The undisputed success of Sri Lanka's first Election Commission (2015–2020) was the conduct of free and fair elections, that is to say, electoral management. I argue in this article that, by design and in practice, it was unable to or failed to advance electoral integrity that is urgently required for the health of Sri Lanka's constitutional democracy. At critical points when electoral integrity and constitutional democracy were threatened, it was the Court, the traditional institutional check on the Executive and the Legislature, that prevented its further erosion. The Commission, therefore, was an institutional innovation that addressed symptoms of Sri Lanka's ailing constitutional democracy but not its root causes. The Commission has been a necessary but insufficient fix for the electoral pathologies of Sri Lanka's constitutional democracy. Its ‘guarantor’ function, as I illustrate in this article, is narrowly conceived, perceived and lived out.Footnote 1
The establishment of independent commissions and the Constitutional Council has been hailed as one of the most significant constitutional developments in the dominant accounts on constitutional governance in Sri Lanka.Footnote 2 However, ‘fourth branch’ bodies have been the subject of constitutional ping-pong since their introduction in Sri Lanka.Footnote 3 A common line of analysis in the literature that explains this trend highlights the partisan nature of constitutional politics in Sri Lanka, the instrumental use of constitutional amendments and executive aggrandizement. These accounts however do not explain or account for, in specific ways, the constitutional, political and social conditions that made the constitutional ping-pong possible.
Through a study of Sri Lanka's first Election Commission, here, I attempt to offer a limited explanation and analysis of those conditions. I examine institutional design (and its change over time) and the social space of the Commission (the conceived, perceived and lived) in developing this account. Here, I am concerned with the following question: What does a study of the institutional design compared and contrasted with perceptions about the institution's social space reveal about the dynamics of the Commission? Drawing from the interviews that I have conducted for this article, I show that the Election Commission was not as robust as it was expected to be under the 19th Amendment. I argue that while it was effective in electoral management its contribution to electoral integrity was minimal. Personal dispositions, institutional and political culture heavily determined the way in which the Commission functioned and interpreted its mandate. Furthermore, gaps and failures in legal and policy reform of proximate areas, including the regulation of political parties and campaign finance contributed to this outcome. Consequently, during this time, the Supreme Court remained the primary defender of electoral integrity in Sri Lanka.
I use an adaptation of the concept of social spaces (conceived, perceived and lived) to develop this account. This is an early attempt by me to employ constitutional ethnography. I begin by tracing the institutional history of the Election Commission and map the ways in which the institutional design of the Commission changed over time.Footnote 4 I then use interviews with four sets of stakeholders of the Sri Lanka Election Commission to identify, interpret and assess the lived detail of the life of that institution to the extent possible. I conducted 4 interviews with the Commissioners and the Commission, 2 with representatives of political parties, 3 interviews with members of civil society organizations and 1 interview with a legal expert.Footnote 5
I present this account in four parts. In the first part, I locate the first Election Commission in Sri Lanka within its historical and political context. In the second, I briefly explain why I experiment with constitutional ethnography in my study of the Election Commission within the broader Law and Society approach. In the third part, I offer an account of the life of Sri Lanka's first Election commission. I adapt the concept of social space and its dialectic – the conceived, perceived and lived spaces to develop this account. Here I argue that uncovering the perceptions which shape the function of the Commission may hold insights into the ways in which constitutionalism consolidates and de-consolidates in Sri Lanka. Building on this description, I argue in the fourth part that the Election Commission was effective in electoral management and neutrality but was unable to advance electoral integrity.
The commission as constitutional innovation
It took approximately three decades for an election commission to be proposed, established, and to function in Sri Lanka. Here I trace this development and explain why I think this is an example of innovative institutional design in the Sri Lankan context.
Electoral democracy in Sri Lanka
Sri Lanka's constitutional democracy is primarily procedural.Footnote 6 It was the first jurisdiction to introduce universal franchise in 1931 in Asia. Since then, elections have been regular, and the transfer of power has been peaceful with two failed attempts so far at unconstitutional power grabs, the last being the Constitutional Crisis of October 2018. Sri Lanka has struggled to protect and advance a substantive democracy. Some would argue that Sri Lanka's post-independence history is a story of the steady decline of constitutional democracy brought about through the legal exercise of the ballot.Footnote 7 Today the electoral dimension includes Presidential, Parliamentary elections as well as elections to Provincial Councils and Local Government Authorities and referenda.Footnote 8
Up until the adoption of the Second Republican Constitution, Sri Lanka had a first-past-the-post electoral system for local and parliamentary elections. The office of the Executive President, which was to be filled by an island-wide election, was introduced as the second amendment to the First Republican Constitution of 1972. The Second Republican Constitution introduced the proportional representation system. The Constitution further provided for the conduct of referenda in several instances.Footnote 9 In 1989 the Provincial Councils were established under the 13th Amendment.
One of the main challenges that persist in Sri Lanka's constitutional democracy is that of representation. The political struggles of ethnic and religious minorities in seeking political representation, insincere or failed attempts at constitutional reform towards the same, failed attempts at political negotiations etc has been well documented and analysed.Footnote 10 Bart Klem, an anthropologist, drawing on the work of Jonathan Spencer, notes that in Sri Lanka, elections are in effect ‘moral dramas of identity and difference’ that ‘produce and reproduce antagonistic political identities…[t]hey dramatize collective citizenship, but they also expose divisions.’Footnote 11 In the case of Sri Lankan Tamils, the contestation over representations resulted in a secessionist war which was ended through military force in 2009. While minorities, including Tamils of recent Indian origin and Muslims have had a significant impact on politics in terms of their participation in coalition governments etc political contestations over meaningful political representation remains a concern. More recently, the question of women's representation has been flagged as well and has resulted in the introduction of a quota for women in local government authorities. In divided societies such as Sri Lanka ‘[e]lections involve hard political work – to reify identities, to perform registers of loyalty and belonging, and to activate (or deactivate) social boundaries. It is these processes that make elections such a turbulent and potentially disturbing phenomenon.’Footnote 12
Antecedents of the commission
A single Department of Elections, headed by the Commissioner of Elections, was established in 1955 which combined the Departments of Parliamentary Elections and of Local Authorities Elections respectively.Footnote 13 The Department was not placed under a Ministry, and was expected to function independently. The Department had an island-wide presence and co-opted public officers for the conduct of elections. With the adoption of the First Republican Constitution of 1972, the office of the Commissioner of Elections was constitutionalised. Interestingly, under this Constitution, the appointment was to be made by the President, the nominal head of state. The Commissioner was removable by the President on an address to the National State Assembly or on account of ‘ill-health or physical or mental infirmity.’Footnote 14 The Second Republican Constitution of 1978 reproduced these provisions. Power of appointment and removal remained with the President even though this Constitution had introduced an Executive President in a semi-presidential system.Footnote 15
Over time, Sri Lankan Courts developed a robust body of jurisprudence on the principle of independence of the Commissioner of Elections in its review of petitions complaining of violations of fundamental rights.Footnote 16 Mediwake v Dissanayake is a celebrated case in this regard.Footnote 17 Here, the petitioners claimed that their right to equality and freedom of expression had been violated by the failure of the Commissioner of Elections to declare void polling that took place in the context of ballot stuffing, intimidation etc. The Supreme Court of Sri Lanka upheld the petition and ordered a re-poll in the relevant polling stations. In its judgement, the Court made the following observation about the right to vote:
