12 August, 2022

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A White Paper For A Draft Campaign Finance Regulation Bill/Act

By Ruwan Laknath Jayakody and Faizer Shaheid

The purpose and objectives of a Campaign Finance Regulation Bill/Act is to place limits on the campaign finance expenditure of political parties, alliances (consisting of political parties), independent groups and election candidates including national list candidates, and to thereby ensure the transparent use of the income of election candidates for transparent expenditure, to prevent any restriction on the people/electors/voters when electing their public representatives, and to provide for equality among the contesting candidates.

The following draft for a Campaign Finance Regulation Bill/Act is based on a model piece of legislation proposed by the polls monitor, the People’s Action for Free and Fair Elections (PAFFREL), which was provided to the lead author by the Executive Director of the PAFFREL, Rohana Hettiarachchi.

The Act in question shall be titled the Limitation of the Election Related Expenditure and Campaign Finance of Political Parties, Alliances, Independent Groups and Candidates Act, No. __ of 20__.

Preamble

An Act to establish transparency with regard to the incomes and expenditures of political parties, alliances, independent groups and candidates when and during the contesting of elections, and to prevent the financial capacity and wealth of political parties, alliances, independent groups and candidates and any supporter of political parties, alliances, independent groups and candidates from interfering with the freedom of choice in the exercising of the right of the people to their franchise/suffrage.

Political parties, alliances, independent groups and candidates

Includes as per the laws of the land, political parties, alliances, independent groups, candidates of political parties, and members of independent groups, and all candidates from political parties and alliances, and all members of independent groups, registered with, under and by the Election Commission, and contesting in any election.

Voter populous

A voter/elector is defined as any Sri Lankan citizen, residing in Sri Lanka or domiciled overseas, who is registered in the latest national (Sri Lankan) electoral registry and is not disqualified from being one.

Geographic area

A geographic area in terms of this Act is defined as the boundaries set out in the delimitation report by the Delimitation Commission.

Elections and the duration/timeframe/time period of elections

The period/duration of an election is defined in terms of this Act as the time beginning from the date when the election is announced, from which point the provisions of this Act shall be enforced, covering the period when the Election Commission calls for nominations from political parties, alliances, independent groups and candidates, and which shall be effective and operative until the last date on which the election in question is conducted as prescribed by the relevant authority. While such shall be applicable to the Presidential Election, the General/Parliamentary Election, the Provincial Councils Election, the Local Government Elections, a Referendum and any other election, there is a need to research on the timeframe allowed for each such Election.

Political campaign

A political campaign is defined in terms of this Act as activities by political parties, alliances, independent groups and candidates and those affiliated to them, seeking to influence the electors/voters within a specific geographic area.

Election expenses/Campaign expenditure

An election expense is defined as being any expense incurred by a political party, alliance, independent group and candidate for the purpose of winning an election including during the period from when the election is announced, the nomination lists are handed over to the Election Commission and are approved by them, and until the election results are announced.

Any political party, alliance, independent group and candidate contesting for any election must account for all expenses incurred to promote their political campaigns.

Areas on which political parties, alliances, independent groups and candidates can spend on

All expenses election related or not must be accounted for; however, expenses incurred during the said period but are not relevant to the election maybe discounted from the final accounting value. The Election Commission may then ascertain which expenses are not politically affiliated.

The accounting format is to be listed in a Schedule.

Keeping/Maintaining records of the expenses

All candidates contesting an election, during the period beginning from the date on which the election is announced, covering when the nominations are handed over, must maintain such records, prepared based on the structures provided for the purpose by the Election Commission, in the form of an income-expenditure report or budget containing the income and expenses, at all times, and such accounts shall be the responsibility of the party/alliance/independent group general secretary/secretary, the electorate organizer of the party/alliance/independent group and any other representative of the party/alliance/independent group vested with the responsibility of monitoring such accounts. The Election Commission and any representative vested with the power to do so by the Commission including the Election Commissioner or an authorized officer should be able to peruse the said accounts and related documentation and records at any given time, and shall have the power to do so.

