The Duties Of The Election Commission: A Proactive Or Bureaucratic Stand?

By S. Ratnajeevan H. Hoole –December 18 2017 

We have a new Election Commission. Appointed in Nov. 2015, it will go on until Nov. 2020. It is the Commission’s immense responsibility to establish strong norms of governance as precedents for future Commissions.

It is legitimate in matters of national importance in a democracy to seek input from the public to engender a national debate. I raise two issues: 1) How we deal with big shots who violate election laws, and 2) Accepting unlawful nominations;

Dealing with Big Shots and Friends: Charging them?

 

There are many dos and don’ts at election time. In July 2011 I reported after a visit to Kayts that police jeeps were running around without number plates, President Rajapakse’s cutouts were inside polling booths and that EPDP cadres were preventing rivals from entering Kayts for canvassing purposes and villagers were having their poll cards forcibly purchased. For that, a criminal charge was filed against me for inciting a riot. I fled the country on legal advice and was forced to live abroad for 4 years. Even after my return and surrender to court in Aug. 2015, I was out on bail while our cowardly and corrupt police kept coming to court saying they need time to investigate. Finally, early this year, the judge discharged me saying he has seen no evidence of an investigation and doubts there ever was one. 

As I breathed a sigh of relief thanking God that the country has come out of its sordid past, I find it depressing that we are returning to the past. To date, however, we have been spared of white vanning. Ironically, these high minded principles underpinning free and fair elections are being flouted by our new rulers.

In Election Law, these practices are described as corrupt practices.

For example, Colombo Telegraph reports that under the National Sasundoya Program launched on 5 Dec., 1000 Temples are to be built using state funds all over the island (presumably in Tamil areas too as part of the continuing state-funded colonization of Tamil areas).

President Maithripala Sirisena laid the foundation stone for a Kidney Hospital in Polannaruwa on Dec.6 in the middle of the nomination period.

 

Education Minister Viraj Kariyawasam will distribute Rs. 700 mn worth of schoolbooks to children.

Madam Vijayakala Maheswaran is building free roads in Thinnavely close to the Farm School.

Douglas Devananda, Rishard Bathiudeen, and Sivasakthi Anandan have for several years been using government guesthouses in Vavuniya without paying any rent, and are now launching their election campaigns from these, reports Uthayan.

The parties of ministers are using Ministry offices in the Vavuniya Kacheri for elections. So, officials of the ministry sit on one side and do their work while the rest of the offices are used for political campaigns. Our officials have confirmed that the UNP, the president’s SLFP and Rishard Bathiudeen are engaged in this corruption.

In Mullaitivu District’s Maritime Paththu, Rs. 98 lakhs is to be distributed by the Ministry of Industry and Commerce only to party supporters. Divisional Secretary S. Gunapalan says he did not prepare lists for distribution and he has refused to sign anything, and he has been asked by his bosses to sign and be done with it to avoid the hassle. The Government Agent for Mullaitivy Rubavathy Ketheeswaran reportedly says that she does not know anything about it but that such functions can be conducted without politicians.

The response of the Commission has been to write letters to the politicians who are flouting the law, asking them to stop.

I gave on Saturday 16 Dec. at the Nallur District Secretariat in Jaffna to inform the public on the new system. A participant suggested that merely writing when laws are so freely violated is a petty excuse by the Commission to keep up good relations with the Prime minister, President and even GA Vavuniya whose good offices we need to set our salaries and conduct elections. When we write, they stop but do it again elsewhere, reducing the Commission and our letters to a joke. Why not charge them, he asked. I replied that I fully agreed with him.

Accepting unlawful nominations

In background to the problem, the Constitution in §3 defines the franchise as part of our fundamental rights. Further §104B says “It shall be the duty of the [Election] Commission to secure the enforcement of all laws relating to the holding of [elections]”.

The Local Authorities Elections Ordinance says in §8 that to be qualified as a member of a local authority, a nominee must be on the first day of June in the year of the commencement of the preparation or revision of that register, ordinarily resident in that electoral area.

I received a complaint that one Makathevan Sutharsine of NIC No. 875463675 V was nominated by the Tamil Congress for the Chavakacheri Urban Council, and that this person is not registered as a voter under that Council area. I checked up and found the person not registered anywhere in the Island. So, I passed the complaint on with a recommendation to reject the nomination.

However, the nomination was accepted along with, I understand, many others to other Local Authorities of people not registered in those authorities. It was explained to me that the long practised position of the legal division of the Commission is that §31 of the Local Authorities Ordinance gives reasons for rejecting nominations, and that the reason of not being a resident of the local authority is not among the reasons. The Legal Division adds that it is not really a serious problem because if the person is elected, the jurisdiction of the courts may be invoked to get the person removed the way Ms. Gita Kumarasinghe was removed as an MP for Matara.

Here is how §31 (1) on the Rejection of nomination papers reads: “The assistant returning officer shall, immediately after the expiry of the nomination period, examine the nomination papers received by him and reject any nomination paper that … [ listing the reasons, etc.]”.

My position is that this list of §31 (1) is not exhaustive because it does not say “reject only any nomination paper that … etc.]. As it is, thanks to the Commission, people will vote for this unqualified person and waste their franchise violating their fundamental rights of §3 of the Constitution cited above. Further, if elected, it will take another two to three years for our lazy courts to finish hearings – it took that long to remove Ms. Kumarasinghe after paying her as an MP with perks like car permits which most MPs sell for Rs. 2.5 million. In the meantime, people will be deprived of an elected representative while an imposter will parade as their representative. Is this not the worst form of violation of franchise?

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