Feb 19

 

 

The Citizens’ Movement for Good Governance (CIMOGG) has pointed out previously, in several different contexts, that the 17th Amendment has been increasingly violated from almost its very birth in October 2001. However, there is one provision of this Amendment that has been kept partially intact by the powers that be in order to permit elections to be held periodically – without, however, conforming to the spirit of the bulk of the 17th Amendment. That is, consequent upon President Kumaratunga failing to appoint a certain nominee of the Constitutional Council (CC) to the 5-member Elections Commission (EC), recourse was had to the provision in the 17th Amendment that, until the EC is constituted, the person who held the office of the Commissioner of Elections (CoE) on 2 October 2001 shall continue to perform and exercise all the powers and functions of the EC. Subsequently, the CC was forced into a state of unconstitutional hibernation and the CoE compelled to continue to function indefinitely in place of the EC. The appeal made by the CoE to the Supreme Court (SC) a few years ago to be allowed to retire was refused on the grounds that he would be able to do so only after the EC is constituted. There is no doubt in our minds that, at the time, the SC would not have considered the possibility that the violation of the 17th Amendment would go on for so many years, thereby preventing a law-abiding public servant, through no fault of his own, from enjoying his fundamental and human rights to a well-earned retirement. In these circumstances, we wonder what the SC would have to say now regarding the sad plight of the CoE if he were minded to appeal to the SC again.

Notwithstanding these considerations, the CoE remains vested with vast powers under the only part of the 17th Amendment that remains active. What is greatly disappointing is that the CoE has failed to make effective use of these powers. The most generous interpretation that we can attribute to this diffidence is that he has been under heavy pressure not to use these powers or that, on his own, he has not wanted to test his strength in the expectation that his directives will be ignored. But as citizens who have empowered the CoE to hold free and fair elections, we need to see him act more boldly or go to the Courts and complain that he is being prevented from exercising his powers as CoE. It is, after all, the Courts which ordered him to carry on until the EC is appointed, and the least that the citizens of this Country expect is that the CoE would be given every possible support to allow him to perform his legitimate duties without let or hindrance.

The EC/CoE is authorised to exercise, perform and discharge, in a demonstrably unfettered and equitable manner, all the powers, duties and functions which relate to the election of the President, Members of Parliament etc, including the revision of the registers of electors for such elections. It is the duty of the EC/CoE to secure the enforcement of all laws relating to the holding of elections and it is the duty of all authorities of the State charged with the enforcement of such laws to cooperate with the EC/CoE in this vital task. The EC/CoE has the power, during the period of an election, to prohibit, by a direction in writing, the use of any movable or immovable property belonging to the State or any public corporation by any candidate or any political party for the purpose of promoting or preventing the election of any other candidate, political party or independent group. The misuse of government vehicles and government buildings are meant to be dealt with under these powers. It is clearly stated, moreover, that “it shall be the duty of every person or officer, in whose custody or under whose control such property is for the time being, to comply with and give effect to such direction”.

The EC/CoE is entitled to issue guidelines to any broadcasting or telecasting operator or publisher of a newspaper, including specifically the Chairmen of the Sri Lanka Broadcasting Corporation (SLBC) and the Sri Lanka Rupavahini Corporation (SLRC), to ensure balanced reporting and comment on all matters relating to elections. If either the SLBC or the SLRC contravenes any guidelines, the EC/CoE has the power to appoint a Competent Authority by name or office to take over the management of these Corporations in respect of all political broadcasts. However, whereas private media organisations carry out a great deal of self-censorship because of the fears instilled in them by the killings of media personnel, physical attacks, arson, and dire threats against revealing unsavoury details of various kinds, the SLBC and SLRC, being fully State-owned, have been allowed a latitude that militates greatly against the election laws. The efforts of the CoE to take corrective action in this connection, and the very limited success achieved, should have been followed up by him with a formal complaint to the Courts against those who failed to carry out his directions but he has not done so.

