Ethics for Election Commissions: Part II
What went wrong? I believe it is the fact that there is no rule of law despite the appearance of all being well. There can be no fair elections without it. As Rajan Hoole of the University Teachers for Human Rights said, everything is puluda (meaning bluff).
In the two years the government did little, it made the people skeptical of its intentions. To effect the constitutional changes necessary for reconciliation, the government needs a two-thirds majority. This means accommodating as ministers the very crooks the people kicked out using their vote. This goes to the heart of the rule of law and democracy. Should the government, while claiming the rule of law, selectively prosecute well-known crooks from the outgoing government while exempting those who join it from accountability? Are the means of accommodating crooks in government, justified by the end of possessing a two-thirds majority to effect the noble changes promised?
The government has lost the enthusiastic support of many who voted for it. Tamils, by and large, believe that the government’s promises contained in UNHRC’s Resolution 34/1 on promoting reconciliation, accountability, and human rights will never be kept.
The Eviscerated Rule of Law
Democracy is upheld by the law. The law in turn is upheld by the judiciary. Our judges at the highest level are politically corrupt as brought out by the saga of our Chief Justice Shirani Banadaranayake being sacked and put back.
Our tainted judiciary is best exposed by former Chief Justice Sarath Silva in the Helping Hambantota case. Quoting from ColomboPage of 18.10.2014, “Mr. Silva confessed to BBC Sinhala Service that he had delivered a judgment favorable to then PM Mahinda Rajapaksa.” Mahinda Rajapaksa was accused of misappropriating tsunami funds.
In the rape and murder of Krishanthi Kumaraswamy, the 17-year-old Tamil school-girl and the 25 Sinhalese school-children of Embilipitiya forcibly disappeared in 1989 by soldiers, the ICJ says “junior officers were convicted while their superiors were left untouched, despite evidence that responsibility for these grave crimes lay higher in the chain of command.”
The International Independent Group of Eminent Persons was nominated by donor countries and our government to observe the Commission of Inquiry into alleged human rights abuses. Its history completes the story of our judiciary. They withdrew because our Commissions were biased and did not go by international standards.
War crimes culpability goes very high up the Sri Lankan chain of command. General Sarath Fonseka, a minister in the present government, has stated in an interview with Frederica Jansz that then Defense Secretary Gothabaya Rajapaksa – the former President’s brother — had spoken with Brigadier Shavendra Silva, Commander of the Army’s 58th Division, giving orders not to accommodate any LTTE leaders attempting surrender and that ‘they must all be killed’. Fonseka, by his own admission, heard the defense secretary order murders. Yet, he did nothing. In law, this may be construed as a war crime. How is he a minister in our government?
Our government claims that our war crimes can be professionally handled by our tainted judiciary without the foreign participation called for by the UN HRC. At the same time, our President says the accused killers are heroes whom he will never allow to be charged. When Tamils have no right to life, can they be fearlessly free to vote and stand for elections?
A Partial Judiciary’s Effect on Elections
The earliest judicial electoral meddling in Sri Lanka was when hill-country Tamils who had been voting at independence and who, it was presumed would continue to vote, were rendered stateless and voteless. The judiciary failed them. I think the Election Commission, as part of voter education, must comment before we boast of our democracy.
Then the demise of Article 29 of our 1947 Constitution. It required advantages and disadvantages from legislation to affect all communities equally. In the 1972 Constitution it was completely removed and Buddhism was awarded foremost place with state fostering. As election professionals we know that offering arrack in exchange for votes is wrong. Is offering to foster the religion of one community for votes very different?
As a Commission, we discourage parties having words like Tamil, Sinhale, and Buddhist in their name. Consistency then demands, a fortiori, that we also decry this partiality to Buddhism.
Moreover, from our early years, MPs elected from one party moving to another has been justified on grounds of conscience. Article 99(13) of our 1978 Constitution provides that MPs expelled from their party lose their seat. Yet, when such expulsion is challenged, our Supreme Court typically allows an MP to remain in parliament even after leaving his party. This seriously challenges the sovereignty of the people and demeans respect for their franchise. So bad had been the practice that in the 2010 parliament, after getting 144 seats, the government induced 29 cross-overs to get 163 seats.
Tissa Attanayake, then UNP General Secretary, addressed a meeting on 27.07.2013 where he said the government is buying opposition MPs through cross-overs for millions of rupees to win the election. So powerful must have been the inducements that even Tissa Attanayake crossed over just before the 2015 elections claiming to show a signed secret deal between Maithripala Sirisena and Ranil Wickremesinghe. The signatures were allegedly forged, and he was arrested. In our murky state of politics, Attanyake has now been invited by the UNP to come back to its fold. It would appear that the charges will be withdrawn if he comes back. Should the Election Commission not comment? We need to take on issues of real substance, rather than putting all our focus on things we all agree on like voter registration.
Our much touted voter education on registering to vote becomes an empty boast when the people’s mandate is thwarted like this and elections are postponed.
