the elections commission impasse once and for all
Reportedly, Dayananda Dissanayake, Sri Lanka's Commissioner of Elections
has recently re-iterated his pleas for the speedy establishment
of the Elections Commission in terms of the 17th Amendment to the
Constitution. He has also outlined his views in relation to the
manner in which the powers of the Commission, (in whose place the
Commissioner is now reluctantly functioning though hopefully not
ad infinitum) should be increased.
is indeed an extraordinary situation, where the country's chief
elections officer's pleas, (becoming increasingly plaintive as time
goes on), is disregarded so blatantly by not only the Government
but also, to all intents and purposes, the opposition parties as
well. Though the impasse has arisen between the Kumaranatunge presidency
and the Constitutional Council, one did not discern any noticeable
enthusiasm on the part of the United National Front while in government
for that brief but reasonable period of time not so long ago, to
remedy the situation either.
disinclination of both the major parties to intervene in any substantial
matter of governance unless it concerns their immediate political
future cannot be more strongly condemned. This tendency, most strongly
seen in fundamental concerns affecting the office of the Chief Justice
in recent times, has resurfaced in the case of the Elections Commission.
as the latter is concerned, one possible solution is that Article
41B be amended to provide that where there is a deadlock between
the President and the Constitutional Council regarding the recommendations
of the appointees, the President may request the Council to reconsider
its recommendations for reasons stated. If after reconsideration,
the Council makes the same recommendation, the person recommended
will be deemed to have been duly appointed if the President fails
to make the appointment within one month.
addition, the 17th Amendment should be subjected to a through review
in respect of other constitutional clauses. For instance, it is
difficult to ascertain why different procedures have been stipulated
for appointment in regard to the categories of officials specified
in Article 41C. Appointment of the said officials should also be
subject to the similar processes as the members of the bodies specified
under Article 41B.
process of review is specially important where the conducting of
elections is concerned. Deficiencies abound in this sense. For example,
Article 104 B(2) states that "...shall be the duty of all authorities
of the state charged with the enforcement of such laws, to co-operate
with the Commission to secure such enforcement." This should
be amended to vest the duty of co-operation with all authorities
of the state and not limited to only those specifically charged
with the enforcement of such laws.
Article 104B(4) of the 17th Amendment empowers the Elections Commission
to prohibit the use of any movable or immovable property belonging
to the State or any public corporation by any candidate, political
party or independent group as well as for the purpose of promoting
or preventing the election of the above.
article does not regard the misuse of state property in its widest
sense as including individuals in employment of the State nor could
it be said to incorporeal interests. It does not therefore reflect
the general principle affirmed by the Supreme Court of Sri Lanka
in numerous judgements during the 1990's, that state property cannot
be used by politicians in a manner that violates the right of voters
to ensure that their public funds are used for the benefit of all
and not those of a particular political persuasion only, and should
be amended accordingly. The article should also be amended in order
that any person who contravenes or fails or neglects to comply with
any direction or order issued by the Commissioner or indeed, any
provision of the law relating to elections, guilty of an offence.
prohibitions should apply to the powers of the Elections Commissioner
vis a vis directions that he hands out to the print media, for example,
regarding balanced reporting as there is no power of compulsion
of these directives as opposed to his more specific powers in the
case of misuse of state resources by the electronic media.
the special procedures detailed under the 17th Amendment and specific
duties imposed on state media institutions under these provisions
of the Sri Lankan election laws are eminently justifiable in terms
of the particular rationale applying to the use of public funds,
the private broadcast and telecast media should be put under a general
duty of fairness in allocating broadcasting facilities during election
consequence of this acknowledgement, the 17th Amendment should be
further amended in order to include a new sub section which empowers
the Elections Commission to determine fair allocation of broadcasting
time for candidates and political parties in its discretion as far
as the private broadcast and telecast media is concerned.
though perhaps controversially, the said new article should further,
give the Commission power move the appropriate court to censure
and/or impose a fine on such station and/or apply for a restraining
order on such station restraining the continuance of such contravention
in the event of noncompliance with its directions.
another defect in the 17th Amendment, which may hamper the effective
working of its provisions with regard to the Elections Commission
once it becomes fully operative is the ambiguity that it perpetuates
between the Commission itself (comprising of five members) and the
Commissioner General of Elections who shall, subject to the direction
and control of the Commission, implement the decisions of the Commission
and exercise supervision over the officers of the Commission. (Vide
Commissioner General is appointed by the Commission, subject to
the approval of the Constitutional Council. His or her removal is
however problematic as Article 104E(7) provides in one clause, that
it is subject to a prolonged parliamentary process while providing
in another clause that he or she could be removed by the Commissioners
on account of ill health or physical or mental infirmity.
is not difficult to see the nucleus of a potential conflict between
the Commissioner General and the Commission in these provisions,
at a time when both are fully operative in a manner that will be
akin to tussles that we saw at one point between the Bribery and
Corruption Commission and its Director General.
immediate dilemma faced by the Commissioner of Elections has been
so far met with unconcern by civil society in general, excepting
the occasional symposium and intermittent lobbying. Indeed, given
its fundamental importance to basic norms of electoral functioning,
this is a consultative process that the National Human Rights Commission
the Election Commissioner's perturbation in this regard was shared
recently by the outgoing members of the first Constitutional Council
appointed under the 17th Amendment. While the basic deficiency in
Article 41B has been put starkly in issue in reference to the stalemated
Elections Commission, the possibility of similar conflicts occurring
in respect of other appointments specified to be made under this
constitutional article is not far fetched. If the option is to wait
grimly till the term of one obdurate set of commissioners expire,
what we have left of constitutional governance will not be fit even
for the proverbial dustbin.