Office of the Polls Chief: Politician-friendly but people-unfriendly August 29, 2014 2:00 am - Ceylon Today It is reported, in the media, that the presidential elections are likely to be held in the near future and for the first time, it will be, conducted under the provisions of the 18th Amendment to the Constitution. Under the 18th Amendment, powers that were vested with the Elections Commissioner, to conduct a free and fair election, by the 17th Amendment, have been drastically curtailed. Therefore, no sensible person will look forward to a free and fair presidential election unless what has been removed is reinstalled. We have seen how the Provincial and local government elections dates were fixed and the manner in which they were held in the recent past. Under the 18th Amendment, the Elections Commissioner has been reduced to a mere tool of the presidential political office. As a result, the Commissioner implements political decisions of the Presidents political project in a subtle manner though he tends to show seemingly independent behaviour. One example in support of this contention is the fixing of dates for the elections and also the manner in which the elections-related laws are implemented in the run up to the elections. In all these instances, this stark reality is proven beyond any doubt. This structural deficiency that existed within our system for a long period, culminated into its apex after the 18th Amendment was brought in. Best illustration of this biased election process is the fixing of dates to conduct the presidential elections. The 1978 Constitution enumerated a 6-year time period for one presidential term and every elected person was limited to two terms of office. This was a fine check and balance arrangement to contain political monopoly by an individual and this is an accepted norm in almost all the countries that have the presidential governing model. Furthermore, in those countries, date of elections is decided by the rules laid down and elections authorities conduct elections accordingly. But in Sri Lanka, such dates are not decided according to a set of rules but are subject to manipulation by politicians and this has been happening since the introduction of the Constitution in 1978. When President J.R. Jayewardene found that it was not politically favourable for him to conduct presidential elections after the lapse of six years in his first presidential tenure, he brought in, with the support of the 2/3rd majority that he had in Parliament, the 3rd Amendment to the 1978 Constitution, allowing him to face elections after the completion of four years of his first term. Thus through this amendment, he was able to hold elections only after four years in his first term but after winning it, was able to remain in office for two terms and irrespective of the fact that he faced elections in advance. At that time nobody was concerned about this amendment and it seemed to be a trivial adjustment to our elections system though it represented the tip of an iceberg of a crisis that had engulfed the system. Thereafter, using the 3rd Amendment, President Chandrika Bandaranaike too, tried to play the same game as President Jayewardene and conducted the presidential elections for her second term before the original tenure was over and got elected for a second term. But though she asserted her right to hold office for the full period of 12 years, she was unable to do so due to another political and legal manipulation. Present President brought the 18th Amendment to abolish the barrier to contest beyond the second elected tenure. If the presidential elections are to be held anytime before 2016 under the 18th Amendment provisions, then it would lead to a legal quagmire on whether the 3rd Amendment provisions could apply to an incumbent President contesting for a third term. Our history shows elections as a phenomenon that was always subject to political manipulations. The Elections Commissioner has no role to play in this tussle as he is a mere tool of the political office of the government and it is quite obvious this time too that politics would prevail over what is correct and justifiable. Obligation Conducting elections in a country in a free and fair manner is a local as well as an international obligation. Article 21 of the UN Declaration of Human Rights States everyone has the right to take part in the government of his country, directly or through freely-chosen representatives. The same article also States the will of the people shall be the basis of the authority of the government; this will be expressed in periodic and genuine elections, which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. Locally it is vital because freedom and fairness are entangled with the notions of consent in governance and political legitimacy. These two notions are directly linked with elected governments moral authority to govern the country. Therefore, it is the responsibility of the public office that conducts and regulates elections to fulfil these local as well as international obligations. Unfortunately, after the introduction of the 18th Amendment to the Sri Lankan Constitution, the ability of the elections office and specifically of the Elections Commissioner to perform these obligations has been taken away by the Executive President. This was done mainly by destroying the existing institutional structure that ensured the regulatory and enforcement powers of the Election Commission and the Commissioner. To understand how this destruction happened in Sri Lanka, one must understand the cardinal principles that ensure a proper electoral system. Office of elections is considered to be the guardian of these principles and it is expected to use its regulatory and enforcement powers to safeguard those principles. Interestingly, the 18th Amendment has effectively dismantled the powers of Elections Commission and the Commissioner that could protect these cardinal principles. These principles are namely: promote values and principles of Constitutionalism through elections, promote the will and interests of the people but not the politicians through the system, facilitate the effective functioning of the legislatures through the system and finally, recognize the freedom of conscience of legislatures through the system. There are a plethora of classic examples to illustrate the undermining of this process including the ones explained at the beginning of this column. Net outcome of this destruction is the creation of impunity