By C.A. Chandraprema –
Not a day goes by without the Elections Commission making it into the front pages of newspapers and all for the wrong reasons. It may be just one member playing ducks and drakes but the fact is that the EC has become one of the most controversial institutions in the country – a situation that never existed when the there was an Elections Department headed by the Elections Commissioner. If the Elections authority in any country is making it to the front pages regularly, that is a sign of trouble. The elections authority is the final arbiter of the democratic system in any country and it should be a non-controversial, low profile institution. The controversies within Sri Lanka’s Elections Commission is now public knowledge and it has become a political sideshow much like a faction ridden political party. This Elections Commission can be described as one of the last remnants of the spectacularly dysfunctional yahapalana regime of execrable memory. To take stock of the present day Elections Commission, one has to look back at its history.
History of the Elections Commission
An Elections Commission to replace what was up to that moment the Department of Elections headed by the Elections Commissioner was first mooted in the 17th Amendment to the Constitution which became law on 3 October 2001. The EC that was to be constituted under the 17th Amendment was to have five members. However, an Elections Commission was never appointed under the 17th Amendment apparently because the then President Chandrika Kumaratunga did not like the names that had been proposed by the Constitutional Council. The 17th Amendment had a transitional provision which stated that The person holding office as the Commissioner of Elections on the day immediately preceding the date of the commencement of that Amendment, shall continue to exercise and perform the powers and functions of the office of Commissioner of Elections as were vested in him immediately prior to the commencement of that Act, and of the Election Commission, until an Election Commission is constituted.
Thus it came to be that the then Elections Commissioner Dayananda Dissanayake was virtually held prisoner by the Constitution without being allowed to retire until the Elections Commission was appointed. It was the 18th Amendment to the Constitution which became law on 9 September 2010, that actually liberated Dayananda Dissanayake enabling him to retire. The 18th Amendment made changes to the Elections Commission that had been mooted by the 17th Amendment by reducing the number of members of the Elections Commission from five to three, and enabling the President to appoint the three members of the Elections Commission without the recommendations of the Constitutional Council. In fact the 18th Amendment abolished the Constitutional Council as introduced by the 17th Amendment and replaced it with a Parliamentary Council consisting of the Prime Minister; the Speaker; the Leader of the Opposition; a nominee of the Prime Minister, who shall be a Member of Parliament; and a nominee of the Leader of the Opposition, who shall be a Member of Parliament. According to the 18th Amendment, the recommendations or the approval of this Parliamentary Council was not necessary for the Pesident to appoint members of the Elections Commission.
As it turned out, an Elections Commission was never appointed by the President even under the 18th Amendment. The 18th Amendment however had a transitional provision which had the effect of liberating the long suffering Dayananda Dissnayake: It went as follows: “the President may, if he considers it expedient to do so or if the exigencies of a situation so requires it, at any time prior to the constitution of the Election Commission, appoint to the office of Commissioner of Elections, a person holding office as an Additional Commissioner of Elections or a Deputy Commissioner of Elections to discharge the functions presently conferred on the Commission by the Constitution.”
It was under this transitional provision that Dayananda Dissanayake was allowed to retire and Mahinda Deshapriya was appointed as the Elections Commissioner. The latter functioned in this position through the presidential election of January 2015 and the parliamentary election of August 2015. When Mahinda Deshapriya made his famous Blackbeard the prirate style pronouncement in the run-up to the presidential elections of 2015, ordering the police to shoot anyone trying to break election laws in the head, he was the Commissioner of Elections not the head of an independent Elections Commission. It was only in November 2015 that the Elections Commission was finally constituted under the 19th Amendment which had been passed into law in April 2015. Mahinda Deshapriya, now retired from his position as Commissioner of Elections, became the first Chairman of the Elections Commission with the former Legal Draftsman N.A. Abeysekera and Prof. Ratnajeevan Hoole as its other members.
Dysfunctional from day one
From day one, this purportedly independent and powerful Elections Commission has been an unmitigated disaster. The former Elections Commissioner was supposed to be a mere government departmental head appointed by the President whereas the present Elections Commission was supposed to be an independent and powerful body that was constituted by the Constitutional Council. Yet after the Elections Commission was instituted, the first thing its three members had to do was to play the role of the three wise monkyes that saw no evil, heard no evil and spoke no evil while the yahapalana government dodged holding the local government elections which were due after March 2015. Many members of the public were perplexed. The 19th Amendment set up what were touted as ‘independent’ commissions, yet here was the so called independent Elections Commission standing by helplessly while the government arbitrarily delayed elections.
For nearly three years, Sri Lanka had no local government institutions. When questioned about the absence of elections to the long dissolved LG institutions, the three commission members would state that there was nothing they could do and that it was up to the government to make the move to hold elections – exactly the kind of thing one would have expected from the Elections Department of old. In August and September 2017 the yahapalana government moved to change the system of elections to the local government institutions and the provincial councils. It was plain that the main ulterior motive behind the change of the system of elections was to postpone elections to the local government institutions and provincial councils indefinitely. With the change of the system of elections to these institutions came the need to demarcate constituencies.
As expected, a great number of issues came up, or were deliberately brought up with regard to the demarcation of wards to the local government institutions. Some individuals representing yahapalana interests filed action in courts citing demarcation issues in an attempt to get the elections postponed indefinitely. But the Elections Commission to its credit announced that they would go ahead with elections to the local government institutions that were not embroiled in litigation. That was the first time the Elections Commission did anything proactive to ensure that elections to the dissolved local government institutions were held. If the EC had in fact gone ahead and held elections to a limited number of local government institutions leaving the rest left for later, that would have been disadvantageous to the yahapalana coalition as the defeat in the first round would have been amplified in the second round. Besides, there was the hope at that election that the division of UPFA votes as SLPP and SLFP would allow the UNP to come out on top automatically. So the latter caved in and decided to allow the election to take place. The yahapalana activists who had gone to courts citing demarcation issues withdrew their cases and a countrywide local government election was held.
