Privacy in Democracy: Undeserved
We live in a world where the rich and powerful get more – but in a democracy it is just one vote for everyone. As a member of the Election Commission, it is my duty to secure the enforcement of all election laws – so says our constitution. But are we all equal before the law?
Great personages violate the law with impunity. If you are socially, religiously, or politically powerful, no-one will come after you. The laws serve only to keep the plebeians in check. The whip is cracked when a boy is caught posting election notices. But when GMOA-President Padeniya, whose participation at an election rally was referred to the Police by the Commission, the big-rod is likely to be spared.
Leader of the Opposition and MPs
After just the first two days of postal voting, Mr. Mahinda Rajapaksa, the Leader of the Opposition, announced at an election rally in Angoda, “We have got to know that 80% of the postal votes have been for us” (Nov. 1, 2019 news). We have not even begun counting. How did he know? Mr. Rajapaksa was in violation of Section 75(3) of the Presidential Elections Act (PEAct): “no person whosoever” shall obtain information from a polling station on how a voter voted or the candidate for whom he voted. The prescribed punishment is loss of voting rights. There was a further complaint that Lakshman Yapa Abeywardena, MP and Chandima Weerakoddy, MP had made similar statements. All three were also in violation of Section 83(1) of PEA for publishing fake news. The Commission did not refer the complaints to the police; instead stern warnings were to be issued. I sarcastically commented “Don’t do it again” and said they would do it again. We will never refer big people to the police. It takes gumption send a former president to jail.
It is well known that Gnanasara Thero rioted in court, was in jail for contempt, and released by our President as if to wreak havoc on minorities again. The unreformed monk rioted at Chemmalai (a Hindu Temple being Sinhalasized). He violated a court order not to bury a monk on the Hindu temple premises. When orders were served, he reportedly said this is a Buddhist country, Buddhism has exemptions from the law.
No one was charged for failure to implement the court order. A plaint had to be filed privately against Gananasara and two police officials. On 6.11.2019, a Judge at the Supreme Court will look into Gnanasara Thero violating a court order. It is a matter in which communalist forces are let loose for electoral gain.
Lawyer Rajika Kodithuwakku of the Sri Lanka Democratic Front has written to the Election Commission to ask the judge to postpone the hearing until after the election. A member of the New Sinhala Urumaya screamed at Sumanthiran today, 6.11.2019, for filing the private plaint and quietened only after the chairman asked him to leave. The IGP was on the podium with me. I had previously told him of the police watering down charges of election violations by the Tamil Congress and hiding evidence from Court. He promised to inquire but did nothing. I told him today that he is responsible for the Chemmalai problems and I have no confidence in the Police. I asked him why he did not sack the two police officials, making private citizens do his job.
Another serious matter involves the Anglican Church of Ceylon. On 22 October, the Ven. Perry Brohier, Dean of the Anglican Cathedral and Commissary, organized a seminar at St. Luke’s Borella where various statements, such as “Do not vote for the JVP”, were made. Section 78(2) of the PEA explicitly prohibits political statements that influence voters from religious premises. I warned him by SMS, citing the specific law, before leaving. But such statements continued. Brohier, like Gnanasara, seemed to think clergy have privileges to break the law.
On 25-26 October, Anglicans had their annual Diocesan Council under Bishop Dhiloraj Canagasabey. The Diocese’s Standing Committee report had statements ridiculing ex-President Rajapaksa, about his creating history and political turmoil. A headline in the report read “After Ten Years Back to the Gloom of Terror.” These words from religious premises demote the SLPP and advance the UNP and are unlawful. When a Commission order was produced prohibiting the discussion of the report, the Bishop engaging in theatrics, refused to comply. He boasted of being willing to go to jail, like one of our politicians claiming to save our soldiers. Now realizing the gravity of his offence, the Bishop says the report was for private circulation – however, there was a visitors’ gallery accommodating reporters. The Bishop may shout anti-Rajapaksa slogans on the street, but not at a religious assembly.
The Police, however, as usual were obliging to those in cassock and mitre. They went to the meeting, spoke only to Fr. Brohier, and recorded that there was no political material. At the Commission, primed perhaps, it was argued that the act requires uttering (not writing) political words and that discussing a report with political content is not uttering! However, Section 78(3) of PEA prohibits inducing adherents from supporting or refraining from supporting a candidate. Clergy can exploit their respect in society, and the police and officials will read laws selectively to help them evade the law.
