Columns

Sri Lanka’s Supreme Court ruling this week that President Ranil Wickremesinghe’s defiant action in postponing Local Government polls in 2023, citing a purported lack of funds in the wake of the country’s bankruptcy, had violated the fundamental right to equality and the right to vote of citizens, raises several interesting issues.

The ‘thundering’ of the President in response

In fact, this decision should come as no surprise.  There was little choice but to hold as the Bench did, relying on several precedents which have firmly established the predominant principle that, exercising the right of franchise is an inviolable right of citizens, it is a collective as well as an individual right. The Court found the President (also as Minister of Finance) responsible along with the luckless Elections Commission.

True to form, the President thundered in the days following the Court ruling that, ‘I do not regret the decision, adding that these were crucial few months where the single-minded focus was to ensure, ‘the people’s right to life and in maintaining their safety.’ But when the President posits the choice as between the ‘economy’ and the ‘elections’, he invents a false narrative that must be strongly refuted.

President Wickremesinghe‘s impassioned rhetoric to his support base was that, ‘we needed every month, every week, every day, every hour…’ to accomplish our task and ‘what country has managed to recover from economic devastation so quickly in two years?’ He also seems to draw a constitutionally non-viable distinction between the (insignificant?) Local Government elections and the presidential/parliamentary elections, declaring that the latter is an exercise of the people’s right to vote which he had/has no intention of denying.

The importance of the
‘punchi chande’

But there are no such distinctions drawn in the constitutional framework forsooth. Accordingly, the President may advise himself to refrain from drawing such misleading comparisons from the political platform. Examining this question, the Court concedes the fact that the Local Government Elections are not explicitly referred to in Article 4 (e) which along with Article 3, enshrines the doctrine of the sovereignty of the People. As an irresistible aside, it must however be observed that this doctrine is a legal fiction devised as a comforting constitutional sop in the 1978 Constitution under which, at no time were the ‘People’ ever sovereign.

On the contrary, it was the Executive President who was ‘sovereign,’ the manifestation and fount of all power with the other arms of the State being reduced to mewling kittens. But this is to digress. To return to the court ruling, it is pointed out that ‘even Article 88’ does not include the Local Government Elections when it provides for the right to be an elector. The Court discusses the context of these constitutional omissions, remarking that they seem to be ‘deliberate.’

It is noted that there is a view held in some quarters that, ‘the franchise’ as contemplated in Articles 3 and 4 do not seem to cover the ‘punchi chande’ (as local government polls are colloquially referred to). Even so, it is emphasised that the term ‘franchise’ in Article 3 has a wider meaning than being limited to voting at Presidential, Parliamentary and Referendum. To hold that view, would be to insert the word, ‘only’ into Article 3 which is ‘not the task of the Court,’ it is said.

The violation of constitutional rights

Notably, the Court refused to be drawn into arguments and counter-arguments regarding the length and breadth of Articles 3 and 4, limiting itself to the question as to whether the constitutional rights to equality and to vote (as part of the freedom of speech and expression) enjoyed by the petitioners were violated by the act of postponement of the Local Government polls. That question was judicially answered in the positive.

An imaginative argument by some petitioners that the right to vote also involves the right to freedom of thought, conscience, religion or belief (Article 10) was (somewhat regretfully) not taken kindly to by the Bench. That remains a discussion for a different forum along with a detailed scrutiny of this week’s ruling. However, it is worth observing that the Court unreservedly rejected the argument by the Secretary to the Ministry of Finance, that the insistence of the Elections Commission to hold the elections was ‘unreasonable’ given the dire financial difficulties that the Government was experiencing.

Rather, it was noted that, where there is a statutory (and constitutional) duty to hold the Local Government elections on time and when allocation of money has been made through the budget, the Elections Commission could have ‘legitimately’ expected that the money would be released and, therefore, ‘they cannot be blamed for commencing the process.’ It is the Treasury which should have foreseen, in advance, the difficulties in releasing money under various imprests and taken all precautions.

The tasks of the Elections Commission

In fact, a certain amount of money had already been released to the Elections Commission, the Government Printer and the Department of the Police. ‘If there was no money to complete the election process, money is wasted if only a part of that allocation was released and thereafter releasing the balance was stopped’, the Court pertinently notes.  Meanwhile, the Elections Commission was held responsible for ‘lack of proper planning and managing the process and not using its powers to issue appropriate directions.’

Affidavits filed by the Commission before the Court had emphasized that denial of funding would create a dangerous precedent that would impinge on the democratic rights of the people. The Commission had also moved for appropriate orders from this Court on the relevant officials to facilitate holding of elections.  It is judicially observed that the Election Commission, though a limb of the executive arm of the State, does not stand with the position taken by the Government that the holding of elections was impossible due to lack of funds.

Having said that however, a rap on the knuckles is delivered to the extent that the Commission is reminded that, its constitutional authority imposes upon it the onerous duty of ‘securing the enforcement of all laws relating to the holding of elections.’ As such, there is also a duty imposed on it to, ‘secure the cooperation of all state authorities’ in that regard. Its task is not to be a mere ‘intermediary’ between the Treasury and any department when any department tenders an estimate as was the case with the Government Printer.

Failure to perform its constitutional tasks

The Commission should therefore have taken upon itself to independently assess the estimate given by the Government Printer rather than merely ‘complaining’ that the estimates are high or allowing others to complain. The Commission is also faulted for not notifying the Inspector General of Police (IGP) regarding deployment of facilities and police officers needed for the conducting of the elections, instead leaving it to the relevant departmental head to request police protection.

It seemed that the Commission expected other Departments to carry out their election mandated tasks on ‘credit basis’ as was done previously which indicated a lack of understanding of the economic crisis that prevailed at the time.   Since the Commission had taken the view that holding the elections was possible, the initiative to secure funds for carrying out other requisite tasks should also have been taken by the Commission, the Bench observed.

That was apart from the main failure of the Government to release the budgetary allocation for the holding of the elections. That forms the core of the Court’s displeasure which, it is remarked, sets a ‘dangerous precedent.’ It is rightly remarked that ‘even if there was severe depletion of government funds,   it is not the fault of the petitioners or the people of this country…understandably such deterioration of the economy has to be a result of the mismanagement of the economy by persons who held office…’

In such a context, ‘can the State deny its liability for the violation of rights for denying the right to vote?’ The Court answered that question by saying, ‘No.’

Sri Lankans can only (unreservedly) agree with that sentiment.