The Election Commission (EC) of Sri Lanka has once again stressed the need for an effective mechanism to ensure that all candidates contesting elections declare their assets and liabilities at the time of submitting their nominations. EC Chairman Nimal Punchihewa made this proposal, among other things, on Thursday (30 Sept.), to the Parliamentary Select Committee (PSC) to Identify Appropriate Reforms of the Election Laws and the Electoral System.
Minister Nimal Siripala de Silva and MPs Ranjith Madduma Bandara, M. A Sumanthiran, Rauf Hakeem, Mano Ganeshan, Madura Vithanage and Sagara Kariyawasam were present at thePSC meeting.
The recent path–breaking judgment, delivered by the Moneragala High Court disqualifying SLPP Pradeshiya Sabha member D. M. Harshaka Priya Dissanayake, who was found guilty of having bribed voters at the 2018 Local Government elections, seems to have rekindled the hopes of those on a mission to eliminate the evil of big money determining the outcomes of electoral contests.
There are no specific laws to regulate campaign finance in Sri Lanka, and we have had to make do with the Presidential Elections Act, the Parliamentary Elections Act and the Local Authorities Elections Act. All three Acts basically categorize personation (also called impersonation), treating, undue influence and bribery as corrupt practices.
Commissioners General of Elections, members of the Election Commission, non-governmental organizations, and others have made various proposals as regards legal mechanisms required to make candidates declare their assets and liabilities, but no satisfactory solution has been adopted so far. One, however, should not make the mistake of thinking that if such a mechanism is put in place, hey presto, the problem of corruption and other such problems that stem from undeclared assets will go away.
Sri Lankan politicians are far too smart to have all their assets in their names. They know how to stash away their ill-gotten wealth either here or overseas. One of the main campaign promises of the yahapalana government was to bring back the stolen public funds which, it said, the members of the previous administration had smuggled out of the country. But nobody was caught and no money recovered. It could not even find out who had actually built an ‘ownerless’ mansion at Malwana! This however does not mean that we should not strive to have a mechanism to make candidates declare their assets and liabilitiesand regulate campaign finance. The need for them cannot be overstated, but much more needs to be done to tackle the problems caused by undisclosed funds, which in most cases are illegal.
Ill-effects of undisclosed funds
Candidates’ dependence on moneybags for campaign funds leads to a quid pro quo which stands in the way of people’s interests being served after elections, for the elected representatives are under obligation to look after the interests of their financiers at the expense of the public. This may explain why some business tycoons are in a position to have laws bentor even broken in their favour as and when necessary. The rise of the Rice Mafia, which exploits both the farmer and the consumer alike has been attributed to the nexus between wealthy rice millers and powerful politicians. Thanks to this unholy alliance, electoral politics has become a business with candidates using their undisclosed funds to bribe voters. Healthy relations between voters and their elected representatives is a prerequisite for a country’s democratic health, but they have been deteriorating over the years.
Undeclared campaign finance also helps launder black money—loads and loads of it. The anti-social elements that part with their black money for the benefit of candidates amass much more than they spend. They secure lucrative government contracts or receive concessions by way of returns on their investment in election campaigns.
When candidates with colossal amounts of undeclared funds raised through legal and/or illegal means throw money around, others without the wherewithal to do so are at a disadvantage,and this affects voter choice, and denies the ordinary candidates a level playing field. The election of candidates due to the power of money more than their popularity has had a corrosive effect on the unwritten yet vital social contract between the public and their elected representatives.
One of the biggest threats to Sri Lankan democracy is the increasing erosion of public faith in the electoral process, as evident in the voter apathy, especially among the youth who are cynical of elections, the electors, the elected and political institutions.
Sri Lankan politics has come to be viewed as a cocktail of social evils such as violence, impunity, bribery and corruption. Political parties and their leaders are mainly responsible for this situation in that they do not care to tackle the problem at source by fielding decent men and women as candidates to contest elections, much less take steps to enforce discipline among their party members. The problem can be thought to boil down to one thing—the absence of statespersons who lead by example and have zero tolerance for indiscipline and corruption. However, it is not advisable to leave the task of persevering democracy entirely to political leaders; nor should a country wait until the emergence of statespersons to cleans its politics. Instead, it has to have strong systems in place so that they will act as a straitjacket on those who wield power. This method has worked in developed countries such as the US, where individual politicians or political parties cannot act according to their whims and fancies. The manner in which the US dealt with President Donald Trump may be considered an example.
