Legal provisions on the establishment of Independent Commissions were introduced to the Constitution of the Democratic Socialist Republic of Sri Lanka by the 17th Amendment to the Constitution passed in the year 2001. Seven Commissions were proposed to be established under this and the Elections Commission was out of them.
A singular methodology was introduced by the Constitution for the appointment of members to the Commissions. That is, the names of members and Chairpersons for Elections Commission and other Commissions had to be recommended by the Constitutional Council established by the Seventeenth Amendment. It was a remarkable feature that no person could be appointed to the Commissions by the President without the recommendation of the Constitutional Council. In case the President refrained from appointing persons recommended by the Constitutional Council within 14 days of such recommendation, they were deemed to be appointed.
The Election Commission could not be established under the Seventeenth Amendment. The underlying reason was the problematic situation of the appointment of persons recommended by the Constitutional Council. Further, the Elections Commission could not be appointed because of the problematic situation of the appointment of the Constitutional Council for the second term.
The Election Commission that was scheduled to be appointed under the Seventeenth Amendment consisted of five members. The quorum for a meeting was three. However, a Council called Parliamentary Council was established for the appointment of members for Independent Commissions by the Eighteenth Amendment to the Constitution in place of the Constitutional Council. In addition, the number of members of the Elections Commission was reduced to three persons. According to these amendments, the President was able to appoint members for the Commissions without the recommendation of the Parliamentary Council.
The Nineteenth Amendment was presented in the year 2015 due to strong pressure and requests made by the civil society as well as by political parties and others who were interested in the subject of the establishment of the Elections Commission and other Commissions The Elections Commission consists of three members and the quorum of three remained unchanged. The Constitution specified the qualifications to be members of the Commission. Accordingly, two persons who have excelled in the fields of Administration and Education and a retired officer of the Department of Elections who had held an office of the rank of Deputy Commissioner of Elections or above, should be appointed as members of the Commission, out of whom one member should be appointed as Chairman by the President. Under the new provisions, the President cannot refrain from appointing persons recommended by the Constitutional Council.
Further, the Constitution has ruled that no Member of Parliament or Provincial Council, a Member of a Local Authority, an Officer of Judicial Service or a Public Officer should be appointed as a member of the Elections Commission. The term of office of members of the Elections Commission is five years. The procedure followed in removing a Judge of the Supreme Court or the Court of Appeal should be followed in removing a member from office during the period of the term of office.
The Department was operative at the time of appointing of the Elections Commission and, the Department of Elections which was functioning from 01-10-1955 was terminated with effect from 17-11-2015 as per the terms specified in the Article 49 (3) (D) of the Constitution to the effect that the words "Elections Commission" should replace the words "Department of Elections" and "Commissioner of Elections", which means the power hitherto exercised by "the office of the Commissioner of Elections" is vested in the Elections Commission.
With the termination of the Department of Elections, its powers and functions, physical and human resources were transferred to the Elections Commission. As such, the establishment of the Elections Commission did not create any particular issue on its staff or in physical resources. By the decision on the Cabinet paper / No.15/1908/701/018 of 08.01.2016 the entire staff including the staff grade officers who were serving the Department of Elections was attached to the Elections Commission with the entitlements and privileges they were enjoying
It is stated that the objective of the Commission should be to conduct free and fair elections and referendums as specified in the Article 103 (2) of the Thirteenth Amendment to the Constitution. It is further specified that the Commission is empowered to, but not limited to, perform the duties and functions of conducting elections and preparing annual voter registers according to the relevant laws as per Article 104 B (1) of the Constitution. Accordingly, the Elections Commission is entrusted with more responsibility than the Department of Elections in conducting elections in conformity with relevant legislative enactments. Powers and strengths of the Commission have been enhanced with the Nineteenth Amendment to the Constitution which has included special provisions to the principal enactment.
