The Elections Commission: A madhouse within a madhouse The Constitutional Madhouse – Part 5
Posted on February 28th, 2019

By C. A. Chandraprema Courtesy The Island

The 19th Amendment led to the setting up of the following independent Commissions with the stated objective of depoliticising the conduct of the day-to-day affairs of the government.

The Election Commission

The Public Service Commission

The National Police Commission

The Audit Service Commission

The Human Rights Commission of Sri Lanka

The Commission to Investigate Allegations of Bribery or Corruption

The Finance Commission

The Delimitation Commission

The National Procurement Commission.

Article 41B (6) of the present Constitution, as amended by the 19th Amendment, states that all these commissions other than the Election Commission, shall be responsible and answerable to Parliament. Thus, according to Article 41B (6), which appears in Chapter 7 of the Constitution dealing specifically with the Constitutional Council, the Elections Commission will be the only independent Commission that will NOT be responsible to Parliament.

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However, Article 104 B (3) of the Constitution, which was also introduced by the 19th Amendment which falls under Chapter 9 of the Constitution, dealing specifically with the Elections Commission, states as follows: “The (Elections) Commission shall be responsible and answerable to Parliament in accordance with the provisions of the Standing Orders of Parliament for the exercise, performance and discharge of its powers, duties and functions and shall forward to Parliament for each calendar year a report of its activities for such year.”

So, which one of these provisions is true? Is the Elections Commission responsible to Parliament or not? Under Article 41 B (6) the Elections Commission is not responsible to Parliament. Under Article 104 B(3) it is not only responsible to Parliament but also required to report annually to Parliament on its activities. Personally, this writer would prefer 104 B (3) because all Commissions dealing with public affairs should be responsible and answerable to the supreme legislature of this country. If I remember correctly, at the committee stage of the 19th Amendment Bill, Prof. Tissa Vitharana put up a fight to get these Commissions made responsible and answerable to Parliament. However, because of contradictory provisions in the Constitution, today no one knows whether the Elections Commission is responsible to Parliament or not.

When the question of the President’s power to dissolve Parliament went before the Supreme Court, it was held that while Article 33 (2)(c) conferred the power to dissolve Parliament on the President, the manner in which it was supposed to be done was laid out in Article 70(1) and that this was buttressed by the provisions in Article 48(2) which referred only to Article 70(1). If the question of whether the Elections Commission is responsible to Parliament or not goes before the SC, it will not be that easy to solve it. Article 104 B (3) says, ‘It is’, and Article 41 B (6) says ‘It is not’. How is the SC to decide between such provisions, by tossing a coin?

The legality of a legally invalid meeting

Under Article 103 (1) of the Constitution as amended by the 19th Amendment, the Elections Commission consists of three members appointed by the President on the recommendation of the Constitutional Council. Article 104 (1) states that the quorum for any meeting of the Commission shall be three members. It is what comes after this that would have many people scratching their heads.

Article 104 (2) (a) states that the Chairman of the Commission shall preside at all meetings of the Commission and in the absence of the Chairman, a member elected by the members present from amongst themselves shall preside. (However, the Chairman is only one of three members on the Elections Commission. Since three members are required for a quorum, If the Chairman is absent, there will be no quorum and a meeting of the Elections Commission cannot be held legally. What then is the point in having a provision in the Constitution saying that in the absence of the Chairman, a member elected by the members present from amongst themselves shall preside at such meeting?

Article 104 (2) (b) states that the decisions of the commission shall be by a majority of the members present and voting and in the event of an equality of votes, the Chairman or the member presiding at the meeting shall have a casting vote. (This is a meaningless provision because if a decision is to be taken by a majority vote, it will always have to be a two to one decision and any talk of a casting vote for the Chairman makes no sense.)

Article 104 (3) has a mind-numbing provision. What it says is that the Elections Commission ‘shall have power to act notwithstanding any vacancy in the membership of the Commission, and no act or proceeding or decision of the Commission shall be invalid or be deemed to be invalid by reason only of such vacancy or any defect in the appointment of a member’. (Can anyone even imagine the implications of such a provision? The Elections Commission consists of only three members and the quorum is three members. No meeting of the Elections Commission can take place legally without the quorum. Yet Article 104 (3) clearly states that the Elections Commission ‘shall have power to act notwithstanding any vacancy in its membership and no act or proceeding or decision of the Commission shall be invalid or be deemed to be invalid by reason only of such vacancy. What Article 104 (3) is saying, in other words, is that an illegal meeting of the Elections Commission without a quorum, will still be legally binding and valid.)

This develops further in Article 104 A (a) and (b) of the Constitution, which states that no court shall have the power or jurisdiction to entertain or hear or decide or call in question on any ground and in any manner whatsoever, any decision, direction or act of the Elections Commission, made or done or purported to have been made or done under the Constitution or under any law relating to the holding of an election or the conduct of a Referendum as the case may be, which decisions, directions or acts shall be final and conclusive; and that no suit or prosecution or other proceeding shall lie against any member or officer of the Commission for any act or thing which in good faith is done or purported to be done by him in the performance of his duties or the discharge of his functions under the Constitution or under any law relating to the holding of an election or the conduct of a Referendum as the case may be.

Under Article 104 A, the only instances in which the Elections Commission can be taken to courts will be over fundamental rights issues under Article 126 of the Constitution, the writ jurisdiction of the Court of Appeal which in the case of the Elections Commission will be exercised by the Supreme Court and not by the Court of Appeal, and with regard to petitions pertaining to the conducting of presidential elections, referendums or appeals relating to election petitions pertaining to parliamentary elections.

Thus, no one knows whether the Elections Commission, which was set up under the 19th Amendment is responsible to Parliament or not. And there is a question mark over the legality of meetings of the Elections Commission when one member is absent. One provision of the Constitution says that such a meeting will not be valid in law while another provision says that such meetings will be fully valid and cannot be called into question in a court of law.

The Elections Commission is arguably the most important of the independent commissions because it presides over the process of electing governments into power. Can any country afford to have such constitutional uncertainties in relation to such a body? But that’s Sri Lanka under the 19 th Amendment.

It’s not surprising that there is much talk of drug addiction and substance abuse among MPs in Parliament. In the opinion of this writer, the first people to be tested for substance abuse should be the drafters of the 19th Amendment and the drafters of the proposed new Constitution.

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