The holding of the February 2018 local government election was a victory of sorts for the fledgeling Elections Commission because this was their first election and an election that was made possible due to the intervention of the EC. Even though they managed to have the LG elections held, the provincial council elections got stuck in a legislative limbo which was beyond the control of the EC. The yahapalana government had a phobia of elections. The real drama in the Elections Commission which we see continuing to date, began after President Maithripala Sirisena dissolved Parliament in October 2018 and called for fresh elections. Prof. Ratnajeevan Hoole a member of the purportedly independent EC went to the Supreme Court along with the yahapalana political parties against the holding of a Parliamentary election.
This in a situation where the then government had delayed local government elections by nearly three years and made it impossible to hold provincial council elections. Now a member of the independent Elections Commission was openly playing ball with the government to dodge holding parliamentary elections as well – a scandalous situation by any reckoning. The yahapalana coalition even tried to dodge the presidentail election of 2019. With just two working days to go to the close of nominations, a former local government head from Galle petitioned the Supreme Court seeking an order calling off the election. Thankfully, this was dismissed by the SC. The attempt of the yahapalana government was to use the law and court procedures to postpone the presidential election failing which they would try to knock out the opposition candidate before the election using the powers vested in the EC by the Presidential Elections Act.
The Hoole phenomenon
The trickiest obstacle that the SLPP candidate Gotabaya Rajapaksa had to navigate was Section 14(1)(a) of the Presidential Elections Act whereby objection may be made to the nomination papers of a candidate to the effect that the said candidate is not qualified to be elected as President. If the EC upheld such an objection and rejected the nomination paper of a candidate, the recourse that such a candidate had was to file an election petition but by that time, the Presidentail election would have been over and a new president would have been installed in office. The power of the Elections Commission in this regard was hanging like a sword of Damocles over GR’s candidacy and one never knew what would happen on 7 October 2019 after nominations closed. Ratnajeevan Hoole, himself a Sri Lankan – American dual citizen, was interested in probing whether candidate Gotabhaya Rajapaksa had relinquished his American citizenship.
GR at that time had the all documents issued to him by the Department of Immigration and Emigration in Sri Lanka confirming that he had indeed relinquished his dual citizenship and was now a citizen only of Sri Lanka. In normal circusmatnces, that documentation would be final. Indeed two members of the Elections Commission Mahinda Deshapriya and N.A. Abeysekera seemed inclined to accept the documents issued by the Department of Immigration and Emigration, but not Prof. Hoole. Section 14(1)(a) of the Presidential Elections Act gave the Elections Commission enormous powers if an objection was raised as to a candidate’s qualifications. If Hoole had been joined by one other member of the EC, that would have been the end of democracy in this country. What put paid to the yahapalana attempts to knock GR out of the race before the election, was the case filed by Gamini Viyangoda and Chandraguptha Thenuwara in the Appeal Court challenging GR’s Sri Lankan citizenship. The verdict of the Appeal Court just before nominations were handed over, made any attempt to raise objections based on his citizenship a futile exercise.
In actual fact, this should never have been an issue except for the fact that with Ratnajeevan Hoole playing politics in the EC, one never knew which way things would turn. In 2015, with the entire Constitutional Council full of yahapalanites, all the so called independent Commissions had also been filled with yahapalanites. By some stroke of luck, of the three members of the EC, two happened to be veteran public servants, Mahinda Deshapriya and N.A. Abeysekera. It’s because of them that some degree of sanity has prevailed in the end. If Ratnajeevan Hoole and one other NGO type of the sort that we see serving in other independent Commissions had been in the Elections Commission, by now, the democratic system as we knew it, would have ceased to exist in this country.
This Elections Commission has to be reformed. One option would be to abolish the EC altogether and to revert back to the old Department of elections with an Elections Commissioner. Even Mahinda Deshapriya may admit that he was at his best when he was the Elections Commissioner. It was at that time that he ordered the police to shoot election law violators in the head. As the 1998 case of Karunatilleke and Another vs Dayananda Dissanayake showed, even the Supreme Court believed that the powers conferred by the Pre-17th Amendment and pre-19th Amendment Constitution, were quite sufficient to give the Commissioner of Elections the independence to perform his duties.
If the Elections Commission is to be retained in its present form, it may be necessary to introduce provisions in the Constitution to ensure that all three members of the EC are retired senior public servants who have experience in working under different governments. One of the Commission members has to be a retired senior official of the Elections Commission itself. It can be established by law that the other two members of the Elections Commission always had to be retired senior public servants who had served in various capacities including that of Government Agent and Ministry Secretary. Experienced administrators who have worked closely with politicians belonging to various governments, will be more attuned to allowing the will of the people to prevail at elections without trying to prevent the defeat of the side they favour.
Appointing Prof. S. Ratnajeevan H. Hoole to the Elections Commission was as bad a mistake as appointing Shirani Bandaranayake to the Supreme Court. People from academia have attitudes which make them singulary unsuited to hold positions in institutions that preside over adversarial contests whether it be elections or court cases – the academic may tend to take sides and plug his own line as we now see happening in the case of Prof. Hoole. The present Elections Commission will be completing its term at the end of this year. The next Constitutional Council in the next Parliament should ensure that of the three members of the next EC, the two members other than the retired senior elections official, are retired public servants who have experience in working with various governments over the years and who are mature enough to understand that governments change from time to time and that the will of the people has to be given expression to and respected if the democratic system is to survive.