There are errors in the law which need correction before the long overdue local government elections can be held. Mr. Deshapriya had asked for these changes from over two years ago before the time of our Commission. Minister Faiszer Musthapha had just said last week that the changes to the law had been approved and would now go to parliament. I was elated.
It was a good moment for me to address the women interested in politics and political party representatives in Vavuniya in the North, fortuitously scheduled for 19 May.
However, the day became one of mixed feelings. After promising to commemorate May 18 as “Day of Remembrance” for all who died in the war, news came that the government made it a ‘War Heroes day’. The government seemed only interested in Sinhalese votes. Those upholding the integrity of elections and appointed by such a government – the police, judges, and even the Election Commission – become suspect.
On my way to Vavuniya, around 7:00 AM on the 19th, we passed Muhamalai just before Pallai where several soldiers and policemen were on the road. Web-news said that someone had shot at a soldier and missed.
As I spoke to Tamils, the general view was that the incident was staged to refuse to withdraw the army. “See,” said a Tamil government official, “By Sunday Colombo newspapers will report that the LTTE is regrouping.”And they did.
The peoples of Sri Lanka have their own different versions of history. Even at the Election Commission, we could not agree on the preamble on history for our Strategic Plan, and had to drop large sections of it. That we agreed to disagree without quarrelling shows the Commission to be functional.
Pressure for Human Rights
It was the pressure of the international community that encouraged us to civilized behaviour. The withdrawal of GSP-Plus had its salutary effects. Then suddenly last week, it was restored even though most of the conditions for its restoration remain unfulfilled. I am happy indeed for those who can now sell their fish and garments in Europe. However, the restoration raises questions as to whether Europe wanted the restoration of our lost human rights or merely a beneficial alliance reminiscent of our colonial days. After the UN HRC gave time to Sri Lanka after our limited progress in the last two years, there is little incentive for the government to give Tamils justice. Justice, democracy, and elections are so closely tied up, that the Election Commission must look at these.
Back to Square 1?
By evening on the 19thon our return from Vavuniya, we saw beautiful Vesak lanterns still lining the road. What was on my mind, however, was not their beauty but that the state was spending our common pool of money belonging to all to foster Buddhism and remind Tamils that this is a Buddhist country. Newly built Buddhist temples lined the road. During Vesak a week earlier, I had seen Tamil children neighbouring Vanni army camps attending Vesak ceremonies dressed in Sinhalese-attire. A local said they had no choice in the forced assimilation fearing being seen as anti-national if they refused. As soldiers offered free ice cream, there were few takers because it was seen as an imposition by the army.
On the way back on the 19th, we saw more soldiers on the road. Vesak ice cream was still on offer but still with few takers. About thirty soldiers in boots were sheltering from the sweltering heat in a temple across the point on the A9 Road where the alleged shooting occurred. To Hindus who do not use footwear in their homes, it was sacrilegious for the soldiers to stand in the temple with their boots on. This upset my companions. Are we going into occupation again? Is the free exercise of our franchise possible under occupation?
At home that evening, I got the Colombo newspapers. The Daily Mirror reported that on Wednesday the President had chaired a Progress Review Meeting of Independent Commissions. His office had issued a statement that members of the Independent Commissions including the Election Commission “attended the meeting.”
Untrue! So utterly untrue! I had not been invited, let alone told about it. Previously when parliament went through the motions of consultation, only the Chairman and officials were invited. The President and the Parliament seem to be ignorant that they created a three-member Commission meant to be diverse and there is no longer a single Election Commissioner. So much for minorities and collective decision-making. The puluda, the bluff, continues. Does Election Commission Ethics involve my keeping quiet as the country is misinformed by the President? I think not. As a Tamil, I see a bleak future for myself and for democracy. To cite ethics to remain silent would be to join the puluda and be irresponsible.
As I write (22 May), Colombo Telegraph reported
“Muslims in the country were coming under increasing attacks once again by the Bodu Bala Sena(BBS) with a mosque and Muslim owned shops in several parts of the country being attacked or torched. … Since mid-April this year, there [have] been at least 15 such incidents in various parts of the country.”
A very un-Buddhist monk is going about beating up Muslims and literally pushing away the police that come to intervene. News reports say the police have orders not to arrest the monk. The Prime Minister assures us that the police can handle the matter. What does it portend for democracy, especially for Muslims?
As I continue writing, May 23, a most terrifying sight to behold. For the first time in my two years since I returned, six soldiers on three motorbikes with big guns going by my home in Jaffna – all dressed in dark uniforms from headgear to boots, and their faces covered showing only their eyes. Why did they not wish to be identified?
It is déjà vu. Terror rules again. Ethics is never an excuse for silence in the face of injustice and government puluda.
Ladies and gentlemen, I hope you agree that this was a responsible and ethical speech. Thank you.
*A Keynote Address delivered at the Fourteenth International Electoral Affairs Symposium under the auspices of the International Centre for Parliamentary Studies at the Jetwing Blue Hotel, Negombo (25-26, May 2017).