Whatever happened to the Elections Commission? A Comedy of Errors

B. S. Wijeweera, in the Sunday Island,23 October 2011

Except for a few pockets of resistance likeJaffna,Colomboand Kalmunai, President Rajapaksa has consolidated his popular hold on the rest of the country; this no one can deny. Having won the LTTE war and the many electoral battles, he enjoys a position of strength from which he can improve his faltering image of good governance. Like King Dharmasoka before him it is time to move towards the Dhamma; not the public show of religious piety but a genuine concern for the establishment of a law abiding society. Nothing could have driven this point more poignantly than the shameless shoot-out at Mulleriyawa on 08 October 2011 between rival factions of his own political outfit.

The focus of this essay is that aspect of the Dhamma that is enshrined by popular will in our Constitution; in particular the constitutional Commissions that the President is mandated to set-up to provide for good governance. One such institution is the Elections Commission (EC). To be fair the incumbent President did not start the rot, he only continues what his predecessor set in motion. The story of the “absent” Elections Commission is a comedy of errors.

The First Episode: The Constitutional Council (CC) established under the 17th Amendment (17A) recommended five names for appointment to the EC. The then President took exception to the person proposed as Chairman and wanted the CC to reconsider the nomination. Upon re-consideration the CC informed her that it sees no reason to change the nomination. The President decided to refrain from appointing the EC, though acting on the recommendations of the CC she did appoint the Police Commission and PSC.

Now, acting with the wisdom of hindsight, it would have been better if the CC had provided an alternative name as Chairman and denied the excuse for the then President’s obduracy. By declining to do so, it helped to establish a bad precedent which her successor pounced upon.

The constitutional position in regard to this matter was also somewhat ambiguous. In its determination on the constitutionality of the 17A, the Supreme Court (SC) held that the 17A did not remove the power of appointment vested in the President; it only placed certain restrictions on her selection of persons in that she could not appoint whomsoever she wished, but only such persons recommended to her by the CC. This left open the question whether it was mandatory for the President to act on the recommendations of the CC. The President believed that she cannot be forced to appoint anyone with whom she was not personally satisfied, this being the prerogative of the power of appointment vested in her.

On the issue of the mandatory nature of acting on the recommendation of the CC, Dr. Nihal Jayawickrama, an expert in this field, on a later date expressed the opinion that when the Constitution prescribes a sequence of events to be followed, then, it is obligatory that the sequence be followed without the procedure being stymied. In short, he was of the view that the then President had a constitutional duty to appoint persons duly recommended by the CC.

Several other legal arguments were also expressed in this regard, but the upshot was that the EC was not constituted.

The Second Episode: In the absence of the EC, the then Elections Commissioner, Mr. Dayananda Dissanayaka (DD), was mandated by the 17A to exercise and perform the powers and functions of the EC. This he did dutifully till the age of compulsory retirement (60yrs.) At that stage he wished to retire like most other public servants, but was prohibited from doing so because the EC had not been constituted as envisaged by the Constitution.

In this situation of deadlock, Dissanayake applied to the SC for relief and permission to retire. There were two constitutional provisions in conflict. The most immediate was the provision in the 17A that he had to continue in office till the EC was constituted. The justification for this provision was that it would take time for the CC to be established, and once established the CC would require further time to identify suitable persons to be recommended for membership of the EC. It was a very prudent provision that took into account the logistics of getting the EC started.

This provision was not meant to be abused to suit other agendas. The other older provision was the equality principle enshrined in Article 12 of the Constitution, which was a fundamental right. Dissanayake belonged to that class of public officers who enjoyed the right to retire at the age of 60. Could he be denied such a right that was extended to all others in his class? Would it not constitute a violation of equal treatment before the law? Should the provision in 17A prevail over the equality principle, without an explicit provision in the 17A for such an eventuality. The fact is that the 17A did not provide for this interpretation, it only provided for the natural time-lag that would ensue before the EC is established.

Unfortunately, the SC took a conservative approach in this matter, no doubt with the intention of not wanting to precipitate a constitutional crisis. It ruled that Dissanayake had to continue in office till such time the EC is established.

The Third Episode: When the presidential election of November 2005 was conducted Dissanayake was still Elections Commissioner. After declaring the result he made a desperate appeal to the winner (the present President) to grant him the opportunity to retire, but to no avail. Several elections were conducted thereafter with Dissanayake still holding the office of Commissioner. So much so that at the next presidential election held in January 2010, he was still in harness.

The Fourth Episode: Both the presidential election and parliamentary election of 2010 were conducted with Dissanayake holding office as Commissioner. Perhaps, by then he expected to die in harness. However, the President had other plans. He was planning to do away with the two-term limit placed on a President by Article 31(2) of the Constitution. For this purpose he needed to engineer a few more crossovers to his side in order to gain the necessary two-thirds majority for a constitutional amendment. This he achieved by the end of August 2010 and on 08 September 2010 the 18th Amendment was passed with the necessary two-thirds majority.

There was an interesting provision that was also included in the 18A that has a bearing to this discussion. This was a provision to enable the President to appoint “a person holding office as an Additional Commissioner of Elections or a Deputy Commissioner of Elections” to the post of Commissioner. Earlier the President could not do so as Dissanayake had to continue in office till the Commission was established. So, two birds were killed with one stone: Dissanayake could be released to retire and the President could still refrain from constituting the EC by appointing another Commissioner. This is precisely what the President did by appointing Mr. Mahinda Deshapriya as Commissioner.

An Anomaly and a Farce: When the 18A was introduced for enactment, the President had a golden opportunity to come clean. He could have said: “I do not believe in Commissions, especially one for conducting elections. An Elections Commission is nonsense and I propose to do away with it through the 18A”. Everyone who voted for the 18A on 8th September would have still voted for it even if there was a provision to do away with the EC. Such was the hold the President had on his supporters in Parliament. At least, then, we would not have to make a mockery of constitutional provisions.

However, the President re-iterated his faith in an Elections Commission and included it in the 18A, but one year after the enactment of the 18A he has still not activated it. We are thus reducing constitutional provisions to the level of a farce. What is more the President has a constitutional duty in terms of Article 28(a) to uphold and defend the Constitution.

Conclusion: The appointment of an Elections Commission will not by itself solve the major problems affecting the conduct of elections. Even if three honourable and competent persons are appointed to constitute the Commission, they will find the criminalization of politics to be a formidable obstacle in the way of free and fair elections. The answer to this is not to give up, but to try to reform the whole political spectrum beginning with a review of political party behaviour. The appointment of a Commission would be a first step in a long and arduous journey.

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