The upper limits of/The ceilings on/The maximum limit of – the spending and expenses of the political parties, alliances, independent groups and candidates

The expenditure ceiling and maximum amount of campaign funds to be used per candidate will be arrived at and calculated based on an average campaign cost, which is applicable to political parties, alliances, independent groups and candidates, and is formulated on the basis of the respective subjects upon which costs will be incurred and the total number of eligible and also registered voters in the relevant electorate or particular geographical area (which could also include the entire country) where the political party, alliance, independent group, and candidate is contesting. However, if the said geographical area has a very low population density, the amount of expenditure can be increased through a request made to the Election Commission by a percentage, the maximum ceiling of which should however be stipulated in the law. The subjects include all the possible aspects on which a candidate will have to incur costs during campaigning. These include: rallies and meetings (the booking of grounds and hiring audio and visual facilities), promotional advertisements that are published or telecasted (electronic, print and social media) but do not include news content or political debates, propaganda material relevant to the election including the creation, publication and display thereof (cutouts, banners, billboards, hoardings, pamphlets, text messages, photographs, posters, hand bills, etc.), transport, utilities (electricity, water, etc.), communication costs, organizational expenditure (for the use and maintenance of campaign offices, payments for campaign organizers and supporters, buildings, vehicles and materials obtained on rent, lease or any other basis, etc.), human resources (persons deployed for election campaign activities including door to door visits by groups engaged in canvassing activities other than members of a candidate’s family [mother, father, partner and unmarried children, and those whose names appear in the voters list of a candidate’s household]), and all other expenses, etc. With regard to the deployment of human resources, if such services are received free of charge, a report which contains the name of the individual who voluntarily provided such service free and the estimated market price value of such service rendered, should be prepared and submitted to the Election Commission.

Expenditure on election campaigns, it should be noted, shall not only include expenditure incurred for the promotion of a political party, alliance, independent group or candidate, but also expenditure made towards impeding the victory of a political party, alliance, independent group or candidate.

The aforementioned subjects must be limited on the basis of the number of times the activities listed as subjects take place, and concerning the subject of propaganda and advertisements, such should be limited by way of time duration. Any free advertising must be calculated on the basis of its financial value and added as an expense.

There is an imperative to arrive at a formula to calculate the average cost of each of these forms of expenditure to a grand/maximum total adjusted for inflation, and to provide space for the Election Commission to vary the maximum amount to be spent by each candidate at an election if there is a necessity for such.

What are the limits imposed on the spending on the part of political parties, alliances, independent groups and candidates for what could become vote buying exercises such as charity, gift giving, social welfare, religious activities, and educational programmes during campaigning?

One view is that such activities are election related abuses and should therefore be dealt with elsewhere (such as by way of amending the election laws and thereby prohibiting such and introducing penalties). The other view is that schools should be declared no go zones as far as political platforms for campaigning are concerned. Another view is that any overt and explicit attempts at vote buying and purchasing related endeavours should be dealt with as constituting an offence falling within the purview of the other laws of the land and therefore be dealt with accordingly as per the provisions of the laws of the land.

The maintenance of a separate bank account by political parties, alliances, independent groups and candidates for the purpose of election related expenses

Within a week from the day the election is declared, a new account must be opened in any bank recognized by the Central Bank of Sri Lanka (CBSL) and registered under a corporation Act, by any political party, alliance, independent group or candidate expecting to contest the said election, notice of which must be given to the Election Commission. The said bank account should include all the income and expenditure related to the election campaign and must be maintained until the election is concluded and closed within a week of the completion of the poll and thereafter, the bank statement of the account should be presented to the head of the District Election Office. Along with the provision of their assets and liabilities declaration at the point of the submission of nominations, the candidates must also provide the Election Commission with details pertaining to this account, the funds of which will be used in the course of the campaign period.

It is the duty of the general secretaries of the registered political parties and the leaders of the independent groups to inform the head of the District Election Office about the bank account number, the name of the bank account and the names of the authorized persons who may sign for the transactions carried out through the bank account on behalf of the political party or independent group. Authorized persons to sign for the transactions carried out through the bank account are responsible for the provision of any information regarding the bank account that is requested by the District Election Office head or any authorized officer.

Any person who credits money to the aforesaid bank account as aid should mention his/her name, address and national identity card number and such should be obtained by the relevant political party or the independent group prior to the crediting of the money by the said individual.

External incomes and expenses should not be included in the said separate bank account

All expenses at the time of elections must be accounted for and discounted through an accounting format to be provided in a Schedule in order to determine the exact amounts spent for election related expenses during the elections.