Upon ordering the holding of an election, the EC/CoE is required to notify the Inspector-General of Police (IGP) of the facilities and the number of police officers required by the EC/CoE and it is stipulated that the IGP “shall make available” such facilities and police officers. The EC/CoE is free to deploy such police officers in any way that is deemed necessary and lawful. Every police officer put at the disposal of the EC/CoE shall be responsible to, and act under the direction and control of, the EC/CoE during the period of an election. Regarding the deployment of police officers in the past, as far as we have been able to ascertain, the CoE has limited himself to requesting the Inspector General of Police (IGP) to see to it that certain things were done. Often, no action ensued as a result of the EC/CoE’s requests. Consequently, what he should do at least now is to employ his wide-ranging powers and direct the IGP to release, say, five DIGs, 30 SSPs, 60 SPs, 120 Inspectors, 240 Sub-Inspectors, 600 Sergeants and 12,000 Constables, or some such combination, with the requisite facilities, to carry out the orders given by him, as the CoE, without involving the IGP in the execution of such orders. The law provides protection for every police officer thus made available to the EC/CoE in the following words: “No suit, prosecution or other proceeding shall lie against any police officer made available to the EC/CoE under this Article for any lawful act or thing done in good faith by such police officer in pursuance of a direction of the EC/CoE”. The EC/CoE can, therefore, confidently direct the senior police officers assigned for election work to employ the facilities and personnel given in such a manner as to uphold all aspects of the election laws, including the removal of posters and cutouts, stopping political processions and unlawful assemblies, taking into custody official vehicles and their drivers, and so on.

Just as in the case of police officers who are released to the EC/CoE, all public officers performing duties and functions at any election shall act in the performance and discharge of such duties and functions under the directions of the EC/CoE and shall be responsible and answerable to the EC/CoE. Most importantly, the EC/CoE should direct the Attorney General to release at least 10 State Counsel to prepare with utmost expedition the documents necessary for legal action to be taken against any official who deliberately breaches the election laws – for example, ordering the transfer of any State employee during the election period, failing to remove posters and cutouts, using State resources to support a party or candidate, and so on. If EC/CoE does not do so, the People will be compelled to make their own guesses as to whether he is being subject to a pressure that he is unable to resist safely or whether, despite his protestations, he does so of his own volition – or whether it is a combination of both. We urge him, in the interests of democracy, the Rule of Law and his own good name, to go that extra distance to ensure that our elections are free and fair.

The contents of this article are being sent to the CoE in the hope that he will take note of its message and act more forcefully in the impending Parliamentary elections than he has done hitherto.

Feb 11

From the time, in 2002, that the letter and spirit of the Constitution were violated by the then President refusing to appoint to the Elections Commission the nominee recommended by the Constitutional Council (CC), good governance went on a rapid downward slide in Sri Lanka. Infractions of the law by the People’s representatives at all levels have now burgeoned into a comprehensive disregard for most of the important checks and balances which are found in the Constitution. The violation of the oath to honour and safeguard the Constitution has become a tragic joke. Hopefully, the forthcoming Parliamentary elections will provide an opportunity for the more responsible political parties to put the brakes on the current culture of ever-growing impunity and to get good governance back on the rails again. If this Country is not to go further down the road to complete disdain for the Rule of Law, there is no choice left but for these parties to work out a consensus on at least the more fundamental issues of importance to the Nation. An agreement to do may be called “A Core Programme for Responsible Political Parties (CPRPP)”. On matters falling outside the CPRPP, each party would be free to follow its own individual policies.

It must not be assumed, as a blind article of faith, that the Government party/parties for the time being will necessarily get a large majority, or even a nominal majority, in Parliament at the forthcoming elections. In the past, there have been large unexpected swings against the incumbent government, proving many political experts and astrologers wrong. In passing, it may be noted that there may be a valid question here as to which of these professionals have proved to be more reliable! It would, therefore, be in the interests of both the Country and all responsible parties that a CPRPP be agreed upon without delay because such a consensus for legislative action would prove equally useful whatever the result of the elections. If the electoral results prove favourable for a group of parties that has agreed on a CCRPP, that group could get on straightaway with the task of governing, without having to dither and quarrel on every single subject. If, as it turns out, this group ends up in the Opposition, it will be able to act much more effectively than the Opposition has done in recent times.

There is, unfortunately, very time left before the elections are held, making it improbable that all interested political parties would be able to find the time to sit round a table to work out an acceptable CPRPP speedily from scratch. Accordingly, the Citizens’ Movement for Good Governance (CIMOGG) offers, with the object of having both a Government that respects the Rule of Law and an effective Opposition in Parliament, to make some suggestions in this regard for inclusion in a CPRPP.