The Commission recently received a complaint that Bataramulla Seelananda Thero went to a Hindu Temple in Vavuniya on 27.10.2019, worshipped there, and promised to halt cattle slaughter if elected President. The offence is called the Corrupt Practice of buying Undue Influence. When law-and-order was a better understood concept, Gamini Dissanayake after being elected in 1970 was unseated for making political statements from a Hindu Temple. The Seelananda violation was referred to officials without a Commission decision. Nothing will likely happen.
Failure of Nineteenth Amendment
The Nineteenth amendment to the Constitution provided for three equal members of the Commission, in place of the one Commissioner. Despite the Commissioner becoming Chairman-and-Member, the tendency is to treat him as Commissioner.
The problem reached its climax with undiscussed matters being released by the Chairman as Commission decisions by officials. When accidentally discovered the document is withdrawn.
The low-point was on 5.11.2019 when a letter turned up on behalf of the Commission withdrawing the observer accreditation given by the Commission to CaFFE, the Campaign for Free and Fair Elections, which with PAFFREL, has been a key local ally of the Commission in monitoring elections. Independent observers are critical to a fair and equality-based election. Why did it happen now?
The Voter Register
A big part of our work is preparing the voter register. Equality of electors is through this. This year we will use the 2018 Register because we have been slow with the 2019 register. Therefore, those who turned 19 recently cannot vote. The delay is because of personnel issues at the Commission.
But now there are unresolved allegations that in Colombo people of certain ethnic backgrounds, particularly Muslims, Burghers, and other Christians, have been selectively removed as voters. Grama Sevakas (GS-es) go home-by-home and get the Body-Count forms in June. Usually there is one GS for 300-800 voters. But in Colombo a GS looks after even 16,000 voters, as in Mattakuliya. After receiving this complaint, I began to look into this. In one instance, a GS going on maternity leave had not registered large numbers. At other times, a few from the same family had been deleted from the rolls. In another case everyone from a whole street had been removed. It is difficult to prove selective deletions when the Body-Count form is missing – did the householder not fill it, or did the GS discard it? If the latter, going by partial deletions, I suggest it was done to make one party win and not because of the overload of work. A larger inquiry is in order to restore confidence. If the allegations are right, then ethnic minorities are “less equal”. The law does not permit restoring them on the rolls now.
When speaking casually, even the Chairman-and-Member of the Commission admits off guard that most GAs, who are our Returning Officers, are crooked and can rattle off what different people did. In particular, the Vavuniya military Commander around 2012 got rid of Mrs. Charles as GA, and wanted all Tamil officials transferred out. Then he ethnically cleansed the place of Tamils and established all-Sinhalese settlements – Nandimithragama, Boogaswewa, Veherathennagama, Namalagama, Selalihinigama, etc..
Clumsily drafted rules violate equality. We do not know our own laws nor whether our guidelines are enforceable. We have multiple conflicting guidelines. We are discussing now if the prohibited display of notices in the 1981 law covers their distribution as the police enforce. We have forbidden LED lights in advertising. The AG initially said he would not support us in a suit against us by Emerging Media Solutions about our banning LED election advertising. He said our laws from the 1980s made no reference to LEDs while prohibiting posters. If the suit had not been rejected by the Supreme Court on 1 Nov., poor candidates would not be allowed posters, while the rich would have LED advertisements everywhere.
With backgrounds in government sector, it is ingrained in our staff not to complain or whistle-blow. To speak to outsiders, you need the boss’ clearance says the Establishment Code. No one at the Commission will report a boss’ failures but nearly all, among themselves, will laugh and enjoy discussing their boss’ wrong-doings. In my experience, they will tell me something but when I report it, they will deny that they did.
In Local Government Elections (Feb. 2018) our officials forgot to count votes from one polling district of the Wennappuwa Pirathesa Sabai. The SLFP got one more seat than it deserved. An SLPP official noticed a contradiction, which when explored revealed the mistake. The Chief Clerk told our staffer. When the story came to me, I asked the CC. She denied it. Ultimately, Deshapriya inquired. It took the Deputy Commissioner for Local Government another week to admit to the mistake. Yet, almost two years later, GA/Colombo. who was asked to inquire and tell us what we already know, is yet to report, and the wrong person is going as a Member at Wennappuwa and drawing a salary and voting. The Deputy Commissioner has received a promotion, ignoring the fiasco that was hidden from us.
We all make mistakes. The important question is this: when we hide our mistakes and allow unelected persons to represent themselves as elected representatives, how can our results ever be trusted?
We need to restore equality and confidence.