“[t]he citizen's right to vote includes the right to freely choose his representatives, through a genuine election which guarantees the free expression of the will of the electors: not just his own. Therefore, not only is a citizen entitled himself to vote at a free, equal and secret poll, but he also has a right to a genuine election guaranteeing the free expression of the will of the entire electorate to which he belongs.”Footnote 18
The Court held unequivocally that the Parliamentary Elections Act requires the Commissioner of Elections to ‘make a qualitative assessment as to whether the poll was free, equal and secret.’Footnote 19 In Karunathileke v Dissanayake elections to five Provincial Councils had been cancelled by the Commissioner of Elections, after nomination papers had been accepted. The Commissioner relied on an Emergency Regulation issued by the President in cancelling those elections. The Supreme Court held that the purported regulation was in violation of the Constitution. In arriving at this conclusion, the Court noted the constitutional obligation on the Commissioner of Elections to act independently:
‘…the Constitution guarantees to the Commissioner of Elections a high degree of independence in order to ensure that he may duly exercise - efficiently, impartially and without interference – the important functions entrusted to him…But the constitutional guarantee of independence does not authorize arbitrariness. That guarantee is essential for the Rule of Law, and one corollary of independence is accountability. Accordingly, the Commissioner could not withhold the reasons for his conduct – just as the constitutional guarantee of independence of the Judiciary does not dispense with the need to give reasons for judgments.’Footnote 20
Therefore, in Sri Lanka, the constitutional duty of the body charged with the conduct of elections to act independently and to guarantee electoral integrity was established by the Court. However, the law reform that was required to codify these judicial determinations has been resisted. Efforts to enact relevant institutional reforms, as described below, has been three decades in the making.
Constitutional innovation
Sri Lanka's Constitutional Council and scheme for independent commissions is an example of constitutional innovation that has developed at least in part with the objective of increasing accountability and impartiality in governance.Footnote 21 It has also been one of the constitutional design responses to the overbearing nature of Sri Lanka's Executive Presidency.Footnote 22
The institution was first proposed during the debates on constitutional reforms in the 1995-1990 period. The Draft Constitution of 2000 was the first instance where the establishment of a Constitutional Council was proposed.Footnote 23 The Constitutional Council was mandated to recommend, among other things, names of suitable persons to be appointed to an Election commission. Although the 17th Amendment established an Election Commission and the Constitutional Council nominated a chairman and members to the Election Commission, the President did not make the appointments. A non-governmental organization sought to challenge this failure on the part of the President.Footnote 24 The petitioner sought a writ of mandamus to compel the President to appoint the nominees to the Commission. The Court however, refused leave to proceed in that matter on the basis that the President enjoyed complete immunity from suit during office.Footnote 25
Ultimately, an Election Commission was never constituted under the 17th Amendment. A transitional provision required the then Commissioner of Elections to remain in office until the appointment of the Commission, and he was compelled to remain in office beyond his age of retirement and despite his wish to retire from office.Footnote 26 The 18th Amendment – adopted in 2010 – resolved this dilemma by permitting the appointment of another officer from the Department to replace the Commissioner of Elections until a Commission was constituted.Footnote 27 Even under the 18th Amendment, where the Parliamentary Council had no binding power to make recommendations to the President, executive reluctance to constitute the Election Commission persisted. It was only after the enactment of the 19th Amendment that the Commission was constituted for the very first time. The change of government in 2015 and the constitutional change which reformed Sri Lanka's regime from a President-Parliamentary system to a Premier-Presidential regime was widely regarded as a win for constitutional democracy.Footnote 28
These constitutional amendments are the broader context within which the Election Commission was established first only in text (2001 to 2015) and then constituted for the first time (2015–2019).
Institutions and electoral integrity
I frame my study of Sri Lanka's first Election Commission on the twin ideas of constitutional institutions as social spaces and the concept of electoral integrity. I explain both ideas briefly below.
Constitutional institutions as spaces
Constitutional ethnography, in Scheppele's words, is aimed at ‘recovering the lived detail of the politico-legal landscape.’Footnote 29 Within the limitations of this article, in studying Sri Lanka's first Election Commission, I make a modest effort to engage in constitutional ethnography within the broader Law and Society approach. I am mindful that Constitutional ethnography primarily involves participatory observation and interviews are only a secondary method of study.Footnote 30 Within the limits of this current effort I use the interviews to identify ‘patterns’ in the ways in which law is understood in society and to account for the social and political life of a constitutional institution.Footnote 31 A doctrinal or normative analysis is limited in its explanatory power of the constitutional developments on the ground. Constitutional institutions are a distinct phenomenon no doubt, and comprises of its internal logic, history and transnational dimensions. However, at the same time, the existence of that institution is also contingent on a range of factors including social and political factors. It is this dilemma that I seek to understand and clarify through an early and experimental approach to constitutional ethnography.
In characterising the Sri Lankan Election Commission in this way, I was inspired by Panu Minkkinen's Blog post ‘Seats of power: ethnographies of constituted space’ to borrow the idea of conceived, perceived and lived social spaces from the sociologist Lefebvre.Footnote 32 Lefebvre developed his theory on social spaces in order to explain the pre-conditions and results of the superstructure, i.e. the state in Marxist theory and modes of production. Lefebvre used his theory on social spaces to study both territorial spaces (such as cities) and institutions.Footnote 33 For him, social space is a construct and is indistinguishable from mental or physical space.Footnote 34 Lefebvre highlighted that social spaces ‘interpenetrate one another and/or superimpose themselves upon one another’ and that they are fluid, that is to say, ‘[t]hey are not things, which have mutually limiting boundaries and which collide because of their contours or as a result of inertia.’Footnote 35 Moreover, social spaces are an outcome of ‘a process with many aspects and many contributory currents, signifying and non-signifying, perceived and directly experienced, practical and theoretical.’Footnote 36
Minkkinen employs this idea to study ‘the architecture and urban planning of cities that are specifically designed as seats of power.’Footnote 37 He describes conceived space as ‘the official order of the state,’ perceived space as ‘the everyday practices with which social actors position themselves into capitalist relations of production as they regularly work and consume’ and lived space ‘as the counterpoint to, or possibly even a contestation of the technocrat's spatial conceptions…’Footnote 38 For him, lived space is a reference ‘to the real-life experiences of users and inhabitants, their manifold ways of ’existing’ in space and giving it their proper meanings in spite of the sometimes overpowering conceptions and perceptions that might be attached to it.’Footnote 39
In this article, I use this idea to study a constitutional institution as a space co-constituted by three types of spaces – the conceived (design through constitutional, legislative and policy), the perceived (interpretation and perception) and the lived (the ‘internal’ perspective and the day to day experiences). The structure of the Commission as established in the Constitution and the relevant legislation is broadly understood as ‘the conceived space.’ The ‘perceived space’ would include the debate and discussion on the role of the Commission, for instance, in recent democratic controversies, by stakeholders working with the Commission. The ‘lived space’ would be the day-to-day experiences of how the Commission operates, interacts and engages and is primarily understood through those working in the Commission. As noted by Lefebvre these spaces are constantly penetrating each other. A study of these spaces and the way they penetrate each other is therefore crucial for understanding the actual work and impact of the Election Commission.