CIMOGG’s recommends that the parties to a CPRPP commit themselves to the following positions:

  1. To act in strict conformity with the Constitution at all times.
  2. To select candidates of good character, academic background and experience, while keeping in mind the long-felt need to increase the number of women and persons below the age of 40 in the ranks of future MPs to at least 20-25 per cent each.
  3. To spend more time and effort on constructive endeavours rather than the schoolboy- level of smart cracks, crude mud-slinging and generally uncivilised behaviour that is now witnessed on election platforms and in Parliament.
  4. To insist that the Speaker actively works to have the 17th Amendment, as presently set out in the Constitution, implemented and the CC appointed with all possible speed.
  5. To get Parliament to provide the CC with all necessary resources to enable it to name without delay all members to the Elections Commission, the Public Service Commission, the National Police Commission, the Human Rights Commission of Sri Lanka, the Permanent Commission to Investigate Allegations of Bribery and Corruption (Bribery Commission), the Finance Commission and the Delimitation Commission.
  6. To have the Press Council replaced with a Media Commission, in consultation with the CC, initially outside the ambit of the 17th Amendment.
  7. To empower the CC, outside the ambit of the 17th Amendment, to appoint a Constitutional Reform Advisory Committee, of whom not more than one-third shall be lawyers, to prepare a new Constitution which will, inter alia -
    • a. maximise the separation of powers between the Legislature, the Executive and the Judiciary, with Parliament having full control over public finance;
    • b. limit the number of Cabinet Ministers to not more than twenty-five and all other categories of Ministers (Deputy, Project, District etc) to not more than fifteen;
    • c. remove the right of the President to dissolve Parliament as and when he wishes and, instead, fix specific dates for all elections at intervals of either four or five years;
    • d. remove Presidential immunity from prosecution;
    • e. provide, as in the case of all State employees, for the automatic suspension of any elected representative from functioning in his office if he is faced with criminal charges, until such time as he is acquitted;
    • f. provide more realistic constitutional procedures for dealing with a President or Member of Parliament or Judicial Officer who violates his oath or affirmation to honour and safeguard the Constitution;
    • g. remove all significant shortcomings in the 17th Amendment.
  8. To revoke the Prevention of Terrorism Act and lift the Emergency Regulations.
  9. To bring before Parliament a Right to Information bill, including in it comprehensive protection for whistleblowers.
  10. To appoint a number of 3-man Committees to examine all major items of State expenditure in order to identify rapidly the large number of those which do not add significant value or which are responsible for major losses, and eliminate them so that the savings so effected may be used to cut taxation on essentials such as food, fuel and medical items.
  11. To get the aforesaid 3-man Committees, thereafter, to monitor concurrently the implementation of all remaining items costing over Rs10 Million so as to check whether they are being carried out with due regard for social justice, transparency, accountability and financial soundness, and not wait to carry out post-mortems like COPE and PAC do.
  12. To have the Declaration of Assets and Liabilities Law amended so as to make such declarations compulsory when submitting nominations for any elected office, with provision for annual updating, all of which would have to be submitted through the Elections Commission to the Bribery Commission for effective monitoring, and to have these published on the Elections Commission web site.
  13. To present a bill to provide the Bribery Commission with its own Investigation and Prosecution Unit and all necessary resources to examine the Declarations of Assets and Liabilities of those who are required to submit and update them, taking into account all information received from whatever source, and to take steps to have legal action instituted against those who do not submit the annual updates or cannot explain how they came by their assets.
  14. To take an early decision on whether to implement the 13th Amendment in full or have it amended or have it removed from the Constitution, without allowing its provisions to be violated as at present.
  15. To have a multi-party Parliamentary Committee set up with responsibility for ensuring that the 16th Amendment (relating to Official Languages) is implemented properly.
  16. To appoint a Parliamentary Commission to recommend specific programmes to reverse the damage done to national unity by the separation of school children into differing ethnic and religious streams.
  17. To get Parliament to pass laws conforming to the International Covenant on Civil and Political Rights (ICCPR) and its Optional Protocol, both of which were ratified by Sri Lanka in 1976, and the Second Optional Protocol, ratified in 1991, which would, inter alia, protect the rights of ethnic and religious minorities, and create a favourable ambience for building national unity.
  18. To publish the full contents of the reports of all the Commissions of Inquiry which have been paid for from State funds from the date of Independence.
  19. To pass the necessary laws and make the requisite administrative arrangements to enable our expatriate citizens, who contribute so much to Sri Lanka’s economy and knowledge base, to vote in the Presidential and Parliamentary elections.

It is hoped that each of the parties with representatives in Parliament, and even those outside, will take up any other issues that they consider to be of similar or greater importance, before meeting together on an early date and agreeing on as many of them as possible. In the absence of a substantial measure of agreement on the fundamental issues raised above, our worst fears regarding freedom of speech, freedom to hold views different from those in power, freedom from fear of arbitrary arrest and torture, right to life and so on may become increasingly justified.

Copies of this article are being sent to the Secretaries of all political parties.