The funding of/Donations to political parties, alliances, independent groups and candidates

Anyone wishing to make any donations can do so to the said account. However, there are limitations. The maximum amount of aid an individual donor, institution, politician, group, or business entity (includes all other recognized legal entities) can give should be based on the total population of registered voters in the geographic area covered by the seat/electorate. The total amount must be within the overall expenditure ceiling.

The maximum amount an individual or corporate (including all other recognized legal entities) can spend is a percentage of the total permissible election finance budget. The amount spent by an individual or corporate must be specified in the accounts, which will be made public.

The politician contesting can also choose to self fund his/her campaign by himself/herself or through a corporate of which he is a shareholder of up to 100% of the campaign cost.

Any individual or corporate wishing to make donations by hand shall do so through a central location in each seat/electorate provided by the Election Commission to which a Police officer trained in identifying financial fraud and crimes, an officer from the Election Commission, an officer from the Auditor General’s Department and optionally, a representative of an independent election monitor or observer, should be assigned, in the presence of whom transactions involving cash by hand shall be made. If the said officers are found to be engaging in fraudulent and corrupt activities, the Election Commission shall take action as it deems fit in accordance with the laws of the land.

Any material gifts such as land, houses, condominium property, vehicles, sewing machines or any other object of such a nature, etc., which cannot be immediately valued, the Election Commission, surveyors, assessors and other necessary officials shall first estimate the value of the said gift and shall then notify the value to all the relevant parties. The total value of gifts donated by an individual or corporate, if in excess of the permissible amounts that can be donated, shall not be in excess of 10% of the total election expenditure budget and shall be accounted for in the accounting format to be prescribed in a Schedule. Any misappropriation in this regard shall result in the seizure and confiscation of the said property by the State.

If any financial irregularities are detected in any manner that is not prescribed herein, any person or persons witnessing such a crime shall report the crime with a video or any other suitable evidence, and upon such evidence resulting in penalties being imposed on the particular candidate, such person or persons shall be entitled to a reward. All whistleblowers will be protected and no information pertaining to their identity shall be made public.

The Election Commission must work with the CBSL to monitor the outflow of monies from financial institutions including State banks and semi Government banks during this period. Any inflows and outflows of inordinately large sums of money need to be especially monitored and reported to the CBSL.

No international funds can be received by political parties, alliances, independent groups and candidates.

All monies received by political parties, alliances, independent groups and candidates must be mandatorily accounted for in the said separate bank account

Any aid, donations, gifts, loans, money, etc., should be credited to the said separate bank account of the political party, alliance, independent group or candidate. No political party, alliance, independent group or candidate shall spend money without first crediting the money to such bank account.

If the amounts credited are in excess and exceeds the maximum permitted limit per the law, the excess amount cannot exceed 10% and therefore the additional amount should be less than 10% of the credit limit.

Any person providing any donation or award of gift or loan must be declared

What are the limitations imposed on donations or funding given by and received via donors who wish to remain anonymous?

The majority view expressed in this regard is that anonymous donors should not be allowed and that all relevant information pertaining to the donors should be divulged in their entirety to the people/public. The minority view is that in the climate of political victimization resultant from one’s political affiliations being known openly, the competing interests of balancing the right of the public to know in the interests of transparency and flushing out corruption and the donor’s right to privacy if he/she decides so, must be decided by an independent body, in this case being the Election Commission.

For any donations, a receipt must be issued. The receipt must include the date, amount and who received it and any other information deemed necessary. The Election Commission must assist in preparing the format of the receipt.

Institutions from which financial/non-financial aid/donations cannot be obtained

Institutions from which financial donations cannot be obtained include: International organizations and other States, with the only exception being financial aid received from an overseas branch of an accepted local political party while the source of such aid provided should be disclosed; Any person having business with tobacco, liquor, drugs, gambling and any other vices; Any person having business dealings with the Government, Government Departments, Corporations or Boards; Any State institution; and Any individual or company (includes all other recognized legal entities) or organization carrying out a business harmful to the environment at large and public morals, and against whom court cases were filed for environmental destruction, provided that they were acquitted from all the charges.