Electoral management and electoral integrity
Norris, a leading authority on electoral integrity, identifies several dimensions including global norms, policy, prevention of electoral fraud, addressing electoral maladministration, and democratic values and principles as components of electoral integrity while noting that ‘each dimension alone remains too circumscribed, providing an incomplete and partial understanding of the concept of electoral integrity.’Footnote 40 In this article, I use the term as a concept to guide my evaluation of the ways in which an Election Commission ought to perform its ‘guarantor’ function in relation to a constitutional democracy.Footnote 41 This would include electoral management but go beyond that function and involve substantive aspects of constitutional democracy such as making proposals for law reform and the independent exercise of investigative and prosecutorial powers.
In fact, when electoral integrity was threatened in Sri Lanka, I show that it is the traditional defender of constitutional democracy, the Judiciary (not the Election Commission), that asserted its independent and guarantor function in defending electoral integrity. This fact highlights the need to develop a close reading of the actual functioning of guarantor branch institutions that would allow us to understand the impact of this branch in more detail. It may serve as a reminder in debates on the fourth branch institutions to also consider the dynamics between the fourth branch, the Courts, other proximate institutions, and substantive aspects of the relevant law. For advancing electoral integrity therefore, institutional design through constitutional and law should also consider reform that strengthens the Election Commission and institutions that are proximate to the Commission such as political parties.
The commission as conceived, perceived and lived
What is the score card of Sri Lanka's first Election Commission? Using Lefebvre's idea of conceived, perceived and lived spaces, here, I evaluate the institutional design factors as well as contextual factors that determined its work. In interpreting how the Commission was conceived I examine several aspects of institutional design. In considering how the Commission was perceived I specifically consider internal and external perspectives about the Commission. In analysing the ‘lived’ space of the Commission I assess recent controversies regarding Sri Lanka's constitutional democracy and I further discuss factors that influenced the work of the Commission.
Conceived space: structure and composition
Lefebvre described conceived space as ‘the dominant space in any society’ and the ‘space of scientists, planners…and social engineers.’Footnote 42 In the case of constitutional institutions, conceived space is a matter of design and include aspects such as provisions that establish independence and the criteria for the appointment of Commissioners. In the case of Sri Lanka's Election Commission, its design has been a source of contention and repeated reform in the form of constitutional ping-pong.
Design
Although the first Election Commission was constituted in 2015, the ‘conceived space’ of this institution has had a longer life that began politically with a report in 1998 and in law with the 2000 Draft Constitution.Footnote 43 The Draft Constitution was not adopted but an Election Commission was established under the 17th Amendment in 2001. Since then, the 18th, 19th and now the 20th Amendment have each introduced changes to the size, structure, jurisdiction and mode of appointment of the Commission, all within a period of twenty years.
The constant modification of the conceived space of the Commission points to the political anxieties about the Commission. Elections themselves, in Klem's words, ‘dramatize collective citizenship’ and ‘expose divisions, thus opening a register of disturbance and transgression.’Footnote 44 In this context, the constitutionally conceived space of the Election Commission has a decisive effect on the constitutional and legal consequences that could attach to the political register of disturbance and transgression. Invoking the work of Jonathan Spencer, Klem refers to the ‘carnivalesque dimensions of politics’ in which electoral politics is but one aspect, albeit a significant one. Spencer describes ‘the carnivalesque space’ as ‘a space of possibility and licence: licence to argue, and licence to joke, and licence to experiment with challenges to the order of things. It is, for this reason, also a space of danger, anxiety, and concern.’Footnote 45 This is perhaps, in part, the reason for the series of changes that have been made to the ‘conceived’ constitutional space of the Election commission. More broadly speaking, the Constitutional Council and the Election Commission have been the subject of the most number of constitutional reforms in Sri Lanka.
For instance, the minimum criteria or description of suitability of the Commissioners has changed significantly. The 2000 Draft Constitution required that they be ‘persons who have distinguished themselves in the professions or in the fields of administration or higher education.’Footnote 46 The term ‘higher education’ was replaced with ‘education’ under the 17th Amendment.Footnote 47 The 19th Amendment added that one of the members ‘shall be a retired officer of the Department of Elections, who has held office as a Deputy Commissioner of Elections or above.’Footnote 48This requirement has been further expanded under the 20th Amendment and now ‘shall include a retired officer from the Department of Elections or the Election Commission.Footnote 49 The continuity and link with the Elections Department (19A) and with the Elections Department or the Commission (20A) has some advantages for the smooth functioning of the Commission. However, as discussed below, in the context of the broader constitutional, legal and political landscape, this continuity can also inhibit the Commission's freedom to act independently.
The power to make binding recommendations for appointments to the Commission has been vested in turn with the Constitutional Council (2001–2010 and 2015–2020) under the 17th and the 19th Amendments. However, as noted above, an Election Commission was never constituted under the 17th Amendment. Under the 18th and 20th Amendments (2010–2015 and now from 2020 respectively) the President may consult the Parliamentary Council in making appointments to the Election Commission. In fact, soon after the 20th Amendment was adopted in October 2020, the term of the Election Commissioners expired, and a new commission and chairman were appointed. The power to remove the Commissioners has been vested with Parliament under all the amendments and is the same as the procedure for the removal of judges.Footnote 50The consecutive absence from 3 meetings of the Commission results in a Commissioner being deemed to have vacated the post.
It was pointed out during the interviews that despite its re-establishment as an independent body, the first Commission continued to function under a ‘hidden concept of a government department.’ This is attributed primarily to the continuity in leadership, in the form of the Chairman of the Commission, who himself was attached to the Department of Elections for more than three decades. This continuity is part of the institutional design of the Commission as conceived under the 19th Amendment. A view held in common by all interviewees was that the appointment of a former member of the Elections Department as the chairperson of the Commission was a critical factor that determined the outlook and limited the Commission to a neutral role rather than an independent role.
