17 November, 2018

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A Sound Electoral Justice System For Sri Lanka

By S. Ratnajeevan H. Hoole

Prof. S. Ratnajeevan H. Hoole

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.

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Latest comments

  • 10
    0

    Should this person not recuse himself from the election commission as he nurses a bias against the Hindu Tamils and cannot do justice to them?

    • 0
      3

      @ mama singalam, listen up you fag boy. did Thalaivar care about hindu Tamils vs Christian tamil. NO. thalaivar only care about Eelam Tamils vs Tamil traitors. are you a patriotic eelam.Tamil or a traitor of Tamil Eelam who needed to be taught a lesson. do not ever again drag religion into Eelam tamil matters, or else you will plead mercy before us not from mouth, but your ass. Pottu Anna is alive and we will soon catch tamil traitors. Tamils quest for Tamil eelam

      • 1
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        Eelam or death? It’ll be death then. Enjoy.

        • 1
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          taraki

          “Eelam or death? It’ll be death then. Enjoy.”

          The death didn’t come cheap for the Sinhala/Buddhists, 30,000 death, 26,000 seriously crippled, billions of dollars wasted, forgone development, maintaining 300,000 unproductive, unemployable war criminals, about 50,000 army deserters trained and ready to kill, I lost count of those missing in action, social implication of the war on victors, ………………. obligation to Hindia, USA, China, Pakistan, ………………………. lingering war crime investigation, ……………..

          Rejoice, rejoice, rejoice

    • 0
      2

      Dear much respected Mama Sinhalam,
      .
      It is true that THIS Hoole is a strange guy, but at least we know where we stand with him, and I have no doubt whatever that he’s honest.
      .
      Yes, I feel that it would have been better had the Good Lord made him more circumspect, but I think that the country as a whole must be grateful that he exists. When it came to the actual conducting of the election, the three guys on the commission have done a good job, and been independent.
      .
      What should now be done is to get all political parties to clearly display their constitutions, which the Commission must obviously have. But they may not have the authority to compel that.
      .
      It is the two large parties drawing support from us, Sinhalese, (the UNP and the SLFP, and now the SLPP) that are most to blame in this respect. There just isn’t any democracy within them. It is they who have ruined this country, although we like to blame the Tamils for that. Do what you can to help us in this.
      .
      We do need help in that. I hope Hoole, Abeysekera, and Deshapriya do what they can to straighten out the electoral process, and get Provincial Elections held in October 2018. That should be our next task.
      .
      Meanwhile, I share your exasperation that this brilliant over-grown schoolboy, cannot stick to what is most relevant. We know that he may irritate good Hindus; could you please settle all that up in the North. Be sure that if you find him dishonest in any way, we guys will stop applauding him.
      .
      It would help if all his critics would be more open. Although I don’t know who you are, Mama Sinhalam, your criticisms don’t ever cross the line.
      .
      As for us, can’t you Jaffna guys give us a few more fellows who are as candid as this guy. They do a lot of good. We, for our part shall pray that they learn to be more prudent.
      .

  • 5
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    Is there a fully functional EJS anywhere in the world? My guess is NO.

    The question is who or what should change for things to be just and fair. Is it the Man or the System? Fact is, however sound and fool-proof the system is, if Man does not change, there will be little or no difference. The adage, “the more things change, the more they remain the same”, comes to mind.

  • 3
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    Prof.SRHH, it is true, however, people has lost confidence in our judicial system. Legal luminaries appear to be leeches. Concerned professionals must come forward to chase the rouges away.

    • 4
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      Ad
      Do you trust the professionals? Legal luminaries are professionals too.
      Formal education means very little in these matters.

  • 0
    0

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

  • 5
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    The writer picks on what are symptoms of a major disorder, and that too selectively.
    *
    The parliamentary system is fundamentally flawed and discriminates against various minorities: ethnic, religious, caste, political etc. In some systems, there is room to accommodate political minorities. India has provision to accommodate oppressed castes, but not strong enough.
    *
    A majoritarian political system cannot be democratic. It leads to rule by a small group in the name of a majority, and involves stirring identity-based hostility.
    The undue influence of the media, mostly controlled by the wealthy and mainstream news delivery dominated by global monopolies, and the high cost of electioneering etc. are designed to subvert any democratic principle.
    *
    If India can elect Modi and the US Trump, what has bourgeois democracy to do with the interests of the public?

  • 0
    0

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

  • 5
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    SRH H goes all the way to Round Table Conference in Jakarta to stumble upon the words “Electoral Justice System (EJS). He then falls back on ~ “……….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…….” .
    Remember the President of Indonesia Joko Widodo caved to the demand “Jakarta Mayor must be Muslim”.
    .
    We can talk EJS till the cows come home but our fundamental problem is not EJS.

    • 8
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      K. Pillai,

      Another article that makes one wonder if the author is driven by an earnest desire to address a challenging social issue or if he is driven by self-serving, pat-on-the-back needs, leveraging an issue that he stumbles upon!

