Underused powers of the Commissioner of Elections
by Dr A.C.Visvalingam President, CIMOGG www.cimogg-srilanka.org
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.
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