2 June, 2020

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Democracy In Crisis: Avoiding Dictatorship

By S. Ratnajeevan H. Hoole

Prof. S. Ratnajeevan H. Hoole

The President on 2 March, 2020 by Gazette Extraordinary No. 2165/8legitimately dissolved Parliament from midnight and fixed 25  April, 2020 as the date for the General Election.

While the proclamation was legal, it was poorly thought out because it was made well after the Covid-19 outbreak had begun. Passengers at many international airports like Kuwait were being tested for fever before letting them enter, but our government seemed hell-bent on holding elections, even inviting tourists pooh-poohing the crisis.

Our Senior Regional Management Staff met the Commission at our Secretariat on 11 March and told us that 25 April was just too soon. There was insufficient slack time to recover from problems. They said that while our staff would come, other government staff cannot be prevented from taking leave during the local new year and Vesak.  They pleaded with us to advise the government to move the election date back. But Chairman Mahinda Deshapriya who has many conversations with the government in the absence of the other two members was adamant.

On 16 March our Senior Staff were back. Many people whose services are usually commandeered by us for election work had not turned up on Monday the 16th  after the government declared it a holiday because of CoVID-19. They pleaded with us to tell the government to move the dates back. Commission Member Nalin Abeysekere and I agreed but Member/Chairman Mahinda Deshapriya refused. He argued that if we postponed elections the people would panic just as they had panicked when that day, Monday, had been declared a holiday for CoVID-19.

After much argument on the 16th, it was agreed that April 25 for the poll was impossible but that the Commission had no power to postpone nominations. Only the President could do that by cancelling his own gazette announcement but Mr. Deshapriya was insisting that April 25 is possible. It seemed that he was afraid to disagree with the President.

Here is the strategy that was finally agreed on. It was decided to accept nominations as announced, and then gazette the names of candidates and polling booths as required in Section 24(1) of the Parliamentary Elections Act of 1981.

At this point the EC gets it within its power to postpone polling under Section 24(3) of the said Act which provides for postponement of polls “due to any emergency or unforeseen circumstances” in any district, but can be used to postpone polling in all districts. The new poll date has to be “not earlier than the fourteenth day” after the postponement order. To do this postponement, nominations have to close for us to know who the candidates are to be able to publish the gazette under Section 24(1).

General consensus was reached on the above strategy and the chairman said this is not to be announced because it would panic the country on the CoVID-19 matter.

We were urged not to talk about it because of such panic but, I said I would not be comfortable being untruthful to the public. 

Problems

If we had listened to the advice of senior staff like Namal Talangama we will not be in this position. What are the problems?

1) Article  70 (5) (a) states:

“A Proclamation dissolving Parliament shall fix a date or dates for the election of Members of Parliament, and shall summon the new Parliament to meet on a date not later than three months after the date of such Proclamation.”

That is, parliament must meet by 2 June. For this, elections must occur by late May for results to be declared and newly elected members to attend parliament. Moreover, reasonable time needs to be given after announcing a new poll date for new candidates to campaign and become known.

However, we do not know if the CoVID-19 Pandemic will end in time for all this.

Rumours

In the meantime, there are several ongoing rumours that are panicking candidates. One is that an All-party meeting convened by Basil Rajapaksa had decided that the election be put off till November. But that is the Commission’s decision.

Reporters alleged that the Commission had decided this. As I had been in lockdown in Jaffna, I denied it after verifying with the Commission. A candidate who is a university lecturer who had taken no-pay leave so as not to violate laws on using government property, was panic-stricken by this November date saying it is not possible to go without pay for so long. I asked that person to write to the Commission if the leave might be put off until the actual poll date is known.

Books are Right – but not Reality

We have officials who will record election complaints, others who will look at them and say the complaint is investigated and dismissed (when it involves a high profile person like an MP or Prime Minister) or referred to the police. 

