ADR Case Study: Sri Lanka
Sri Lanka is an example of the need for a clear distinction between EDR and ADR mechanisms to avoid confusion or misplaced stakeholder expectations. This case study also shows the benefits of ADR in providing a quick and decentralized mechanism to complement the formal judicial process. It stresses the importance of voter education to ensure stakeholders are aware of how to use this mechanism and what to expect, and the need for systematic record-keeping.
The Sri Lankan election legal framework provides that the police investigate and the courts hear election violations (defined as offenses and corrupt and illegal practices). Accordingly, the powers of the Election Commission (EC) are limited to resolving problems informally and preventing election violations that arise during the election period. The law does not explicitly provide the EC with quasi-judicial functions, nor does the EC have the power to impose remedies or sanctions over election disputes. The district courts, the High Court, the Court of Appeal, and the Supreme Court are in charge of voter registration, candidate registration, election results petitions, and election offenses, respectively.
In the absence of a clear legal mandate to adjudicate disputes, the EC proactively established Complaints Centers to receive disputes for the first time in the 2015 elections. The composition, powers, and complaint handling procedures of the Complaints Centers cannot be classified as EDR proceedings, but rather as an ADR mechanism. Indeed, the Complaints Centers were used as a mechanism for election officials to engage in discussion and mediate disputes raised by voters or parties and when needed, to refer complaints to the courts or law enforcement. Complainants often expected the Complaints Centers to issue decisions and impose remedies, although they lacked the power to do so. For the 2019 election, the EC established 25 district election complaints management centers (DECMCs) and a national complaint center at its headquarters.150 The EC made some data available to observers, as the EU Election Observation Mission (EOM) noted that 3,905 complaints had been reported.151 The EC also developed a number of voter education materials to make stakeholders aware of this ADR mechanism, producing a flowchart, a leaflet, and videos. These documents clearly explain the powers of the DECMC to refer complaints to relevant institutions or to mediate disputes. The EU EOM report noted that complaints to the EC and DECMCs “were responded to in various ways, including through letters of investigation to other state authorities, the removal of non-permitted campaign material and mediation in minor disputes.” In the 2019 election, the role of Complaints Centers appears to have moved closer to that of a conventional EDR mechanism, with the adoption of rules stipulating the referral, but the DECMC and the EC still lack adjudication powers. The EU report noted a lack of follow-up information about the outcomes of complaints and a lack of unified rules and timelines in the handling of complaints. The EU EOM recommends that the EC issue clear, codified procedures and coordinate recordkeeping by the various bodies involved.
It is worth noting that Sri Lanka successfully introduced mediation as a mode for resolving disputes at the grassroots level three decades ago. The country adopted the Mediation Board Act and established a Mediation Board Commission to lead mediation programs with the policy and administrative support of the Ministry of Justice.152 Mediation has been a successful practice in Sri Lanka; with a large number of trained mediators, this is now part of the legal tradition. It is, therefore, important for the EC to continue institutionalizing and strengthening the capacity of election officials to act as mediators during the elections.153
This example shows the need to clearly define the scope and mandate of EDR and ADR bodies to avoid confusion and to manage complainants’ expectations. Training and coordination with relevant institutions such as the police and prosecutors should be encouraged to clearly understand the scope of their respective mandates. Indeed, while ADR should be encouraged, it is not always the appropriate forum to address severe violations.
150 European Union election observation mission final report: Democratic Socialist Republic of Sri Lanka – Presidential election, 16 November 2019. (2020). https://www.eods.eu/library/sl2019_final_report_24_january_2020.pdf
151 Between 8 October and 14 November, the EC received 3,905 complaints. Only 27 were related to violent incidents. The police deployed 173 personnel for elections under the direction and control of the EC and played a prominent role in the coordination and investigation of complaints and allegations.
152 Sri Lanka Government. Mediation Board Commission. http://www.mediation.gov.lk/whoarewe
153 Ibid. “Considering the success rate of mediated settlements to varying disputes through the use of mediation services in Sri Lanka over the last 3 decades, it is evident that mediation has become a largely popular method of conflict resolution widely available in the country.”