Moreover, the Commission under the 19th Amendment was hampered by a constitutional mistake, partly reflecting the impact of the numerous reforms it has been subjected to since 2000. The Commission as originally conceived, comprised of 5 members and the quorum was 3. Under the 18th Amendment, the Commission was reduced to 3 members but the quorum remained as 3. One of the interviewees noted that these numbers were allowed to continue under the 19th Amendment because five was considered to be too large a number of members and once the Commission was capped at 3, the quorum had to be the same number. In enacting the 19th Amendment, the Parliament nor the Court addressed this design flaw. Neither was it picked up as an issue in public debate. As a result, when the Commission was set up for the first time in 2015, all Commissioners had to attend every meeting of the Commission.
This was described by most interviewees as an oversight or mistake in the 19th Amendment. An interviewee noted that ‘the quorum was a very serious problem’ and that the Commission requested for it to be amended but that their request was not heeded to. Another interviewee mentioned that this quorum caused significant personal hardships in addition to making it difficult for the Commission to make decisions and the Commission at times resorted to virtual meetings. It was pointed out by one of the interviewees that when the Commission requested the President to consult the Supreme Court, the President took the view that the law was clear on the matter and that the need for a reference to the Court does not arise. The 20th Amendment resolved this problem by increasing the membership to 5 without changing the quorum, which remains as 3.Footnote 51
Funding was not an issue for the Commission. It was noted by an interviewee that the Commission was well funded. The interviewee said, ‘they have always given us what we asked for’ while noting that ‘you can undermine the independence of a commission by underfunding.’ The salary of the Commissioners and the Commissioner General of Elections is payable under the Consolidated Fund. The 17th Amendment specifically provided that their salary cannot be reduced.Footnote 52
Two other aspects of design were singled out during the interviews. One of the interviewees noted that the constitutional silence on an upper age-limit for holding office as a Commissioner could pose a difficulty from a practical point of view for the work of the Commission. The Commission as conceived under the Draft Constitution of 2000 provided for a Commissioner-General. It was noted that from a design point of view this role caused some confusion. The Commissioner-General was to be appointed by the Commission and exercises powers delegated by the Commission. It was noted that the Indian Election Commission, for instance, did not include the office of a Commissioner-General.
Independence
As noted by one of the interviewees the term ‘independence’ is not included in any law that establishes or mandates the Commission. Rather, in the interviewee's words, ‘it's interjected.’ It was noted that the Commission acts independently in registering the voters, in opening and closing the polls on time, and in counting the vote. One of the interviewees said, ‘we are excellent’ in the technical aspects of the mandate such as counting and opening polls on time.
But the interviewee was doubtful as to whether the Commission was fulfilling other aspects of the mandate in ensuring ‘free and fair elections.’ For instance, it was noted that ‘there is no attempt at all [by the Commission] to stop violations’ of laws relating to election campaigns. These comments reveal the distinction between neutrality which I argue allows the Commission to ensure efficient and effective electoral management on the one hand and independence on the other, which would enable the advancement of electoral integrity.
The interviewees took the view that establishing the Commission as a constitutional body gave it the best possible recognition and protection under the law. An interviewee noted that under the 19th Amendment the President had to make appointments according to the recommendations made by the Constitutional Council, which was described by another as ‘a politically neutral’ body. It was observed that ‘the 19th Amendment, despite mistakes, was wonderful.’ The ‘mistake’ here is a reference to the failure to adjust the quorum of 3 in the 19th Amendment when the Commission was reduced from 5 to 3. Independence seemed to be understood as freedom from political interference rather than as freedom to advance electoral integrity. The interviewees noted that the President ‘could not select appointees arbitrarily’ and that consequently the ‘appointments were not biased.’
In contrast it was noted that the reforms introduced by the 20th Amendment could lead to ‘partiality’ in appointments. The interviewees noted that the high threshold for the removal of Commissioners, which survived the 20th Amendment, might provide some protection for the Commission. The process for removal of the members of the Commission was described as ‘difficult’ and a ‘long and arduous process.’ Therefore, it was noted that, ‘if their membership is secured by making removal difficult, there can be some space for effectiveness.’ The interviewees readily observed that the Commission had not had to deal with direct political pressure in the discharge of their functions. However, as discussed below, it was also noted that the Commission has not been able to fully exercise its mandate due to different institutional as well as practical constraints.
Commissioners
In addition to the requirement that the Commissioners be ‘fit and proper’ for such appointments, under the 19th Amendment, the Constitutional Council was required to ‘endeavour to ensure’ that their recommendations for appointments to the Commissions ‘reflect the pluralistic character of Sri Lankan society, including gender.’Footnote 53 Most interviewees perceived these minimal constitutional standards as vague and inadequate.
The three individuals who were appointed brought with them an interesting and diverse range of experiences. Mr Mahinda Deshapriya, the chairman, had served the Election Department since 1983 the 1980s and had been appointed as the Commissioner of Elections under the 18th Amendment. Mr N. A. Abeysekera was a former Legal Draftsman and lawyer. The other member was Dr Ratnajeevan Hoole, an academic in Electrical and Computer Engineering with a record of political engagement as a citizen. In terms of reflecting the pluralistic character of Sri Lankan society, the Commission was all male. Dr Hoole is a Sri Lankan Tamil while the other two Commissioners are Sinhalese. To this extent, the Commission was diverse in terms of professional backgrounds and experiences. It was mentioned by an interviewee that 2-1 decisions were not unusual for the Commission. It was further mentioned that this is perhaps the strength of an independent commission. Diverse individuals with different professional and personal experiences were compelled to work together.
Some interviewees pointed out that members of the Commission required expertise and experience in the subject matter of elections to fulfill their responsibilities effectively. In contrast to elected representatives or even the judiciary, it has been argued that fourth branch institutions are expert driven. An interviewee mentioned that the Constitutional Council itself lacked expertise in the task of making appointments. It was suggested that more specific criteria regarding the expertise of members should be stipulated by law, by policy or by convention, as the context demands, for making appointments to both the Constitutional Council and to the Commission.
The charismatic nature of the chairman, Mr Mahinda Deshapriya, and his longstanding experience in the Department of Elections was referred to by several interviewees.Footnote 54 The chairman has a strong public image which is enhanced by his long experience at the Election Department.Footnote 55 He was perceived to have a good working relationship internally within the Department and externally with stakeholders, including with political parties. It was pointed out by one of the interviewees that ‘[t]he Chairman knows the business and the people.’ Another interviewee described it as ‘a one man show.’ For instance, it was noted that when instructions were given to officials, they inquired whether it had been ‘cleared by the Chairman’. It was noted that ‘[b]y the time other two [Commissioners] came in everything was already established’ and that the other two Commissioners were effectively ‘rubber stamps.’
It was noted that in the Chairman the staff ‘saw continuity’ with the pre-independent Election commission ‘rather than a break.’ In this context, the Chairman's longstanding familiarity and experience gave him a clear advantage over the other two Commissioners. However, one of the interviewees pointed out that according to the Constitution, the Chairman is ‘primus inter pares and no more’ and is therefore only ‘a facilitator.’ It was noted that given his long years of experience at the Department the Chairman had the effect of continuing the ‘Departmental’ culture of the Department of Elections, even under the independent commission. What exactly was meant by a ‘Departmental’ culture was not clear but the sense seemed to be that it was a culture that was not independent.
