Continuing need to keep independent commissions independent

by Jehan Perera-May 25, 2020, 8:30 pm

The direction of Sri Lanka’s democratic process hangs in the balance. As many as seven cases with regard to the general elections and the presidential decree dissolving parliament are pending before the Supreme Court. The outcome of the judicial decision may decide whether Sri Lanka will continue to be governed by the president and caretaker cabinet until the general elections actually take place to bring in a new parliament. The Constitution has set a three-month limit on such an arrangement sans a parliament.

Elections, at which the people’s representatives are elected, is the lifeblood of democracy. The Sri Lankan voters look forward to elections at which they can vote for those they believe will deliver the best results to them and to the country. The limit placed on a country functioning without a legislature is that experience down the ages has shown that there needs to be a system of checks and balances if democracy and freedoms are to survive.

The position taken by the Election Commission at the ongoing judicial hearings in the Supreme Court has been that elections cannot be held on June 20, which was the date set by the Election Commission itself. This would be the second time that the Election Commission has balked at conducting the elections on the date that has been set. The first occasion was when the date for the elections was set for April 25 by President Gotabaya Rajapaksa when he dissolved parliament on March 2 with the power vested with him by the 19th Amendment to the constitution.

REQUEST DENIED

Under ordinary circumstances, the postponement of general elections would be viewed most unfavorably by the general population. However, on this occasion, most people appear to be taking a more nuanced approach. They wish to elect a parliament that represents their best interests at the present time. But they also see justifiable reasons to postpone the general elections for reasons of public health in the context of the increasing Coronavirus infections. The problem is that the continuing postponement of general elections has given rise to a constitutional issue that is now before the Supreme Court.

If the general election had taken place on the date of April 25 set by the president the issue of the new parliament not being summoned within three months of the dissolution of the old parliament would not have arisen. However, two factors intervened to put the onus on the Election Commission with regard to conducting the election on the due date. The first was the rise in coronavirus infections that could potentially have wreaked havoc in the country as it has in other far more developed, countries whose political leaders did not act with promptness to lockdown their countries. The second reason is that the Election Commission’s appeal to the president to refer the matter at an early stage to the Supreme Court for a judicial decision was turned down.

In these fraught circumstances, the Election Commission had no choice but to take action on its own, unguided by the collective wisdom of the Supreme Court. It has deemed both April 25 and now June 20 to be unsuitable due to health related concerns associated with the coronavirus spread. However, the Election Commission’s conclusion that the health situation in the country does not permit elections to be held at an early date, such as June 20, has been contested by the Director of Health Services, Dr Anil Jasinghe. The government’s Health Director has become a prominent public personality on account of giving regular updates on the prevailing health situation to a general population waiting anxiously for further edification.

NEGATIVELY RECEIVED

The information is readily available that the number of daily new infections has been ranging in recent weeks from between 10 to 20 per day. But sometimes it may be more even exceeding 50 this past Sunday even though the country was put on a 48-hour curfew in all parts of the country. It has been reported that about a fortnight ago the Election Commission had consulted health experts, election staff from both head office and the districts, and civil society monitors about the possibility of holding early elections. The difficulty of holding early elections due to the continuing curfews, restrictions on travel between districts and spread of the infection loomed large at those discussions.

It appears that the position taken by the Election Commission with regard to its inability to conduct the general election on the scheduled day of June 20 has been received negatively by the government. The government position is that elections should be held as early as possible. The Election Commission is being subjected to criticism by government supporters. It has been accused of anti-government bias on account of it even objecting to the Rs 5000 payment being made by the government to marginalized and poor families to help them tide over the prolonged lockdown.

However, the attempt being made to portray the commissioners as being biased against the government is not fair. What the Election Commission objected to was not the grant of the Rs 5000 at all, but the politicization of this grant. The election law states that once elections are declared that it is incumbent on the Election Commission to ensure that state resources are not utilized for political purposes. There was evidence that some of the ruling party politicians were attending the events at which this money was being given and claiming that it was due to their intervention that the people were receiving it.

SUPPORT NEEDED

The ability of the Election Commission to make decisions that can be displeasing to those in power is that it is empowered by special protection available to it by the 19th Amendment to the Constitution. This constitutional provision gives protection to the three-member Election Commission. They are appointed by, and accountable to, the Constitutional Council, which is a ten-member multi-party body, including three civil society members. The commission members are therefore protected from the danger of being summarily dismissed or transferred if they displease those in power.

Unlike members of the Election Commission, members of the public service are one step removed from the protection afforded to members of the independent commissions, such as the Elections Commission, Human Rights Commission and Public Service Commission. This may account for the difference in position with regard to the health consequences of early elections taken by the Elections Commission and the Director of Health Services. The latter would invariably be more exposed and vulnerable to political pressure.

In a time of crisis there is a tendency for governments worldwide to demand more power to act quickly and even to bypass systems of checks and balances. In this context, it is important to continue to seek the strengthening of independent decision making bodies whose selection has been through an inclusive process. In Sri Lanka the key institutions that require such support are the independent commissions appointed under the 19th Amendment.