The provincial council elections are being held without the Elections Commission that should operate under the 17th Amendment. However in the absence of this, the current Elections Commissioner has all the powers under the elections law.
Although former President Chandrika Bandaranaike during her presidency established other commissions after the enactment of the 17th Amendment, she did not establish the Elections Commission, complaining that one of the three Commissioners recommended by the Constitutional Council was not acceptable to her. The Constitutional Council looked into her complaint and came to a decision that then President Kumaratunga’s complaint was without basis. However she continued to refuse to appoint the three member Elections Commission.
After being sacked from the cabinet, Mangala Samaraweera has become one of the main voices demanding the establishment of the Constitutional Council. What he won’t say is that it was he who advised President Kumaratunga to act regardless of the declaration of 17th Amendment. Even the SLFP as a responsible political party of the country supported that measure of the President. The JVP too which supported the Constitutional Council supported the government when President Kumaratunga refused to appoint the nominee of the Constitutional Council to the Elections Commission.
Even the UNP did not make a major issue of this. Ranil Wickremesinghe made no attempt to resolve the impasse and appoint the Commission even after winning the general elections in 2002. All the other political parties also were silent on the issue.
At that time, the position taken by the Supreme Court and the political parties, in relation to the 17th Amendment, was the same. Those who petitioned the Supreme Court on the non-appointment of the Elections Commission had to face criticism of the court. A petition to the Supreme Court by the Elections Commissioner himself requesting that he be permitted to retire was rejected by the court.
When announcing the official results of the 2005 Presidential election, the Elections Commissioner publicly requested the newly elected President Mahinda Rajapaksa to let him retire from the job. A period of three years and four months has passed since the President was elected. But still the Elections Commission has not been enacted. And it doesn’t seem like an issue for the Elections Commissioner as well.
This situation is not a surprise at all. No one is genuine in their approach on this question. It is my strong feeling that the 17th Amendment was violated not only by Chandrika Kumaratunga and Mahinda Rajapaksa, but also will be violated by any future President.
Opposition Leader Ranil Wickremesinghe is a well-read and a well-educated political leader on the fundamentals of democracy. But within this corrupted political system even he has to act like the rest.
An important moment where Ranil Wickremesinghe was put to test on this subject is as follows:
The representatives for the Bribery and Corruption Commission were elected during the period where the United National Party possessed the parliamentary power. The retired Supreme Court Judge K.M.M.B Kulatunga was elected as the President of the commission. After conducting a primary examination the Constitutional Council had selected him for the post.
As Prime Minister of the country, Ranil Wickremesinghe is also a member of the Constitutional Council. Although it was a coalition government, the UNP, under the leadership of Prime Minister Ranil Wickremesinghe, had the unchallengeable power of the Constitutional Council. When he was informed that Mr. Kulatunga was appointed as the president of the Bribery and Corruption Commission he swiftly opposed his appointment and instructed the Constitutional Council to appoint a different person instead of Mr. Kulatunga.
During that period, the Constitutional Council was comprised with titulars who were worthy of respect and honour. Not only did the Constitutional Council abide by its established norms and interviewed Mr. Kulatunga before appointing him as the president of the Bribery and Corruption’s Commission, but also they had orally informed Mr. Kulatunga of his new appointment. Just because the Prime Minister was against the appointment of Mr. Kulatunga, the Constitutional Council decided to eliminate his name from the registry; isn’t this a clear indication that no matter how powerful the personnel appointed to the Constitutional Council, in the last instance the politicians bear the supreme power to overrule any decision made by the council?
The next significant question to be asked is “why Ranil Wickremesinghe was against the appointment of Mr. Kulatunga?” The immediate answer for this question is that Mr. Kulatunga is not an individual who can be manoeuvred by the politicians simply by giving telephone calls. I do not assume that the measures taken by the former President Chandrika Kumaratunga and President Mahinda Rajapaksa regarding the appointments to the Constitutional Council bear any different reasons.
Now we can examine the details pertaining to the Election’s Commission that is stated in the 17th amendment.
According to the Elections Commissioner, those who were responsible for the drafting of the 17th Amendment never discussed the contents of the Constitutional Council regarding the Elections Commission with him. This clearly shows the limitations which are unique to the drafters of the 17th Amendment.
It is possible that the drafters of the 17th Amendment did work with honest aspirations and dedication. But they have completed the work with extreme carelessness and without any deep study of the subject. They have not at least inquired the ideas of the Elections Commissioner. Not only that. They haven’t even considered the experience of the Indian Election’s Commission.
The Indian Elections Commission is an outcome of the debate held for the purpose of drafting the Indian Constitution, and the Election Commission comes under paragraph 324 of the Indian Constitution.