We, however, must not be so naïve as to think that alldemocratic safeguards are foolproof, and putting them in place is half the battle in banishing the evils that harm democracy. Even these systems could give way under extreme conditions even in the developed democracies, and politicians are power hungry by nature and relentless in their efforts to push the envelope of laws and regulations to further their interests. Hence the need to test the strength of the democratic institutions from time to time and strengthen them, if necessary. This process is akin to conducting stress tests on dams to ensure the safety of reservoirs.
Attempted remedies
The issue of undeclared funds and their ill-effects on the country and democracy have not gone unaddressed. There have been some attempts over the decades to solve the problem, but none of the remedies have been effective.
Political leaders realize the need to serve the interests of the public better and remove the rot in politics only when there happen to be weak governments. One of the most progressive laws aimed at depoliticizing the key state institutions was introduced in 2001 while the then UPFA government led by President Chandrika Bandaranaike Kumaratunga was teetering on the brink of collapse. It introduced the Constitutional Council and independent commissions. The next progressive constitutional amendment came 14 year later in 2015, when the powerful Rajapaksa government, which had introduced the draconian 18th Amendment collapsed following the defeat of President Mahinda Rajapaksa in a snap presidential election, and an interim government was formed.
The 19th Amendment to the Constitution introduced by the hurriedly formed national government, consisting of the UNP and a section of the SLFP-led UPFA, not only restored the key features of the 17th Amendment but also introduced newprovisions to address the issue of undeclared campaign and political finance in line with the United Nations Convention against Corruption (UNCAC) of 2005, to which Sri Lanka is a signatory. Article 156A(c) made it mandatory to put in place a mechanism to implement the UNCAC, etc., as part of Sri Lanka’s campaign against corruption. It was also intended to bring about laws and regulations as regards political and election finance.
Unfortunately, the SLPP government elected in 2020 introduced the 20th Amendment, which repealed the entire Chapter XIXA (Article 16A). This is what happens to progressive laws when extremely powerful governments are elected.
Tackling the problem
Several methods have been proposed to tackle the issues concerning undisclosed political and campaign finance. Prominent among them are limits/bans on donations, a cap on campaign expenditure and the setting-up of an effective regulatory mechanism, as proposed by the EC on Thursday.
Such curbs are expected to help counter the influence of big money on electoral politics. It has also been suggested thatpublic funding be increased sufficiently so that all candidates will benefit. The World Bank is one of the main proponents of this view. A little-known fact is that political parties here already receive public funding as can be seen from Section 127of the Parliamentary Elections Act:
The EC is the apex body constitutionally entrusted withensuring free and fair elections, preventing the misuse of public property during elections and formulating guidelines for the media, etc., as regards elections and referendums. It has also identified the regulation of campaign finance as a prerequisite for the conduct of free and fair polls. It will be able to carry out this task more effectively if it works in tandem with the Auditor General and the Commission to Investigate Allegations of Bribery or Corruption, for they have necessary resources and expertise. This proposal should be given serious thought.
Biggest hurdle
Everybody agrees that there must be tougher laws to regulate political and campaign finance in this country to ensure free and fair elections, whose outcome should be determined by the will of the people and not funds that moneybags with hidden agendas lavish on candidates. But, in the final analysis, all the campaigners for eliminating the evils that chip away at democracy are dependent on the very Mammon-worshipping politicians to have their proposals implemented. The legislators alone can give legal effect to the mechanisms that others propose, and they themselves are responsible for the present mess. Who guards the guards? Juvenal, the ancient Roman poet-philosopher, who asked this question, thought the guards had to guard themselves. But this does not happen in countries like Sri Lanka, where politics has become a haven for the greedy who act out of expedience and not principle. There’s the rub.
It is time the holier-than-thou political leaders in both the government and the Opposition realized the need to restorepublic faith in the electoral process and thereby help preserve democracy lest anarchy should descend on the country.
