Focus on Rights

Revisiting the electoral reform process

No doubt, the Parliamentary sub-committee which, this week, made public ten questions of urgent electoral law reform, did so with the best of intentions. The road to hell, as has been most appropriately remarked, is paved with good intentions. Following a fairly long process of deliberations by the sub-committee, it has recommended that a Parliamentary Select Committee be appointed to further examine the issues so identified and submit a report within six months.

The questions so identified include as to whether proportional representation (PR) should be continued in its present form, whether we should go back to the first past the post system or adopt a combination of the two, whether to have by elections, whether to have multi- member constituencies and if so, on what basis and whether to have reserved constituencies and if so, the basis of reservation, namely whether it should be on race, religion, age, etc.

A fundamental underlying principle is whether these reforms should apply across the board to all categories of elections or to any particular elections and if so, which type of elections.

The questions also include as to whether (if PR is to be retained), it should be national PR, provincial PR or district PR and further as to whether two ballot papers are to be issued to each voter, one to choose the party and one to choose the individual and in the latter event, whether cross voting is to be permitted. Significantly, in the event of PR, is the choice to be left entirely to the party or is the electorate to be given some voice in the selection of the candidate?

Other questions also include whether to make the production of the National Identity Card or other recognised means of identification compulsory for voting, whether to require candidates to make deposits at the time of nominations, to appoint a delimitation commission in case of constituencies being reintroduced and the nature of such a commission.

While all these questions are no doubt well and good, one might be pardoned for feeling a certain degree of puzzlement as to why key issues of electoral reform have been bypassed in this process.

In the first instance, the almost wholesale ignoring of the measures that might be taken, through a quota system or reserved seats, to correct Sri Lanka's pitiful imbalance in terms of gender representation at all political levels, is disappointing. Currently, we have the lowest ratios in South Asia in this sense, a question that well deserves serious analysis instead of mere honorary mention in the working programmes of the United Front Government.

The second concern relates to vital questions impacting on the very integrity and accountability of the election process. While clarifying the system of elections in force in Sri Lanka is a matter of the first importance, guaranteeing to some extent at least, the proper working of the framework within which elections of any kind can be held in this country, is equally if not more important.

A singularly vital question in this sense is the lack of enforcement powers of the Commission of Elections under the 17th Amendment, with regard to the misuse of state resources. The Commissioner can, (through Article 104B(4), prohibit 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.

The manner in which this lacuna worked itself out in practice was well seen in the 2001 December parliamentary elections when we saw public property being abused to a horrendous extent. The Elections Commissioner, (then exercising the powers of the Commission which had not yet come into place), was powerless to prevent this. We saw, in fact, the Commission for the Monitoring of State Resources during the elections, headed by former Supreme Court Justice Ranjith Dheeraratne bemoaning the fact that the law is being violated with impunity by those who should know better.

This reality carries with it, its own very peculiar significance when we consider the fact that the earlier drafts of the 17th Amendment 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 and prescribed severe penalties. The Commissioner was entitled to institute criminal proceedings in the appropriate court under his own hand in this regard. These safeguards were all removed when the 17th Amendment was brought before Parliament, a fact that the then United National Front opposition was not quick enough to object to. The result is that we now have an emasculated law pertaining to one of our most vital public bodies.

Other vital areas of law reform impacting on the accountability of the electoral process vis-a-vis political parties have also been left untouched by the parliamentary sub- committee. Firstly, the need for all political parties to be obliged to maintain regular accounts clearly and fully recording therein all amounts received by them and all expenditure incurred as is, for example, the requirement in Germany. This was, in fact, a major proposal put forward by the Law Commission of India, when considering reform of India's electoral laws. (Law Commission of India, One Hundred and Seventieth Report on Reform of the Election Laws, May 1999)

The Law Commission recommended that the audited accounts be submitted to the Elections Commission before the prescribed date every year with the Commission being required in its turn to publish the said accounts for public information. The Commission reasoned that it was important to introduce an element of transparency and openness in the financial matters of political parties, being backed in this regard by a powerful judgement of the Supreme Court in Gajanan Bapat v Dattaji Meghe (1995, SCC, 347).

India has legal provision requiring candidates to keep separate accounts of all expenditure incurred by him or her from the date of nomination to the date of election but these provisions were made nugatory by later amendments to the Representation of the People's Act , 1951 which exempted expenditure of the parties and supporters of candidates from disclosure. The amendments were passed in order to offset the effect of another judgement of the Indian Supreme Court in Kanwarlal Gupta v Amar Nath Chawla (1975, 3 SCC, 646) which ruled that the section applied in its ambit to political parties and friends or supporters of candidates.

Interestingly, one time Commissioner of Elections in this country, Chandrananda de Silva made the salient point (in a 1997 study for the Colombo-based International Centre for Ethnic Studies (ICES) that current election laws in Sri Lanka do not have a sufficient deterrent impact on the party itself as opposed to an individual candidate. Mr. Silva recommended that the actions of commission and omission covered by offences, corrupt and illegal practices of individuals acting as agents of parties should reverberate to the discredit of such parties. Parties themselves should be made to suffer severe penalties.

What is necessary now is an examination of deficiencies in our election laws in their totality, (rather in the manner of the two-hundred-and-eight page analysis undertaken by the Law Commission of India in 1999), instead of a six-month tinkering with systems of elections. A substantive analysis of this nature is an absolute priority if we are serious about making any changes to the disasters that now pass for elections in this country.

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