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Presidential poll testing ground for new campaign finance laws; election observers voice concerns over loopholes
View(s):By Sandun Jayawardana
With the local government election now indefinitely on hold, the upcoming presidential poll will be the first vital test for the newly introduced campaign finance laws designed to regulate campaign spending. Election observers though, express concern that candidates will try to use deficiencies and loopholes in the Act to obtain an unfair advantage.
The Regulation of Election Expenditure Act No. 3 of 2023 will apply to presidential, parliamentary, provincial council and local government elections. The main aims of the Act are to: ensure a level playing field for all candidates; create transparency regarding the donations and contributions given to candidates and their origins; prevent misuse of government property; prevent foreign states and organisations from interfering in the country’s governance; establish control over election expenditure and ensure transparency; safeguard people’s right to vote without being subjected to influence; and provide a legal foundation for campaign finance regulation, according to the Election Commission (EC).
Under provisions of the Act, within five days after the conclusion of the period of nominations, the EC shall, in consultation with recognised political parties and independent groups contesting such elections, issue a gazette specifying an amount in Sri Lankan rupees that will be used to calculate the authorised final amount. In the case of a presidential election, every candidate who has not been nominated by a political party must also be consulted before the issuing of such a gazette. The authorised amount will be calculated taking into consideration the prevailing interest rate and the National Consumer Price Index.
Campaign finance laws are not new to Sri Lanka, noted Manjula Gajanayake, Executive Director at the Institute for Democratic Reforms and Electoral Studies (IRES). In fact, a comprehensive law regulating campaign finances was in effect until 1977. Some representatives even lost their seats after being found guilty of flouting the law, he further said. “It was a very progressive law but disappeared with the advent of the proportional representation system in 1977.”
Mr Gajanayake stated that the EC took two radical and progressive steps after its establishment as an independent commission in 2015. The first was the push towards introducing a campaign finance law while the other was the move to ensure that every citizen could immediately become a registered elector after they turned 18 years of age. The push for campaign finance laws, which was spearheaded by the EC headed by its former Chairman Mahinda Deshapriya was then continued under his successor Nimal G. Punchihewa, which ultimately led Parliament to pass the Act in existence today.
While the Act itself is extremely progressive, Mr Gajanayake said it also has several areas of concern. One of the most serious is that in the final version of the Act, the EC does not have powers to file cases regarding violations of campaign finance laws. That power is vested with the police, who must act in consultation with the Attorney General’s Department. There is always the chance that the police can delay filing a case if pressure is brought on them, he remarked.
Meanwhile, communication and transport costs are not included in the ceiling imposed on candidates stipulating the maximum amount they can spend on a voter. This means that if the President travels for certain campaign meetings on a helicopter on security grounds, it will not be covered by the campaign finance laws. “The other candidates have the same privileges but will obviously have difficulty when obtaining a helicopter. This means that there may not be a level playing field, unlike what the Act had envisaged.”
Another area of concern is that there is not enough of a direct link between the Regulation of Election Expenditure Act and the Anti-Corruption Act (ACA), he further opined. Under the ACA for example, political parties must submit annual statement of financial accounts to the EC. However, the Campaign Finance Law makes no mention of this. “As an election observer, I believe that the annual statement of accounts from the political parties, asset declarations and campaign finance should come together,” said Mr Gajanayake. At present though, assets and liabilities declarations come under the Commission to Investigate Allegations of Bribery or Corruption (CIABOC), while the EC has responsibility for campaign finances and annual financial statements of political parties.
Since all three deal with how much money politicians earn and what assets they posses, it would have been better if the Regulation of Election Expenditure Act mentioned all three, said the IRES Executive Director.
Monitoring campaign finances will be challenging even under the new law, People’s Action for Free and Fair Elections (PAFFREL) Executive Director Rohana Hettiarachchi told the Sunday Times. Mr Hettiarachchi, who said he initially started the process of helping to draft a new campaign finance bill in consultation with the EC and political parties in 2016, said the final draft differed drastically from the one they helped to create. He too noted that the EC not having the power to file cases related to campaign finance on its own was a major failure on the part of the new law.
He said election monitors are trying to build a bigger coalition to observe the campaign finance ceiling in the upcoming presidential election in consultation with the EC. “We had a number of discussions with the EC on the subject. The coalition will involve the EC, CIABOC, Human Rights Commission, Inland Revenue Department and election monitoring groups. We are now trying to establish some tools to monitor the campaign finances of each candidate,” he revealed.
Mr Hettiarachchi added that election monitors are working to function as a joint group with the guidance of the EC. “But this is not an easy task. We have to cover the entire country and candidates are sure to find many ways to bypass the law. It will be easy to monitor local council elections because the candidate is limited to a geographical area and observers need only to focus on that specific area. But it will be very difficult at the presidential polls.”
Efforts are also being made to establish an online platform where people can share information on possible violations of campaign finances, said Mr Hettiarachchi. “Once elections are over, we can check with our information whether the candidates have gone over the ceiling amount,” he noted.
There are a lot of grey areas in the Act and loopholes that candidates will look to exploit, said Mr Gajanayake of IRES. “We need to use this election as a testing ground and close those loopholes. In order to do that though, the EC must take proactive measures. They must purchase new equipment, device new ways of getting complaints online. They must do their homework.”
He added that though the campaign finance law is good for a modernized society, “our systems aren’t modern, our technologies are not user-friendly and though we live in a digital era, we are not utilizing those tools enough. For such reasons, it is extremely difficult to prove wrong-doing.” Nevertheless, he said this is a good starting point. “At least we have something. Now we can move forward with this,” he stressed.
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