Colombo Telegraph

A Free And Fair Election – The Commissioner’s Role

By Elmore Perera

Elmore Perera

We, the people have a sovereign right to exercise our franchise at free and fair elections. The very last time we could do so was in 1977. Disgusted with the governance prevailing at that time, we gave J.R. Jayewardene, who claimed to be the long awaited saviour of the Sri Lankan nation, a 5/6th majority.

Election malpractices thereafter escalated exponentially. In an attempt to arrest and reverse this dangerous trend Independent Commissions including an Elections Commission with extensive powers, were provided for by the 17th amendment, a civil society initiative, spearheaded by the Organisation of Professional Associations. Sadlythe Elections Commission was never established, but those extensive powers were vested in the incumbent Commissioner of elections pending the appointment of the Elections Commission. However the Commissioner was too timid to exercise them proactively to ensure free and fair elections. His timidity was fully exploited by scheming politicians.

In the early afternoon of 26th January 2010, whilst the 2010 presidential election was in progress, a pronouncement was made by Mr.Wimal Weerawansa that Gen. Sarath Fonseka’s name was not included in the Electoral list and therefore voting for him would be futile as he could not lawfully function as President, even if elected. This was aired on several TV channels. The gullible public was naturally confused by this confident assertion which was supported by a display of the relevant Electoral List.

In a rare exercise of his authority, the Commissioner issued a statement, under his signature, that this was not a barrier to Gen. Fonseka’s eligibility to function as president, if elected. This was displayed on several TV channels, but it was too late to reverse the damage already done.

The Commissioner was seen on TV, leaving the Secretariat in the company of M/s. Weerawansa and Basil Rajapaksa at about 4.30 pm .The pressure exerted on the said Commissioner, sometime thereafter, was clearly reflected in his spontaneous address to the nation on 27th January 2010 prior to announcing the result of what has been aptly described as Sri Lanka’s most controversial and ugliest election, ever. His speech was loaded with meaning and obvious abhorrence of what he described as the worst election ever conducted by him.

Patent malpractice, in relation to the Presidential Election to be held on 8th January 2015, has soared to unimaginable heights. Clearly illegal actions have been authoritatively declared as legal. Armed only with the powers which the Commissioner had prior to the 17th Amendment, the present Commissioner confidently claims that he will ensure that this election will indeed be free and fair. The future of this nation depends on the success of his endeavours.

Acting in terms of article 31(3A) (a) (i), the President, by proclamation, “declared his intention of appealing to the people for a mandate to hold office by election for a further term”.

By Article 31(3A) (a) (ii) the Commissioner of Elections was required to take a poll for the election of the President, and he has, accordingly fixed 8th January 2015 for the said poll.

Article 31 (3A)(d)(ii) unequivocally provides that if the person declared elected as President at an election held under Article 31(3A) is not the President in office, such person shall hold office for a term of 6 years commencing on the date on which the result of such election is declared.

It is therefore crystal clear that if any candidate other than the incumbent President is declared elected on 9th January 2015, such person shall hold office for a term of six years commencing on 9th January 2015, and the incumbent President ipso facto ceases to hold office when the result is declared.

It is common knowledge that certain lawyers recently appointed as President’s Counsel, have initiated a campaign to state that even if the incumbent President is not elected , he could continue as President until 19th November 2016.

Since then, this claim has also been made by a venerable thera.

It is therefore necessary that the Commissioner of Elections should, at the earliest, as done by his predecessor on 26th January 2010, set the record straight, before any further confusion is created in the minds of the public.

*Elmore Perera, Attorney at Law – Founder CIMOGG, Past President OPA  

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