Perhaps these dynamics between the Chairman and the other Commissioners contributed to what was described by one of the interviewees as ‘going public’ about the disagreements within the Commission. For instance, during the Constitutional Crisis of October 2018 and also in the writ petition regarding the dual citizenship of a presidential candidate (discussed below), one of the Commissioners became a party to legal proceedings, on his own initiative. It was noted by an interviewee that this public display of disagreement within the Commission ‘is one of the reasons why people are going against independent commissions.’ It was further noted that ‘going public’ with the disagreements within the Commission ‘can detract from the work of the Commission and its credibility.’
Perceived space: role
Perceived space, Lefebvre noted, is ‘revealed through the deciphering of’ social space and ‘must have a sense of cohesion, but this does not imply that it is coherent.’Footnote 56 Similarly, the Commission's mandate and the internal and external perceptions about the way in which that mandate was carried out highlight the coherence in the Commission's work but also its incoherence. The Commission is vested with functions that are central to election management but given minimal or no authority in relation to functions that can ensure electoral integrity. This gap is a root cause of the incoherence in the work of the Commission and resulted in the Commission falling short of its guarantor role.
Mandate
The 17th Amendment specified that the object of the Commission was to ‘conduct free and fair elections and Referenda.’Footnote 57 This clause has remained valid since because the overall mandate of the Election Commission has remained consistent throughout the several amendments. The Commission is required to conduct the Presidential, Parliamentary elections and referenda as well as elections for the Provincial Councils and Local Authorities;Footnote 58 maintain ‘registers of electors’;Footnote 59 and to register political parties.Footnote 60
However, on specific aspects of the mandate of the Commission there have been significant shifts. The 18th Amendment expressly limited the power of the Commission by providing that its guidelines shall be issued only on matters within its mandate. It provides further that the guidelines shall not relate to matters that are directly under the purview of the Public Service Commission or the Judicial Service Commission.Footnote 61 These clauses were removed under the 19th Amendment but were re-introduced under the 20th Amendment. Similar changes were made with regard to the Commissions powers over state media and are discussed below.
Elections
The peaceful and fair conduct of all elections was a significant outcome of the establishment of the Commission. Election related violence has been a serious issue in Sri Lanka resulting, in some instances, in the killing of voters or of candidates.Footnote 62 The absence of election related violence under the first commission, therefore, was notable. In the words of an interviewee ‘Sri Lanka has a long history of abusing the electoral process systematically.’ Another interviewee noted that under the Election Commission ‘the atmosphere was peaceful’ during elections in comparison with the high incidence of election violence in Sri Lanka's past. This significant success, according to the interviewee, was not ‘because the politicians became diligent and responsible overnight’ but rather because the Commission ‘managed to use the power vested in them by the Constitution for an impartial election.’
Over and beyond the absence of elections related violence, the general levels of compliance with rules related to campaigning etc improved significantly during the term of the Commission. The last two elections in Sri Lanka were recognized as peaceful and fair by election observers.Footnote 63 However, it is important to note that offences during elections (parliamentary or other) are described under laws that have not been revised to include contemporary phenomena such as elections campaigns on social media. Furthermore, the fines for the violation of these laws are outdated. Offences related to parliamentary elections, for instance, are regulated under a law that was enacted in 1981.Footnote 64 Therefore, the conduct of violence-free elections is more a matter of proactive, preventive action rather than a matter of enforcement of applicable laws and effective prosecution.
Regulation of media
Regulation of state media during elections by the Commission has been the subject of constitutional ping-pong. The several constitutional amendments have expanded or restricted the authority of the Commission to regulate state media institutions and to issue guidelines in general. These amendments reflect a discomfort with permitting the Commission to function under a broad mandate. In contrast, the Supreme Court has clearly held that the state is bound to respect the freedom of expression in its regulation of state media, including the running of its programmes.Footnote 65It is worthwhile noting here that during Sri Lanka's constitutional crisis of 2018, the management of state-owned media was forcibly captured and was used to propagate views that justified the unconstitutional power grab that was underway.Footnote 66 The propagation of such partial views included the assertion that the purported gazette notification dissolving parliament and calling for elections was constitutional.
Specific powers of the Commission to regulate the media were enumerated under the 17th Amendment. These included the power during an election to prohibit use of public property for election campaigns and the power to issue guidelines to ‘any broadcasting/telecasting operator’ or newspaper to ‘ensure a free and fair election.Footnote 67 A corresponding duty to comply was recognised in the custodian of any such property. The Amendment also recognised a specific duty on the part of state-owned media bodies, the Sri Lanka Broadcasting Corporation (SLBC) and the Sri Lanka Rupavahini Corporation (SLRC) to comply with these guidelines. Where the state-owned media bodies do not comply with the guidelines, the Election Commission had the power to appoint a Competent Authority to manage them ‘in respect of all political broadcasts or any other broadcast, which in the opinion of the Commission impinge’ on elections.Footnote 68
These powers were modified by the 18th Amendment. The specific references to the state-owned media corporations and the power to appoint a Competent Authority to manage them were repealed. They were replaced with a general duty on the part of any media outlet to comply with the guidelines of the Commission.Footnote 69 The 19th Amendment re-introduced the specific references to the state-owned media corporations but did not re-introduce a power to appoint a Competent Authority. The 20th Amendment has repealed, once again, the specific references to state-owned media corporations. At present, therefore, the Elections Commission cannot regulate state media during an election. In a context where state owned media have acted in partisan ways, this directly impacts electoral management as well as integrity. This was evident during the constitutional crisis of 2018.
Relationship with stakeholders
The internal perception, as expressed by the interviewees, was that the Commission had strong and dynamic relationships with civil society organizations, political parties and state authorities. For instance, it was noted by one of the interviewees that the excellent collaboration and guidance offered by the health authorities was key to the success of the parliamentary elections conducted during the pandemic in 2020. Similarly, it was noted that all the elections conducted by the Election Commission were peaceful and progressively environmentally friendly as well. The success of these efforts was attributed by some of the interviewees to the cooperation extended to the Commission by the police. It is relevant to recall here that the police were under an independent Police Commission under the 19th Amendment.
Inquiry, investigation and prosecution
On the enforcement front, the Commission is, by and large, toothless. It is entirely dependent on regular law enforcement authorities to act on its behalf. The Commission is authorised to request for police officers to be assigned to the Commission for the duration of an election. It is mandated to request the President to deploy armed forces ‘for the prevention or control of any actions or incidents which may be prejudicial to the holding or conducting of a free and fair election or Referendum, as the case may be.’Footnote 70 During the election those officers are to ‘be responsible to, and act under the direction and control of, the Election Commission.’Footnote 71 Only the 19th Amendment provided for specific remedies for failure by public authorities to comply with the directives of the Election commission. Such failures were declared as a punishable offence under the 19th Amendment, and the penal provision has survived the 20th Amendment.Footnote 72 All the amendments recognise that public law remedies of fundamental rights petitions and writ applications lie against the Commission and those working under it. All amendments, however, further provide immunity from legal suit to the Election Commission, its officers and police officers working under the Commission (temporarily) for any acts executed in good faith in furtherance of the mandate of the Commission.
