• Indefinite postponement of LG Polls creates tricky situation in terms of the law
• Political parties have started campaigns; election monitors note 1/3rd campaigns done

With the upcoming Presidential Election likely to be the first test for the new campaign finance laws given that the Local Government (LG) Elections have been postponed indefinitely, concerns abound regarding the implementation of the Regulation of Election Expenditure Act No.3 of 2023. 

The act intends to regulate expenditure incurred by recognised political parties, independent groups, and candidates at Local Government, Provincial Council, Parliamentary, and Presidential Elections. 

Under the provisions of the act, within a period of five days after the conclusion of the period of nomination, the Election Commission (EC) shall, in consultation with the recognised political parties and the independent groups contesting such election, issue a gazette specifying the amount to be used for the purpose of calculating an authorised amount.

However, in what is a unique circumstance, Sri Lanka technically remains within an extended election period due to the indefinitely postponed LG Elections. 

Nevertheless, EC Chairman R.M.A.L. Rathnayake stressed that the campaign finance law would only become effective once nominations were called for the Presidential Election, since the law could not be implemented for the LG Elections at present given that the required reports were meant to be submitted after an election. 

According to the procedure, as explained by Rathnayake, candidates have to submit their expenditure reports within 21 days of the conclusion of the election, following which the EC has to publicise the reports within 10 days. Subsequently, complaints can be lodged regarding candidate expenditure by the public. 

Should there be issues with expenditure, the EC will direct the matter to the Attorney General through the Police for legal action. Rathnayake also noted that institutions such as the Inland Revenue Department (IRD), Commission to Investigate Allegations of Bribery or Corruption (CIABOC), etc. were involved in undertaking investigations. 

Legal matters 

Speaking to The Sunday Morning, Attorney-at-Law Luwie Ganeshathasan said that the Regulation of Election Expenditure Act No.3 of 2023 (the campaign finance law) would be effective for the Presidential Election after the nominations closed, adding that a separate gazette would have to be issued for the election, specifying the “authorised amount” that could be spent in the Presidential Election. 

However, he pointed out that this currently created a “tricky situation” in terms of the law given the indefinitely postponed LG Polls. 

“Given the manner in which the Local Government Elections have been delayed by various means, this is somewhat of a difficult situation. The campaign finance laws usually only apply during the period of the election campaign, but because the LG Election has been indefinitely postponed, we are technically still within the campaign period and therefore the law applies. And now with the Presidential Election also scheduled, the EC will have to start the process related to campaign finance for that election as well.”

Ganeshathasan observed that the law broadly created four types of obligations: “Firstly, it puts a cap on spending during the campaign period for the purpose of getting a candidate elected, both by the political party and the candidate. Secondly, there is an obligation to report details of those who have given money for the political campaign and the law prohibits certain types of donations. Finally, there is also a reporting requirement regarding spending, both by the candidate and the political party.”

Navigating the law

With the Secretary of the Ministry of Finance issuing instructions through a circular dated 3 July to complete all projects approved under the Decentralised Budget Programme 2024 before 31 August, Ganeshathasan observed that if an attempt was made to promote a political party through such projects, regardless of when it was done, it would still violate the law, allowing the EC to become involved. 

Addressing the ongoing development programmes of the Government, he noted that the campaign finance law was not needed to deal with this matter. 

“This is already dealt with separately in terms of our Constitution under the use of public resources. Campaign finance law deals with private money given for the purposes of electing a candidate. These development programmes involve the use of public money for the furtherance of a candidate’s agenda. For example, using State resources during the campaign period, etc. is already covered under the constitutional provisions which gives the EC the power to take necessary action.”

However, he acknowledged that there was a “grey area” in certain aspects, pointing to the example of the incumbent President, who had the ‘advantage of incumbency’. 

“The President will have to perform certain official functions and during the course of performing those official functions, he inadvertently receives free publicity, unlike other candidates.”

Ganeshathasan, however, noted that since the Presidential Elections were yet to be called, the fact that the LG Elections were ongoing did not permit the curbing of certain actions of the President unless it could be proven that he was doing so to “advance his own political party’s chances in the LG Election”.