The police after some months will refer it to the Attorney General who, after some more months, will hope no one will ask. I have a case from Jan. 2018 where the judge without any basis in law sent me for Arbitration as if its involves something personal. When I refused arbitration, the police suppressed the evidence and wrote down inapplicable charges. At that point, the file was referred to the Attorney General who has sat on it for almost a year. The judge says the next date will be set only after he hears from the AG. The Commission will change in November and the matter will die as expected without witnesses. 

Yet, complaints are deemed to have been processed according to law!

Cheating: Books in Order

Like the Attorney General, we have all learnt that making books in order is enough of an excuse for anything. To experienced SLAS officers and other administrators, cheating is not a problem they cannot handle through seemly papers. After the March 2 Gazette, there was need to punish a high-up government official high-up. In this case, K. Theivendram was to be moved out of Jaffna on 6 March in punishment for several frauds according to Chief Secretary A. Pathinathan,  but really as political victimization according to Theivendram and his wife who also is a high-up in the Provincial government. 

When Theivendram was transferred out, Mrs. Theivendram came to the Commission on 10 March or so  alleging violation of election laws. With me and a Deputy Commissioner present, Mrs. Theivendram telephoned Ms. S. R. Wijeludchumi (Secretary, State Ministry of Community Relations), to find out the status of her husband’s transfer. We two in the room could overhear both sides of the conversation. Ms. Wijeludchumi quite shamelessly said that the Chief Secretary Pathinathan had asked her to predate the letter to before 2 March 2020 and she had just had the letter typed up and would sign and give it to him.

This kind of cheating is quite normal in government service – predating, adding things to minutes after a meeting, etc. As my Deputy Commissioner remarked, once done and filed with a pre-dated stamp, no one can challenge it. We Sri Lankans are so corrupt that my Auditor says he can pick any receipt in the bazaar, and what he therefore looks for is process. In government organizations, we look if the meeting minutes are there, and everything we do is based on a minuted decision. Whether the minute is cooked up or not does not matter.

Our administrators ensure that everything is seemly and in order. The law has no place.

Cheating under UNP

Both the major political parties cheat at elections – treating and bribery it is called in our laws. I have referred to concrete instances with names in previous articles and do not need to repeat them. Although the law says government property cannot be used or appointments after the date of nominations, both the ruling parties in their time have begun appointment processes a few days before the announcement of elections with the intention to distribute jobs during elections. When the Wickremesinghe government began a process about a week before the presidential elections, the SLPP complained and we dithered a little saying they had advertised before announcing the poll date. Finally, we decided to stick to the letter of the law – which we have no right to violate – saying no recruitment, period.

Cheating under SLPP: Affecting Commission Appointments

This time the background is the transfer of all Northern GAs including some Addl. GAs. The eminent Jaffna GA N. Vethanayagan with some 3 months for retirement was also transferred. He would have been the Returning Officer for Jaffna. Vethanayagan sent in his retirement papers in protest.

There had been a District Secretary in Kopay who had corruption allegations against him and was transferred as DS Puthukudiyiruppu. From there he was sent as Addl GA Mullaithivu. During the recent large-scale transfers just before the elections, an SLPP MP got him transferred as Additional GA Jaffna. He is now in charge of Jaffna’s Election Dispute Resolution Centre. (EDRC)

My point about seemliness covering up corruption is proved by the story of Krishna. During the last LG Elections he was No. 2 in the Jaffna EDRC of 3 persons under the then Additional GA. He had found out electoral violations at a Petrol Shed in Chunnakam owned by Angajan Ramanathan, MP,  whose name came up repeatedly in a government pharmacy advertising his party through sachets for pharmaceutical pills. Nothing happened to the MP. After all, he is an MP! So he got warnings, I was told – even if that is true I do not know. Krishna also issued a report on the petrol shed incident which made him persona no grata in SLPP circles.

With the new dispensation for the General Elections and the Commission wanting to see no evil, Krishna was removed from the Jaffna EDRC. So even Commission appointments are tainted. Vethanayagan is not there to instill order.

Like receipts from the bazaar, everything is in order at our EDRC.

