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Published online by Cambridge University Press: 01 December 2021
The undisputed success of Sri Lanka's first Election Commission (2015–2020) was the conduct of free and fair elections, that is to say, electoral management. I argue in this article that, by design and in practice, it was unable to or failed to advance electoral integrity that is urgently required for the health of Sri Lanka's constitutional democracy. At critical points when electoral integrity and constitutional democracy were threatened, it was the Court, the traditional institutional check on the Executive and the Legislature, that prevented its further erosion. The Commission, therefore, was an institutional innovation that addressed symptoms of Sri Lanka's ailing constitutional democracy but not its root causes. The Commission has been a necessary but insufficient fix for the electoral pathologies of Sri Lanka's constitutional democracy. Its ‘guarantor’ function, as I illustrate in this article, is narrowly conceived, perceived and lived out.
1 Tarunabh Khaitan, ‘The Guarantor Branch’, this Special Issue. (January 14, 2021).
2 Edrisinha, Rohan & Jayakkody, Aruni (eds), The Eighteenth Amendment to the Constitution: Substance and Process (Centre for Policy Alternatives 2011)Google Scholar; Welikala, Asanga (ed), The Nineteenth Amendment to the Constitution: Content and Context (Center for Policy Alternatives 2016)Google Scholar.
3 Dinesha Samararatne, ‘Sri Lanka's Constitutional Ping-Pong’ Himal South Asian (Colombo, 25 September 2020) < https://www.cpalanka.org/the-nineteenth-amendment-to-the-constitution-content-and-context/>.
4 The mandate of the Commission was revised considerably under each of the last four constitutional amendments, the 17th (2001), 18th (2010), 19th (2015) and the 20th (2020) Amendments.
5 Attempts were made to contact all the political parties registered with the Election Commission. Only two responded positively. I thank Nethmini Medawala, Attorney-at-Law, for her efforts in this regard.
6 Welikala, Nineteenth Amendment (n 2) 319.
7 Edrisinha, Rohan ‘Sri Lanka: Constitutions without Constitutionalism, a Tale of Three and a Half Constitutions’ in Edrisinha, Rohan & Welikala, Asanga (eds), Essays on Federalism in Sri Lanka (Center for Policy Alternatives 2008)Google Scholar.
8 Constitution of Sri Lanka, art 4 read with the Local Authorities Elections Act (as amended).
9 Those instances are, the President may submit a Bill for approval by the People where either the Cabinet has certified it for such approval or where the Supreme Court has determined that it requires approval (art 85); the President may further place before the People ‘any matter which in the opinion of the President is of national importance.’ (art 86). The 20th Amendment re-introduced the power of the President to place any Bill that has been rejected by Parliament except any Bill that seeks to amend, repeal or replace the Constitution or is inconsistent with the Constitution. (art 85 (2)).
10 Edrisinha, Rohan & Welikala, Asanga (eds), Essays on Federalism in Sri Lanka (Center for Policy Alternatives 2008)Google Scholar; Asanga Welikala (ed), The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice (Centre for Policy Alternatives 2012); Coomaraswamy, Radhika, Ideology and the Constitution: Essays on Constitutional Jurisprudence (International Centre for Ethnic Studies 1997)Google Scholar.
11 Bart Klem, ‘Showing One's Colours: The Political Work of Elections in Post-War Sri Lanka’ 49(4) (2015) Modern Asian Studies 1091, 1092.
12 ibid 1095.
13 Manjula Gajanayake ‘With Diluted Powers, the Election Commission Faces a Daunting Task’ Groundviews (1 March 2021) <https://groundviews.org/2021/01/04/with-diluted-powers-the-election-commission-faces-a-daunting-task/>.
14 Constitution of Sri Lanka 1972, s 82.
15 Constitution of Sri Lanka 1978, art 103.
16 Karunathilaka v Commissioner of Elections [1999] 1 Sri LR 157; Sothilingam Navananthan v Dayananda Dissanayake and Kanapathipillai v Dayananda Dissanayake & Others SC (FR) 25-26/2002; Saravanamuttu v de Mel (1924) 26 NLR 253; Gomes v Commissioner of Elections [2001] 3 Sri LR 207; Devananda v Commissioner of Elections [2000] 3 Sri LR 128.
17 Mediwake v Dissanayake [2001] 1 Sri LR 177.
18 ibid 212.
19 ibid 202.
20 Karunathilaka v Dissanayake [1999] 1 Sri LR 157, 162
21 For an analysis, see, Dinesha Samararatne, ‘The Constitutional Council and The Independent Commissions: The New Framework for Depoliticising Governance’ in Welikala, Nineteenth Amendment (n 2) 147–174.
22 Youth Commission Report recommended a Nominations Commission as a means of depoliticization of society. See in this regard Chapter 1 of the Report of the Presidential Commission on Youth (Sessional paper No I, 1990) 1.
