitioners state that this state of affairs has continued even after Sri Lanka enacted rights-based Constitutions in 1971 and 1978 which not only guaranteed equality before the law to all citizens but expressly prohibited discrimination on the grounds, inter alia, of a person’s sex. The Petitioners state that the relevant provisions of the present Constitution in this regard are the fundamental rights provisions contained in Articles 12, clauses (1), (2), and (4), read by themselves and together with the Directive Principles of State Policy set out in 27(2)(a) and 27(6). Nominations to women candidates by the major political parties at the 2006 local government elections was between 3% - 6%.

5. The Petitioners state that said state of affairs has also persisted despite the adoption of Women’s Charter in March 1993 and even after Sri Lanka

changed its system of elections from a simple majority system to a proportional representation system under the 1978 Constitution. The Petitioners state that the said Charter under the heading “Political and Civil Rights” expressly states that: “The state shall take all appropriate measures to eliminate discrimination against women in the Public and Private sectors, in the political and public life of the country, and ensure to women, on equal terms with men, the right to equitable representation in the nomination process at the National, Provincial and Local government elections”: Vide Section 2(i) (b) of Women’s Charter approved by Cabinet and adopted by the Government of Sri Lanka in March 1993, a true copy of  which is annexed as “P2” and pleaded as part and parcel hereof.

6. By way of example in support of the foregoing averments, the Petitioners state the following;

(a)                 Despite women constituting approximately 50 per cent of the voting population, the percentage of women in the national Parliament has always been below 7 per cent, and presently stands at 5.8 per cent.

(b)                 Likewise, the national average of women members of Provincial Councils currently stands at 5 per cent, with some Provinces having percentages as low as 1.9 per cent (Southern Province) and 2.3 per cent (Sabaragamuwa).

(c)                 In the Eastern Provincial Council (for which an election was held in 2008 and which was therefore not included in the statistics quoted above or taken into account for the purpose of the national average given above) there is zero representation of women.

7. With respect to local government bodies, which are the subject matter of the Bill under review, the Petitioners state that the percentage of women has tended to be the lowest of all the levels of government, as illustrated by the following statistics:

(a)                 The all-Island average percentage of women members of local bodies was 1.7 per cent in 1991, 1.9 per cent in 1997 and 1.8 per cent in 2006.

(b)                 In 2006 there were only 3.0 per cent of women elected to Municipal Councils, 3.4 per cent to Urban Councils, and 1.6 per cent to Pradeshiya Sabhas.

(c)                 Furthermore, when national statistics are further broken to the district level, there are some districts where representation is below 1.0%.

8. The Petitioners further state that the lack of elected women representatives is matched by a failure among the mainstream political parties to nominate sufficient numbers of women candidates so as to give women an opportunity of being elected in sufficient numbers to accord with their percentage of the population.

9. The Petitioners state that Article 12 of the Constitution is the guarantee of equality in the form of a fundamental right. The Petitioners submit that it is in recognition of the disadvantages suffered by women that Article 12(4) of the Constitution states that special provision by legislative or executive action may be made for the advancement of women (as well as children and disabled persons) without infringing the other provisions of Article 12. The Petitioners accordingly submit that the inclusion of clause 12(4) as part of Article 12 creates a duty on the part of the State to take affirmative action to ensure the advancement of women where they currently suffer discrimination.

10. The Petitioners annex hereto marked “P3” and plead as part and parcel hereof, true copy of the Written Submission made jointly by a number of women’s groups to the Select Committee of Parliament on Electoral Reforms. The Petitioners state that the injustice suffered by Sri Lankan women citizens is apparent from a survey carried out by the United Nations agency ESCAP according to which Sri Lanka was shown to have the least percentage of women in local government bodies out of a total of 11 Asian and Pacific countries surveyed. According to the said survey, Sri Lanka had only 2.0 per cent women representatives while Japan which was next lowest had 6.2 per cent, and India and Bangladesh which led the table, had 33.0 and 33.3 per cent respectively. This survey forms part of the said document “P3”.

