Addressing 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.

This 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.

The 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.

Insofar 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.

In 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.

This 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.

Again, 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.

This 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.

Similar 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.

While 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 time.

In 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.

Ideally 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.

Meanwhile, 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 Article 104E(6))

The 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.

It 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.

The 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 should spearhead.

Pertinently, 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.

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