Constitutional paradox: Is Election Commission answerable to people?

According to Hindu magazine published in India, the Sri Lankan Foreign Minister Mangala Samaraweera was quoted as saying, “Sri Lanka’s new draft Constitution could be presented in Parliament before the next Budget.” 

The Government has announced recently that the 2017 Budget will be presented in Parliament on Thursday 10 November. The Foreign Minister also said, while addressing a gathering in Point Pedro in the Northern Province, the new Constitution will celebrate the country’s diversity. 

The aim is to replace the existing 1978 Constitution. However it is unlikely the Government would be able to finalise the Constitution by end October to be presented in Parliament before the Budget presentation. Instead an interim report on the new Constitution will be presented in November to the Constitutional Assembly by the Steering committee, Parliament sources revealed. 

Public representations on Constitution making

The only document available in the public domain pertaining to the draft constitution is the Report on ‘Public Representations on Constitutional Reforms’. This is popularly known as ‘Lal Wijenayake report – May 2016’ which was presented under the mandate given by the Cabinet. The report says that it has been prepared based on public representations. An innocent reader will perceive this document as a collective effort of a team of constitutional experts, highly-acclaimed academics and other intellectuals summarising the views, needs and aspirations of the wide cross section of the people. However this position, in my view is far from reality. 

Report says “Tremendous enthusiasm was shown by the public to make representations”. However only about 4,150 representations were received. The report admitted they had to rush through the report. They had to limit their public sittings in the districts outside Colombo only for two days.

The committee members report also admitted that the submissions they received are not based on statistical sampling. Therefore it goes without saying that the findings cannot represent the whole population. It is unfair by the “majority population” to force upon the recommendations arrived, by following the wrong methodology.

Is the Election Commission answerable to Parliament? 

Parliament on 21 September adopted a resolution providing for special salary scale and allowances for the Bribery Commission Director-General. For the Chairman and members of the Election Commission, a special allowance equivalent to 3/4th of their monthly allowances will be paid only during election times. 

Our Constitution, which was certified by Parliament on 31 August 1978, has 19 amendments, the First Amendment to the Constitution was certified by the Speaker in the same year on 20 November. By the end of 1988, there had been 14 amendments made to the Constitution (within the period of 10 years).

The most recent amendment was the 19th Amendment which was passed in May 2015. The Chapter V11A of 19A deals with the setting up of a Constitutional Council and few other commissions including the Election Commission. 

It is relevant to mention that according to the Article 104B (3) of the 17th Amendment, the Election Commission shall be responsible and answerable to Parliament in accordance with the provisions of the Standing Orders of Parliament. However, in terms of the Article 41B (6) of the 19 A, all the commissions referred in this chapter, other than the Election Commission, shall be responsible and answerable to Parliament. How come only the Election Commission is not answerable to Parliament? 

It is interesting to point out, on perusal of the document titled ‘The Constitution of Sri Lanka (As amended up to 15 May 2015) – Revised Edition 2015’ published by the Parliament Secretariat and printed at the Government Printing, it was found that as per the Article 104B (3), the Election Commission shall be responsible and answerable to Parliament (refer page 84). This document (The Constitution-revised edition) has incorporated all the changes made up to and inclusive of the 19th amendment to the constitution as stated thereon. 

The pertinent question that should be asked from the Commissioner General of Elections and the Secretary General of Parliament is whether or not the Election Commission is responsible and answerable to Parliament? There seems to be a major contradiction in the existing Constitution as stated in the revised edition – 2015. The emoluments of the members of the Election Commission are charged on the ‘Consolidated Fund’ and as citizens, we pay heavy taxes including VAT, NBT, etc. to meet the cost of the Election Commission. 

Taking out ‘Unitary state’ with a view to finding solutions to national problem

Coming back to the ‘Wijenayake’ report, the people expressed their view that the Constitution shall provide a future vision of the country. However it appears that they have not undertaken this assignment with a fresh and open mind. There appears to be no brain-storming sessions conducted and just gone with preconceived notions by the members of the committee. 

One example is worth mentioning here. The report has given some recommendations under the caption “nature of the state” considering the “finding solutions to national problem.” There has not been any discussion on this topic as to defining what the national problem is. 

The recommendations of the committee for the “nature of the state” are based on the consideration of (a) finding a solution to the national problem, (b) democracy. These two cannot be mutually exclusive. Only one committee member, Kushan De Alwis, PC has recommended that the unitary character of the “nature of the state” must be retained.

The committee members have recommended the retention of the Provincial council system as the second tier although majority of the people have made representations to the committee (as mentioned in the report) that the existing Provincial Councils are essentially “white elephants”.

Conclusion

The Constitution of Sri Lanka is the supreme law of the country giving powers to the government of the day and limiting its powers to the constitutional boundaries. According to our Constitution, sovereignty is in the people and shall be exercised by powers of Government. This people’s power includes legislative powers, the franchise (exercisable at the elections) as well as fundamental rights. 

My own view is as citizens, we need to challenge the whole methodology adopted in the constitutional making process and in particular, the ‘Wijayanayake’ report which claimed that it is based on people’s representations. Also it has now become necessary to look into the major contradiction in the present Constitution (with regard to the Election Commission) before approving the ‘new Constitution’.

(Jayampathy Molligoda is a Fellow Member of the Institute of Chartered Accountants of Sri Lanka. He has also obtained his MBA from the Postgraduate Institute of Management, and has also successfully completed an Executive Strategy Programme at Victoria University Melbourne, Australia. He was conferred the ‘Professional Excellence Awards – 2014’ at the CMA national Management accounting conference held in June 2014. At present he serves as the Director/Chief Executive Officer of Bogawantalawa Tea Estates PLC. He can be reached via [email protected].)