Are we a Democracy? May be?

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BY S. Ratnajeevan H. Hoole-June 7, 2018, 10:28 pm

Counting votes is just one aspect of democracy

On the face of it, we exercise our franchise, vote and often turn out governments. We have retired public servants working as election staff. By all accounts they are very honest poll workers and the result is inexorably the will of the electorate.

However, there is a lot more to democracy than taking a good record of the will of the electorate. There are related issues: Are people whom we would really choose as our representatives able to contest? Here the answer is often no, because of the cost and dangers of campaigning; and whom we choose are our second choice.

No democracy without the rule of law

Do we operate under the rule of law? No! The Seventeenth Amendment was enacted and became the law. It provided for a Constitutional Council to appoint an Election Commission, and other independent Commissions.

However, both Chandrika Kumaratunga and Mahinda Rajapaksa failed to implement the law. Nothing happened. Neither broke the law. They only defied the spirit of the law, and indirectly broke the law. This is the Sri Lankan style of breaking laws – not to do what it expects of us. No law said the President had to appoint the Constitutional Council. Similarly, when war criminals and thieving politicians are protected, there is a failure to do what the law expects.

The law and election officials

Does the law protect those who conduct elections? We have Assistant Commissioners who were assaulted by politicians years ago without due prosecution. Only one man stood up and used a private plaint. Last I heard he was still spending his money on it. When officials are not protected, they cannot do their work.

As an election official, I came across a complaint that an election campaign was launched from a temple. The KKS police when pressed by the complainant (a rival politician) filed charges before the Mallakam magistrate against the priest and not the politicians. Usually a priest would bless anything given to him – here the manifesto notices – so he was discharged. When the Commission pressed the police, they charged just one of the politicians leaving out the big guns who were at the temple. There were photographs of the event. The politicians themselves had boasted of the release of the manifesto from the "famous temple" in their Facebook pages. Articles appeared in newspapers. The police had all of these. However, they merely placed these in the file but the B-report to the magistrate did not mention this.

Angry at the Commission, although I was not the complainant, summons were supposedly served on me and untruthfully reported as such to the Magistrate by the OIC.

An attack was launched on me in court as having run away in fear despite the summons. The Magistrate thought that a Christian should not be involved when the offence involved a Hindu Temple! The one politician charged was discharged after the magistrate had launched his own diatribe on me.

The one man charged threatened me: "Until 10 February. 2018 you do your attacks. On the 11th attacks on you will begin. You be ready to face them. We are saying this pleasingly with responsibility. If you pull us into dirty work, we too will not let it/you be."

The TNPF issued a press release giving the speech, and photos. TNPF Lawyer K. Guruparan stated malicious untruths about me. I was fearful. I complained to SSP/Jaffna who said it was not an Election Offence and he could act only if it was. So he asked for two weeks to consult the AG.

As a senior policemen, he should have known it was a criminal offence under Section 186 of the Penal Code: Threatening a public officer and preventing him from doing his duty. I stet shame because of the alleged Christian bias I had been accused of in many newspapers. I stayed indoors to avoid meeting people and could not do my work.

Two weeks passed. Nothing. With elections round the corner as February 10, 2018 approached, I left the peninsula in fear, doing limited work from our Kilinochchi, Mullaitivu and Trincomalee offices. I could not avoid election day. So I came to Jaffna Central College, the elections centre. I was shocked to see this man who threatened me entering the office where I was and glowering at me. That evening, I was seated next to GA/Jaffna, the Returning Officer. The area was prohibited to that man because he was a candidate but he was walking up and down looking at me. The GA noticed this and had him removed.

Mallakam tricks again using the Police?

Next, I was invited by one Nandalal to the CID Special investigations Unit – 1 in Fort to record a statement. I went to Colombo for our appointment at 2.00 pm, After I had reached Colombo I was told by Nanadalal that he could not record my statement in Tamil so I should go to one Mohammed in Jaffna who knew "very good Tamil." In Jaffna I was informed by Mohammed that he spoke good Tamil but cannot write. I reached back to CID HQ in Colombo and I was told that there was no need for a statement, that the case B/R 201/2018 would be called on June 11 and I would be notified.

Today, June 7, 2018, no word yet. The Jaffna Police say they have informed the Commission. The Commission has received nothing. The Commission has written two reminders to the relevant DIG. No reply. The Commission sent our Jaffna’s Deputy Commissioner to ask court for the papers. He was told that the case has not been heard and we should wait. He asked the police and he was told to ask Colombo.

The Commission is unable to brief our lawyers. We do not even know if we are respondents. The hearing is on Monday. I do not trust our law enforcement. We can see how those who took bribes in the bond scam are protected. At a smaller level, we have a house in Colombo which is occupied by a doctor who refuses to leave and pays no rent. A case initiated last year has not been heard even once. Why? The Fiscal says he cannot find the man who runs a busy practice from our home. I am told that the usual court practice is simply to paste the notice on the door and that suffices. However, the court then asked for service through the Grama Niladari. That also did not work. When my lawyers approached the Fiscal and the Niladari separately, they both said "We will serve papers but look after us." It is a game of who looks after them best. Anyway, how can a Fiscal be blamed when the big guys are raking money in by the millions.

Coming back to Monday next, it seems that all the tricks that worked in Mallakam are at play here. Against legal advice, I have written to the Jaffna magistrate to ensure my views are heard.

Post elections

Usually Election Observers come for elections and are gone in two weeks after giving their ++ reports. What is not seen is what happens to election complaints. It takes two years to see what happens to them. There are thousands of complaints. Things like putting up illegal posters are quickly resolved through minor punishments and are harped on. There are, however, some complaints against major players. I see no action. It is these that tell us if we are a democracy or not – whether the only people allowed to break election laws are those in power as when the UNP "treated", in defiance of election laws, by offering millions for Buddhist temples during the LG elections. Immunity for some, breaks us as a democracy.

Meddling close to elections

Let me finish by quoting from the Commonwealth Secretariat’s, Election Management: A Compendium of Commonwealth Good Practices, 2016:

"During the run-up to polling, it is therefore important to be wary of attempts on the part of the executive […] to amend the legislative framework or regulations."

Our failures are because of what officialdom failed to do what was expected of it, rather than in breaking of the law. The last local government elections were not held and our franchise robbed by undertaking changes to the law when elections were due, and then using the Supreme Court to block elections. It was a case of using the law to thwart the law.

Now we have the Provincial System laws meddled with again to delay elections – saying the mixed system the government bull-dozed through, ignoring standing orders, needs change again. The delimitation for these Councils though done, has not been approved by Parliament. So the Commission cannot implement the law for PCs without electorates.

Paraphrasing the Commonwealth, "Democracy involves the use of clear, predictble processes with uncertain outcomes. In a non-democracy, the electoral process is characterized by unclear and uncertain processes but with predictable outcomes."

Our process is uncertain because we do not know when our government will approve the delimitation. The predictable outcome is that we will have no provincial government until the government thinks it is ready to face the electorate.

We are no democracy.