Extent and limitations of the 17th Amendment

In the first instance, there was that fairly bizarre exchange of acrimonious words between the Commissioner and the Inspector General of Police regarding the sixty nine transfers of police officers since the date of notification of the December elections. The contending positions were clear; While on the one hand, the Commissioner of Elections had asked the IGP to suspend all police transfers effected after the date for parliamentary elections had been fixed, the IGP's retort was that the authority of the Elections Commissioner under the 17th Amendment was limited to deploying police personnel to suit his needs and he could not interfere in what was (purportedly) normal transfers.

On a plain reading of the 17th Amendment, the IGP is correct in his position in that though the powers of the Commissioner of Elections with regard to the deployment of police are considerable, they are only with regard to those police officers who are mandatorily required by the IGP to make available to the Commissioner when required to do so by the Commissioner under the 17th Amendment. It is those officers who may be deployed by the Commissioner in such a manner calculated to promote the conduct of a free and fair election and again, it is only those officers who shall be responsible to and act under the direction and control of the Commission during the period of an election. The strength of this section however is that there is no limitation or restriction on the numbers of police officers and facilities that the Commissioner may request from the IGP. The IGP has no discretion to refuse his request, provided, of course, that the Commissioner acts reasonably. In a comparative Indian context, it has been articulated that the Elections Commissioner has the power to postpone elections when his demand for requisite staff had not been met by the authorities.

The other instances in which the Commissioner may exercise his authority are now well known. The process regarding the state media in the event of contravention of an order of the Elections Commissioner is clear cut (appointment of a Competent Authority though how a dissolved Parliament can provide for his functions and powers is less clear.) But it is the enforcement powers vested in the Commissioner with regard to the misuse of state resources which are more problematic. The Commissioner can direct the prohibition of the use of any movable or immovable property belonging to the State or any public corporation by any candidate, political party or independent group as well as for the purpose of promoting or preventing the election of the above. However, the enforcement provisions relating to such directions are non existent, the 17th Amendment only imposing a vague duty on every person or officer in whose custody or control such property lies, to comply with and give effect to such direction.

What is extremely interesting is that had not always been the case in the drafting process leading up to the enactment of the 17th Amendment. On the contrary, one of the last drafts of the 17th Amendment specifically included a clause which related not only to the Commissioner's authority with regard to state resources but made any person who contravened or failed or neglected to comply with any direction or order issued by the Commissioner or indeed, any provision of the law relating to elections, guilty of an offence. The Commissioner was thus entitled to institute criminal proceedings in the appropriate court under his own hand. Where any particular offence was not punishable by any particular law, the Commission or the Attorney General could, in fact, move the High Court in the matter. Rigorous penalties could be imposed on a person found guilty of such offence, up to a fine not exceeding hundred thousand rupees or a sentence of seven years imprisonment or both.

For reasons that are fairly obvious, this clause had been removed from the final draft of the 17th Amendment which was certified by the Cabinet as an urgent Bill and placed on the Order Paper of Parliament. If this clause had been retained, the hand of the Elections Commissioner, particularly in the misuse of state resources would have been considerably strengthened.

This is however, not to despair. Neither can the Commissioner of Elections be heard to say that his position or his powers (as of this date and consequent to the 17th Amendment) are wholly inferior to the authority of the Indian Elections Commission. Clause (1) of Section 324 of the Indian Constitution vests in the Indian Elections Commission, the superintendance, direction and control of the electoral rolls for and the conduct of elections. While special powers with regard to police or the use of state resources are not specified, there is however a stipulation that the government shall make available to the Indian Elections Commission such staff as may be required by it for the discharge of its duties. Clause (1) in Article 324 meanwhile has been held to be a 'reservoir of power' for the Commission whenever enacted law is silent on any electoral aspect or makes insufficient provision to deal with a particular situation. (Mohinder Singh Gill v Chief Elections Commissioner, 1978). Similarly, Article 103(2)of the Sri Lankan 17th Amendment states that the object of the Commission shall be to conduct free and fair elections. This is a provision that could be utilised by the Commissioner if the need so arises, as for example in a situation comparable to the 'secret sticker controversy' last year.

In India, what has been evident is the adroit and courageous use by the Elections Commissioner of the constitutional powers vested in himself together with a judiciary that has, in the main, been sympathetic to the dilemmas facing the chief electoral officer of that land. Though the beginnings of such a bond were glimpsed in 1999, we have yet to see it being sustained in this country. This is, in truth, the real distinction between India and Sri Lanka and not formal constitutional provisions.

Who can name the winner?

The PA's defeat at the coming parliamentary election is inevitable. The closing of the possibility for electoral malpractices, a powerful group in the PA joining the UNP, the SLMC and the CWC contesting the election in alliance with the UNP will be the main factors that will contribute to UNP's victory. 

Although it is still too early to forecast the extent of the victory that the UNP is going to get and the defeat that the PA is going to suffer, it is not impossible to assess the general nature of the changes that might take place. 

