By Mohamed Harees –

Lukman Harees

“A body of men holding themselves accountable to nobody ought not to be trusted by anybody.”- ~ Thomas Paine

Sajith’s ‘so-called broad’ hotchpotch alliance to fight the Presidential election on a common platform is just one example how serious political parties vying for power are, in presenting a coherent set of policies  for the country. Signs of political opportunism; some marriages of convenience were apparent, reflected by  SLMC’s  Rauff Hakeem sitting with Champika Ranawaka, as well as breakaway groups such as SLPP’s Dullas and GL Peiris, and ‘SLFP’’s  Dayasiri Jayasekera, among several other ‘parties’ signing in. Then we have the hawkish politician Ranil who became President with the blessings of the SLPP party as well as SLPP’s candidate Namal hailing from the widely discredited Mahinda Dynasty too in the fray.  t was the case of realignment of the same corrupt forces and old wine in new bottles, whose credibility is in question and political track records corrupt. It is only AKD from NPP going on their own, who can genuinely promise a clean break from the corrupt ruling past spanning over 7 decades and has the political credibility to offer to change the extremely nauseating political culture of  Sri Lanka!

Manifestoes have increasingly been used recently to seek votes by promising the moon to the electors. It has become a gateway to a dream world like a mother’s lullaby to a tiny tot promising it the moon, the twinkling star, and so on. Promises galore these days and election manifestos are coated with sugar and honey to take Sri Lanka in a severe economic crisis to a ‘El Dorado’ and the promised land. Those politicians who were part of the problem and the parties which were symptoms of the bigger problem are appealing to an electorate to trust them again, projecting themselves as paragons of virtue, thanks to its short memories and a history of slavish party loyalties. Ranil along with his team steeped in a cess-pit of corrupt governance, is promising to appoint a committee to expedite laws against corruption while SBJ too has in its fold, all the ‘footnote rogue clique’. Racist elements are in all major camps except NPP. In the absence of laws, the same wine is being remarketed as new stuff ,with no fear of being held to account for false promises.

Coming back to the manifestoes, what remedy is left to the electors in case a political party makes somersault and forgets about the promises it extended in its manifesto? Practically nothing except waiting for five years till they get a chance to boot it out. There is no provision in our laws to ensure that a manifesto is not only a promise bank, but a responsible document having the required degree of sincerity, accountability, and commitment as its foundation. There is no provision for a recall after a mid-term evaluation. (NPP appears to offer this option).

When manifestos are used as a mirage to lure the gullible electorates, it is definitely a corrupt practice in an ethical, if not legal, sense. Manifestos can be made justiciable only if the law of the land is made to term its non-implementation as a corrupt electoral malpractice. But who will judge whether sweet dreams that have turned sour are because of an inherent malafide intention of a political party to dupe the electorate without having any serious intention to keep the promises bundled into a manifesto, or for a genuine bankruptcy of knowledge of the fundamental financial and physical fallout of their manifesto promises. It is a tough call indeed.  A dishonest manifesto causes instant electoral damage but has post facto proof.

Could a manifesto pledge amount to an enforceable legitimate expectation in public law?

From the US, we know how President George H W Bush, whose “read my lips, no new taxes” phrase before the 1988 election could not be delivered, was cited as a broken promise in the 1992 Presidential campaign. While there are numerous examples of manifesto commitments not being met by UK politicians, and an equal number of heavily spun explanations, perhaps the most stark example emerged in the EU referendum in June 2016, when Nigel Farage, the leader of UKIP, confirmed less than 12 hours after the polls closed that a commitment to spend an additional £350m per week on the National Health Service could not be guaranteed, and that the claim “wasn’t one of my adverts”.

The failure to deliver manifesto promises has long been held accountable in both Parliament and the media. However those are just words and the available sanctions are largely limited to embarrassment, and potentially losing a subsequent election. There is no current law that makes a manifesto commitment legally enforceable, either by criminal or civil law. In fact, as per a news report in 2015, tall promises made by political parties in their election manifestos got legal sanction as Indian Supreme Court refused to tie parties down to their grandiose claims. A bench of Chief Justice HL Dattu and Justice Amitava Roy asked “Is there any provision in law which makes promises made in the manifesto enforceable against a political party?” Leaving it for better adjudication in the people’s court, the bench said the judiciary was not the cure for every problem in the political system. The Allahabad High Court also observed in 2022 that there is no penal provision under any statute to bring the political parties within the clutches of enforcement authorities, in case, they fail to fulfill their promises as made in the election manifesto. In UK too, the courts have been clear on this and the observations of Lord Denning from 1981 still ring true today: “A manifesto issued by a political party – in order to get votes – is not to be taken as gospel… It may contain – and often does contain – promises or proposals that are quite unworkable.” In the UK  case, of R v. Secretary of State for Education and Employment, ex parte Begbie, it was once again made  clear, then, that politicians cannot be held in law to their pre-election pledges.

Legitimate expectation is a doctrine in public law aimed at a situation where a decision-maker represents that they will act in a particular manner and then fails to do so. However, it is often not easy to establish the existence of a legitimate expectation (which requires a clear and unambiguous representation, on which the claimant relied, usually to its detriment). Even if such an expectation is found, it may be overridden in the public interest.