“When the Presidential Election is called, the EC gets more power. Additionally, if certain campaigns promote activities of political parties using State resources, then even now the EC can get involved since that is not permitted. These are also public funds and can only be used for public purposes, not for the promotion of any particular political party.”

Meanwhile, People’s Action for Free and Fair Elections (PAFFREL) has filed a case against such development programmes on the basis that they should not provide an advantage to any political party or individual candidate and requesting that the EC guidelines be followed. 

PAFFREL Executive Director Rohana Hettiarachchi shared that they were challenging three of the circulars issued in relation to the annual budget, the ‘Kandukara Dashakaya’ programme, and the appointment of the Citizens’ Advisory Committees for monitoring such programmes.

“They are trying to engage local council level politicians for development programmes, which provides a two-way advantage for both the local councillors and the presidential candidate,” he pointed out. 

Implementation loopholes 

The implementation of campaign finance law poses a challenge, as Hettiarachchi shared with The Sunday Morning. 

Noting that the law was not yet in effect for the Presidential Election since nominations were yet to be called, he said that they were unable to implement the law on ongoing campaigns as yet.

“All political parties have already started their campaigns and at least one-third of these campaigns have been completed, as we have monitored over the last couple of months. Unfortunately, these campaigns are not under the campaign finance law, so we cannot consider them as expenses [under the campaign finance law] until elections are declared and candidate nominations have been submitted.”

Accordingly, he stressed that one of their demands had been to ensure that the campaign finance law should have been in effect at least three months prior to the election. 

Outlining what he described as a critical weakness of the law, he said that the law’s many loopholes included the lack of power vested in the EC for monitoring. 

The EC receives the two income and expenditure reports from the candidates after the elections within a two-week period, which the EC has to then publicise. Thereafter, poll monitors can compare the data and make a complaint. The cases filed thus should go through the Attorney’s Department, since the EC does not have the power to file a case directly. 

Monitoring challenges 

The sheer extent of the Presidential Election campaign, which covers the entire country, also complicates the task of poll monitors. Unlike the LG Polls, which involve limited funds and geographical areas, the Presidential Election has the entire country as one constituency, making it difficult to grasp a coherent picture of the situation. 

As such, Hettiarachchi shared that there would be a collective effort in monitoring the election. “We have had a number of discussions with all election monitoring bodies and consultations with the EC since this is the first time this law will be implemented. We are planning to monitor as a team with all observer groups rather than as an individual organisation and to establish a mechanism. We are also trying to establish digital tools through which people can monitor and submit their reports as well.”

Similarly, Institute for Democratic Reforms and Electoral Studies (IRES) Executive Director Manjula Gajanayake said that while initially, they had anticipated the LG Election to be the “testing ground” for the campaign finance law – an eventuality which had been rendered impossible by the postponement of the elections – the Presidential Election would thus be historical in that it would be the first to allow the new law to be effective. 

“However, when it comes to the Presidential Election, even now, some political parties are spending money heavily. Unfortunately, we have a campaign finance law and not a political finance law. Therefore, we are not in a position to track expenditure before the poll notice is issued. It is only once the EC issues the notice for the election that we can monitor election expenditure.”

While noting that this law was a positive development given that it had been a longstanding demand, he pointed out that there were several challenges in its implementation. Firstly, the EC required greater powers in order to act proactively. 

Secondly, in terms of the Election Dispute Resolution (EDR) procedure, citizens have to lodge complaints before the EC, which then submits them to the Police. However, the limited time period to complete the task means that the consultation between Police or the Attorney General can cause delays, especially if the Police fails to remain as an unbiased entity. 

Thirdly, the EC alone is unable to perform this task, and requires support from other entities such as the Police, IRD, CIABOC, etc. Finally, while candidates are provided free transportation, the mode of transportation will vary from candidate to candidate, especially when it comes to the President, eliminating the anticipated level playing field. 

As such, while the new laws and regulations related to the regulation of election campaign expenditure are a timely reform, the effectiveness of this attempt to create a level playing field for election campaigns remains to be seen.