Aid/Donations which are not of a financial nature

Aid/Donations which are not of a financial nature are: If a good or material, it must be valued and the calculation included in the audit report by the auditor. It must fall within the maximum spending limit and not exceed the expenditure limit imposed by the law. It must be valued on its market price and the method of calculation must be included, A separate document must be maintained, the structure for which should be provided by the Election Commission, to enter, record and maintain non-financial donations, and the said document must include the type of good, the quantity, the value of the good, who gave it and who received it, the date of receipt, the name of the individual who evaluated the good’s value and any other information deemed necessary. Receipts must be issued.

The use of State resources and monies/funds

During the period of elections, no one can use any money belonging to State institutions for election purposes except for the Election Commission via the Finance Ministry and Treasury. Social welfare activities cannot be done using State funds and resources. The officers in charge of financial matters in State institutions are responsible for the monies.

Accounts of political parties, alliances, independent groups and candidates must be audited

The campaign finance record should be maintained at the registered head office of the political party, alliance or independent group, or at the candidate’s main office. A District Election Officer or any officer authorized by him/her shall have the power to obtain copies of the said record. The expenses must be audited through an auditor recognized by the State and handed over to the Election Commission within three months. A committee will be appointed by the Election Commission to look into these documents and observe violations.

Offences as per the provisions of the Act which result in the termination/cancellation of candidacy

Offences which result in the termination and cancellation of the candidacy include: Any act that interferes with the powers or actions of the Election Commission; Not providing or presenting false information of reports and accounts regarding election expenses required by the Commission; Purposely presenting incorrect or false information; Any intentional destruction of these accounts and expenditure records requested to be presented per the law; Refusing to provide details regarding account records or non-financial transactions or information to the monitoring committee when requested by the Election Commission and to the expenditure supervision committee, and disallowing the said committee to enter the premises where these accounts, documents and records are filed and refusing to provide access to places where the particular records are maintained; Any election campaign method or strategy that is prohibited and allocating or spending monies for such method or strategy; Spending campaign funds to promote another political party, alliance, independent group or candidate representing another political party, alliance, independent group or candidate; Exceeding the financial ceiling imposed by the law; and Crediting money to the relevant bank account meant for the election campaign sans the express written approval of the relevant recognized political party, alliance or independent group, shall be offenses under this Act.

Further, the Election Commission shall have the power to regulate the campaigns carried out by a political party, alliance, independent group or civil society organization, which does not contest in a particular election with the purpose of persuading voters not to vote for a particular candidate or political party, alliance or independent group.

The filing of lawsuits/court cases and taking legal action

Based on the complaints received by the Election Commission, if there is sufficient evidence to prove the claim pertaining to an offence under this law, then a case can be filed in the relevant District Court or Provincial High Court of the area where the violation took place or the offence was committed, and in this regard, the Election Commission shall have the authority to institute judicial proceedings against any suspect. Within three months a trial date must be given and the Court should deliver its judgement within three months from the date on which the said proceedings were instituted. If a person is found guilty before the election, and he/she is a candidate, then he/she will lose his/her candidacy as such will be cancelled. But if he/she is proven guilty afterwards, then he/she shall lose his/her position or office for which he/she has been voted in for and elected. Depending on the nature of the offence, for a period of seven years, they shall not be allowed to contest from the date on which he/she was found guilty and also be barred from voting for the same period.

Fines and prison terms should also be considered.

If the individual found guilty of an offence is not a candidate but is a secretary or a member of a recognized political party, alliance, independent group or any other person, the punishment shall be a sentence of imprisonment of a minimum of one year and a maximum of five years and/or a maximum fine of Rs.100,000 while such convict shall be prohibited from contesting as a candidate at any election for a period of seven years from the date on which he/she was found guilty of the said offence.

Losing the candidacy

If anyone moves away from the established procedure, or does not maintain their reports and documents, they shall lose their candidacy. The Election Commission must appoint a committee to look into these matters. For this, they must appoint suitable officers.

The powers afforded to the Election Expenditure Committee

Powers must be afforded to conduct their work. The systems, mechanisms and procedures with regard to monitoring the said processes must be established. Of the regulations imposed by the Election Commission, it has the authority to issue regulations regarding the campaign finance expenditure supervision process, reporting on campaign finance expenditure, and investigating charges relating to campaign finance expenditure while all such regulations issued under the law should be published in the Gazette.

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