23 Draft of the Constitution of Sri Lanka 2000, art 110.
24 For a discussion, see Samararatne, ‘The Constitutional Council’ (n 21) 147, 167.
25 Public Interest Law Foundation v AG CA 1396/2003, CA Minutes 17 December 2003. The immunity clause has since then been amended by the 19th Amendment. Petitions may be filed against the Attorney-General by any person who alleges an infringement or imminent infringement of fundamental rights by the President (Art 35 as amended by the 19th Amendment and further elaborated upon in the 20th Amendment). The 20th Amendment as proposed, sought to restore full immunity but the Supreme Court held that such amendment would require approval at a referendum.
26 ‘Election Official's Plea to Retire Refused’ The Age (June 12, 2003) <https://www.theage.com.au/world/election-officials-plea-to-retire-refused-20030612-gdvv2f.html >; Yohan Perera, ‘Relinquishing Duties’ Daily Mirror (Colombo, 24 September 2010) <https://www.dailymirror.lk/breaking_news/relinquishing-duties/108-6763>.
27 Constitution of Sri Lanka 2010, amd 18, s 36(4).
28 For an analysis of the 19th Amendment see Welikala, Nineteenth Amendment (n 2).
29 Kim Lane Scheppele ‘Constitutional Ethnography: An Introduction’ (2004) Faculty Scholarship at Penn Law 54 <https://scholarship.law.upenn.edu/faculty_scholarship/54/>.
30 Thanks to Bart Klem for his guidance.
31 Galligan, Denis James, Law in Modern Society (Oxford University Press 2007) 35–37Google Scholar.
32 Panu Minkkienen, ‘Seats of Power: Ethnographies of Constituted Space’ (ICON-S 2019, Santiago, 1–3 July 2019) <https://blogs.helsinki.fi/minkkine/2019/07/17/seats-of-power/>.
33 Lefebvre, Henri, The Production of Space (Donald Nicholson-Smith tr, Blackwell 1984) 38Google Scholar.
34 ibid 27.
35 ibid 86-87.
36 ibid 110.
37 Minkkienen, ‘Seats of Power’ (n 32). Also see Panu Minkkinen ‘Brasilia: Constituent Power, Architecture, Urban Planning’ Critical Legal Thinking 12 June 2019 https://criticallegalthinking.com/2019/06/12/brasilia-constituent-power-architecture-urban-planning/. See for an interesting reference point the Corridors of Power project in Sri Lanka at http://www.corridorsofpower.org/.
38 Minkkienen, ‘Seats of Power’ (n 32).
39 ibid.
40 Norris, Pippa, Why Electoral Integrity Matters (Cambridge University Press 2014) 39CrossRefGoogle Scholar.
41 See a discussion in relation to India's constitutional democracy, Khaitan, Tarun ‘Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-state Fusion in India’ (2020) 14(1) Law & Ethics of Human Rights 49CrossRefGoogle Scholar.
42 Lefebvre (n 33) 38.
43 During the Parliamentary debate on the 20th Amendment Bill, Hon MP Rajitha Senarathne referred to a report produced by a citizens committee that had specifically recommended an independent Election Commission. See Parl Deb 21 October 2020, 1447.
44 Klem (n 11) 1092.
45 Spencer, Jonathan, Anthropology, Politics and the State: Democracy and Violence in South Asia (Cambridge University Press 2007) 76–78CrossRefGoogle Scholar as cited in ibid at 1095.
46 Draft Constitution of Sri Lanka 2000, art 110(1)(a).
47 Constitution of Sri Lanka, art 103 (as amended by the 17th Amendment in 2001).
48 Constitution of Sri Lanka, art 103 (as amended by the 19th Amendment in 2015).
49 Constitution of Sri Lanka, art 103 (as amended by the 20th Amendment in 2020).
50 Any allegation is to be investigated by a Parliamentary Select Committee (PSC) and the removal be passed by a simple majority in Parliament.
51 Constitution of Sri Lanka, art 103(1) (as amended by the 20th Amendment in 2020).
52 Constitution of Sri Lanka, art 103(8) (as provided by the 17th Amendment in 2001).
53 Constitution of Sri Lanka, Art 41B (as provided by the 19th Amendment in 2015).
54 Mr Deshapriya has served in the Department of Elections since 1982.
55 Mr Deshapriya has since then been appointed by the President as chairperson of the Delimitation Commission.
56 Lefebvre (n 33) 38.
57 Constitution of Sri Lanka, art 103(2) (as provided by the 17th Amendment in 2001).
58 This requires that the Commission take responsibility under the following legislation: Registration of Elections Act No 44 of 1980, Parliamentary Elections Act No 1 of 1981 (as amended), Referendum Act No 7 of 1981, Presidential Elections Act No 15 of 1981, Local Authorities Elections Ordinance No 53 Act 1977 (as amended).