At the presidential election of 1999, the PA was able to get 4,312,157 votes or 51.12% of the total valid votes. At the parliamentary election of 2000 that figure dropped to 3,900,901 or 45.10%. 

The UNP was able to get 3,602,748 votes or 42.71% of the total votes at the presidential election. However at the parliamentary election they got only 3,477,770 votes or 40.21% of the total votes. 

Although there is reason to believe that the PA had printed and used a million bogus ballot papers at the 1999 presidential election, the number which were actually used is not clear. There are reasons to believe that an extremely subtle and corrupt programme which could not be detected at first sight was implemented at the parliamentary election of 2000. 

It may be surmised that, if the number of votes that were added to the PA's vote were removed, there would have been an extremely close contest at the presidential election and that the UNP would have been ahead at the parliamentary election of 2000. 

S.B. Dissanayake who worked the PA's election machine is no longer with the PA. It is not clear whether it will be possible to implement that subtle programme even without him. 

If the powers vested in the Commissioner of Elections by the 17th Amendment to the Constitution is properly used, the possibility for the PA to use state resources for election work as well as the possibility for rascally practices will be limited to some extent. The resultant advantage will go to the opposition. 

If the UNP succeeds in contesting as a grand alliance which includes the SLMC and the CWC, it will be able to secure for itself the support of the Muslim people in the Eastern Province and especially those scattered throughout the country, while the support of the CWC will exert a decisive impact on the Central Province and a fair impact on the Sabaragamuwa Province. 

Although the charges that can be levelled against some who crossed over to the UNP are very serious, that break brought a powerful new group to the UNP's political stage. 

At every election after 1994, the UNP was on the defensive rather than on the offensive in its campaign. The PA on the other hand was always on the offensive rather than the defensive. 

However, in a context in which a powerful group from the PA has joined the UNP and in which the President has become the main political target of that group it may be surmised that the UNP for the first time will give up its defensive attitude and move onto an offensive campaign. 

The UNP's propaganda machine compared with that of the PA, is extremely weak. At elections, the PA made use of state media in a clever and subtle way though it was against the law. However, due to the 17th Amendment, the PA's ability to make use of state media will probably be limited to a great extent. 

However, the PA has set up a private radio station of its own and due to the close friendship that Mr. Samaraweera has with the proprietors of Swarnavahini, the PA is likely to attempt to use Swarnavahini and the radio services connected with it, for its own political purposes. If some control is established on the Lake House, the PA will be in such a position that it will not be able to get the support of any other printed media. It is a price that the PA will have to pay for the hatred it spread against newspapers. 

The PA is financially stronger than the UNP which is considered the representative of the capitalist class. However, if those in the PA who have money consider it better to keep the money rather than spend it on a losing election, then the election campaign of the PA might be further debilitated. 

Apparently, the UNP too had faced the problem of inadequacy of finances. However, as the UNP appears to be the likely winner, it will probably be able to conduct this election without financial difficulties. 

In the final analysis everything will be decided on the extent of the UNP's victory and the extent of the PA's defeat. The President has declared December 5 as the election date and has left a long interval until January 1 for the summoning of Parliament allegedly to leave room for a back-door transaction after the election. 

The leaders of the PA have a secret hope to form a government with the support of the JVP even if the PA loses the election narrowly. Although the CWC and the SLMC are to contest under the UNP, the leadership of the PA thinks that there is great room for back-door transactions after the election because those two parties will be able to leave the UNP anytime they choose. However, there will be such a possibility only if the contest is going to be a very close one. 

The UNP's defeat at the parliamentary election of 1994 was not a bad one although it was held after 17 years of UNP rule. While the victorious PA got 48.94% of the total valid votes, the UNP was able to retain 44.54% of the total valid votes. Even in 1970 when the UNP was reduced to 19 seats, the PA got 39% of the total valid votes. The UNP was able to retain 37.09% of the valid votes. However, at the election of 1997 in which the SLFP was reduced to 8 seats, the UNP got 50.9% of the total valid votes while the SLFP was able to get 29.7% votes only. 

The SLFP-led United Front which had got 40.4% of the votes cast at the parliamentary election of 1965 increased its ratio of the votes to 49% at its victory in 1970. The UNP which had got 37.9% at the election of 1970 increased its vote to 50.9% when it won in 1977. Thereafter, the SLFP which had got 29.7% in 1977 increased its vote to 48.94% at the election of 1994 in which it won. 

The increase in the vote of the United Front in 1970 when it was victorious was equivalent to 8.6%. The UNP's increase in 1977 when it was victorious was 13.0%. The PA's increase at its victory in 1994 was 21.24%. The average increase in these three victories was 14.2%. 

Accordingly the UNP which is in an alliance with a number of other parties is likely to reach 50% of the total votes cast. If that happens, the number of MPs (including those in the National List), it will get 125 seats. SLMC and the CWC might get about 17 seats. If the alliance of Tamil parties excluding the EPRLF gets 10 seats, all other parties including the PA, JVP, EPRLF and Sihala Urumaya will be left with 90 seats only. Accordingly, the number of seats that the PA gets can come down to 75. 

The writer is the Editor of Ravaya