Ongoing, Developing Story: the Corona Excuse

This time around, 2 March the day of the Gazette, the SLPP tried to appoint some 45,000 graduates (many of whom only claim to be graduates). They were to assist Grama Sevakas. The UNP folk objected, just as the SLPP had objected to the UNP doing the same in November 2019. The SLPP argued that the process had begun before 2 March, but interviews are on-going with certificated being checked  The argument at the EC, that they had been recruited, does not therefore hold water.

We said no because most of them reported after 2 March, and their certificated had not been checked

Being in lockdown, I was not given all the details. But I now know, after speaking to Mr. Deshapriya, that the government announced it would pay them even if we did not allow the appointment. We said no as the government cannot pay those who are not reporting to work.

The government, again according to Mr. Deshapriya, then changed its story, and said these recruits will be attached to MOH offices to fight CoVID-19. The Chairman thinks if we stop it, the public will turn against the Commission saying we do not want to stop COVID-19. He has also faulted the government for not informing us, as if informing us would legalize this treating and bribing of the electorate. 

It is clear that the government is using COVID-19 as an excuse to make the poll neither free nor fair by using COVID-19 to bribe voters through jobs, defying the Commission. The latest from MOH offices is that they have room only for 1 or 2 in some and at most 20 in others. How will they accommodate 45,000?

In any case will these people come to work after joining government service? In Jaffna today (29 March) only the GA or Additional GA is there, and our Deputy Commissioner had to take others from outside to type his letters and curfew permit requests.

Indeed, we have thousands of public servants paid and at home. If the government cannot mobilize them, how does it propose to mobilize these 45,000. Most of us were not born yesterday.

Enough Foolishness!

The country is functioning with Votes on Account without a Parliament. The army is out doing the work of a police. The hallmarks of military government are fast emerging.

We have made a mistake in dismissing Parliament on 2 March despite all the signs and warnings. There is no need to compound it by making our already corrupt government (in general not specifically the governing party) more corrupt. One solution offered is to summon Parliament under Article 70(7) of our Constitution for when there is an emergency as now. But that summoned Parliament shall stand dissolved “upon the termination of the emergency or the conclusion of the General Election.” What happens if CoVID-19 abates but is still on in mild form like the flus we live with? Who is to judge? Would that be an excuse for a dictatorship?

Alternatively, Article 18 of the Interpretation Ordinance says that “any proclamation or order or notification issued or made at any time may be at any time amended, varied, rescinded or revoked by the same authority in the same manner”.

The Gazette of 2 March was issued by President Gotabaya Rajapaksa. Let him simply revoke it. Then we can have Parliamentary elections when Parliament finishes its term in Aug. 2020. Hopefully by then, COVID-19 will be history. 

*This article is not for or against any political party, and is written as part of the author’s work as a Member of the Election Commission and in the best interests of Sri Lanka where our limited understanding of impartiality is being used to stifle any informed discussion.

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Latest comments

  • 7
    16

    Irrespective if GR is a good leader or not, prof Hoole is supposed to be part of the election commission which is supposed to be impartial. This article is totally biased against GR. Prof Hoole either has to resign, or keep his trap shut. He cant have it both ways. This man is a disgrace to Sri Lanka and should be deported to whatever country he is supporting.

    • 12
      2

      Jay,
      I don’t think it is biased against GR. It is against the wrongs GR did as a President who is supposed to lead the country democratically and lawfully. It is GR and his govt has violated the constitution and rule of law.So, Gota and his family cabinet should resign.

    • 9
      0

      Please listen to this.
      .
      https://www.youtube.com/watch?v=HwsJiImBQq8
      https://www.youtube.com/watch?v=HwsJiImBQq8
      https://www.youtube.com/watch?v=HwsJiImBQq8

      This guy is telling the truth. As he is making very clear that BASIL cant work as ” crown prince” of the nation.
      :
      Basil has no whatsoever right to lead any kind of legal entity.
      :
      Rajakshes would do any silly work and see it after evasively doing so.
      :
      Patta pal horagediyek, mu Basil.
      Basil was alleged to have committed high crimes. This was known to almost everyone.. it was a public secret.
      :
      Now again, they started with FAMILIY rule. This was defeated by 2015.
      Why do these buggers abuse the power this way ?