59 Constitution of Sri Lanka, art 104B (as provided by the 17th Amendment in 2001).
60 Parliamentary Elections Act of 1981, s 7.
61 Constitution of Sri Lanka, art 104(B) (as amended by the 18th Amendment in 2010).
62 See for instance, Kristine Hoglund ‘Paying the Price for Patronage: Electoral Violence in Sri Lanka’ (2009) 47(3) Commonwealth & Comparative Politics 287; Hickman, John ‘Is Electoral Violence Effective? Evidence from Sri Lanka's 2005 Presidential Election’ (2009) 17(4) Contemporary South Asia 429CrossRefGoogle Scholar.
63 See for instance, ‘2019 Sri Lankan Presidential Election: Election Observation Report’ (Centre for Monitoring Election Violence 2020).
64 Parliamentary Elections Act, No 1 of 1081, Part VI.
65 See in this regard Fernando v Sri Lanka Broadcasting Cooperation [1996] 1 Sri LR 157 and Kurukulasooriya v Sri Lanka Broadcasting Cooperation (SCFR) 556, 557/2008, SC Minutes 17 February 2021.
66 Dharisha Bastians, ‘The Siege: Inside 52 Days of Constitutional Crisis in Sri Lanka’ in Asanga Welikala (ed), Constitutional Reform and Crisis in Sri Lanka (Center for Policy Alternatives 2019) 22.
67 Constitution of Sri Lanka, art 104B(5)(a) (under the 17th Amendment).
68 Constitution of Sri Lanka, art 104(B)(5)(c) (under the 17th Amendment).
69 Constitution of Sri Lanka, art 104 (B) (as amended by the 18th Amendment to the Constitution in 2010).
70 Constitution of Sri Lanka, art 104D (as amended by the 17th Amendment to the Constitution in 2001).
71 Constitution of Sri Lanka, art 111 (as amended by the 17th Amendment to the Constitution in 2001).
72 Constitution of Sri Lanka, art 104GG.
73 ‘2020 Sri Lankan Parliamentary General Election: Election Observation Report’ (Centre for Monitoring Election Violence, Sri Lanka 2020) 33.
74 Lefebvre (n 33) 39.
75 ibid.
76 Muhammad v Election Commission of Sri Lanka SC(FR) 35/2016, SC Minutes 15 December 2017.
77 Local Authorities Elections (Amendment) Act No 16 of 2017.
78 Act No 17 of 2017.
79 For a critical analysis of the Constitutional Crisis of 2018 see, Asanga Welikala (ed) Constitutional Reform and Crisis in Sri Lanka (Center for Policy Alternatives 2019) and Dinesha Samararatne ‘Resilience through Synergy? The Legal Complex in Sri Lanka's Constitutional Crisis’ (forthcoming article).
80 Karunathilaka v Dayananda Dissanayake [1999] 1 Sri LR 157
81 ibid 182.
82 Constitution of Sri Lanka, art 12 (right to equality) and 14(1)(a) (freedom of expression).
83 Sampanthan v Attorney General SC (FR) 351, 352, 352, 354, 355, 356, 358, 359, 360, 361/2018, SC Minutes 13 December 2018.
84 Changes to Article 91 of the Constitution of Sri Lanka via the 19th Amendment in 2015.
85 ‘Legal battle over Gota's citizenship status begins’ Daily FT (3 October 2019) <https://www.ft.lk/top-story/Legal-battle-over-Gota-s-citizenship-status-begins/26-686960>.
86 Viyangoda v Controller of Immigration and Emigration (CA Writ) 425/2019, CA Minutes 15th October 2019.
87 Dissolved under Art 70 of the Constitution, and as published under Gazette Extraordinary No 2165/8 of 2 March 2020.
88 ‘Prof Hoole objects proposal to conduct poll on May 28’ News1st (20 April 2020); S Ratnajeevan H Hoole, ‘Parliamentary Election 2020 and Date of Summoning of the New Parliament’ Groundviews (4 April 2020); S Ratnajeevan H Hoole ‘Alarming Goings On At the Election Commission’ Colombo Telegraph (18 April 2020); ‘Secretary to the President sends response letter to Chairman of Election Commission’ President's Media Division (9 April 2020).
89 Constitution of Sri Lanka, art 70.
90 Centre for Monitoring Election Violence, Sri Lanka (n 73) 24.
91 The Ceylon (Parliamentary Elections) Order in Council of 1946 regulated campaign finance to the extent that campaign related expenses had to be reported. This legislation was repealed by the Parliamentary Elections Act No 1 of 1981.
92 Nalaka Gunawardene ‘Sri Lanka Parliamentary Election 2015: How did Social Media make a Difference’? Groundviews (3 September 2015) <https://groundviews.org/2015/09/03/sri-lanka-parliamentary-election-2015-how-did-social-media-make-a-difference/>.
93 Sandran Rubatheesan ‘Tap on the Shoulder is All EC Can Do Against Hatred on Facebook’ The Sunday Times (13 December 2020) <https://www.pressreader.com/sri-lanka/sunday-times-sri-lanka/20201213/281934545535193>.
94 Lefebvre (n 33) 39.