However, as noted by the Centre for Monitoring Election Violence in Sri Lanka, the Commission remains powerless to investigate and prosecute elections related offences:
‘[I]t does not have the power to publicize an election calendar through which either the election date or the time periods for holding elections in general can be set. It also does not have the power to directly initiate litigation. It must instead rely on submitting “B” Reports through the Sri Lanka Police, a procedure that delays resolving election disputes in a timely manner. The Election Commission's legal department is also underpowered to deal with other public authorities. Finally, it does not have the power to act as a legally binding election dispute resolution body, as it requires the courts or law enforcement, or simply the compliance of disputing parties, to fully enforce its decisions.’Footnote 73
The responses to violation of elections law in the lived space of the Election commission was described as ‘unsatisfactory’ by one of the interviewees. The interviewee was of the view that ‘when you have an independent commission, it must have the power to prosecute.’ However, the Election commission has no such powers and must look to the police and the Attorney-General for the investigation and prosecution of any complaints. The perception was that it was more a matter of complete reliance on the police by the Election Commission rather than a matter of collaboration.
One of the interviewees noted that ‘no serious violation of election law was ever punished.’ The implication here was that violators enjoyed some degree of impunity with regard to these matters. It was noted by an interviewee that internally too, inquiries into official misconduct was far from satisfactory. The interviewee noted that reports and inquiries ‘are a means of avoiding the problem.’
Litigation
Litigation was a point of contention for Sri Lanka's first Election Commission. It was evident from the interviews that there was no clarity on whether the Election Commission had the authority to go to Court to resolve disputes or to seek clarifications on points of law. An interviewee mentioned that the Commission limited itself to a narrow reading of the relevant legislation and actively refrained from pursuing litigation, or even from openly supporting litigation. Another interviewee mentioned that going to Court to seek guidance on how to resolve a given dispute can undermine the perception of independence before the public. It was mentioned by an interviewee that the Commission ‘thought that if they supported litigation it would cause issues with powers that be.’ Consequently, one of the Commissioners went to Court in his individual capacity and was party to the litigation during the Constitutional Crisis. One of the interviewees noted that the impact of this was that this Commissioner ‘and NGOs [that went to Court] were deemed traitors.’ According to the interviewee this perception would not have been created ‘if there was a collective decision by the Election Commission to go to Court.’
Lived space: successes and failures
Lefebvre described lived space as ‘space as directly lived through its associated images and symbols.’Footnote 74 He argued that it was ‘the dominated – and hence passively experienced – space which the imagination seeks to change and appropriate.’Footnote 75 In my assessment of five controversies that involved the Election Commission these tensions are evident. The controversies were: 1) delay in holding elections to Local Authorities; 2) delay in holding elections to Provincial Councils; 3) the Constitutional Crisis of October 2018; 4) the dispute regarding the dual citizenship of a presidential candidate; and 5) the postponement of the parliamentary elections 2020. The success and failure of the first Election Commission in each of these events sheds light on institutional, social and political perceptions about the authority and leadership of the Election Commission and its relationship with other institutions. I discuss each of these controversies briefly below.
Elections to local authorities 2018
At the time the Commission was appointed, elections to Local Authorities had been due since 2015 and were only conducted in 2018. In 2016, 18 former members of local authorities and Provincial Councils filed a fundamental rights petition alleging that the failure to conduct elections to these bodies amounted to a violation of their right to equality and their right to franchise.Footnote 76 The Supreme Court held that the petitioners had sought relief against the Election Commission in this matter but held that the conduct of the Commission did not violate the petitioner's rights. The Commission took the position that elections can be held only after the delimitation process was concluded. A new delimitation process had commenced in 2012. The Court concluded its judgement by noting that ‘[u]pon consideration of all the material placed before this court is of the view that the state should take steps to hold elections.’ In 2017, the Local Authorities Elections Act was amended to introduce, among other things, a 25% quota for women in each local authority.Footnote 77 The introduction of a quota for elected bodies has been a long-standing demand among civil society activists in Sri Lanka. Elections to local authorities were conducted successfully in 2018.
One of the key questions that arose during this time was whether the Election Commission had an independent power to declare elections when the term of an elected body expired. Because the Act provides that any of ‘the powers or duties conferred or imposed’ on the Commission ‘shall be subject to the general or special directions of the Minister’, the Commission waited upon the Minister to announce elections by notification in the Gazette. The independence of the Commission therefore was strictly limited, both by legal interpretation and in practice, to the actual conduct of elections. An interviewee noted that consequently ‘people lost trust in the independence commission. Majority of people recognised that they were powerless.’
Elections to provincial councils
The question about the Commission's power to declare an election arose in relation to elections to the Provincial Councils as well. Since 2017, elections to different Provincial Councils have been due. The then Parliament amended the Provincial Councils Elections (Amendment) Act to introduce a 25% quota for women and a mixed member proportional representation system.Footnote 78The change in the system required a delimitation report. The first report was defeated in Parliament in 2018 and the process has stagnated since then. Consequently, the provincial councils have not been constituted.
In this situation too, the Election Commission remains toothless. It is unable to act partly because delimitation is a political process. As in the case of elections to local authorities, the Commission has no authority to declare elections. Consequently, when the Commission is denied the opportunity to fulfill its mandate by the Executive, its independence is rendered meaningless. An interviewee noted that ‘people started to hate the concept of independence’ as it was failing to deliver positive outcomes in terms of the conduct of regular elections.
Constitutional crisis of 2018
The lack of authority of the Commission to declare elections extends to parliamentary elections. However, during the Constitutional Crisis of 2018 and owing to the actions of one of the Commissioners, the Commission nevertheless played a proactive role in this regard. The Constitutional Crisis itself was triggered by the purported dismissal of the Prime Minister by the President and the appointment of a member of the Opposition as the Prime Minister.Footnote 79 Within a few days, the President purported to dissolve Parliament and called for general elections. If the Commission followed its approach in relation to elections to local authorities and to provincial councils, it would have proceeded to prepare for general elections on the basis of that gazette notification. However, one of the Commissioners and several others chose to file a fundamental rights petition before Court, challenging the purported dissolution of Parliament.
In making this petition, the Commissioner relied on previous jurisprudence of the Court, the case of Karunathilaka v Dayananda Dissanayake.Footnote 80 As discussed previously, this was a case that involved a petition challenging the postponement of elections to five provincial councils by way of emergency regulations. Among other things, in that case, the Court held that the Election Commissioner had acted ultra vires and violated the constitutional obligation to act independently. Court made reference to his failure to ‘ascertain the legal position, or to have recourse to legal remedies’Footnote 81 and held that the failure on the part of the Commissioner to act independently violated the fundamental rights of the petitioners.Footnote 82 As a petitioner in the challenge to the purported dissolution of Parliament, the Commissioner relied on this dicta and claimed an obligation to seek the views of the Court.
