I refer to the article carried in the Island today, 26 April, 2020. This response was sent to the Island as Right of Reply but is published elsewhere when the editor Prabath Sahabandu failed to respond to many messages. The article is rewritten for Colombo Telegraph.
The Island says I am under criticism for saying “that it was only the President who could avert a constitutional crisis by seeking the Supreme Court’s opinion with regard to holding an election in a situation where the spread of the Coronavirus disease had not been brought under control.” That was a unanimous Commission decision to postpone the poll date. That only the President can seek an advisory opinion from the Supreme Court is from our Constitution (Article 129(1)) – not from me.
Onus of Averting a Constitutional Crisis
Regarding avoiding a constitutional crisis, it is unfair to put the onus on the Commission. Given the COVID-19 crisis, we cannot hold elections in time for Parliament to meet on 2 June as required. We cannot fulfil an impossible job. But the President can cancel his own order of 2 March as provided in Article 18 of the Interpretation Ordinance that would restore the status quo ante. All that flowed from it – the dismissal of Parliament and the nominations – will be null. Alternatively, the President can recall Parliament temporarily under Article 70(7). Parliament can fix all the ongoing illegalities (particularly the curfew and funds being drawn without the authorization of Parliament). I prefer this because the first option can become a precedent for future Presidents to cancel polls without good cause upon realizing their party is going to lose.
Irresponsible Writers: Three Equal Members
Further, we have no Chief of the Election Commission as in the Island. All three of us are Members, but Mr. Deshapriya is additionally Chairman. Although he has a second vote when there is a tie, that has not happened so far and is very difficult to happen with only three members. It can happen only when one Member, other than the Chairman, abstains and there is a 1-1 vote. At that point, the Chairman will have a second tie-breaking vote. We, therefore, effectively have only one vote each. Lazy references to the Chief of the Commission as well as Head of the Commission, or even Election Commissioner (an all-powerful post now no longer in existence evoking imagery of an Elections Czar) in newspapers hurt the independence of the Commission and show the caliber of research by media. A lot worse are references in newspapers to the effect that “The Ball is now in the Election Chief’s Court.” These give impressions that we, the other two members, are impuissant with no part in decisions.
Perhaps it is easier to target and single me out for the decision to postpone elections. A Hiru program on 20 April night with the Chairman participating referred to my dual citizenship and my being motivated by my Tamil ethnicity. When asked about my dual citizenship, the Chairman could have said there is no legal impediment to my being on the Commission. But he was silent and thereby gave the impression that my appointment is illegal. The Chairman, at one time owed allegiance to the JVP, which then was committed to the violent overthrow of our elected government. At that last Commission meeting on that same 20 April morning said he is loyal only to one country and has not sworn allegiance to other countries. I do not know if he was sniping at me, or Gotabaya and Basil Rajapakse. He has promised to apologize at the next meeting, but the damage is already done. I swore to uphold the laws and constitution of the US. I have nothing to be ashamed of.
So, in theory we are all three equals, with equal decision-making powers as Mr. Deshapriya himself has recently begun to articulate (NewsFirst, 24 April evening news-bulletin). Yet, he takes one-man decisions and then offers empty platitudes like this. As the presidential election began, he openly said at a Commission meeting that he conducted the Local Government election, but this will be done by the Commission. Then he proceeded in the old style – independently giving “Commission orders,” for example against ITN and cancelling the observer status given by the Commission to CaFFE.
Prof. G.L. Peiris on the Nineteenth Amendment
The 19th amendment (the part about the EC) was a great initiative. However, the last parliament of 225 MPs goofed by putting in a quorum of three with a Commission membership of three. That means if one of us falls ill, is kidnapped, or is otherwise deterred from attending, no election can be held. Adding to our woes, Prof. GL Peiris has crossed lines in The Island (2 March, 2020), saying there is a saboteur in the Commission who by not attending Commission meetings can disrupt the election. This is a reference to the quorum of three with a membership of three which he uses to denigrate the Nineteenth Amendment. In my mind, the amendment is one of the best things to come from the last Parliament where all MPs (save one nay and a handful of abstentions) worked together to pass this amendment.
