Sunday, May 6, 2018

A Sound Electoral Justice System For Sri Lanka

Prof. S. Ratnajeevan H. Hoole
Electoral Justice Defined
logoI was privileged to represent Sri Lanka at the International Roundtable Meeting on Electoral Justice, 2-3 May, 2018 in Jakarta. It was organized by the Election Supervisory Board of the Republic of Indonesia.
What indeed is Electoral Justice? We manage elections by certain rules. As developed at the meeting, ours is a human endeavor. We human actors who design, administer and participate in the electoral process will from time to time violate electoral norms. In these circumstances, the capacity of a damaged electoral process to be repaired, punish wrongdoing through the fair resolution of disputes, the just sanctioning of crimes and other illegal activity, and the correction of irregularities is the process of restoring electoral justice.
An Electoral Justice System, EJS, as defined by The International Institute for Democracy and Electoral Assistance (IDEA), is the means or mechanisms to ensure and verify that electoral actions, procedures and decisions comply with the legal framework and to protect and restore the enjoyment of electoral rights. An EJS is a key instrument of the rule of law, and the ultimate guarantee of compliance with the democratic principles underlying free, fair and genuine elections.
The lead speakers Frank McLoughlin and Therese Pearce-Laanela of IDEA, and Prof. Carla Luis and Dr. Fritz Siregar of the Portuguese and Indonesian Election Commissions respectively, put together the features of an ESJ. These are ensuring that each action, procedure and decision is in compliance with the legal framework, protecting electoral rights, and giving people who believe their electoral rights are violated the opportunity to file a challenge, be heard and receive a ruling.
Sri Lanka – Time Sensitivity?
In Sri Lanka we have almost perfected the art of administering elections while paying little heed to whether we have a vibrant EJS. The EJS process needs to be time sensitive, resolving issues quickly. Clearly, our Sri Lankan system failed this test in the Geetha Kumarasinghe case where the matter dragged on through the courts for 2 years before resolution. For that time, a person purporting to be an MP drew her salary and other benefits, and represented the people of her electoral district. Similarly at the local government elections, we had many candidates who were ineligible for the reason of being unqualified to register in the relevant ward. Yet, the Commission could not reject their illegal nominations. This is because the Supreme Court has ruled that the Returning Officer cannot reject papers except for the short list of reasons given in the election laws. We must therefore let them contest, and if they are elected, let the complainant file a case and wait for two years or more to get a verdict. As the matter plays out, some 13 members of the Maharagama Council who are not from within their wards (but were elected because we could not reject their nomination papers) allegedly sent the Commission their resignations. Subsequently however the elected members said they had never sent those letters. It is a mess that defies resolution. The people of those 13 wards lose because there is no effective EJS.
Supreme Court: Infallible?

If we had a proper EJS, we would re-canvass the Supreme Court decision saying that because the Election Commission under the constitution has the duty to uphold all election laws, we must be allowed to reject papers for reasons other than those explicitly listed as reasons for rejecting nominations. This situation where the Commission accepts a clearly wrong Supreme Court decision shows there is no EJS. Surely, a Commission must be confident of its reasoning, no matter what the Supreme Court says, and be prepared to argue its views before the court or parliament rather than feeling inferior to challenge the Supreme Court.

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