Last week, in one of those regular breakfast meetings with newspaper editors, President Mahinda Rajapaksa had quipped that the setting up of an Election Commission is not necessary, because in his opinion, the Election Commissioner does his job well.
The President was responding to a question asked by one of the newspaper editors, who had queried whether the Election Commission would be appointed before the Provincial Council election in the North, which is scheduled for September this year. A pertinent question, indeed! However, the sad thing is that none of the media heads who were present voiced the other important follow-up question: Isn’t it a constitutional requirement under the very Constitution that Rajapaksa was sworn in as the President of Sri Lanka that the Election Commission be established?
The job of the President, after all, is to implement his mandate, subject to the Constitution and the limitations that are laid therein, and interpreting the Constitution, which is the prerogative of the Judiciary, is not his job.
The relevant constitutional provisions state:
103. (1) There shall be an Election Commission (in this Chapter referred to as the ‘Commission’) consisting of five members appointed by the President on the recommendation of the Constitutional Council, from amongst persons who have distinguished themselves in any profession or in the fields of administration or education. The President shall on the recommendation of the Constitutional Council, appoint one member as its Chairman.
(3) No person shall be appointed as a member of the Commission or continue to hold office as such member if he is, or becomes, a Member of Parliament, a Provincial Council or a local authority, or is appointed a judicial officer or public officer, or enters into the employment of the State in any capacity whatsoever.
In addition, the 17th Amendment to the Constitution and the subsequent 18th Amendment, which weakens the provisions of the 17th Amendment, set out the procedure for the appointment of the president and commissioners to the Election Commission and to a host of other independent commissions, outlined in the Schedules I and II of the relevant amendment.
However, the manifest reluctance on the part of the President to appoint, let alone strengthen, the independent commissions is also disingenuous. He tells one thing to the gullible local audience (No, I do not refer to the particular breakfast meeting) and tells the polar opposite to the international community, especially to those crusading diplomats representing advanced democracies.
In fact, President Rajapaksa, in a previous meeting with Secretary General of the Commonwealth, Kamalesh Sharma, had agreed to cooperate with the Commonwealth Secretariat and obtain its assistance to ‘upgrade the current Election Commission to Grade A, in order to make it more independent .’
This is what Secretary General Sharma said at the media conference, held at the end of the Commonwealth Ministerial Action Group (CMAG) meeting. He was responding to Frances Harrison, who asked at what point he would feel it was appropriate to stop using his good offices to engage with Sri Lanka.
Kamalesh Sharma: My present experience is I do not anticipate that, that point is likely to be reached because of all the cooperation which I am getting and all the fields that we are engaged in.
These fields are in human rights execution; we are trying to upgrade the Election Commission to Grade A to make it more independent. The menu for working with them is emerging in a way that I expect, that there will be progress, going forward, rather than a sense of disappointment.
Three years back, during that unholy rush to pass the farcical 18th Amendment, the government apologists argued, it would simplify the process of appointing the commissioners to the independent commissions. Earlier, a disagreement over the appointment of the minor party nominee to the Constitutional Council delayed the appointment of the Council, causing an impasse that questioned the practicality of certain provisions of the 17th Amendment in Sri Lanka’s bitterly divisive political environment.
However, in reality, the 18th Amendment removed the mandatory term limits of the Presidency and also set up a sham Parliamentary Council, in place of the Constitutional Council – which was mandated under the 17th Amendment to make appointments to the independent commissions and other independent institutions.
However, in contrast to the unholy hurry in the passing of the 18th Amendment , the President, who since then, has been indulging in the untrammeled powers vested on him under the 18th Amendment, had done precious nothing to appoint the independent commissions, including the Election Commission. Worse still, the commissioners he appointed to the ‘so-called’ independent commissions such as the Bribery Commission and the National Human Rights Commission, exercising the discretionary powers vested on him under the 18th Amendment, have greatly eroded the integrity and the independence of those Commissions. That explains why the National Human Rights Commission, which has its accreditation to the International Coordinating Committee (ICC) of National Institutions for the Promotion and Protection of Human Rights downgraded since 2007, has become an apologist of the current regime’s rights violations.
Former Chief Justice, Dr. Shirani Bandaranayake, has accused some members of the Bribery Commission of bias.
However, in the long run, rulers who come to think themselves as the State would fall victims of their arrogance. One such despot was finally dug out from a rabbit hole in an Iraqi village, where he was hiding, while another was allegedly sodomized on camera with a handgun during his brief arrest, which ended with his murder by his own countrymen in Tripoli. A third is now defending himself in a court in Cairo.
Not long ago they also thought they were the State.