Thinking Outside the (Ballot) Box

The Election Commission of Sri Lanka is riding a wave of praise after completing a peaceful presidential election on 21^st September 2024. Less than a month before, however, the commission was found responsible for a breach of fundamental rights for its failure to conduct local government elections scheduled for 2023. This blogpost argues that the landmark decision sends a strong signal to all guarantor institutions in Sri Lanka to maintain their independence and to use their powers to discharge their functions.

The facts

In Bandara v Siriwardana¹⁾, the Supreme Court of Sri Lanka delivered its decision on several fundamental rights applications challenging the government’s failure to hold the local government (LG) election scheduled for 2023. This election was scheduled to be held in early 2023. The Election Commission (EC) – an independent commission established by the constitution – is responsible for conducting the election.²⁾ It took steps to do so in March 2023. However, the cabinet of ministers – which is headed by the president, and which drives the executive arm of the state – issued a memorandum indicating that funds would only be released for certain essential public services (ostensibly due to the lack of funds owing to the prevailing economic crisis).³⁾  Conducting elections was not among them. Thus, the Election Commission could not proceed because the government would not release the requisite funds, despite having budgeted for the same. Some of the fundamental rights  applications were filed at this time. In granting them leave to proceed, the Supreme Court made certain interim orders to facilitate conducting the election, but it was still not held. At bottom, the election was not held, and the process is in abeyance to date.

Breaches of fundamental rights

In its decision on the merits, the court found that the president and other executive actors had violated the right to equality (Article 12 of the constitution) by their arbitrary and capricious conduct in relation to the election. This included that the government approved a budget which allocated funds for the LG election, but a few weeks later (re)prioritised “basic essential needs” and did not release the funds so appropriated for the election; that on certain occasions, the government approved expenditure for other items that were not among the priorities indicated in the cabinet memorandum; that the president (who was also the minister of finance) did not appraise the cabinet that these new priorities would mean the election would not be held; and that the president / minister of finance did not respond to the finance ministry secretary’s request for funds for the election. The failure to conduct the election was also held to be a violation of the freedom of expression (Article 14(1)(a)).⁴⁾

Crucially, the court found the Election Commission also liable for infringing the freedom of expression by failing to conduct the election. Specifically, it found fault with the EC, among other things, for (i) failure to fully exercise its constitutional powers to ensure the election took place, including failure to secure adequate funds; (ii) failure to issue adequate directions to relevant authorities, including the police, to secure the requisite officers for election preparations; (iii) failure to adapt to the economic conditions in the country and make plans to overcome the challenges by coordinating with the relevant authorities (for instance, by getting the requisite departments to conduct the tasks on a credit basis). This is a rare occasion in which the court has held the election commission liable for a breach of fundamental rights.⁵⁾

The Need for Guarantor Institutions

There are two points worth noting about the circumstances of this case. First, that this case emerged at all demonstrates the need for independent commissions / guarantor institutions (sometimes also called ‘fourth branch institutions’) such as the EC.⁶⁾ Though the commission took steps to conduct the election and lobbied the executive branch to release the required finds, the executive was still able to frustrate the process. If the commission were just another department coming under the purview of the executive branch, even this measure of resistance would not have materialised.

Second, this case raises questions about the Attorney General’s (AG) role in such litigation. The respondents in this case included the president, other executive actors (including the cabinet of ministers), and the Election Commission. The AG appeared for the executive actors, and sought to impugn the actions of the EC, which was represented by private counsel. The constitutional provisions around fundamental rights  litigation challenging the president’s decisions are widely read as requiring the AG to defend the president.⁷⁾ However, I have argued elsewhere that the spirit and text of the constitution envisions the AG in a guarantor role, and may give the AG’s department the discretion to decide whether to represent the president in such cases.⁸⁾ In short, the AG is meant to represent and defend the interests of the people. And yet, in this case, the AG defended the actions of the president (which the court held violated the fundamental rights of the people) and sought to fault the Election Commission – which attempted to fulfil these rights, though it was still found wanting. The court was critical of this attempt, and pointed out that whatever blame game the respondents wanted to play, the failure to hold the elections clearly violated the petitioners’ rights.⁹⁾

Implications of the Court’s Decision

Several implications are worth noting. First, this is another case in the court’s nascent jurisprudence holding the president accountable for breaches of fundamental rights by his official acts. This jurisdiction was created by the nineteenth amendment to the constitution (2015), and the court pushed back against an attempt to repeal it in the twentieth amendment (2020). It has proved both popular and effective: it allowed a declaration that the president’s premature dissolution of parliament was unconstitutional and void (2018), a decision holding the then-president responsible for decisions that led to the economic crisis (2023) and the nullification of several controversial presidential pardons. The Supreme Court has emerged as a strong and independent check on executive power in recent years and has strengthened constitutional governance and the rule of law.

Second, in terms of articles 17 and 126 of the constitution, a remedy for a breach of fundamental rights can only be sought against “executive or administrative action” (not legislative or judicial). The court’s finding that the EC was held liable for a breach of FR (by “executive or administrative action”) does not make the commission part of the executive branch. There is a growing body of scholarship which argues that Sri Lanka’s independent commissions take the character of ‘guarantor institutions’ – an emerging field in comparative constitutional law.¹⁰⁾ The EC and other independent commissions may exercise powers of an executive nature, along with powers of a rulemaking (legislative) and / or quasi-judicial nature. However, they are bound by the constitution to discharge their functions independent of the executive branch. It is the EC’s failure to exercise its powers and act with adequate independence that attracted the court’s findings.

Third, and most crucially, I see this as a landmark decision because it represents the clearest signal from the Supreme Court that the independent commissions have a duty to fully utilise their powers to fulfil their respective mandates, and that failure to do so may amount to a breach of fundamental rights. The Court stated “In terms of Article 104(B)(2), It shall be the duty of the Commission to secure the enforcement of all laws relating to the holding of elections and it shall be the duty of all state authorities to cooperate with the Commission.”¹¹⁾ After noting some of the EC’s lapses, the court stated, “However, aforesaid facts indicate the failure of the Commission to use it [sic] powers.”¹²⁾

Furthermore, the court emphasised the duty of other actors to cooperate with the commission once an election commences: “Thus, in my view, the other limbs of the executive arm of the government have to cooperate with the Election Commission in conducting the election once the process commenced.”¹³⁾ This can be read as reinforcing the “guarantor” nature of the Election Commission: (i) that it is not beholden to the executive branch, (ii) that it must check the conduct of the executive branch to guarantee the fundamental rights it is designed to protect, and (iii) that executive actors must defer to its authority in this sphere.

Though this decision relates to the Election Commission, the precedent will bear on all independent commissions, from the Human Rights Commission to the National Police Commission and the Judicial Service Commission. They cannot stand idly by: all commissions have the duty to exercise their powers to discharge their duties and functions, they must do so independently, and they must do so in a manner that upholds the fundamental rights enshrined in the constitution. Other governmental actors, in turn, must defer to their authority in their respective spheres, and cooperate with them to secure the fulfilment of their mandates.

This decision will be significant for the Election Commission going forward. The next few months will see several elections: parliament currently stands dissolved, with the general election scheduled for November; local government elections (the subject of this case) and provincial council elections are also overdue. This decision may have stung the commission, but it rallied well to conduct a free, fair, and peaceful presidential election that has (perhaps) restored public trust in it. Now, the decision stands as a powerful precedent that empowers it to guarantee the rights of citizens at the forthcoming elections.