As the much hard-sold elections to the Eastern Provincial Council came to an unseemly and acrimonious conclusion last week, it was already becoming abundantly clear that its political and constitutional ramifications may well turn out to be anything other than what the government’s triumphalist claims would have us believe.
Perhaps the most disturbing political upshot of these elections was the sharp and violent polarisation of ethnic and religious communities in this most pluralistic of provinces. Electoral politics was conducted unashamedly as a form of antagonistic communal competition and outbidding, paralleling without much overstatement that nonpareil of political disintegration, the general elections of 1956. In the years before the watershed of 1956, the gross ineptitude of Sir John Kotelawala’s UNP with regard to any notion of nation-building on the cusp of independence, coupled with S. W. R. D. Bandaranaike’s miasmic, if highly equivocating, opportunism gave rise to a situation in which politics came to be fundamentally dominated by a hysterical and chauvinistic ethnic-nationalism based on language and religion. Likewise in 2008, the Eastern Provincial Council election was an example of the debilitating ethnicisation of politics from which we seem so utterly incapable of liberation. Compounded with the patent illegitimacy of the manner in which the election was conducted, of which the most significant factor of course was that the central government’s principal proxy in the East was armed and was not diffident about displaying the fact, it is difficult to share the government’s sanguinity about the re-establishment of a great New Jerusalem of democracy in the East.
And there are other less immediately visible, but in the longer term perhaps more serious, constitutional consequences that are indicated by the relationship between the central government and its client, Pillaiyan. The latter’s democratic mandate is fundamentally contested both on ethnic and legitimacy grounds, not least by his erstwhile UPFA ally, M. L. A. M. Hisbullah. Assuming his capacity to do so, Pillaiyan’s economic programme as Chief Minister will depend on the largess of the central government, his physical safety on the arms and security provided by the central government, and there is little hope that the central government will allow him to develop and deliver a political programme of his own, independent of those which are politically so pivotal to the central government’s own national electoral prospects such as Nagenahira Navodaya. Even in provinces which are less of a problem case than the East, the central government’s rural development agenda through programmes such as Gama Neguma has undeniably usurped provincial autonomy, and it is highly likely given its composition, that the same goes for the Task Force mechanism for the North.
This shows the extent to which the government is dismissive of the principle of devolution and provincial autonomy. In its worldview, provincial level politics are a matter of central patronage and control, and thereby firmly within the nationalist discourse of unitary centralisation. The tenacious hold of this discourse on Sri Lankan politics has ensured political disintegration on ethnic lines in the past, and the discontented Muslim factor in the East will now add an incendiary religious dimension to this in the future.
In the shorter term, however, what the Eastern Provincial Council election has demonstrated, once again, are the extremely serious challenges which confront the legitimacy and integrity of our electoral process. The politicisation of the electoral process has been a problem in this country since the establishment of universal adult franchise in 1931, if not before. Factors such as the gerrymandering constituency boundaries, the abuse of public resources including in the early days the headman system, vote buying and patronage have been common since the days of the State Council, as have been the use of thuggery, intimidation, caste repression and the phenomenon of the ‘Bus Mudalali‘ that played a distinctly insalubrious role in our electoral history (and which is now active in a multiplicity of different and infinitely more malevolent incarnations). Even before 1931, electoral malpractice seems to have come quite naturally to us, as for example, the contest between S. W. R. D. Bandaranaike and A. E. Goonesinghe for the Maradana ward in the Colombo Municipal Council elections of 1926 shows. Therefore, it is only through surpassing ignorance of the history of elections and electoral politics that some in Sri Lanka are wont to indulge in the nostalgia for a halcyon past of free and fair elections.
However, it is precisely in acknowledgement of and in response to this deeply flawed nature of the electoral process that Parliament enacted the Seventeenth Amendment to the Constitution in 2001. It is significant that this has been the only amendment to the Constitution of 1978 that has been passed with cross-party support (all the others having been steamrolled in through J. R. Jayewardene’s colossal, and after 1982, illegitimate parliamentary majority).
A new Chapter XIVA was inserted into the constitution, which abolished the old office of the Commissioner of Elections and replaced it with an Elections Commission, the object of which is ‘the conduct of free and fair elections and Referenda’ (Article 103 (2)). The new independent Election Commission was to be appointed by the President on the recommendations of the Constitutional Council (Article 41B (1)), the plain meaning of which provision explicitly deprived the President of any discretion on appointments. The Council was to recommend nominees ‘from among persons who have distinguished themselves in any profession or in the fields of administration or education’ (Article 103 (1)), which indicated that de-politicisation of the conduct of elections was to be achieved by enlarging stakeholder representation in the new and empowered mechanism of electoral administration.
The Commission is vested with a wide range of powers in order to enforce the law relating to elections and referenda. It is empowered to prevent the misuse of public property by prohibiting the use of movable or immovable property of the State or of a public corporation to promote or prevent the election of a political party or candidate. It can issue guidelines to the media to ensure unbiased and fair elections coverage. In the case of contravention of such guidelines by the Sri Lanka Rupavahini Corporation and the Sri Lanka Broadcasting Corporation, the Commission has the power to appoint a Competent Authority to take over the management of political or other broadcasts impinging on the election until the conclusion of the election. The Commission is further vested with powers to deploy police and the armed forces to ensure a free and fair election.
The Election Commission, however, remains unconstituted to this day, reflecting not merely the persistence of the culture of politicisation and centralisation, but also, the splendidly insouciant attitude to fulfilling constitutional obligations on the part of our chief executives. President Kumaratunga unconvincingly imputed political partisanship to one of the nominees to the Elections Commission recommended by the then Constitutional Council and refused to appoint the Commission, even when it was clear that she had no legal discretion in the matter.
President Rajapakse, going a step further, has refused to appoint the Constitutional Council itself on grounds that are spurious and which have changed according to convenience. In this, he has been typically and regrettably iconoclastic, where like in the case of the broad political consensus around the need for devolution that had painfully emerged during the 1990s, he has been entirely willing to the smash the consensus around good governance embodied in the Seventeenth Amendment.
Nonetheless, it is perhaps in prescient anticipation of just such presidential behaviour that Parliament inserted a savings clause, section 27 of the Seventeenth Amendment Act, which entitled the Commissioner of Elections holding office prior to the amendment to exercise the powers of the Commission until such time as the Commission was constituted. This legislative intent has largely been frustrated, because Commissioner Dissanayake, who is by all accounts an essentially decent civil servant, simply does not have the wherewithal with which to assert his will against the State and ruling party in highly-charged and politically zero-sum elections as in the East. He has merely rubberstamped what has been achieved through a mixture of political patronage and force of arms, despite detailed information being published by monitors and opposition parties about violence and malpractice necessitating an exercise of his constitutional and statutory powers over the annulment of polls.
The broader lesson and the critique regarding the electoral process are two sides of the same coin. The constitution of Sri Lanka has provided an institutional framework for the conduct of free and fair elections. This is critical to ensuring the integrity and legitimacy of the electoral process, the most basic formal feature of a functioning democracy. Political refusal to activate these institutions undermines the electoral process, the fundamental human right of the citizen to an uncoerced vote and choice of government, erodes public confidence in democracy, and in circumstances of ethnic antagonism, robs the constitutional order of the State of pluralistic legitimacy. All this of course has been pointed out before in relation to many similar flawed elections. What is nevertheless surprising, however, is that the Rajapakse regime’s conception of political self-interest did not extend to seeing the value of a free and fair election conducted through independent institutions, from the windfall of legitimacy of which, it could have been the primary beneficiary.