Grave concerns for a free and fair Presidential election & the Rule of Law

(January 20, Colombo, Sri Lanka Guardian) The Centre for Policy Alternatives (CPA) is deeply concerned by the developments this week that suggest the remainder of the election campaign and the presidential election itself would not be conducted according to the legal procedures and limitations established by the Constitution and the law.
The Commissioner of Elections appears to have given up on his attempts to enforce the law in terms of his powers under the Seventeenth Amendment. He has withdrawn the Competent Authority appointed to regulate the state media institutions due to the refusal of those bodies to implement the directions of the Competent Authority. He has also publicly stated that he would not be issuing any more directions to the Police, because his directions are not being followed. On other matters regarding the misuse of public property, in particular over the misconduct of the Telecommunications Regulatory Commission, the Commissioner has not taken any demonstrable measures.

We unequivocally maintain that the failure and/or refusal of public officials and other persons to follow the directions of the Commissioner and the Competent Authority is a clear breach of a legal duty imposed by the Constitution. That such officials feel able, by refusing to act according to the directions of the Commissioner, to violate the Constitution and election laws illustrates the contempt and disregard with which the Rule of Law is held in Sri Lanka today.

However, we also state that the Commissioner himself is under a constitutional duty to duly exercise his powers under the Seventeenth Amendment, notwithstanding any pressure brought upon him or in the face of non-cooperation from public officials. We note that the Commissioner has recourse to the writ jurisdiction of the Supreme Court to have his directions enforced in this regard; a course of action he has chosen to ignore. The result is that an undesirable perception is created that the Constitution and the law can be broken or disregarded with impunity. Moreover, more transparency and public information from the Commissioner's office would have helped the Commissioner by generating public support for his endeavours.

In the context of a keenly contested election in which there is a rising trend of violence and the possibility of widespread election malpractice (including serious unresolved problems and public confusion over voter registration, electoral lists, voter identification and other matters), it is critical that the powers of the Commissioner are not neutralised in any way.

A free and fair election according procedure established by law is in the interests of all the citizens of Sri Lanka. It is also in the interests of those contesting this historic first post-war presidential election that there is no scope for question of the integrity of the electoral process and the legitimacy of the outcome. This election is a litmus test of our continuing commitment to democracy and the Rule of Law. It is also the basis of our commitment to post-war peacebuilding and reconciliation.

CPA therefore asks the Commissioner of Elections to exercise his powers without fear, that public officials discharge their duties impartially and according to the law, and requests the candidates and their supporters to desist from conduct that is against the law or inimical to democratic values. We also call upon voters to actively condemn instigators of election violence and malpractices, irrespective of party affiliation, in order to ensure an electoral process and outcome more reflective of essential democratic values shared by all.