    • 17
      2

      Nothing prevents a member of the elections commission from expressing his opinion on a matter of public interest. Jay Jay is an anonymous coward.

      • 1
        2

        That is a misnomer. EC members MUST remain neutral in matters of public interest similar to Judges, Police, members of armed forces etc. With your maturity and advanced years, you should know better.

        • 3
          0

          Don’t confuse the mandate for neutrality of EC decisions with the prerogative of EC members to publicly discuss and speak out against non-neutral/partisan/skewed decisions of EC chairman and political interferences.
          ———
          EC is not an Intel unit or or CID affiliate. There’s no gag on EC officials. This transparency and openness is important to foster that neutrality.
          ———
          Or do you prefer we give the EC protection from public and civil rights scrutiny??? If yes, why so?

          • 1
            1

            As I said earlier, neutrality must be the same as required from CJ, Supreme Court judges etc. Or does your theory apply only to Hoole? He has the option to resign and exercise his rights.

    • 9
      0

      JAY JAY BP,
      .
      Prof Hoole has not been biased in his ARTICLE. If you woul dnot agree, show us where he has added any biased thoughts ?
      .
      Just imagine, what would BPs have been doing yet today, if EC did not put off the scheduled Election withhout further notice.
      :
      Now Ballige putha Rajapaskhes have ruined the country again, letting innocient masses being infected by DEADYL virus.
      :
      May all curse be on them as powerful rains, so that BPs can finally be eroded from SRILLANKA.

    • 5
      0

      Gota says national interest triumphs everything else. Hoole is also acting in the national interest.

  • 5
    14

    Agreed with Jay Jay. An elections commission member cannot indulge in politics or make public comments of their official business in Newspapers. Any issue he needs to take must be done through official channels. How can he be considered as an impartial party in an election issue?

    • 2
      1

      Have you read any articles of Russian ambassador (Dr. DJ) writing in the CT on Srilanka politics?

    • 3
      0

      Rationalist.
      Your idiotic irrationalism shines through your ah when you ignore the fact that the Election Commissioner had secret talks alone with the PM and others in the Slap party.

    • 1
      0

      Don’t confuse the mandate for neutrality of EC decisions with the prerogative of EC members to publicly discuss and speak out against non-neutral/partisan/skewed decisions of EC chairman and political interferences.
      ———
      EC is not an Intel unit or or CID affiliate. There’s no gag on EC officials. This transparency is important to foster that neutrality.
      ———
      1) Do you think we must gag the EC of public disclosures and hence bar public and civil rights scrutiny of EC?
      2) Hasn’t Hoole exposed here the political favouritism and non-neutrality within the EC? Isn’t that being neutral?

  • 1
    2

    “Then we can have Parliamentary elections when Parliament finishes its term in Aug. 2020. Hopefully by then, COVID-19 will be history. “

    Nothing about the Covid-19 is sure at this time. Some predictions are that US death can go as high as 200,000. So we leave the aside the Covid-19 part in the sentence.

    Why Hoole would want the election postponed to August? I do not see any reason for or not to postponement to August and my head is blank on that. UNP had the majority when the parliament was handed over to Slap Party. In other words, UNP consented in November for the election and full Slap Party ruling. But Slap Party did not call election until they had chance to dismiss the parliament and call election. This was much nicer method than that Old King declared election in December 2018, during coup. Now, UNP has the majority. UNP did not accept the government. UNP will lose any election held for another 25 years. So why the Slap party should not have the election as soon as the things are normal? Hoole has written something with proof (, at least he witnessed himself). All in the world know how UNP Ranil worked with Slap Party to topple his own government, during the coup after he came from India. So what good Hoole expecting to happen by a delayed election? Will the UNP come back in August election? If so will Nariya Ranil drop off his bushy tail and start walk with two legs instead four legs?

    Emathamum Samathame! UNP, SLAP, SLFP, TNA, JVP, Communists, NSSP ……. all same, all are acceptable for Lankawe. Just have the election.

