Focus on Rights

Indulging in fictions, legal and otherwise
An incalculable consequence of the prevalent political crisis affecting this country is the effect that this is having on the certainty of law. Let alone the ordinary law, the working of the Constitution has also become subject to a degree of flux in a manner that has far reaching effect on our future functioning.

One classic instance involves the Elections Commission. The 17th Amendment stipulates a five member body appointed by the President on the recommendation of the Constitutional Council, whose object would be to conduct free and fair elections and referenda. The Commission has a constitutional mandate to prevent the perversion of the state media during election times. Further duties involve direction of the police and making recommendations to the President on the deployment of the armed forces in order to ensure the holding of free and fair elections.

Its non-constitution for the past two years is due to speculative rather than factual objections by President Kumaratunge, that individuals recommended by the Council are politically compromised. No such objection had been put forward, by all accounts, at the time of deciding on the recommendations, by the appointee of the President, sitting on the Council or indeed, by those members of the Council who represent both the Prime Minister and the Leader of the Opposition, the latter coming as it were, from the same political grouping as the President. If objections had been raised at that stage, some measure of compromise may have been possible. Instead, what we have is a nullification of the entire process whereby President Kumaratunge, after the names were put into the public domain, indulges in grandstanding that is ill-advised, coming as it does from the office of the Presidency.

As a consequence, the Commissioner of Elections has been compelled to move court, requesting that he be permitted to retire as is his due. The court, in turn, has expressed regret for his predicament, stating though that their hands are tied by the 17th Amendment, which stipulates that the Commissioner must continue until the Commission is appointed.

But, the deleterious effect of this deadlock between the Constitutional Council and the President goes far beyond the predicament of one individual, unfortunate as his plight may be. We continue, in effect, in a transitional process, as far as the conducting of elections is concerned in this country, where the 17th Amendment applies but not in its entirety, resulting in many uncertainties.

In addition, its provisions are patently inadequate with regard to the misuse of state property, for example, where the Commission can issue directions to public officers and persons having in custody, such public property but has no power of enforcement of such directions. Other defects are becoming more and more apparent as time passes bye.

These dual effects, manifesting both the existing uncertainty as well as further problems in the 17th Amendment, were made clear recently when a Divisional Bench of the Supreme Court determined that the jurisdiction of the Court of Appeal existed in respect of applications brought against officers of the Commissioner of Elections in the current transitional period, despite a legal fiction of exercise of powers of a non-existent Commission by the Elections Commissioner.

The decision was made in relation to an application by members of the Sri Lanka Muslim Congress (SLMC) in the Court of Appeal, asking that writ be issued against officers of the Commissioner of Elections for refusing a recount of the votes in the local government elections held on 20th May, 2002 to the Colombo Municipal Council, despite serious irregularities in the counting of the votes. It was contended that consequently, there had not been a lawful count and declaration of results.

The Court of Appeal, before which the application was brought, had declined to hear the matter on the basis that the proper forum was the Supreme Court, given that Article 104H of the Constitution, (by virtue of the 17th Amendment), transferred the jurisdiction of the Court of Appeal in the granting of writs in relation to any matter that may arise in the exercise of powers by the Elections Commission, conferred on it by the Constitution or by any other law, to the Supreme Court. It also imposed a one month time limit on the lodging of such applications.

In reversing the Appeal Court decision, the Supreme Court, (in a judgement by Justice Mark Fernando with Justices Ismail, Edussuriya, Yapa and Wigneswaran agreeing), determined that though the Commissioner of Elections is enabled, during the period until the Commission is appointed, to perform the powers and functions of the office of the Commissioner of Elections as well as that of the Elections Commission, such exercise of powers by the Commissioner, (under pre-existing laws), cannot be deemed to be an exercise of power by the (non-existent) Elections Commission itself.

In any event, the acts impugned in the application before Court were the acts of the officers of the Commissioner, namely the Returning officer and the Assistant Commissioner of Elections, (Colombo city), which is not an exercise of the powers of the fictional Elections Commission. Accordingly, the 17th Amendment does not apply and the Court of Appeal retains the writ jurisdiction to hear and determine the application on its merits.

While members of the general public may view this as a decision occupied with the intricacies of constitutional jurisdiction, it has a wider message. In the first instance, a further - and hitherto bypassed - defect has become apparent in the 17th Amendment, in its imposition of the one month time limit, (which does not exist with regard to the general writ jurisdiction of the Court of Appeal), making it more difficult for citizens to come before court. Already, such time limits in normal fundamental rights applications have caused great difficulties to citizens. Complying with this time limit with regard to far more complicated election matters, where electoral misconduct needs to be shown, would be nothing but a nightmare.

In sum, what we have presently is the half working of a constitutional amendment which is, in itself, seriously flawed. If the conducting of elections is not to become veritably fiendish, whether in the near or distant future, we need urgent amendment of the 17th Amendment and the immediate constitution of the Elections Commission. Undoubtedly, this is something that the Peoples Alliance Presidency and the United National Front government should be compelled to address as a matter of priority.

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