A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
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Thiranjala Weerasinghe sj.- One Island Two Nations
?????????????????????????????????????????????????Friday, March 1, 2019
The Elections Commission: A madhouse within a madhouse
The Constitutional Madhouse – Part 5
The 19th Amendment led to the setting up of the following independent
Commissions with the stated objective of depoliticising the conduct of
the day-to-day affairs of the government.
The Election Commission
The Public Service Commission
The National Police Commission
The Audit Service Commission
The Human Rights Commission of Sri Lanka
The Commission to Investigate Allegations of Bribery or Corruption
The Finance Commission
The Delimitation Commission
The National Procurement Commission.
Article 41B (6) of the present Constitution, as amended by the 19th
Amendment, states that all these commissions other than the Election
Commission, shall be responsible and answerable to Parliament. Thus,
according to Article 41B (6), which appears in Chapter 7 of the
Constitution dealing specifically with the Constitutional Council, the
Elections Commission will be the only independent Commission that will
NOT be responsible to Parliament.
However, Article 104 B (3) of the Constitution, which was also
introduced by the 19th Amendment which falls under Chapter 9 of the
Constitution, dealing specifically with the Elections Commission, states
as follows: "The (Elections) Commission shall be responsible and
answerable to Parliament in accordance with the provisions of the
Standing Orders of Parliament for the exercise, performance and
discharge of its powers, duties and functions and shall forward to
Parliament for each calendar year a report of its activities for such
year."
So, which one of these provisions is true? Is the Elections Commission
responsible to Parliament or not? Under Article 41 B (6) the Elections
Commission is not responsible to Parliament. Under Article 104 B(3) it
is not only responsible to Parliament but also required to report
annually to Parliament on its activities. Personally, this writer would
prefer 104 B (3) because all Commissions dealing with public affairs
should be responsible and answerable to the supreme legislature of this
country. If I remember correctly, at the committee stage of the 19th
Amendment Bill, Prof. Tissa Vitharana put up a fight to get these
Commissions made responsible and answerable to Parliament. However,
because of contradictory provisions in the Constitution, today no one
knows whether the Elections Commission is responsible to Parliament or
not.
When the question of the President’s power to dissolve Parliament went
before the Supreme Court, it was held that while Article 33 (2)(c)
conferred the power to dissolve Parliament on the President, the manner
in which it was supposed to be done was laid out in Article 70(1) and
that this was buttressed by the provisions in Article 48(2) which
referred only to Article 70(1). If the question of whether the Elections
Commission is responsible to Parliament or not goes before the SC, it
will not be that easy to solve it. Article 104 B (3) says, ‘It is’, and
Article 41 B (6) says ‘It is not’. How is the SC to decide between such
provisions, by tossing a coin?
The legality of a legally invalid meeting
Under Article 103 (1) of the Constitution as amended by the 19th
Amendment, the Elections Commission consists of three members appointed
by the President on the recommendation of the Constitutional Council.
Article 104 (1) states that the quorum for any meeting of the Commission
shall be three members. It is what comes after this that would have
many people scratching their heads.
Article 104 (2) (a) states that the Chairman of the Commission shall
preside at all meetings of the Commission and in the absence of the
Chairman, a member elected by the members present from amongst
themselves shall preside. (However, the Chairman is only one of three
members on the Elections Commission. Since three members are required
for a quorum, If the Chairman is absent, there will be no quorum and a
meeting of the Elections Commission cannot be held legally. What then is
the point in having a provision in the Constitution saying that in the
absence of the Chairman, a member elected by the members present from
amongst themselves shall preside at such meeting?
Article 104 (2) (b) states that the decisions of the commission shall be
by a majority of the members present and voting and in the event of an
equality of votes, the Chairman or the member presiding at the meeting
shall have a casting vote. (This is a meaningless provision because if a
decision is to be taken by a majority vote, it will always have to be a
two to one decision and any talk of a casting vote for the Chairman
makes no sense.)
Article 104 (3) has a mind-numbing provision. What it says is that the
Elections Commission ‘shall have power to act notwithstanding any
vacancy in the membership of the Commission, and no act or proceeding or
decision of the Commission shall be invalid or be deemed to be invalid
by reason only of such vacancy or any defect in the appointment of a
member’. (Can anyone even imagine the implications of such a provision?
The Elections Commission consists of only three members and the quorum
is three members. No meeting of the Elections Commission can take place
legally without the quorum. Yet Article 104 (3) clearly states that the
Elections Commission ‘shall have power to act notwithstanding any
vacancy in its membership and no act or proceeding or decision of the
Commission shall be invalid or be deemed to be invalid by reason only of
such vacancy. What Article 104 (3) is saying, in other words, is that
an illegal meeting of the Elections Commission without a quorum, will
still be legally binding and valid.)
This develops further in Article 104 A (a) and (b) of the Constitution,
which states that no court shall have the power or jurisdiction to
entertain or hear or decide or call in question on any ground and in any
manner whatsoever, any decision, direction or act of the Elections
Commission, made or done or purported to have been made or done under
the Constitution or under any law relating to the holding of an election
or the conduct of a Referendum as the case may be, which decisions,
directions or acts shall be final and conclusive; and that no suit or
prosecution or other proceeding shall lie against any member or officer
of the Commission for any act or thing which in good faith is done or
purported to be done by him in the performance of his duties or the
discharge of his functions under the Constitution or under any law
relating to the holding of an election or the conduct of a Referendum as
the case may be.
Under Article 104 A, the only instances in which the Elections
Commission can be taken to courts will be over fundamental rights issues
under Article 126 of the Constitution, the writ jurisdiction of the
Court of Appeal which in the case of the Elections Commission will be
exercised by the Supreme Court and not by the Court of Appeal, and with
regard to petitions pertaining to the conducting of presidential
elections, referendums or appeals relating to election petitions
pertaining to parliamentary elections.
Thus, no one knows whether the Elections Commission, which was set up
under the 19th Amendment is responsible to Parliament or not. And there
is a question mark over the legality of meetings of the Elections
Commission when one member is absent. One provision of the Constitution
says that such a meeting will not be valid in law while another
provision says that such meetings will be fully valid and cannot be
called into question in a court of law.
The Elections Commission is arguably the most important of the
independent commissions because it presides over the process of electing
governments into power. Can any country afford to have such
constitutional uncertainties in relation to such a body? But that’s Sri
Lanka under the 19 th Amendment.
It’s not surprising that there is much talk of drug addiction and
substance abuse among MPs in Parliament. In the opinion of this writer,
the first people to be tested for substance abuse should be the drafters
of the 19th Amendment and the drafters of the proposed new
Constitution.