The Constitutional Crisis was eventually resolved by the Court which held in favour of the petitioners.Footnote 83 The Court's declaration that the dissolution was unconstitutional effectively ended the Crisis. It could be argued therefore that the decision of one of the Commissioners to petition the Court was a factor that contributed to this outcome.
Nominations and presidential election of 2019
The 19th Amendment introduced a ban on the election of dual citizens to Parliament.Footnote 84 When the nomination papers of the current President were handed over the Election Commission a question arose as to his eligibility to contest an election as he was known to be a dual citizen. Here too, the Election commission chose to limit itself to its obligations under the Presidential Elections Act in terms of accepting nominations. During the interviews it was stated that the Commission took this view in the interest of maintaining its impartiality. One of the interviewees noted that it was made clear to the other candidates that they were free to object to the nomination or to seek the intervention of the Court.
One of the political parties and several civil society activists sought a writ of certiorari to quash the decision of the Commission to accept the nomination papers.Footnote 85 After an extended hearing, the Court dismissed the petition without granting leave to proceed.Footnote 86 The petitioners challenged the dismissal before the Supreme Court but subsequently decided not to pursue the matter and therefore withdrew their appeal.
Parliamentary elections 2020
In the last general elections, the Commission was drawn into a controversy yet again due to its unilateral postponement of elections. The Government dissolved Parliament at the earliest possible date. However, the COVID-19 pandemic gave rise to questions about whether it was an appropriate time to proceed with a general election. Despite calls for permitting Parliament to continue to its full term and to perform its law and policy making function during the pandemic, the Government chose to dissolve Parliament.Footnote 87 The Election Commission accepted nomination papers but it was apparent that there was disagreement within the Commission on how it ought to proceed.
The disagreements within the Commission, and between the Commission and the President's office was reported in the media as well.Footnote 88 Immediately thereafter the Commission postponed the elections indefinitely, although the Constitution mandated that elections be held within three months of the dissolution of Parliament.Footnote 89 Whether the Commission had the authority to do so was disputed and yet again the matter went before Court. This matter too was dismissed by the Court and the election was held successfully during the pandemic, although it was in contravention of the constitutional requirement of holding an election within three months. The Centre for Monitoring Election Violence in Sri Lanka noted that the Commission ‘should be commended as the first election management institution in the country to hold a national election in a catastrophic context in a manner that preserves procedural and public confidence and safety.’Footnote 90
This observation affirms that Sri Lanka's first Election Commission acted neutrally and with expertise in terms of electoral management. However, on the question of electoral integrity, including the question about the declaration of an early election, its unilateral postponement by the Commission without an express power to do so, point to its inability or failure to protect or advance electoral integrity. During the interviews it was evident that some expected the Commission to act in a neutral way while others expected it to act independently in the above discussed controversies. Being neutral meant that the Commission also took a neutral view on adherence to the Constitution and constitutionalism. Independence was understood, by those who supported it, as acting proactively according to the Constitution, to advance constitutionalism. Those who took the view that the Commission intended to play a neutral role argued that to do otherwise, would amount to taking sides in the political tussle that was underway during these controversies. It was noted that this would compromise perceptions about the independence of the Commission more broadly.
Determinant or contributory factors
Four factors that impacted the work of the Commission are, 1) the lack of formal cooperation among the fourth branch institutions and between the fourth branch and other state agencies, 2) gaps in the existing legal regime, 3) the transnational dynamic and 4) the media. These factors are marginal in academic discussion on the Election Commission and the fourth branch while much of the discussion is concentrated around the design of the Constitutional Council. The independence of the Constitutional Council is a pre-requisite and a necessary condition for the effective establishment of an election commission. However, its work is limited where these other aspects are below optimal in their operation.
Cooperation intra-fourth branch and inter-state agencies
Adding a layer of accountability to the power of the President to make appointments to independent commissions by the Constitutional Council was perceived by several as an improvement in governance. However, an interviewee pointed out that some aspects of design and policy remained incomplete in this reform process. No mechanisms were introduced to enable the Commissions to cooperate or collaborate with other fourth branch institutions. For instance, complaints related to elections required input and collaboration with the police as well as the Commission on Bribery and Corruption (CIABOC). In the absence of authority to investigate or power to prosecute, the Election Commission is dependent on the assistance of the police and CIABOC.
Similarly, cooperation with state agencies was influenced significantly by personal dispositions and institutional/political culture. It was pointed out by an interviewee that if the first Chairman was in fact charismatic, as many described him to be, ‘he ought to have taken up these cases’ rather than wait upon the police who are often inactive in prosecution of election related offences. The formalization of mechanisms for cooperation, therefore, might minimise the need to rely on personal dispositions.
Law reform
It was noted during the interviews that several aspects of Sri Lanka's election law required reform via amendments to existing legislation, or the introduction of new legislation, but progress in this regard has been minimal. The most significant law reform that was undertaken during the time of the first Election Commission is the introduction of a 25% quota in local authorities for women. Elections for local authorities were conducted in 2018 and the quota was enforced resulting in the number of women in local authorities going up to 25%. One of the interviewees was of the view that ‘quotas did not work well.’ The interviewee noted that parties nominated ‘dummy candidates’ and ‘they never took it very seriously’.
Campaign finance is one of the areas which urgently needs legal regulation. While the interviewees noted that the Commission sought to develop policy and propose laws ‘there does not seem to be much enthusiasm by political parties’ in this regard. Sri Lanka currently does not regulate campaign financing.Footnote 91 Another area that is in need of urgent law reform is the legal regulation of political parties, including the regulation of the representation and inclusion of females. Other contentious areas for law reform, as pointed out by the interviewees, include provision for contemporary methods of voter registration, provision for voting from overseas, mandatory declaration of assets and liabilities by candidates and voting for prisoners. All these remain unresolved in terms of policy and legal regulation.
The transnational
The Commission had robust relationships with transnational actors including with international elections observers. The International Foundation for Electoral Systems (IFES) and the Indian Election Commission were two transnational actors that were mentioned during the interviews as working in collaboration with the Election Commission. They were described as having an empowering impact on the staff and on the Commission taken as a whole. Most interviewees spoke very favourably of the Commission's engagement transnationally.
It was evident from the interviews that the transnational links with the Indian Election Commission was a prominent factor in the work of the Commission. Several interviewees mentioned that officers were regularly trained by the Indian Election Commission. It was clear that the interviewees held the Indian Election Commission in high regard. One interviewee described it as ‘one of the best in the world’ and as a Commission that ‘acts independently.’ It was noted by another that the ‘Indian Election Commission is considered the point of reference by many countries that functions with both autonomy and freedom. That is what we should aim to achieve in Sri Lanka.’