for politicians in power to establish an uneven playing field, which would bring them undue political advantage to hold on to the power against other political contenders. Broadly speaking, what has been accomplished through the 18th Amendment is the complete removal of the fundamentals of representative democracy, which are the cornerstone of the modern-day liberal governance. An independent and powerful election office is an essential prerequisite for a modern day State. It is essential to protect representative democracy and it is a form of government founded on the principle of elected individuals representing the people as opposed to autocracy. Today, in liberal democracies, representatives are usually elected in multi-party elections that are free and fair. Notion of representative democracy is derived from social contract, which is an agreement between the people and peoples representatives on how to share powers of sovereignty of the people. Sovereignty is denoted to people as legislative, executive, judicial powers, human rights and franchise. Within the social contract, first three powers – legislative, executive and judicial are delegated to the peoples representatives, while human rights and right to franchise are kept with the people. Also under this contract, peoples representatives are supposed to protect human rights and right to franchise. This brings a valuable and vital assumption on how to organize various attributes of peoples sovereignty within the State. While legislative and executive powers are assigned to representatives of the people, judiciary is supposed to play an independent role. First two organs of the government have to protect human rights when they govern the State and Judiciary has to observe whether this protection is ensured in the proper manner. Similarly, peoples right to franchise is also subject to such an organization within the State. Franchise is the main tool in materializing the representative democracy into practice. Therefore, parallel to the legislature and executive and judicial organs of the State, a new State organ is created under the name of the elections office. This office of elections functions in various forms in various countries. But salient feature of this office is that its separate and plays an independent role from the government that is elected and which controls the legislature and the executive. If this separation and independence is ensured only then one can talk of another vital aspect of representative democracy, which is called free and fair elections. Role of election office In the context of what is mentioned above, it is vital to discuss the role of Sri Lankan election office and its ability to hold free and fair elections. The Department of Elections was created in 1955, combining the Departments of Parliamentary Elections and Local Body Elections that existed at the time. Since then the Department functioned as an independent State Department that was only answerable to the Parliament. Head of this Department was called the Commissioner of Elections and during that period, functions of the office of elections were carried out in a comparatively independent manner. But when the executive presidential system was introduced under 1978 Constitution, dynamics of this office was drastically changed. Although notionally the office was answerable only to the Parliament, it was directly and indirectly subjected to presidential manipulation. To avert this kind of subjugation of powers, the 17th Amendment to the Constitution was introduced in 2001 to establish an Elections Commissioner above the Commissioner of Elections and appoint Commissioners by the President on the recommendations of the Constitutional Council. Although there was thus a constitutional provision to establish an Elections Commission, it never materialized from 2001 to 2010 indicating the desire of politicians to subjugate the independence of the office of election and bring it under the control of political authority. This tussle with regard to the appointment of the commission gave room for the introduction of the 18th Amendment. 18th Amendment provided the President with powers to appoint a Commissioner of Elections or a Deputy Commissioner of Elections to discharge the functions conferred on the Election Commission until such a Commission was appointed by the President. Interestingly, such an Election Commission was never appointed. Hitherto the Commissioner and Elections Department function as any other public officer or office and carry out the powers of the Elections Commissioner. Since the 18th Amendment, all public officers are subject to the authority of the Cabinet, which at its discretion, delegates the appointing and transferring powers of those public officers to the Public Service Commission. So in reality, the Election Commissioner is kept under the Cabinet as any other public office, which is also part of the root cause for the politicization of the public service. Other contrasting point is that the current Commissioner is holding his office on acting basis. So the behavioural outcome from the current Commissioner is so obvious. Amazingly, the so-called powers of the independent commissions are now being implemented under government officials appointed by the President. The President is also the Head of the Cabinet. The President who is the appointing authority of the Election Commissioner is also elected through an election that the Elections Commissioner is responsible for to ensure as free and fair. So the conflict of interests is manifestly obvious. Other striking feature of this arrangement is the restricting of Election Commissioners powers only to actions during the period of elections unless they are directly linked with the elections. Also the powers to review and control the administration of public service and police vested in the Commission at a period of elections have been removed. As a result, the present Commissioner is unable to restrict the usage of State resources such as State media, State institutions and its personnel at an election time. So the Commissioner of Elections under the 18th Amendment has been reduced to work as a normal public officer at the mercy of the President and the incumbent political establishment and not to cater to the aspirations of the people and the society at large. So he has become a bogus umpire in the context of Sri Lankan elections.
Posted on: Fri, 29 Aug 2014 08:12:04 +0000
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