Focus on Rights

Squandering golden opportunities in regard to the Elections Commission and the National Police Commission
There is much to be red faced about in the categorical warning issued by the elections monitoring team of the European Commission that it would not be accepting future invitations to monitor Sri Lanka's elections unless its past recommendations in regard to reforming election laws and practices are implemented forthwith.

The warning mounts to none other than a veiled threat; that EU funding may well be reviewed if such compliance is not forthcoming. And while one may, in principle, deplore an external agency issuing such warnings, we have only ourselves to blame, quite categorically.

The EU recommendations are, after all, basic requirements of our own constitutional and legal structures. They include the establishing of the Elections Commission (EC), putting into place a Code of Conduct for candidates, effective addressing of complaints against the police and the security forces, enforcement of declaration of expenses for elections and allowing minority candidates sufficient media opportunities to explain their policies to the people.

Most heinous of all these omissions is, of course, the non-establishing of the EC mandated by the 17th Amendment, that supposed legislative panacea for all the manifold sins affecting Sri Lanka's body politic.

Astoundingly, remedying this lacunae do not feature at all in any of the campaigns of the two Presidential candidates either. For example, neither of these worthies has categorically stated that one of their first actions upon assuming office will be to ensure the speedy establishment of the EC and the effective functioning of the 17th Amendment. On the contrary, there is a deafening silence in regard to these matters.

Disagreement between the (thankfully fast retiring) incumbent in the Office of the President and the now retired members of the first Constitutional Council as to the name recommended by the Council for the Chairman of this Commission was the basic reason as to why it was never established. This is the very reason as to why the current Presidential hopefulls should have addressed this question.

From another perspective, civil society has, (excepting a few statements issued intermittently by polls monitoring bodies and a somewhat innovative recent advertisement by grassroot movements working on civil and political rights issues), not campaigned vigorously on this. The focus of the public on questions of institutional governance (as opposed to the nauseous debate as to whether "Mahinda or Ranil will come in") is also negligible. Certainly therefore, we only get the politicians that we deserve.
Apart from the EC, the other new constitutional creature of the 17th Amendment, the National Police Commission (NPC) has been 'cribbed, cabined and confined' since its inception.

The European Commission has addressed the issue of police accountability understandably only insofar as the electoral context is concerned. However, the fate which has befallen the NPC may well be an illustrative example of why the EC cannot get off the ground and even if it does get off the ground, the formidable difficulties that it may face in trying to deal with its constitutional mandate.

The 17th Amendment mandated two primary powers of the NPC. Firstly, in respect of powers of appointment, promotion, transfer, disciplinary control and dismissal of all officers other than the Inspector General of Police (see 17th Amendment, Article 155G(1)(a)). Secondly, in regard to instituting a public complaints procedure against police officers as well as the police service. (see 17th Amendment, Article 155 G(2)).

In both these instances, the NPC has been deterred by adverse statements made by government politicians that an independent commission for the police is not needed. This belligerence has extended so far as to the tragic if not hilarious assertions by the Law and Order Minister that the IGP should be involved in the decision making processes of the NPC. Inflammatory remarks by the JVP at a point of time also added fuel to the fire.

On its own part, the NPC only belatedly realised the magnitude of the task that it was faced with. Its interventions in preventing politically motivated transfers of police officers prior to elections was to its credit. However, its earlier decision to delegate the disciplinary control of subordinate officers to the IGP meant that nothing changed in accountability structures within the police force.

Predictably, when the NPC woke up to a sense of its own responsibilities and decided to withdraw its hitherto delegated powers going on thereafter to interdict police officers found culpable in rights violations, increased hostility became apparent between the current IGP and the NPC. Happily, the Supreme Court recently refused leave to proceed in a fundamental rights petition brought by some of these police officers.

In this scenario, the inability of the NPC to put the public complaints procedure into place is un-surprising. What has befallen the EC and the NPC shows a significant failure of the 17th Amendment. However, at least as far as the Elections Commission is concerned, perhaps the EU elections monitoring team may succeed in achieving where domestic activism and media exposure has so singularly failed. Unfortunately, we cannot now afford the luxury of questioning as to whether such coercion would be by fair means or by foul.

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