However, when all three Commission members have an excellent attendance record at formal Commission meetings, I see Prof. Peiris’ comment as unworthy of a man of his intellect and an affront to the Commission’s independence . It is an improper attempt to bully us into doing what he wants – to hold elections on April 25, as in the presidential proclamation of 2 March, the same day Peiris issued his saboteur comment. So far, I have heard no one questioning his unprincipled behaviour.
Commission’s Dependence on Politicians
Another aspect of the Commission’s lack of independence, besides kowtowing to politicians, is that we are weakened by the Amendment’s stipulation that we depend on politicians for financial provisions. Our financial provisions should be overseen by a body with some integrity, like the Constitutional Council, but the last cabinet was careless in making the necessary provisions for us. Accordingly, we must ask politicians for ‘favours’ like living quarters, higher transport allowance, etc.. A car was provided only to the Chairman. As a result, the Chairman attends most discussions at non-formal meetings alone. Hence, agreements he comes to at these meetings do not necessarily have the required consent of the other two members, and often we are unaware of them – unless he segments the meeting to meet with us before deciding. Is that not why Mr. Ali Sabry’s threats to Muslims on video, a grievous election offence, have not been put to the police? In that video he says unless Muslims vote for his boss they would be thrashed. Our inaction is because we cannot ask the SLPP politicians for resources after acting against their Counsel.
With a travel allowance for the Members, we often do not have the money except for the regular meetings at the Commission premises. As a result, our executive staff serving under us have chauffeured cars provided but we do not.
Vanishing Financial Provision after Critical Article
Now, during the COVID-19 pandemic, I cannot use public transport as I usually do because of the risk of infection as well as lack of bus-service from Jaffna. Thus, for recent meetings I have been forced to persuade one of our executive staff members to come to Colombo from Jaffna in his official car so I can ride with him, although he does not need to come. It is a hardship on him and a waste of his time. It also compromises our relationship. As one of three people running the Commission, I am unable to be an example in conserving resources.
I am told there is no financial provision for me to use a Commission car as I already have a travel allowance. I have asked for that allowance to be cancelled and for me to be provided with a car, like executive staff under the Commission. But that, I am told, is not possible because Parliament sets the rules. In these circumstances, even for meetings on Commission premises, I do not have enough money in my allowance to cover my driving from Jaffna. Even if I did, I cannot be alert at meetings after that long drive. To use a Commission driver, I am told I must also pay his salary and his subsistence allowances. However, my staff who get an official car also get a driver. I am told in writing that I cannot be given a driver because drivers do not want to drive the long distance from Jaffna to Colombo and back. Where in government service can a driver refuse to drive a member of a Commission?
It is funny that the Commission’s executive staff finds financial provisions for driving us within Colombo but not from Jaffna. When I need transport within Colombo to the bus station after a Commission meeting, I cannot ask for a vehicle from our transport division, but my Secretary or the Chairman’s Coordinator can.
After the Presidential election, I raised the issue of whether polls were free. Immediately after that article, I was waiting in Colombo for my office car to take me to a meeting at the Commission as I usually do. It did not come. Then the Assistant Commissioner in charge of transport wrote to me saying, citing the Commission’s and the Commissioner General’s instructions, there are no provisions for me to be provided transport even within Colombo. But there was no Commission decision like that, although the Commission had operated for four years on a decision to provide us with transport within Colombo. No action was taken because, I believe, the Assistant Commission was acting on instructions.