      The less said the better in terms of comprehensives, considered treatment or compelling insights. Reads more as a trip-report, picture and all. However, who am I to make that “quality’ judgement? There are few, perhaps many, who “love to read anything Jeevan writes”, and others who would want us all to stand up and clap!

      So let me cut-to-the chase thus saving much aggravation – both to the author and to myself!

      Here is my beef. In one of Jeevan’s recent articles he rightly praised two young researchers for their excellent work in isolating “poor English training” as the primary cause of the alarming decline in performance by Norther students at the University entrance exam. His remedy – sack the VC! (The fact that Jeevan had previously fought hard for that same appointment was only a coincidence!!)

    • 7
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      Continued…
      Anyhow, as far as I can tell, if the society was not going to boot the VC, Jeevan had no further interest in that cause of improving English at grade schools. (to be continued.. only because of the 300 word limit)

      Another case was of Jeevan’s chest-thumping victory over the illiterate Vavunia ralahamy over a $10 speeding ticket. Jeevan took on the fight armed with his own Harvard publication on high-end electronics as well as the constitutional legal back ground on the use of non-Tamil speaking guardian of law in Tamil areas. But having saved himself his personal $10 (yes, the judge ruled in Jeevan’s favour, although not because of the excellence of the mind-boggling scientific and legal defence of the defendant cum defense attorney, all in one! The ralahamy lost because he did not have a live-recording of the travel speed)

      I am still to hear of any initiative thereafter from Jeevan towards solving the rest of the social issues highlighted in that article praising Jeevan’s victory – equipment quality concerns, training needs in equipment handling, bribery, legislative language compliance, etc.

      Here is my hope. Hope Jeevan proves me wrong!

      If Jeevan is earnest, Jeevan would, now being better informed on EJS ideals, take the responsibility to actively pursue initiatives towards improving EJS! Looking forward to reading on such initiatives. I can only hope that this issue too does not just fall by the wayside having served its rather less-altruistic purpose.

  • 4
    0

    for me this looks like another EVANGELIST plan for domination of Srilanka. Spy agencies fro develop countries are looking for NATURAL JUSTICE which means the hegemony of their system. I think Hoole is working to get the advantage for protestants. so that influential countries can have their way.

    What are these ELECTORAL RIGHTS because every NGO, Every protestant group ask their rights. Now Even the trade unions want to be in the parliament. why they do not trust politicians or they want public money protestant campaign ?
    I heard Phillip Gunarardane – a Hero in socialist politics built a Wallawa and mad the family filthy rich while LEslie gunawardana a good politician was neglected in a some corner in Srilanka.
    I feel what you indirectly asking is bring the laws to prohibit Gotabaya Rajapakse contesting the presidential elections. It iwll be like writing the constitution. Once started ORmiththa Nadu and Equal places to every religion came in it. So, if they a building a legal frame work, HOOLE may become one of the chief editors
    You have included even the politics between Catholic and the Christian church. So, I can understand how sophisticated the watching of the system by protestants. My concern is why you took only the Christians, Catholics and Hindus. Are there any other groups who need to be considered.
    Another point is Protestants are rich people from different countries; e.g; Evanglists, Anglican. Even the catholic church should have support from Vatican which has a bank. What about dutch Catholics, Portugeuse catholics, they may have support from the respective countries.

  • 2
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    If there is a Acceptable over all justice system, the need to have EJS will not arise

  • 0
    0

    Jim Daha, You are obsessed with evangelists, protestants, anglicans and catholics in a rather irrational manner. Did you have a traumatic event in your youth, perhaps in a hostel. There is inner healing available ironically in church itself, the mixing of the good and the bad.

  • 0
    0

    In case of connected to view of Jim Softy……
    Sri Lankan electoral system and representative mode of voting system has been distorted and undermined sovereignty order of people by 1977 UNP-JRJ.
    Therefor since 1977 our people and their major political parties has not put into Right direction that re-dress deficit of right vote by last 40 years.
    By and large major political leadership and its parties of that UNP avoided crux of issues voters and SLFP neglected by own party interest of CBK and MR during their 20 years rule of Island !
    Then to nowadays since 2015 January 8th by later MS, RW and CBK of so-called “Rainbow revolution” has closed Right to voters by “good governances and rule of law” by an advices from IMF and World bank as well as, the USA UK and Indian Embassies in Colombo officers of vital interest of Western diplomacy?

    Indeed that wrong doing of norms of democracy by re-introduce of new politics of Neo-liberal policies of UNP since 2015 January 8th has been hijack Right to votes-sovereignty by more back into money oriented politics other than consciousness of rising vote by sovereignty franchised.

    The consequences undemocratic methods of system of voting of that political corruptions has grew an unprcedently scale of that penetrated into Electoral system of Island voters and their sovereignty by UNP moved for undemocrcay fundaments, which that money played key role of politics and policies in members of Parliament.
    The current regime of MS RW and CBK indifentealy postponed right to voters in local and provincial council elections undated by UNP of Ranil Wicks’s of by so-called champion of that UNP “liberal Democracy” .
    We are in level of loosing Right voter of People sovereignty after 80 years since 1931?

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