Focus on Rights

The governors and the governed
The total failure to set up a multi member Elections Commission under the 17th Amendment, (owing to an ostensible dispute between President Chandrika Kumaratunga and the Constitutional Council relating to one nominee), will have singular consequences for the forthcoming general elections in April. Thus, an overburdened Elections Commissioner, who had asked to be excused from his post not so long ago on grounds of ill health et cetera, is again compelled to assume duties that should be exercised by a multi member body constitutionally authorised for this purpose two years back.

The law under which he will act in April continues to be manifestly flawed, owing to basic defects in the 17th Amendment examined previously in this column. Primarily, the Commissioner continues to have only theoretical powers to prohibit the misuse of property belonging to the State or any public corporation. Hence, his plea in his 2001 Administration Report that ' there is no provision in the 17th Amendment to enable (me) to take legal or disciplinary action against (those) who defy my directions or guidelines."

The blatant abuse of public property in this respect that took place prior to and during the 2001 general elections, (held under the stewardship of the Peoples Alliance), is still fresh in our minds. Undoubtedly, individual ministers of the United National Front, (who have not noticeably bettered their predecessors' record of governance during the past two years), would have attempted to do their best to emulate this example, this year around.

However, the sacking of thirty nine UNF non-Cabinet and deputy ministers by President Kumaratunga this week, thus preventing them from automatic access to ministry properties during the forthcoming elections, might result ironically, in a default situation where neither political party would be able to easily engage in such obvious excesses.

But as far as the state media is concerned, it is relevant that an important enabling law to the 17th Amendment was passed by Parliament in 2002, conferring improved powers upon the Commissioner, (in place of the yet non-existent Commission). The 17th Amendment stipulates in Article 104(5)(a) that the Commissioner has the power to issue guidelines as the Commissioner may consider appropriate, (to any broadcasting operator or any proprietor or publisher of a newspaper as the case may be), that are necessary to ensure a free and fair election.

Sub-section (b) of Article 104(5) imposes particular duties in this regard on the Chairman of the Sri Lanka Broadcasting Corporation (SBC) and the Sri Lanka Rupavahini Corporation (SLRC). Where such guidelines are contravened, the Commissioner is given the power to appoint a Competent Authority who will take over the management of all political broadcasts and any other broadcasts which may impinge on the elections. Article 104(5) (d) mandated Parliament, by law, to provide for the powers and functions of the Competent Authority thus appointed. It is in consequence of this provision that Parliament has passed the Competent Authority (Powers and Functions) Act, No 3 of 2002, which vests extensive powers in a Competent Authority appointed by the Elections Commissioner, upon the state electronic media defaulting on its obligations.

The Authority is empowered to exercise supervision and control over programmes of the SLBC and SLRC in respect of the guidelines issued by the Commissioner and is conferred all the powers and functions conferred upon the two corporations by their respective acts during times of elections. Its powers include the registering of persons engaged in the production of television or radio programmes relating to an election. It is also mandated to be satisfied that news presented is accurate and impartial and that the broadcasts do not incite a person to commit a crime or offend racial or religious susceptibilities etcetera.

In addition, the Authority can advise the Minister in this respect, establish, install and operate broadcasting apparatus, acquire property, refuse to broadcast any advertisement which may not be in the public interest. It possesses general powers to do all such things, which in its opinion, is necessary for the conducting of a free and fair election.

Act, No 3 of 2002 will undoubtedly help in preventing the patterns of blatant and vulgar abuse of state resources indulged in by the SLBC and the SLRC in 2001. It must be recalled in this regard that public interest petitioners who went before the Supreme Court at that time, on the basis that state resources cannot be used for the benefit of one political party alone, were shut out from obtaining relief that might have led to more balanced reportage. Notably, they were informed instead by a bench headed by Chief Justice Sarath Nanda Silva that if citizens had a problem with the way SLRC was telecasting its programmes, they had the freedom to switch to other channels.

Thankfully, this time around, we should have fewer possibilities of open politicisation of state resources, if the Commissioner of Elections is sufficiently vigilant. This, on the other hand, should not mean that only the state media is subject to basic rules of impartiality and objectivity. On the contrary, violation of the guidelines issued by the Commissioner under Article 104(5)(a) by the private media, (notwithstanding the rationale behind private resources being used for this purpose as opposed to state resources), should be a matter of equal concern, with regard to which the Commissioner should issue equally stern directives, even though his actual enforcement powers in this respect, are limited.

In general however, the predicament that we are facing with regard to the forthcoming palpably unnecessary general elections is illustrative of a much deeper malaise. Khalil Gibran, the much-loved Oriental poet who was also one of the most incisive political writers of his time, once wrote in his passage, "The King", of the wise ruler of the Kingdom of Sadik who reminded his people that he was but a thought in their mind and that he existed not, save in their actions. Rather, he cautioned, "there is no such person as governor. Only the governed exist to govern themselves." This was after all, only an echo, phrased as it was in the exquisitely lyrical Gibran prose, of the historical truth, that we get the rulers that we deserve.

This is an intrinsically bitter truth that the Sri Lankan people would be increasingly led to ponder during the next two months. There is moreover, a peculiar sharpness to its edges. The amoral disinclination of the United National Front Government and the People’s Alliance Presidency to address core issues relating to democratic governance in Sri Lanka, (for example, relating to bribery and corruption, the judiciary and elections), has been, in retrospect, the only factor common to their mutually aberrant functioning during the past two years. Our current state of political living has been reduced to a pre-occupation with power, bolstered as it is by the tortuous complexities of the Second Republican Constitution.

At a historical point of time, this election will probably be ranked as the most profound instance since independence, when our political and civil leaders will need to own up to fundamental failings on their part, leading Sri Lanka dangerously close to a failed state. If accountability is not forthcoming, then those of us who bear the brunt of these failures in our continuing inability to get justice, should impose these responsibilities on them. Gibran's re-imagined truth cannot, therefore, be closer to our heart.

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