Gagged at Press Conference
So, are we independent? I cannot even speak at a Commission press conference where the Chairman does not tell us what he will discuss. We two members sit on either side and I often fall asleep because my translation is inaudible when I sit next to the Chairman. After the Chairman had spoken for over an hour on Nov. 11, 2019 (I think), I wanted to express my views advocating electronic voting when postal voting was discussed. While I was speaking, my microphone was snatched by the Chairman from me in front of national TV channels and cameras. Although I have been teaching MS-level courses on Information Technology covering Internet Banking at Rensselaer Polytechnic Institute, I was insulted as having no election experience compared to Chairman Deshapriya’s 32 years, and he apologized for me on some unrelated thing. On which I owed no apology That was my last attempt at speaking at a press conference – watch from 1 hour 12 minutes, which will tell you how independent we are. After damaging me, he praised me as he always does!
Truth a Vanishing Commodity
At present the Commission scene is bad. I realize and am sure that we have not always been told the truth. I suspect that to be the case in many other instances too. Even the minutes on how we arrived at the President’s birthday, 20 June, for elections are posing difficulties.
We had gazetted 25 April as the date of poll as in the President’s Gazette of Proclamation in keeping with Section 24(1) (a) and (c) of the Parliamentary Elections Act. We did not finish our work in publishing the names of candidates and the location of the polling stations as in Sections 24(1) (b) and (d) because we intended postponing polls because the 25 April date was impossible. Although no time limit was in the Act, the ruling party was insisting we do this. Mr. Nalin Abeyesekere (the third Member) also felt it was necessary.
The Constitution in Article 70(5)(a) required the new Parliament to meet within 3 months of dissolution – that is by 2 June. To make this possible, the Chairman wanted to gazette 30 May as the date of election and to also meet at the same time the need for us to fix a date as in Section 24(1)(c) in the Parliamentary Elections Act. He wanted to then add in the same gazette that the poll would not be conducted on that date. It was rejected by the other two members as an absurdity to say the election would be on 30 May but will not be conducted on 30 May.
Moreover, I had once before been misled over the appointment of the Commissioner General. The Chairman wanted a temporary appointment. When I asked what would happen when we advertise and find a permanent person, he said the temporary person could be reverted. Later when we wanted to advertise for a permanent appointment, he claimed that the temporary person could not be reverted to his old lower position. When we insisted on advertising, many things happened which I will not go into but the temporary person became permanent.
As a result I felt if we gazette 30 May with the qualifier that no election would be held, a court decision possibly would force us to go to the polls on 30 May.
After this rejection of 30 May, we spoke of Sept. 2 (five years after the last Parliament sat) and Aug. 17 (five years after the last parliament was elected). We agreed to one of these long dates. However, after all meetings were over in the evening the Chairman insisted on a rationale “in case someone goes to court.” We agreed. He told us that since we were going to gazette the names of candidates and parties as in Section 24(1)(b) and situation of polling stations in the different districts under Section 24(1)(d) which we were yet to do, and the President was demanding we do, we must relate it to these gazettes.
Then he pulled a fast one. He said we need to give seven weeks for polls from this gazette. I should have known better but trusted his experience of 32 years. Claiming that the curfew will be lifted on 27 April and we must wait 3-5 days before concluding that COVID was in control, he worked out the gazette to be on 2 May and 49 days from then to June 20. We two other members did not know that 20 June was the President’s birthday. Make what you will of the arbitrary 3-5 days to judge that COVID-19 was easing.
Then we got down to drafting the gazette. Mr Abeyesekere was shown the draft and he assumed that it was as agreed. It fell on me to read the Tamil version carefully. It gave the poll date as 30 May. I showed it to Mr. Mohammed (former Commissioner General now acting as a consultant) and Mr. Abeyesekere. The gazette was redone with the correct date.
The essence of all this was stated as above in the draft minutes that came to me on 25 April in the night. As I read them and checked the statutes, I realized that the 49 days is not from after the gazette by us under section 24. Rather, it is under Section 10(2)(b) of the Parliamentary Elections Act, five to seven weeks after the President’s Gazette of Proclamation which was on 2 March. I felt misled again.
The Commission, Editors and journalists, Prof. Peiris, and our MPs, all need to get our act together if we want a truly independent Commission under which Sri Lanka can get the full benefits of the Nineteenth Amendment. Chairman Deshapriya has much soul-searching to do.