  • 3
    1

    More and more I observe the moves of Gotabaya, I am beginning to wonder if Gota is on his way for a “technical knockout” of Mahinda Rajapakse Family. Gota appointing Ex-Army senior members to various positions, kicking out Viyath Maga stooges, and appointing Shavendra Silva to various senior position make me wonder if Gota when he leaves he is going to pave way for Shavendra to contest the Presidential Election. This will ensure that no Mahinda Rajapakse family member sits on that seat. Gota may be thinking this is the ultimate gift he can give to Sri Lankans as President. The baggage Shavendra carries is a different question, Gota may have to white wash him.

    • 2
      0

      Mr Buddhist,
      .
      I always respect to your comments. More you observe him, even more desperate you will become. THat will not be stoppable with ground realities of his politics. Some would say, that Mahinda is the person that does not seem Gota react properly. But Gota should have own functioning brain – to see it right.
      :
      There are TV channels that promotes even a fart being released by him today. They just want to live up on MEDIA tenders being offered to them, today, almost every big media display would be offered to their ABUSIVE channel either HIRU or DERANA TV.
      Alone that should be blocked if Gotabaya is said to be a neutral person. Just one single argument, could have a big impact on palatable moves forward.
      Gota was brought to expect some good work being done by him, but sofar, nothing that to treat with – WOW EFFECT- happened or let happening with his DIRECT mediation. Not at all SATISFACTORY perfromance

  • 2
    2

    From the way things are moving there is bound to be a clash soon by the masses who find difficult to find food and compelled to stay at home. Then the Forces will be Ordered to quell and that will lead to Gota thinking of taking the country Militarily when he knows that getting a 2/3 at a General Election is only a Pipe Dream. After taking the country over Militarily America will nolonger be in a position to support Gota as there hands will be full with the aftermath of the COVID-19 and will be in financial difficulty to support. So Gota will naturally try to align with China for his survival. This will not please India. India will take over Sri Lanka in a matter of hours and control it till the Country recovers from the crisis. Rajapaksa days are numbered.

  • 3
    9

    Prof.Hoole
    /
    Can you tell us if you and your wife reported to the authorities after returning from the USA on 5 March 2020? By that time, those arriving from overseas were required to declare their arrival to authorities.
    /
    On Wednesday, 1 April, you traveled from Jaffna to Colombo in a Toyota 141 bearing registration KV 7671 belonging to Dep. Comm. Achchuden who has been temporarily assigned to the Northern Governor’s office to enable him to be with his famil in Jaffna. The Jaffna EC vehicle you wanted to use was refused a travel permit. You took Achchuden’s vehicle which has a Western Province number plate and obtained a travel pass. The meeting was attended by Chairman Deshapriya and yourself. Commissioner Nalin Abeysekera, Commissioner General and Commission Secretary did not attend. All 3 Commissioners must be present to validate any decision. EC officials are not Essential Services. Why is Deshapriya being irresponsible and summoning meetings? Why are you being irresponsible and traveling from Jaffna District to Colombo District when both districts are on lockdown and on indefinite curfew? EC is irrelevant at the moment and officials must be in lockdown at home.

    • 9
      4

      Eagle Bp;

      This is absolutely persona vendetta. Why on earth you guys spy on Dr Hoole. He as a citizen of srilanke should have the right as any other citizens to move from A to B if the authorities allow him. Just because he is ethnic tamil and you guys are ethinic sinhalese, should the law work on each upside down ?

      I have no doubt, Mr Hoole would not DO any wrong thing, since his conscience would not allow him to do so. I have never seen him adding any biased views that could harm masses while you guys just for your own selfish gains, obviously sell even your backsides on behalf of mafia boss et al.
      -Shame on you Mahinda Palayo, being in your later day life, you not to have sensed the little that an educated person should have grasped…. very ugly feeling when even thinking of you guys… SINHALAYAS OF YOUR NATURE are gonthadiyas by birth.

