Sri Lanka ought to hold its Presidential Election this year – before the end of next year. The authorities are yet to officially declare any election. 

However, the political arena has already heated up with these imminent elections. Many have been calling for the campaign finance laws which were enacted, to come into effect. However, the law may be a bit late to have a major impact on the upcoming elections.

All political parties agree that what’s ahead are decisive elections, due to concerns surrounding the lingering economic crisis and how Sri Lanka plans to recover from it. Given the crisis Sri Lanka finds itself in, it is imperative that the country hold elections in a free, transparent and fair manner. Sri Lanka can ill afford to have a government elected through a tainted process, as the international community watches closely for the island to rebuild its lost credibility.  

Among the obstacles to holding a free and fair election is governments’ misuse of State powers and properties, which seems to be an issue even in the case of the upcoming elections, and the non-adherence of relevant laws, regarding which attention has been paid to the Regulation of Election Expenditure Act, No. 3 of 2023.

According to democracy activists, since the election expenditure-related laws become enforceable only after the submission of nominations, expenditures that precede the submission of nominations are not taken into account when monitoring election expenditures. They, and some in the opposition have been pointing out this is a significant obstacle to holding a free and fair election. This week, they alleged that political parties, including the ruling and opposition parties, have already funded around 50% of their election campaigns. 

Leading election monitor People’s Action for Free and Fair Elections (PAFFREL) Executive Director Rohana Hettiarachchi said that therefore, to ensure the effectiveness of the campaign finance laws should be enforceable from at least three months before the declaration of elections. There have also been allegations that several welfare, and land rights programmes initiated by the President, are aimed at gathering votes. Concerns about these programmes are because of the fear that it will give the President an undue advantage, via the use of state assets to boost his image before the run up to elections.  

While activists’ estimate of funds for around 50% of election campaigns may be questionable, their concerns are justifiable. During the past few weeks, election advertisements were displayed on social media platforms such as Facebook and YouTube, and on various websites with a large number of visitors. At the same time, the promotion of main contenders in the upcoming presidential election are already underway. They can be observed attending various public events held during the past month, where they have been discussing what they would do in a future government. All this points to election campaigning having kicked off before the Election Commission can legally monitor or regulate election expenditures.

The relevant Act says that “within a period of five days after the conclusion of the period of nomination specified in the Proclamation or Order requiring the conduct of an election under any law specified in section two, the Election Commission shall, in consultation with the recognised political parties, and the independent groups contesting such election, fix by Order published in the Gazette, a sum of money in Sri Lankan rupees to be used for the purpose of calculating an authorised amount, in accordance with the provisions of this section, for such election,” and that “provided however, in the case of a presidential election, every candidate who has not been nominated by a political party shall be consulted.” The election laws identified under this law includes the Parliamentary Elections Act, No. 1 of 1981, and the Presidential Elections Act, No. 15 of 1981, which means that these are the election expenditure-related regulations that are going to be applied in the coming Presidential Election and the Parliamentary Election.

The Act is a result of long advocacy efforts aimed at strengthening the legal framework applicable for election related expenditures. There were good reasons to advocate for these laws. On the one hand, the introduction of these laws was a response to allegations that black money was being used to fund election campaigns. On the other hand, there was a necessity to ensure that candidates are not advantaged or disadvantaged on the basis of the amount of money that they can spend on election campaigns. However, as has been pointed out, these laws are unlikely to result in a rigorous monitoring or regulation of election expenditures. The enforcement time-related loophole has already become evident.

While Sri Lanka is in dire need of such laws and regulation, their effectiveness is in question, if they cannot be enforced in an effective manner. The issues that need to be addressed through these laws will remain, and will continue to affect democracy and the people’s franchise. While it may be too late to address this issue concerning the Presidential Election, the relevant political and public authorities should make it a priority to rectify the said practical obstacles, so that the regulations will at least be ready to be effectively implemented before the next General Election.