How Independent are the Independent Commissions?

With the postponement of postal voting on Tuesday, the local government elections seem to be hanging in the balance. The main hurdle to the smooth functioning of the Election Commission in respect of the LG polls is the government’s reluctance to release the funds allocated to the Commission by the national budget. 

Irrespective of whether the government has the capacity to fund the LG elections which were postponed by one year in February last year, it has been hell-bent on preventing them from happening as scheduled. The reason is obvious and well-known. The popularity of both the ruling parties – the Sri Lanka Podujana Peramuna (SLPP), the party that dominates the Parliament and the United National Party (UNP) led by President Ranil Wickremesinghe – is at a low ebb, owing to the current economic crisis. 

The government leaders first attempted to postpone the election through legal means. President Ranil Wickremesinghe said he wants to downsize the LG bodies from over 8,000 to 4,000 members. Then, despite a Parliamentary Select Committee having presented a report on electoral reforms in June last year, they wanted to appoint another one in November for the same purpose. Thereafter, a private member’s Bill on the LG elections which provided for the inclusion of 25 per cent of youth members in local government bodies was presented by SLPP member Premnath C. Dolawatte.  Another Bill (The Regulations of Election Expenditure Bill) was passed in Parliament last month. 

In spite of the merit of these new laws, one has to infer the motive of presenting them at a time when an election has been announced. These things happened while the leaders of the government were arguing against holding the LG election at this juncture, citing economic hardships faced by the government and the people. 
The government leaders made several other attempts other than creating legal hurdles. President Wickremesinghe on January 6 summoned the members of the Election Commission to his office and requested them to resolve the conflicts of opinion among them and it was given wide publicity. However, no such conflicts have been evident so far. He also made a subtle warning that the elections and the GCE Advanced Level examinations might clash which was also proved to be an unfounded fear. 

Meanwhile, Secretary to the Ministry of Public Administration, Neil Bandara Hapuhinna had sent a letter to the Returning Officers on January 9 instructing them to stop accepting deposits from the candidates contesting the LG elections. Media reported that Hapuhinna had sent this letter in accordance with a decision by the Cabinet. Later Hapuhinna apologized to the Election Commission for this.

On January 18, two members of the Election Commission, namely S. B. Diwaratne and K. P. P Pathirana, had received death threats, demanding that they resign from their posts. Another Commission member M. M. Mohamed, also had received similar death threats on January 27, to resign from his position. It was said that a CID investigation has been initiated, but the outcome of it is yet to be revealed by the authorities. In fact, one member of the Commission, P.S.M Charles who worked in the North and East during the war as a District Secretary, handed over her resignation to President Ranil Wickremesinghe on Wednesday, January 25 which was accepted by the President on February 7. 

Irrespective of whether the government has the capacity to fund the LG elections which were postponed by one year in February last year, it has been hell-bent on preventing them from happening as scheduled

It was against this backdrop that the funding for the election has come to the fore. Though Commissioner General of Elections, Saman Sri Rathnayake stated on January 8 that Rs.10 billion has been allocated for the Local Government polls, Treasury Secretary Mahinda Siriwardena, in relation to a writ application filed by a Retired Sri Lanka Army Colonel, W. M. R. Wijesundara seeking an order to delay the LG polls, had informed the Supreme Court via an affidavit on January 19 that sourcing funds for the election has become a challenge. The petition will again be taken up for hearing on February 23.

This series of events validly raises the question how independent the Election Commission is. In fact, recent events had raised the same question in respect of some other “Independent” commissions as well. Especially, the current power crisis exposed the vulnerability of the independence of two commissions, the Public Utilities Commission of Sri Lanka (PUCSL) and the Human Rights Commission of Sri Lanka (HRCSL). 

The conflict of opinion between the PUCSL Chairman Janaka Ratnayake and the Power and Energy Minister Kanchana Wijesekara has emerged over the demand by the Ceylon Electricity Board (CEB) to raise electricity tariffs for the second time. It was only in September last year that the CEB increased the tariff by 75 per cent. The row between the PUCSL Chairman and the Minister escalated with the announcement by the former not to interrupt power supply during the GCE A/L examination between January 23 and February 17. 

The CEB ignored the PUCSL Chairman’s announcement. The latter challenged the CEB’s action in the Court of Appeal, but the court rejected it on February 10. Earlier, on January 24 the HRCSL had summoned the PUCSL Chairman Janaka Ratnayake and the Secretary to the Ministry of Power and Energy among others for an inquiry as to why they failed to prevent the implementation of power cuts during the ongoing examination.  During the discussion, it was agreed that no power cuts will be imposed from January 25 until 17 February. 
When the CEB continued with its power cuts ignoring the agreement, the HRCSL filed a case in the Supreme Court on January 30 for contempt of the commission. The court rejected it. Though one cannot challenge the court ruling, it was a fact that the CEB reneged on the agreement its representative arrived at with other relevant parties on power cuts. 

Sometimes the members of independent commissions themselves act in a manner that erodes their independence. Three days after Gotabaya Rajapaksa was sworn in as the President on November 18, 2019, the then Criminal Investigation Department (CID) Director SSP Shani Abeysekara was transferred to Galle by the National Police Commission. It was well known that Abeysekara handled so many high-profile cases against incidents that took place during the previous Rajapaksa government. Subsequent incidents including his arrest very clearly showed the attitudes of Rajapaksas towards him. 

The Chairman of the National Police Commission Chandra Fernando and another commission member P.P. Perera had gone to the VIP terminal of the Katunayake airport on November 20 last year when there was a welcome party for former minister Basil Rajapaksa on his return to the country from the US. Whatever the subsequent reasoning of the Police Commission Chairman on his presence at the venue, pictures of him worshipping Rajapaksa had gone viral. 
During the last Parliamentary election, one of the members of the Election Commission Professor Ratnajeevan Hoole created a controversy with a comment he made during an interview with the Jaffna-based DAN TV. His comment in Tamil was clearly against the SLPP, but the inadvertent jumbling flow of the comment and the lack of Tamil knowledge of his accusers finally saved his skin. 

The independent commissions were established by the 17th Amendment to the Constitutions in 2001 during President Chandrika Kumaratunga’s tenure in order to dilute the executive powers of the President over State machinery. Hence, President Mahinda Rajapaksa, in 2010 made them redundant by way of bringing them under his purview through the 18th Amendment. Again they were detached from the President’s direct control by the 19th Amendment during the so-called Yahapalana government in 2015, but only to reverse it by another Rajapaksa, President Gotabaya Rajapaksa using the 20th Amendment in 2020.  Last year’s Aragalaya, the public uprising compelled the current government to somewhat release them again from the clutches of the President. 

Every time when they were strengthened they were expected to pave the way for the public service and the judiciary to act independently and without the fear of penalisation by the Executive. However, recent incidents raise the question about the degree of independence of independent commissions. 

Courtesy Daily  Mirror