Legal provisions to establish an Election Commission was introduced to the Constitution of the Democratic Socialist Republic of Sri Lanka by its Seventeenth Amendment in the year 2001 Seven (7) Independent Commissions were introduced by the Seventeenth Amendment to the Constitution and the Election Commission was one out of them which came into light in Sri Lanka for the first time.

The Constitution instituted a novel methodology for forming Independent Commissions. In accordance with the Seventeenth Amendment to the Constitution it was provided to create an Independent Election Commission. This amendment created Seven (7) Independent Commissions and the Election Commission had been the last out of the seven. The Constitutional Council was also created by this amendment and the same had to recommend the names of the Independent Election Commission. One significant feature of this amendment is that the President cannot appoint members to any of these commissions without the recommendation of the Constitutional Council. In case the President fails to appoint members to the Commissions within 14 days of the Constitutional Council recommendation, the members recommended were considered to have been appointed to the positions of respective Commissions.

The Election Commission was not established like the other six commissions as expected by the Seventeenth Amendment to the Constitution because there were problems about some names recommended by the Constitutional Council. There was yet another issue caused by the problem of appointing members to the second Constitutional Council as well. This issue also was instrumental in delaying the appointment of the Election Commission.

The number of members of the Election Commission according to the Seventeenth Amendment was five. The quorum of the Election Commission meetings was three members. However, the Eighteenth Amendment to the Constitution introduced a Parliamentary Council in place of the Constitutional Council. It also reduced the number of members of the Commission to three. This amendment allowed the President to appoint members to independent commissions without the recommendation of the Parliamentary Council.

The Nineteenth Amendment came into light in 2015 because of the huge agitations by civil organizations and public interest raised and in regard to constitutional problems. This amendment narrowed the number of members down to three. However the quorum remained as three. The Constitution indicated the qualifications of the candidates to be appointed as members. They should from amongst persons who have distinguished themselves in any profession or in the fields of administration or education. One of the members so appointed should be a retired officer of the Department of Elections, who has held office as a Deputy Commissioner of Elections or above. The President on the recommendation of the Constitutional Council, shallappoint one member as its Chairman. In this amendment the President was not permitted to deny any member recommended by the Constitutional Council.

The number of members to be appointed to the Election Commission under the Seventeenth Amendment was five. There the quorum was three. The Eighteenth Amendment to the Constitution provided for a Parliamentary Council in place of the Constitutional Council and scaled down the number of members on the Election Commission to three. According to the amendment the President could appoint members to the Commissions without the recommendations of the Parliamentary Council.

Civil society and political parties raised public agitation again and resulted in promoting the Nineteenth Amendment to the Constitution in 2015. This Amendment made the Election Commission a three member Commission. There was no change in the number of members in the quorum which was three. Qualifications to become a member of the Commission were stated that they should be from amongst persons who have distinguished themselves in any profession or in the fields of administration or education. One of the members so appointed shall be a retired officer of the Department of Elections, who has held office as a Deputy Commissioner of Elections or above. The President shall on the recommendation of the Constitutional Council, appoint one member as its Chairman. In this amendment also the President was not permitted to deny any member recommended by the Constitutional Council.

According to the Constitution, no any Member of Parliament, Provincial Councilor, Member of Local Authority, official of the Judicial Service or public servant can conduct as a member of the Election Commission. The term of office of a member of the Election Commission is five years. In case a member is to be removed from the Commission, the process adopted to remove a Judge from the Supreme Court or Court of Appeal should be espoused

Up until the establishment of the Election Commission the name of the institution which conducted elections was “the Department of Elections”, and the nomenclature “Election Commission” was replaced for the name “Department of Elections”, and the nomenclature “Commissioner of Elections” which was effective from 01.10.1955 became defunct as per the Order under the Article 49 (3) (d). All powers and functions vested with the Commissioner of Elections are now vested with the Election Commission with effect from 17.11.2015.

With the winding up of the Department of Elections all those powers and functions, human and physical resources are naturally get vested with the Election Commission and therefore there was no any kind of discomfiture in the transfer of staff, powers, authorities, property, with the decision of the Cabinet of Ministers on the Cabinet Memorandum No 2/බප/15/ 1908/701/018 dated 08. 12. 2015.

The objective of the Election Commission according to the Article103 of the Thirteenth Amendment should be to hold free and fair elections and referenda, and to prepare annual register of electors according to the provisions of the Constitution but not limited to them alone, ejusdem generis, according to the Article 104B (1). This exemplifies that according the Nineteenth Amendment to the Constitution Election Commission holds a wider and enhanced responsibility than that the Department of Elections held in the past.

The special powers elaborated in the Article 104 (a) were given with the following immunities.

1. Decisions of the Election Commission are final and conclusive.

2. No civil or criminal litigation is possible against the Election Commission.

These immunities are subject to Fundamental Rights appeals jurisdiction and its exercise - Article 126 of the Constitution, jurisdiction in election petitions in Article 130 and Parliamentary election petitions in Article 144.

It has to be specially noted the Election Commission has multifarious duties to perform. It is expected to enforce the election laws and safeguard them. It has to forward annual and other reports of elections/polls to Parliament once a year and after any election/poll. Special authorities have been conferred upon the Election Commission to prevent abusing of state property during elections. Media guidelines have to be prepared as relevant to state and other media. Media institutions have to be monitored and take necessary action when guidelines are violated. The Article 104C enables the Commission to deploy the police. Armed forces can be deployed, when necessary, as per Article 104D. All these powers are vested with the Commission under the Seventeenth Amendment.

This illustrates several steps that have been taken to enhance the powers of the Commission i.e

1. Special provisions in regard to the appointment of the Election Commission.

2. Provisions that enable the state officers to solicit assistance of human and physical resources from other government organizations.

3. Decisions of the Election Commission are made final and conclusive and the special immunities are granted to the Election Commission from suit.

4. Commission’s authority to prevent public property from abuse in promoting political parties/candidates.

5. Authority to issue guidelines for electronic and print media during election periods.

6. Authority to prevent undue influence when the Parliament id dissolved.

7. President of the country to hold the responsibility of creating a conducive environment to hold free and fair elections in the country.

This is a clear indication that the Election Commission has been strengthened and empowered by receiving the strength and authority through the Constitution itself to exercise its duties and functions and put into effect the electoral process in sound management. With these authorities the Election Commission needs to ensure its pragmatism and declare the results of elections with precision.

Article 104E of the Constitution empowers the Commission to appoint a Commissioner General of Elections. This appointment is subject to the consent of the Constitutional Council. Commissioner General of Elections of the Commission has to perform his duties according to the directions and control of the Election Commission. Commissioner General needs to implement decisions taken by the Election Commission according to the orders and advice of the Commission. There are special provisions stated in the Constitution with regard to the removal of the Commissioner General from office. When it was the Department of Elections the retiring age of the Commissioner of Elections was 60 years. There was provision to grant him an extension of one year in case the particular person’s services are further required. However the term of office of the Commissioner General appointed by the Election Commission was made 65 years. His position becomes vacant upon his death, resignation, on his ill health, physical or mental infirmity. It he is to be removed from office it could be done only with the approval of Parliament.

Election Commission informed the Constitutional Council that the term of office be brought down to 60 years of age. With the recommendation of the Constitutional Council the Cabinet of Ministers considered the matter and decided the age of retirement as 60 years and action has been taken to amend the Constitution accordingly.