At the inception (1950 – 1993), the Indian Constitutional Council comprised of one Elections Commissioner and later changed into an institution where two Elections Commissioners work under one Chief Elections Commissioner. All three Commissioners enjoy salaries and allowances that are equal to a Supreme Court judge. Any controversial matter is solved by majority vote.
The Commissioners hold office for a period of six years. The Chief Commissioner can only be removed from his post by way of an impeachment motion submitted to the parliament. The other two Commissioners can only be removed from their posts with the approval of the Chief Elections Commissioner.
The Commission has its own budget and it is prepared in consultation with the Finance Ministry. The authoritative power, control and implementation of parliamentary elections, state elections, and presidential elections lie solely with this council.
The Indian parliamentary election is the largest election in the democratic world, with an electorate of 668 million eligible voters. The number of polling booths required for the election is 800,000.
Apart from organising elections, the Commission also possesses semi-judicial powers as well. Every political party must register itself in the Elections Commission. The political parties are bound by law to act according to the Code of Conduct formulated by the Elections Commission. It is the responsibility of the Elections Commission to safeguard the internal democracy of the political parties as well. The party funds and the election funds are monitored by the Commission. It also bears the power to implement the limits of expenditure of the candidates in their election campaigns. The Commission has the authority to inquire and examine the statements of income and assets of the candidates, affidavits of the candidates in their criminal cases and the statements on expenditure of the political parties during election times.
The commission has the power to disenfranchise the MPs if they fail to produce their expenditure sheets for elections on time and it has the power to disqualify candidates if they are proven guilty of pre-election violence. In such a situation the convict has the freedom to challenge the decision made by the Elections Commission by appealing to the High Court. But the Elections Commission does not have the authority to examine the charges against the MPs which are made after the pronouncement of the election results. The latter should be taken up in the courts.
But in such cases the court refers to the commission to decide on a suitable punishment for the convicted candidate. During election times the court does not interfere with the proceedings of the Elections Commission. When glancing through the court decisions pertaining to the Elections Commission of India, it is evident that the Indian High Court has been providing its greatest assistance to the Elections Commission in matters relating to the freedom and justice of the election system of India.
In an opinion poll conducted recently, the Elections Commission and the Supreme Court came first and second respectively as the most credible public institutions in India.
Compared with the per capita income and literacy rate of Sri Lanka, India stands much below in rankings, but when compared with the subject mentioned above, Sri Lanka is a country that is strangled amidst a never-ending chasm.
Compared with India’s Elections Commission, Sri Lanka’s Elections Commission which is carved out of the 17th Amendment is an extremely backward apparatus. It doesn’t have an independent budget. It doesn’t have the power to rule upon the internal democracy of the political parties. It doesn’t have the power to inspect party funds or election propaganda funds. It doesn’t also have the power to disempower the MPs who engage in malpractices.
The Indian Elections Commission has its own library and the public has the power to utilise it for their educational purposes. On one occasion I requested the constitutions of the political parties of Sri Lanka from the Elections Commissioner and asked him to accept the expenses for the photocopies. I was surprised by the answer I received from him. Through a letter he instructed me to obtain the respective constitutions from relevant political parties. It indicates that the commissioner regards the constitutions of political parties as secret documents which should not be revealed to the general public. It is the responsibility of the Elections Commissioner to educate the public regarding the constitutions of the political parties. The party system and the internal laws which govern their behaviour are factors which directly affect the election process. If the country’s party system is dictatorial, how can the election process become a free and fair arrangement?
The failure of the founders of 17th Amendment is also due to a lack of clear understanding on their part of the county’s political system.
Although the president of the United States of America is the most powerful President in the world, the system of presidency is crafted in such a way that the power of the president is well even-handed and appropriately limited. No matter how powerful the president of the United States is, the Constitution of the U.S.A is more powerful than the president himself. The president cannot violate the Constitution. But J.R. Jayewardene has drafted the Constitution of Sri Lanka in such a way that the authoritative power of the president is unlimited. The president is above the Constitution rather than placed below it. This immense power granted to the president can only be changed with a two-thirds majority in parliament and approval in a referendum.
The 17th Amendment is made without thoroughly considering the structure of the presidential system. When a feeble rope is used to tie down a strong ox, the attempt made to restrict the beast becomes worthless. The Supreme Court gave its approval for the 17th Amendment not because it is in agreement with the Constitution, but because it thought that it is necessary to implement the Amendment in order to overcome the difficulties which the ruling parties had to face during that period. In the same way that Chandrika Kumaratunga knew that the Amendment is not in agreement with the Constitution, all the others who dreamt of becoming the president of Sri Lanka knew this fact very well. In the last instance it was the public who was deceived, not the rulers.
President J.R. Jayewardene has made this system in a way that it is impossible to reverse by way of constitutional amendments. Even the dreamers who yearn for a system of fair governance have failed to see this fact clearly.