At its establishment, the Elections Commission has been conferred with particular powers. It has been conferred with exclusive immunities of,
1. the decisions, provisions or actions of the Commission being final and conclusive, and
2. no civil litigation or cases can be filed against its decisions,
subject to the judicial powers under Article 104 (A). Such immunities have been granted subject to the powers of the Court of Appeal on infringement of fundamental rights under Article 126, the power of the Court of Appeal on Presidential Election, Election petitions etc., under Article 130 and the power of Court of Appeal to hear petitions on election to a membership, under Article 144.
Other than the enacting and protection of regulations in operating electoral procedures, and presentation of annual administrative/election reports to Parliament the Commission is not bound by any other commitment This is a special conferment of power. Additionally, a special authority has been granted under Article 104 (B) (4) (A) on the misuse of public property and space has been opened for specifying media guidelines on monitoring of government and other media and make provisions thereof during the periods of elections. Further, the Commission has been vested with Police powers under Article 104 (C) and powers for the deployment of Armed Forces under Article 104 (D) of the Seventeenth Amendment to the Constitution.
In brief, the following are the areas that enhance powers of the Elections Commission.
1. Special provisions pertaining to the appointment of the Commission;
2. Provisions enabling officers to whom election work is entrusted, to use any physical and human resources of the State;
3. Finality of decisions of the Commission and the special immunity granted at litigations;
4. Authority to prohibit the use of state property forpropaganda work of parties/candidates;
5. Power to make guidelines for printed and electronic media during election periods;
6. Prevention of undue influence on elections when Parliament stands dissolved;
7. It is the duty of the President to create conducive environment for fair elections.
In view of the above it is well manifest that the authority and power required to perform its duty and functions and to operate and manage electoral process have been granted to the Elections Commission, through granting of such special powers and legal provisions by the Constitution. Its practicality and results could be evaluated on how the Commission puts such powers into practice.
The Elections Commission, by Article 104 (e), is empowered to appoint a Commissioner of Elections. Such appointment should be made in concurrence with the Constitutional Council. Commissioner General of Elections should follow directives and instructions of the Commission. Commissioner General of Elections is authorized to implement decisions of the Commission under its directions and control. It is notable that special provisions have been made on the removal of the Commissioner General during his period of office. The period of office of the Commissioner of Elections in the Department of Elections was upto 60 years of age. There was space for the extension of this term of office by one year depending on the circumstances. However, the Commissioner General appointed by the Elections Commission can hold office upto 65 years of age and he can be removed before completion of this age limit only under the approval of Parliament. In other words, the office of the Commissioner General of Elections will not fall vacant unless he is dead or has resigned as per provisions of Article 104 (e) of the Constitution of Sri Lanka, or is removed from office due to physical or mental defect or removed by a memorandum presented to Parliament on misconduct or disability.
In the circumstances, the Elections Commission requested the Constitutional Council to reduce the term of office of the Commissioner General of Elections to 60 years. As per recommendations of the Constitutional Council, the Cabinet has taken steps required for making the required amendments to the Constitution by granting approval for reduction of the term of office of the Commissioner General to 60 years of age.
Further, the incumbent Commission has encountered another issue. That is the quorum of a meeting of the Elections Commission has been specified as three in terms of the Article 104(1) of the Constitution. Since the Commission consists of three members, the entire Commission needs to meet to take decisions. The Commission should consist of five members as per the Seventeenth Amendment, where the quorum was three. However, the number of members was reduced to three, but the quorum was not proportionally reduced.
After referring this issue to the Constitutional Council, it was recommended to reduce the number of the quorum to two numbers and the Cabinet of Ministers has granted approval for the amendment. However, these issues will not be settled until necessary amendments are make in the Constitution.
Under the above mentioned provisions in the Constitution, the first three member Commission was appointed consisting of Mr. Mahinda Deshapriya, the former Commissioner of Elections (Chairman), President's Counsel Mr. N.J. Nalin Abeysekera (member) and Prof. S. Ratnajeewan H. Hoole (member). First meeting of the Elections Commission was held on 17-11-2015 with the assumption of duties of the said members appointed by the President on 13-11-2015. Thus the Election Commission commenced functioning on 17-11-2015.