Media
The engagement of the Chairman of the Commission on print and social media was a factor that influenced and encouraged citizen engagement during elections. Writing about the first general election held under an independent election commission, Gunawardene points out that ‘Facebook emerged as a widely used space as never before.’Footnote 92 The Department of Elections, for the first time, entered social media and created a Facebook page named ‘Tell Commissioner’ where the Department responded to citizen queries and complaints. Furthermore, Gunawardene reports that the Chairman used his personal Facebook page for ‘voter education.’ Memes of the Chairman carrying the abbreviation ‘Mako’ (a Sinhala abbreviation for Election Commissioner) took the form of a hashtag as well. During the general elections in 2020 too, the Commission had a dynamic engagement with media. However, wherever elections related content that were in violation of current laws were published, the Commission was unable to take action due to the lack of specific laws. It has been reported that the Commission ran a pilot project with Facebook where it shared ‘reported links to Facebook.’Footnote 93
The Commission's proactive engagement on social media seems to have been well received. For instance, a secretary of a political party noted that ‘The way how the Election Commission connected with the Media in Sri Lanka is also something that is useful to look at. The Commission was present in media, raising awareness, talking about its role, calling out the political parties for violating the election regulations and getting people involved to report the election violations was something that we saw for the first time in my life-time.’
Electoral management not electoral integrity
My study of the conceived, perceived and lived spaces of Sri Lanka's first Election Commission lead to three insights. First, it affirms that institutional reform and innovation can and does ensure independence from political partiality to the Executive. However, my second insight is that, this progress has been modulated by personal dispositions of the members of the Commission. Their understanding of the mandate of the Commission, their exercise of discretion, and their initiative or lack thereof ultimately determined the way in which the Commission acted in recent controversies. Third, the pre-existing institutional and political culture continued to influence the way in which the Commission functioned. Despite undergoing reform and being re-established as an independent commission, the Departmental institutional culture as well as perception seems to have endured. Consequently, the design of Sri Lanka's Election Commission primarily enabled effective electoral management. It has not enabled the Commission to ensure or advance electoral integrity. My study, therefore, suggests that perceptions about the advances made in Sri Lanka (including my own observations in 2016) in the promotion of constitutional governance through the strengthening of fourth branch institutions should be re-appraised.
In making this argument I do not seek to undermine the progress made in terms of institutional reform or innovation over the last two decades in relation to the Election Commission and fourth branch institutions more broadly. In fact, my study affirms that the first Election Commission was successful in minimizing elections violence and that it was effective in electoral management.
Going beyond that observation, my study offers insights as to how the Election Commission can be strengthened so that it can guarantee electoral integrity as well. Three aspects are significant to note here. First, the mandate of the Commission must be expanded to include the power to investigate and prosecute elections related offences. The Commission's reliance on the police to carry out these functions has limited the Commission's authority. Except where stakeholders cooperate with the Commission, it is unable to enforce the laws related to elections. Second, proximate legislation and institutions require an overhaul. The regulation of campaign finance is a classic example. Where proximate laws and institutions do not reflect the same institutional mandate (of independence, accountability and transparency etc), the Commission is isolated in its efforts. Third, a key lesson from the work of this Commission is the extent to which media can be leveraged to promote the objectives of the Commission and the fourth branch more generally. The Commission's mandate, capacity and interest in developing and executing a communication and engagement strategy therefore assumes significance.
My study also points to at least two aspects of election commissions and governance through fourth branch institutions that require clarity. How should independence, expertise and representation be specified in the institutional design of the fourth branch? To what extent is it desirable to enumerate this in legislation and/or in a constitution as the case may be? Relatedly, in what ways can institutional and political culture be used to promote the objectives of constitutional governance in these contexts? The extent to which the core ‘guarantor’ functions ought to be made explicit in constitutional text remains unclear. None of the amendments clarify the term independence, the guarantor function or the level of expertise required. My study of the experiences under Sri Lanka's first Election Commission demonstrates that these aspects are central to the advancement of electoral integrity. Sri Lanka's experience under its first Election Commission demonstrates that where the Constitution is silent on these three aspects, existing institutional and political cultures shape and influence the dialectic of the social space of that institution. Specifying the guarantor role, describing characteristics of independence and clarifying the minimum level of expertise are aspects to be considered in improving institutional design. Reform of the conceived space (institutional design) alone will not guarantee an improvement, nevertheless it is a necessary step in that direction.
The insights, observations and questions I discuss above affirms the need to encourage a broader approach to the study of fourth branch institutions. Indeed, this argument can be extended to constitutional institutions more broadly. The study of institutional design, reform etc ought to be complemented by the study of the dialectic relationship between the conceived, perceived and lived spaces of fourth branch institutions. This approach allows us to develop a more accurate diagnosis of the work of fourth branch institutions. Lefebvre described social space as the ‘dialectic relationship which exists within the triad of the perceived, the conceived and the lived.’Footnote 94 In examining Sri Lanka's Election Commission, it is evident that this dialectic relationship advanced electoral management but was weak in ensuring electoral integrity. In Sri Lanka, personalities heavily determine this dialectic relationship over and above institutional design. The neutrality allowed the Commission to achieve efficient and expertise based electoral management. However, as shown in this study, individual dispensations coupled with limits in the conceived space (that is institutional design and the broader institutional architecture) resulted in the Commission going no further. Electoral integrity was left for the Court to deal with.
Conclusion
In the last three decades, Sri Lanka's constitutional democracy has witnessed the emergence of a political aspiration for an independent election commission, introduced constitutional reform to establish such a commission and eventually appointed its first Election Commission. Even before the Commission was constituted, this body was subjected to a series of constitutional amendments that amounted to constitutional ping-pong. The Election Commission has been in the centre of controversies and crisis in Sri Lanka's constitutional democracy. My study of the work of the first commission suggests that the Commission was best at electoral management and carried out that function in a politically neutral and professionally efficient manner. It guaranteed electoral management but not electoral integrity. In seeking to guarantee electoral integrity further institutional reform that take on the difficult task of clarifying the functions of guarantor, the scope of independence and expertise are necessary along with a shift in institutional and political culture. The most recent constitutional amendments including to the guarantor branch by way of the 20th Amendment, however, foreclose those possibilities for now.
Acknowledgements
Research for this article was carried out July 2020 to January 2021 and funded by the Australian Government through the Australian Research Council (ARC) Laureate Program ‘Balancing Diversity and Social Cohesion in Democratic Constitutions.’ Thank you to all interviewees who graciously agreed to provide an interview in the midst of the Covid-19 pandemic. A draft of this article was presented at Workshop on Democratic Constitutions and Electoral Commissions organized by Gilbert+Tobin Centre of Public Law at the Law Faculty of the University of New South Wales, Australia (Virtual, 7 December 2020). I thank the participants at the workshop for their comments and Mark Tushnet, Rosalind Dixon and Bart Klem for their feedback on revised versions of this article.
