By R.M.B Senanayake –

R.M.B. Senanayake

I attended a Workshop conducted by the Peoples Action Front for Free and Fair Elections (PAFFREL) on how to restore free and fair elections. Everybody agrees that we do not have  free and fair elections and will not have them now or in the future unless we take some civic action to compel the present regime to restore the background for such a condition to prevail. The President replies to his critics that he is an absolute ruler by citing the numerous elections he has held throughout his term of office. Yes he has held elections regularly but so did the Communist Parties that ruled the Soviet Union and Eastern Europe. No liberal democrat accepted the Communist States as democracies merely because they held elections and won thumping majorities. In a previous article I pointed out that democracy has disappeared from several Asian countries including Thailand, Bangladesh, and Cambodia etc.

Here in Sri Lanka we saw the demise of democracy with the enactment of the 18th Amendment to the Constitution by President Rajapakse. It repealed the 17th Amendment which had provided for independent Commissions to handle appointments, discipline and dismissals of high officials in the Public Service, the Police and the Judicial Service. Since then the President has enjoyed absolute power in appointments and dismissals to the high posts in all branches of the State, a power which only the feudal kings of old had. So the Rule of Law, the Independence of the Judiciary and the political neutrality of the bureaucracy have disappeared. The Police is not the national Police but the Police of the President and the ruling party. Similarly the Public Service and the Judiciary are no longer the services of the people based on a meritocracy but the handmaids of the President. All these high officials hold office by the grace of the President. The Elections Commission was never appointed at all and the previous Commissioner of Elections complained of depression and has not been seen or heard since he left office.

The 18th Amendment which abolished the term limit on the President and repealed the Independent Commissions clearly tampered with the supremacy of the People and should have required a Referendum to be enacted. But the former Chief Justice Shirani Bandaranayake had owed her appointment to the favor of the President and sought to be his obedient servant, rather than an independent Judge. So she obliged by delivering the Supreme Court judgment that no Referendum was necessary. Then for some reason or other she was not prepared to accommodate the Executive in the matter of the Divineguma Bill.  But it was too late for her to assert the independence of the Judiciary after her previous servile behavior. So she was made an example of to others who dare to defy the Executive. She was hounded out of office through a faulty, unfair and illegal impeachment procedure. The Bar Association says she is still the lawful Chief Justice and the International Bar Association has also declared the impeachment as unjust and unfair. But that is about all. Why have the lawyers not canvassed the matter before an International Forum? Typical of the behavior of our civil society which has very short memories as observed by Prabakaran.

But what about elections as a mechanism for peaceful change of a government. It obviously holds no longer for post 18th Amendment there is no possibility of an election ever being free and fair.  The people of Thailand are smart. They have realized that elections in their country could no longer be free or fair. So they demanded that the Prime Minister Sinawatra step down and opposed the holding of a general election which would merely rubber stamp Sinawatra’stenure.

There is no doubt that the incumbent ruler in Sri Lanka cannot be defeated by any Opposition. Sarath Fonseka’s defeat proved this conclusively. So in any Presidential or General Election there is no possibility of defeating the incumbent holder or the incumbent ruling political party. The misuse of public resources, the harassment of the opposition candidates, the buying over of Opposition candidates through plain bribery and winning voters by using public resources to reward those who vote for the incumbents while depriving the voters who vote for the Opposition is enough to win an election. At least 40% of the people are dependent on the State and since the State means those who exercise power, there is no hope at all for the Opposition to defeat the incumbent President or the incumbent ruling party.

There is a saying in Sinhala that the man who falls into a well must climb out of it through the mouth of the well. The preset environment was created by the 18th Amendment which was unlawfully endorsed by a servile Chief Justice ignoring the principles of judicial interpretation merely to win favor of the President by dispensing with the need for a Referendum. So at the discussion in PAFFREL it was suggested that the people should sign a Petition demanding that a Referendum be held to say yes or no to the 18th Amendment. The Opposition parties and civil society groups should mobilize the people behind such a campaign rather than prepare for an election which is a foregone conclusion. If the majority of the people demand such a Referendum it would be another undemocratic measure for the President to refuse such a demand. Such a mobilization will shake the people out of their lethargy. If the Government ignores such a demand for a Referendum and goes ahead with a Presidential or General election and resorts to the usual tactics to deprive it of its free and fair character the Opposition could refuse to accept the election verdict. This will put an end to the façade of democracy.