Electoral Justice Defined
I 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.
Features of a Sound EJS
A good EJS must be adaptive to change. Is the system adapting to the new demands thrown up by the possibility of electronic voting and hacking, and to the social media with hate speech and fake news?
Among the set of principles, values, and guarantees necessary to make the EJS fair and effective are
a) Lawfulness: This includes compliance with our International obligations. Although there is a genuine desire to address the issues of those who are handicapped, the recent positive change towards quotas for women that are being sought to be reversed for the provincial elections shows that what we Sri Lankans exhibited was lip service to the women’s rights of CEDAW. No one talks about the rights of bisexuals and their role in quotas for women. Much worse is the lack of punishment when Muslim Mullahs insult women who contest elections. Politicians who campaign from temple premises are not prosecuted. A proper EJS must not bow to social pressure to spare religious leaders and big-name politicians who break our laws. Prosecuting lowly employees who put up posters is like Jack Horner “who pulled out a plum and said ‘What a good boy am I’.”
b) Rights protected: Does our EJS do that? I know many whose rights were violated and are too timid to sign their name to a complaint. Our society is so vindictive when “big people” are accused that no one will come forward to give justice to victims.
c) Clear and comprehensive Laws and Jurisdictions. When there is an election complaint, the police, the judiciary, the Commission and the Attorney General are involved. Most people do not know the difference. The required education on where to go is missing. The police I am aware have prosecuted serious violations in such a manner as to ensure dismissal of charges. As IGP N.K. Ilangakoon agreed, the police are influenced by bribes. The Commission has been reluctant to prosecute the Prime Minister saying nothing will happen and that the Commission would lose face if we tried. The Attorney General has divided loyalties when the government violates laws and the Commission asks the AG to prosecute big politicians.
d) Decisions accepted: Do people have faith in our EJS? The public really has little confidence in the judiciary after a former Chief Justice publicly boasted of having given a judgment to help the then President. A magistrate ruled that a Christian on the Commission cannot call for prosecution against a party that held a political meeting at a Hindu temple because it would harm relations between the Hindus and Christians. It escaped the judge that as a Roman Catholic ruling against an Anglican, by his own logic, he should have recused himself from the case to avoid reopening historic wounds between the two churches. When the public has such little confidence in our judiciary and is shamelessly doing favours to friends, no one will want to ever ask for electoral justice. We need a special court.
Yet another aspect of a good EJS is the professionalism of those in charge of elections. This professionalism should include Codes of Conduct for Election Officials. For example in Fiji’s elaborate legislated ethics code, a person on the Commission is prohibited from contesting elections for five years after stepping down. In contrast, we have no code, and only a warped sense of ethics, with some claiming that finding fault with a party in violation of laws is being politically partial, whereas it is the job of an election official to expose wrong-doing, and to name and shame violators. Is a policeman stopping a criminal being partial?
Treating the public with respect is a part of that code and professionalism. From what I have seen we do well here. A well-trained cadre of staff and officials is the hallmark of a good EJS. Here again we do well with frequent training sessions for our officials, thanks to foreign funding.
Continuity of staff between elections adds to the professionalism of the EJS as they acquire experience. Here we do badly because the high workload makes many officials with experience seek to leave the Commission. Few women are willing to work at the Commission once they marry. In the meantime, the few women at the Commission bear the cruel, sexist joke of being labelled “The Virgins.”
Perhaps the most important aspect of a good EJS is its accessibility to the public. If citizens feel their rights have been abridged, is it costly for them to seek redress? There is little cost in righting trivial offences. If a notice is put up where it should not be, complaining to the Commission will get quick and effective remedy by sending someone to remove the notice. So also when loudspeakers are used in late hours. Big deal, I say.
For serious violations that really matter, there is no cheap justice. As explained above, if a person whose nomination papers should obviously not have been accepted, has them accepted and wins, the complainant has to file costly legal action. Most people will simply go away. Why should they spend their personal money for what is really a public matter? Many minorities do not even like to enter a police station after the President described the murderers of Mullivaikal as national heroes. The police are all too easily bribed. Why bother to complain to them?
The obverse dimension of access is the ability of all to contest as candidates. The cost of contesting was brought down when we switched from district basis to wards. What remains to be done is to limit campaign spending and institute campaign financing by the state.
Finally, the officials of an EJS need to be independent. Are they? The 19thamendment to the Constitution that introduced the Election Commission has gone only so far in shifting the responsibility from one person to the Commission. Because of transport and housing restrictions through which the government controls the Commission, most meetings with the government are only with the chairman rather than with all commission members together as in India. In the Indian Commission on which we were modelled, I am told that every paper is signed by all three members. Here the government calls only the Chairman for discussions. Even the opposition gets meetings by showing up at the Commission like before and speaking to the Chairman instead of making an appointment with the Commission. Few know of the Commission and think there is only a Commissioner of Elections (who does not exist) because new enactments refer to the Commissioner and not the Commission.
A measure of how independently the Commission can act is seen in the following: 1) When a State Minister carried out an election meeting at a Hindu temple, the written complaint got lost. 2) Mr. M.K. Sivajilingam complained that the UNP was “treating” by allocating millions of rupees for Buddhist temples during elections. No acknowledgement yet of his complaint or signs of action which must be cleared by the Attorney General. Fat chance, I say! 3) Mr. Angajan Ramanathan’s youth front offered prescription medicine at a government hospital in envelopes with his political advertisements. As usual, the hospital pharmacist was issued a “don’t do it again” warning. He did it again because of the well-understood immunity to bigwigs.
The most dangerous part of the deeply vitiated independence of our EJS is in the government making terrible laws – terrible both in concept and such bad grammar as to defy interpretation – without consulting the Commission. As a result of the numerous mistakes local government elections could not be held in time. It is still not clear if dual citizens can be candidates for provincial councils.
It is time to establish traditions for the Commission whereby every decision is by the Commission and every document is open to Commission Members, and to give access to Commission Members to their offices round the clock. This needs doing before we go out of office in November 2020 – or present practices will become the tradition for future Commissions. It is time to enact new laws with proper, all round consultation.
We must ensure a sound Electoral Justice System for Sri Lanka. Until then our elections will be well-administered, but neither free nor fair.