The failure to appoint the Election Commission as required by the 17th Amendment makes a mockery of any attempt to hold elections in Sri Lanka. The manner in which the election for the executive presidency would have been conducted if the commission required under the 17th Amendment had been in place would have been very different. Whatever be the ultimate outcome of such an election is not the issue. The issue is the manner in which a free and fair election can be held and the credibility of the result that follows. Had the commission been in place, as required by the Constitution, the suspicions and doubts about the ultimate result would not have arisen at all.
The Constitution states:
¡§There shall be an election commission consisting of five members appointed by the president on the recommendation of the Constitutional Council, from among persons who have distinguished themselves in any profession or in the field of administration or education. The president shall, on the recommendation of the Constitutional Council, appoint one member as its chair.¡¨
Having a constitutionally legitimate authority to conduct the election is the voter¡¦s right. The voters that reach a polling station are carrying out their citizens¡¦ duty and are, in fact, exercising the most important right they have as citizens which is to elect the government which will decide many matters of vital importance to their lives.
If at the very moment at which they vote they are being cheated by the denial of their constitutional right to have the election conducted in the manner required by the Constitution itself then they are not merely being treated shabbily but the only chance that they have in exercising their right to elect a government of their choice is being denied to them.
The International Covenant on Civil and Political Rights (ICCPR) states the universal principle that is recognised on elections when it states that every citizen shall have a right and opportunity:
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
The Sri Lankan voter, like any other voter in the world has a constitutional right to express his or her free will within a framework that is legally valid. If the vote is not conducted by the constitutional authority that should conduct it then the voter is denied the right to do his duty within a legally valid institutional framework.
The reason as to why the Election Commission as required by the Constitution has not been appointed is quite well known. The undisputed reason is that Mahinda Rajapakse, the President of Sri Lanka does not want to see the commission appointed. There is no other reason for the failure to implement this vital provision of the Constitution.
It is not one of the President¡¦s prerogatives to deny the appointment of the constitutional authority that should hold elections. Besides there is a serious conflict of interests involved in this matter as he, as a political leader, may perceive that he has an advantage in not doing the thing that the Constitution requires him to do. On this matter he cannot be treated as an unbiased person and his wish not to have this commission in place cannot be taken as a decision made in the interests of the nation. Complying with the Constitution is not a matter in which any head of state has any discretion. As no one is above the law, not even the president, he must obey the law on matters of the Constitution.
The Sri Lankan president cannot be made a party to a legal suit. This has been incorporated into the Constitution. As such it is not possible for citizens to go before their courts and compel the president through legal means to comply with the constitutional provision to appoint the election Commission. Thus, there are no direct means by law to resort to courts due to the impediment created by the Constitution which prevents a legal suit being brought against him.
Therefore the only legitimate means available to the citizens to compel the president to abide by the Constitution is through the exercise of the citizen¡¦s other right to engage in civil activism to demand compliance with the Constitution. For a long time now, the citizens have engaged in this exercise and demanded the implementation of the 17th Amendment. The pressures that have been brought upon the president to do so are numerous. It is to the credit of the Sri Lankan citizenry that they have done their utmost to raise this matter endlessly and try to seek compliance with the law by their head of state.
However, despite of such enormous effort the Sri Lankan president does not respect the Constitution and also the pressures brought about by the people on this matter. Therefore citizens do have a moral right to engage in civil disobedience until the president complies with the Constitution. In the exercise of this moral right they are, in fact, not in any way overreaching their rights. In fact, they are just doing the bare minimum and resorting to the only means available in order to ensure that their rights as voters for the election of their government is done within the framework of the law as required by the Constitution.
If there is any loss in this process it is the president and the government who are responsible for such loss. The loss of undergoing elections which are conducted in a legitimate manner is far worse to the nation as a whole than any loss caused due to civil disobedient actions to have the law respected. The moral benefit of living with the feeling that elections are conducted according to the law and the outcome of such elections is legitimate is far greater. Thus, the greater good demands the assertion of the moral right to have the government respect the Constitution of the land.
