By Elmore Perera –

Elmore Perera

The frequency of elections does not necessarily imply prevalence of “Democracy”. Even dictators such as Adolf Hitler, Saddam Hussein and Robert Mugabe held elections in which they claimed to have won almost 99.9% of the votes cast.  It is a democratic principle that regular elections should be conducted for the public to elect their representatives. This purpose is not served by staggered elections as the party in power has the undue advantage of declaring elections for their convenience and political advantage. The democratic verdict of the people is inevitably distorted due to exploitation of Public Servants and misuse of State Resources by the party in power for election purposes.

The refusal of the former Elections Commissioner to come clean re the “Computer Jilmaat’ that marred the 2010 Presidential Election, leaves many Jilmaat related questions unanswered.  It is refreshing to find that at least one Editor of the local media had the guts to warn the hapless public of a “Propaganda Jilmaat” that renders the PC polls of March 2014 a farce. He has boldly opined that the Government cannot dupe the public into believing that the Janahamuwa was not part of the UPFA’s polls campaign. “It was a propaganda Jilmaat ….. It is inevitable that he (the President) is seen to be unfairly using his office to advantage in an electoral race.” This is admittedly immoral. Notwithstanding the fact that the Supreme Court has interpreted (contrary to the decision of the 9-Judge Bench headed by Samarakoon CJ in 1983) that the President enjoys legal immunity, the President’s act is not merely immoral but also clearly illegal.

Guideline 10 of the guidelines issued by the Elections Commissioner states that “coverage given by Radio and TV to views expressed by the President, Prime Minister and Ministers using electronic media should be treated as coverage received by the party in power”. The Polls Chief has stated that the Janahamuwa telecast on March 6 on state run Rupavahini and ITN is covered by the said guideline 10, and therefore Leaders of Opposition parties too should be given similar programmes. He has written to Presidential Secretary Lalith Weeratunga requesting him to facilitate programs similar to Janahamuwa for the Opposition and stated that he would also write to Secretary  Charitha Herath re Opposition Programmes on State TV Channels. He has, however, for rather obvious reasons, declined to even call this an unfair practice and instead advised the complainants to move Court – an entirely futile exercise  in today’s context! This act of the President is not only immoral, it is also clearly contrary to law and illegal.

In its role as “Guardian of the Constitution”, the Supreme Court of the Maldives recently sacked the Elections Chief, following a chaotic election. Regrettably, the Supreme Court of Sri Lanka in its exclusive role as “Interpreter of the Constitution” has, contrary to the decision of the nine Judge Bench headed by Samarakoon CJ in 1983 (and therefore per incuriam),   vested the President with blanket immunity and abdicated its role as “Guardian of the Constitution,” thereby leaving ample room for abuse by the President himself and by the Ministers and State Officials who act on the directions of the President.

A front liner of a party which campaigned vigorously against an alleged massive fraud of the UPFA Prime Minister, launched his election campaign on a platform of Good Governance, under the distinguished patronage of a public servant. On representations being made of this patent violation of the Establishments Code, the Elections Chief initially made some appropriate noises but was soon silenced by the assertion that as a political appointee the said public servant was not subject to the restrictions specified in the Establishments Code. This particular candidate has since been rewarded for this display of good governance by being nominated as a Chief Ministerial candidate of the UPFA. In gratitude, his party now advocates “Benevolent Dictatorship with Limited Democracy” for good governance.

The Minister of Public Administration is deemed to be aware of the fact that any public officer deprived of political rights under the Establishments Code engaging in political activities shall be deemed guilty of misconduct of a serious nature punishable under the said Code. However, without bringing this to the notice of the President, this Minister has attempted to exculpate himself of any blame by stating that “taking action against Ministry Secretaries who got on to political stages in support of candidates contesting the PC elections was a duty of the President and did not come under his purview” The entire public service is firmly under political control and the country is paying the price.

The Provincial Councils Act, inter alia, prohibits maintaining a propaganda office without anyone in it for 24 hours, and displaying a banner, poster or cut out in any place other than the registered Campaign Office of the candidate. It also bans the congregation of more than 15 supporters. Hefty fines, prison terms and removal of civic rights for 7 years are prescribed to be meted out to offenders. However, Ministers have blatantly violated election laws by opening more than one office per electoral division. At many such offices liquor is freely served and candidates brazenly bribe voters with exercise books, text books, mobile phones, Laptops, cement bags, bicycles, loan application forms, dry rations, etc. Ministers freely misuse the State Resources in their Ministries. Grama Niladharis, Development Officers, employees of Agricultural Institutions, Principals and Teachers, Local Government employees, Railway employees and other Public Servants are freely used for election purposes.

Clause 68, Part VI of the Provincial Elections Act provides that “no person shall, on any date on which a poll is taken at a polling station under this Act, do any of the following acts within the precincts or a distance of half a kilometre of the entrance of that polling station: canvassing of votes, soliciting the vote of any elector, persuading any elector not to vote for any particular political party or independent group, or distributing or exhibiting any handbill, placard, poster, or notice or any symbol allotted under Section 20 to any recognized political party or independent group”. Describing this as a highly obstructive electoral law, a Minister has opined that no election campaign was possible if this law was observed to the letter and stated that he is even contemplating filing a fundamental rights violation petition in the Supreme Court, with the concurrence of the General Secretary of the UPFA. He seems to have the tacit agreement of the President himself for this course of action.

Election Monitors have stated that the 2014 WP and SP Council poll is “the most disturbing election since 2008”. The number of complaints of election related incidents received during the Northern, North Western and North Central PC elections in 2013 was 579. However, by March 8, 3 weeks prior to election  date, 635 complaints had already been received, mainly re misuse of state resources by governing types and obstructions to the campaign of candidates opposed to government candidates. An election killing has since been reported.

Coincidentally (?) the PC polls have been scheduled for the day following the date already scheduled for the voting on the US sponsored resolution in Geneva. The 10-day long signature campaign to protest against this resolution, to be conducted in the 6 districts involved in   the PC polls, commencing from Tangalle on 14th March, could hardly have been an afterthought. In response to numerous protests, the Elections Commissioner and the General Secretary of the UPFA have both agreed that this signature campaign was a violation of election laws and assured that they would prevent it from being held, thereby apparently thwarting a campaign that is unlikely to have been arranged without  the blessings and patronage of the President himself. Not to be denied, the President is actively engaged in allied activities to achieve the same result.

The Elections Commissioner has asked for Rs. 200 million to remove posters, banners and cut outs, and also additional Police to avert clashes. He has advised the media not to take sides and even declared that government vehicles used illegally for election propaganda will be taken into custody by teams deployed by the Elections Department. He has stated that special teams will be set up to counter the abuse of government vehicles, and that the full force of the law will be used to counter illegal election activities. He has even warned a powerful Minister to be aware of the fact that, as a person “born beyond the Bentara river” (where the President himself was born) he knows what to do if the Minister shouts too much.

The generally clownish demeanour of the Polls Chief, and the ever-widening gap between his words and his deeds, do little to allay the seething disillusionment with the conduct of the election process in Sri Lanka. Fears are increasing that voting is futile for the simple reason that a hitherto unknown Jilmaat will inevitably distort the verdict of the people. The conduct of the Polls Chief makes it imperative that the candidates and the Parties they represent, should spare no pains to anticipate the possible Jilmaats and then take all possible precautions to thwart same. If the Polls Chief is already aware of or becomes aware of such moves, and feigns ignorance, he will certainly not emulate his predecessor who spontaneously and truthfully asserted in January 2010, that “This was the worst election I have ever conducted!”

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