11. The Petitioners further state that at the Fourth World Conference on Women held at Beijing in 1995 the Government of Sri Lanka was among 189 governments that pledged to ensure women’s equal access to and full participation in power structures and decision making, if necessary through positive action. The Petitioner further states that following the adoption of the Beijing Platform for Action, more than 80 countries around the world have implemented quotas for women at local government including, India, Pakistan, Nepal, Rwanda, Afghanistan and France, but Sri Lanka did not do so.

12. The Petitioners further state that Sri Lanka is a party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and that in the Government’s last Report to CEDAW dated 18.10.1999 the Government of Sri Lanka recognized the inadequate levels of women’s representation in elected political bodies and pledged “a quota system for women at the local government level.” The Petitioners annex hereto and plead as part and parcel hereof, a true extract from the said Report marked “P4”.

13. Petitioners state that it is the women who, as the primary care-givers of the family, are most oppressed by the lack of adequate facilities or maintenance of facilities such as roads, bridges, transport, public health and other common amenities in the area of local government. This is especially so in a rural community of electors. There is therefore a social need to give them access to the process of Local Government administration.

14. The Petitioners state that the omission in the Bill before Your Lordships’ Court to provide for affirmative action in order to ensure the fair representation of women amounts to an infringement of the rights of women citizens in terms of Article 12 of the Constitution read by itself and/or with Article 27(2)(a) and 27(6)  and thereby renders the said Bill inconsistent with the Constitution.

15. The Petitioners further states that the clause 22 of the Bill before Your Lordships’ Court which purports to amend Section 28 of the Local  Authorities Elections Ordinance in order to allocate 25 per cent of the seats in each local body for “women and youth” is not a solution for the infringement of the rights of women as set out above, as it does not guarantee a minimum representation for women as such. The Petitioners further state that the reservation of one quota for “women and youth” amounts to classifying unequals as if they were equals, which amounts to an infringement of Article 12, and therefore the said clause 22 is inconsistent with the Constitution.

16. Further and without prejudice to the foregoing paragraphs, the Petitioner states that clause 2 of the said Bill which purports to add a new Section 3A to the Local Authorities Elections Ordinance for the purpose of establishing a National Delimitation Committee (also referred to as the “National Committee”) without specifying any criteria for eligibility to serve on such Committee is inconsistent with Articles 3 and/or 4 and/or 12(1) and/or (2) and/or 93 of the Constitution.  

17. Further and without prejudice to the foregoing paragraphs, the Petitioner states that clause 2 of the said Bill which also purports to add a new Section 3B to the said Ordinance is inconsistent with Articles 3 and/or 4 and/or 12(1) and/or (2) and/or 26 of the Constitution in respect of the proposed Section 3B(2)(a) which will or may have the effect of classifying voters in terms of their ethnicity. However the Petitioners are not opposed to the creation of multi-member constituencies on a similar basis as was done in the past.  

18. Further and without prejudice to the foregoing paragraphs, the Petitioners state that clause 48 of the said Bill which purports to add a new Section 66B to the Local Authorities Elections Ordinance which provides that if the budget of a local authority is defeated twice, the administration of that local authority should come under the purview of a Special Commissioner of Local Government, is fundamentally undemocratic and contrary to Articles 3 and/or 4 and/or 12(1) and/or (2), read with the Ninth Schedule to the Constitution introduced by the Thirteenth Amendment.

WHEREFORE the Petitioners pray that Your Lordships’ Court be pleased to:

a)      Declare that the Bill titled “Local Authorities Elections (Amendment)” and/or any one or more of its provisions is inconsistent with the Constitution;

b)      Communicate the said declaration of the Court to the Hon. Speaker of Parliament; and

c)      Grant the Petitioner such other and further relief as to Your Lordships’ Court shall seem meet.

Attorney at Law for the Petitioners