By
Dr.Sujata Gamage

The feeble attempts by the Election Commission (EC) in face of resistance from the Government to hold local elections and the awkward missteps that followed have brought two critical issues to the fore.

What are limits to the independence of independent commissions? Did the EC overestimate its independence and act unilaterally?

Has the Parliament shirked in its duty as per Article 158 where it states that the Parliament shall have full control over public finance?

There is an uproar in the media and on the streets by the opposition, trade unions, and others demanding the holding of local elections. The EC has maintained that despite claims of no money by the executive there are indeed ways of managing the money.

They have gone to the Supreme Court assuring that they will hold the election according to the law. Missing in this conversation is the main actor, the Parliament, the ultimate authority in fiscal matters and to which the EC is ultimately accountable.

EC has been going back and forth to the SC and the media, but not reported to the Parliament the fiscal situation communicated by the Executive. How correct is that?

If I am not mistaken, for the first time in the history of the EC fiscal constraints have hampered it fulfilling its obligations to hold elections on time. It is also the first time that the country is facing an economic crisis of this proportion.

As the President revealed in the Parliament in his “I am not postponing elections, no election to postpone” speech, the Secretary for Finance had informed the EC in December 2022 that money is not available for elections.

Correct or not, the executive had made the claim and the response of the EC should have been to inform Parliament that its local elections law may not be enforceable and sought guidance.

Yet on 9 February in response to two writ applications filed by groups of parliamentarians in the Supreme Court, the EC had given assurances to the Supreme Court that they will hold the elections as per the law. Did the EC act with due diligence when the Executive had made it clear that money is not available?

Various moves by the Executive to drive the message home were ugly to say the least. But that does not absolve the EC from its failure to inform Parliament and seek a resolution to the Executive’s claims. The Parliament is the authority with mandate and the capacity to examine the Executive’s claims and determine whether an unprecedented economic crisis and resulting cash flow problems warrant any legislative action such as extending the term of the local councils.

The general public may have lost trust in Parliament where SLPP, which may not be keen to go to polls, is in the majority. But as far as the EC is concerned, the first stop should be the Parliament no matter who holds power there.

In a decision on 24 February, the Supreme Courts gave itself ample time to make a ruling on an application to postpone the election by setting the next hearing to 11 May and giving time to the Ministry of Finance to explain why they don’t have money. At the same time the Court made the cautionary observation that they could do very little in regard to fiscal matters. The Courts probably expect the fiscal matters to be settled by or before 11 May by Parliament.

Now the ball is in Parliament. What could/should it do?

To my knowledge, we don’t have a precedence of fiscal issues directly impacting the functioning of an Independent Commission. The fact of the matter is that the financial crisis has reduced this country to no better than a small private bus operator who would use the daily cash haul to pump diesel for the next day. Unfortunately, the Government has not done a good job of explaining this simple fact to the people.

As Samarajiva noted in his “Does the government have money” column, the cash flow problems have always been there. The appropriation bill is only an estimate for the whole year. If the Government estimated a revenue of 3,000 billion and allocated 10 billion for the election that does not mean that it has the money on hand in February to pay for immediate costs like printing and transport.

In the heydays before the reality of debt default hit us, Government borrowed from the Central Bank getting it to print money, or borrowed from lenders, local and foreign.

Today we have a different scenario. Nobody is lending to us because on 12 April we had to suspend payments on all foreign debt, conclusively demonstrating to the whole world that we are not able meet debt obligations. If we are to become acceptable to lenders again we need a ‘certification’ from IMF to the effect. They will not give that unless, amongst other things, we bring our primary deficit, or the difference between government income and expenditure, to a prescribed level.

If there is any other way out, the agitators in chief – Sajith Premadasa of SJB or Anura Kumara Dissanayake of NPP – have so far failed to reveal such.

The Executives story that there is no cash is indeed plausible, but it needs to be corroborated because the Executive is certainly not an unbiased participant in the affair of holding or not holding local elections.

In my opinion, it was wrong of the EC to unilaterally declare elections without reporting to the Parliament about the fiscal situation conveyed to the EC by the Executive in December. Further, their assertion to the Courts on 9 February that elections will be held without resolving the fiscal issue is also problematic.

It was reported on 24 February that the EC has finally written to the speaker but unfortunately the speaker’s initial response has been lukewarm. Too much money and man hours have been wasted already preparing for an election. The speaker and the Parliament must be creative in finding a solution. Is there some way to set up a Speaker’s Committee in Parliament as in the UK as a priority or can the public finance committee examine the claims by the Executive in an open and transparent manner and make a determination?

Only Parliament is able to study the cash flow claims of the executive and make a determination. If the Executive’s claims are indeed true then Parliament has to make a determination as to what monthly expenditures to cut.

Salaries and pensions consume 86% of the cash flow each month. Will delaying those payments by a few days get us the cash we need without printing money and jeopardising our chance of getting our economy on track? The Parliament has a responsibility to tell us.

The opposition should be in Parliament checking on the President’s claim that there is no money for elections, not creating havoc in the streets demanding an election.

Lessons for the future

It is easy to prescribe a course of action in retrospect. In defence of the EC, we are all on a learning curve here. It is not too late to learn from our mistakes and map out a future course of action.On hindsight, I would say that– “independent commissions have to work within the limits imposed by all three branches of government, and in the event the Executive’s action or inaction hinders the commission’s duties, it should seek the advice of both the Judiciary and the legislature. Regarding fiscal issues, the Parliament is the ultimate authority. The Supreme Court can do little. Fiscal issues is one area where the Election Commission must not act unilaterally.”

Notwithstanding these fiscal limitations, the EC still has sufficient powers to act independently. But we need to make provisions to address fiscal barriers, if any, to be faced by the EC in the future. We cannot have an Executive fearful of elections making claims that there is no money to hold elections. There has to be checks and balances.

Courtesy:Daily FT