      • 0
        6

        You dumb human being, are you aware, movement between districts, especially between those under full lock down is against the law? As I said, Deshapriya and Hoole do not belong to essential services. As for not doing any thing wrong, if using a govt. vehicle (Achchuden’s) while drawing transport and enhanced fuel allowances as he comes from Jaffna is not wrong, then what is? Such matters obviously is above your pay grade and level of your narrow intelligence reflected by your very name.

        • 2
          0

          “Dumb human being”. That kind of name calling does not belong to a civilised debate. An apology from Eagle Eye would be appreciated. Movement between districts during a curfew is quite legal with a curfew pass. Without a pass Prof. Hoole could never have made it to Colombo from Jaffna and back.

          Let’s please keep our conversations polite, accurate and educated — and hate-free.

          • 0
            0

            Raj
            /
            Do you mean to say Dumb Human Being is more offensive than BP = Ballige Putha = Son of a bitch.
            /
            Is is a serious gap in your education or racial bias?
            /
            I used a mild term rather than a choice Sinhala phrase PV. Try and decipher that.

    • 6
      0

      This Eagle Eye fellow is fully off.
      Travel passes are for people not for vehicles. The vehicle is only named in the pass. No pass was requested for the Jaffna vehicle. Mr. Achchuthan is in Jaffna because we are short-handed in Jaffna and our salaries for April need to be paid.
      The vehicle referred to belongs to the Commission not to Mr. Achchuthan.
      All three members participated in the meeting

      Who are you with all this internal information that is essentially inaccurate?
      Now I know that anything Eagle Eye writes is unbelievable because he has only a bandicoot’s eyesight.

      • 0
        0

        Jaffna EC
        That is a down right lie. Commissioner Nalin Abeysekera did not attend.

    • 5
      0

      Eagle Eye seems to have nothing to do but record the number plates of cars I use. I did not use the Jaffna car because it was being used by the Jaffna Assistant Commissioner.

      Clearly he is going by inaccurate internal information giving me a good idea of who he is or from whom he gets his wrong information. I left Jaffna at 4 am, got there at 11 am and left Commission premises by 4 pm to get here at midnight. There was hardly anyone there. The information is I think from a frustrated chap I met that day.

      I did not undergo this difficulty of travel for kicks. at my age Nor did I expose myself to the coronavirus to go on a joy drive to Colombo, stopping at the numerous checkpoints with soldiers pointing their guns at me. I went on duty.

      An election has been declared for 25 April. The declaration had been made on 2 March,. The law requires the new Parliament to meet on 2 June. Both dates, April 25 and 2 June are impossible to keep, given the pandemic, holidays coming up and the fear that employees have in mingling at work.

      A crisis is in the making. The Constitution surely will be violated by 2 June. Election laws are being violated by politicians and we as the sole authority in the matter need to respond. The Commission had to meet to decide what to do. All three of us discussed and apprised the president. by a letter that would have gone out today 2 April. Article 33(1)(d) gives the President the duty to follow our advice on creating conditions for free and fair elections. With all this cheating (treating and bribing) in the guise of CoVID-19 prevention) , there cannot be a free and fair election. We asked President to consult the Supreme Court. We also spoke to some party leaders who wanted elections postponed.

      As for whether I reported to authorities on 5 March when I returned from the US, all I say is that I did as rules require. I do not need to answer nobodies like Eagle Eye who has set himself up as a policeman over me. If people charged with that authority ask, I will answer.

      In the meantime, I am overburdened by election work and would appreciate being spared this kind of ignorant criticism claiming that the EC is irrelevant at the moment.

      • 3
        0

        Post Script:
        All this about a car is simple jealousy.
        It is election time. The Commission is allowed to commandeer any government property for its work. Accordingly the Northern Provincial Secretariat on our request has placed a vehicle at my disposal. However, I used a Commission vehicle that was available because Secretariat drivers were reluctant to drive during curfew outside daylight hours starting so early. A Commission driver was willing.

        It seems that Eagle Eye expects me to take a crowded bus against all Covid guidelines and go to Colombo during a curfew when no buses were running.. What imagination!

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