It has long been established that manifesto promises alone will not be enforced as legitimate expectations, and this was reiterated in the UK in 2021: “We do not accept that there is any legal limit to the power… established by the promises contained in the Conservative manifesto. Such promises do not give rise to any legitimate expectation in law and issues in relation to them are managed in the political rather than the legal process.” This fits with the acceptance that, where a decision lies in the macro-political field, the court’s level of supervision will be less intrusive. The courts broadly take the view that the “remedy in such a case lies with Parliament or the electorate, not with the courts”. It will also often be harder to demonstrate a legitimate expectation where a statement has been made to the public at large, rather than a specific representation to a defined group. Ultimately thus, manifesto commitments do not have any formal legal status and cannot be enforced by those who may have chosen to vote in a particular way relying on those promises. There is also a powerful pragmatic reason why pre-election promises cannot bind a party once in power. They are necessarily made from a position of uncertainty in at least three respects: a)The person making them may never hold the statutory or common law power to which the promise relates. It is, in that sense, a promise made in a vacuum. b) Circumstances may change. c) The person making the representation will, certainly if in opposition, be doing so from a position of ignorance as to the full facts.

Some legal experts argue that the doctrine of promissory estoppel important in our present scenario. This doctrine plays a significant role in our present scenario because this principle is based on equity, justice and conscience and prevails against injustice therefore it can be applied to the promises made by the political parties. Political parties violate promises and think only of their good and because of this injustice is done to the people. Since the promissory estoppel principle is considered an equitable principle, it must be applicable when justice is required. Thus, as in our present scenario, we can see that those promises are not legally enforceable by the parties, people should be given the right to take legal action against them by applying the doctrine of promissory estoppel.

Generally, the limitation of the doctrine of legitimate expectations is that it usually covers merely “procedural” matters rather than deal with than the substance of the ultimate decision or rule. Again, as with estoppel, this is because the discretion of decision and rule makers should not be fettered. The judicial reflex is that such questions should be for the floors of the houses of parliament, or for the candidate on the hustings to deal with. The remedy for a politician’s breach of promise is not a court order or an award of damages but the risk of not being re-elected. However, this has not stopped some rather ambitious legal claims to try to get politicians to keep their promises.

To understand why this is so takes only a few moment’s thought. A manifesto is not a solemn document requiring forensic analysis, but an exercise in puffery and propaganda. A political “mandate” has nothing in common with the mandates known to commercial lawyers. The rhetoric of a politician is simply not the stuff of litigation.

While using the criminal courts to enforce broken manifesto promises is impractical, there could be a case for use to punish individuals for commitments or promises made that they know to be untrue. Both companies and individual directors can be criminally liable for misrepresentations and dishonesty made in the course of their duties, under the law or, in a clear parallel to a political manifesto, by misleading advertising. Misconduct in public office is a curious offence, confined to those who are public office holders and committed by an act or failure to act in a way that constitutes a breach of the duties of that office. “Public office” however  lacks clear definition yet is a critical element of the offence. This ambiguity generates significant difficulties in interpreting and applying the offence. Furthermore there is often some confusion between what the law is and what it should be. The question of the appropriate boundaries of criminal liability for public officials is clearly a matter of broad public interest. The current position seems to be that although holding individuals accountable is a vital part of an effective democracy, involving the criminal law is both impractical and a step too far.

Does this mean that those currently campaigning for election to high office whether President or Parliament,  can rest easy, unconcerned by the later consequences of their statements and able to promise the world even if they deliver little once in power? No: it is just that the controls lie elsewhere, outside the legal sphere. As Peter Gibson LJ made clear in Begbie, at 1126D:“I intend no encouragement to politicians to be extravagant in their pre-election promises, but when a party elected into office fails to keep its election promises, the consequences should be political not legal.”

These are not legal questions. Law is not magic: saying that there should be a law against something is sometimes to say no more that there should be a spell against it. Having a law against politicians breaking their word will just mean politicians will break their words in a different way. Of course, politicians should not renege on their promises. But the means by which a working constitution ensures that politicians are accountable for what they say and what they do is through fearless scrutiny by institutions and by keen transparency of the political process, supplemented by contested and free elections. The solution to the problem of politicians not being true to what they say is by strengthening this political infrastructure. If a constitution is not working so as to ensure that those in power are properly accountable, it is unlikely that turning political controversies into matters of litigation will make things any better. Will NPP put into operation a mechanism in this regard ,when in power?

As we think about the lack of accountability by politicians, perhaps we should do some self reflection. Are politicians merely a reflection of a larger lack of accountability in today’s society? Answer lies in an informed electorate and public activism. We can’t expect people to participate in public life if they don’t know how it works. A vacuum in political education over the decades has led to the stagnation we see today, where placing an ‘X’ in the box every couple of years is the expected limit of our engagement. For democracy to properly function it needs strong lines of communication between representative and represented. Government “by the people” depends on voters having the information and skills needed to govern. Media must combat misinformation, expose voters to different points of view, and inform the public debate. New technology must provide the public with better access to information and better filters for making sense of the news. Our education system must equip citizens with the skills required to decipher the messages they hear from political leaders and through the media. It’s the way forward!