16 April, 2021

Blog

Is The Election Commission A ‘Cultural Police’?

By Jayampathy Wickramaratne

Dr Jayampathy Wickramaratne PC

The Election Commission (EC) has decided not to register political parties whose names have a reference to ethnicity or religion as, according to it, parties are registered under the applicable law as ‘national parties’. If there are such references in the names or constitutions of parties already registered, they would be required to make changes as such references are against the Constitution of the country. The implication is that such parties face ‘deregistration’ if they do not comply.

EC cannot legislate

Under section 7 of the Parliamentary Elections Act, a party that applies for registration must be a  political party that is capable of contesting elections under the Act. The EC must be satisfied that such party has been engaged in political activities for a continuous period of at least four years, or that out of at least two candidates nominated by such party, at least one was successful at the last Parliamentary general election or out of at least five candidates nominated by such party for five different Provincial Councils at least three were successful at the last provincial elections. Parties recognized under the Act are recognized for the purpose of other elections too.

The law is clear that a political party need not be ‘national’ in the sense that it is organized to contest elections island-wide. A party can opt to be a ‘regional’ party and contest in selected electoral districts only.

The Act does not prohibit references to ethnicity or religion in a party’s name. The only restriction is that a party’s name should not be identical with the name of another party, or does not so nearly resemble such name as to be calculated to mislead, confuse or deceive.

The EC is thus attempting to ‘legislate’ by adding more requirements for registration. Going further, it requires parties already recognized to change their names and constitutions.

Implications for fundamental rights

Article 14(1) of our Constitution guarantees the freedom of association. It is not necessary to emphasize the political significance of the freedom to form and join political parties. Freedom of association has a close relationship with the freedoms of speech and expression and assembly guaranteed by the same Article. Violations of the freedom of association are often violations of one or both of the other freedoms as well.

There are other freedoms guaranteed by Article 14 (1) that have a bearing on the freedom of association. One has the freedom, either ‘by himself or in association with others’, and either in public or in private, to manifest his religion or belief in worship, observance, practice and teaching and also the freedom ‘by himself or in association with others’ to enjoy and promote his own culture and to use his own language.

Political parties are voluntary associations indispensable to democracy. In United Communist Party of Turkey v Turkey, the European Court of Human Rights observed that ‘political parties make an irreplaceable contribution to political debate, which is at the very core of the concept of a democratic society.’ Rejecting a submission by the Turkish Government that the right of association did not apply to political parties, the Court held that in view of the importance of democracy in the European Human Rights Convention system there could be no doubt that political parties come within the scope of the right to association.

Violation of the freedom of association relating to political parties may take different forms. Total prohibition or suspension is the extreme. Left parties have been at the receiving end of this form in most Latin American countries. Military regimes resort to it more often than not, almost always promising that they are committed to a return to the democratic process. The sponsoring of official parties, circumscribing the freedom to form and operate political associations by establishing strict rules and electoral laws that make it impossible for small parties to gain representation are some of the other forms.

Political parties become meaningless if they are not permitted, as a matter of right, to contest elections. Small parties may not have a chance of success but would want to contest to popularize their views. Restrictions on the right to contest undermine the freedom of association.

As someone who grew up in the Sama Samaja tradition, the writer wishes that all political parties be ‘national’ in another sense, that they cater to the needs and aspirations of all ethnic and religious groups. But there are many who take a different view. Many Tamil, Muslim and Hill Country Tamil friends believe that ‘national’ parties do not look after their interests. The Jathika Hela Urumaya and the Pivithuru Hela Urumaya were established by Sinhalese who believe that ‘national’ parties do not look after Sinhala interests. That is their belief, and others need to respect such beliefs.

If some people, however small in number, believe that Sri Lanka should be a Buddhist state, is it not their right to establish a party with such a goal, say so explicitly in its constitution and name the party, the Sri Lanka Bauddha Rajya Pakshaya?

The EC is not concerned that several parties, such as the EPDP and TELO, have the word ‘Eelam’ in their names. Is it because such parties claim that ‘Eelam’ is another word for ‘Lanka’ or ‘Ilankai’? The EC is also not concerned that there are parties whose names have no reference to ethnicity or religion but who cater to the interests of a particular ethnic group. The All Ceylon Makkal Congress (ACMC) does not have the word ‘Muslim’ in its name — unlike the Sri Lanka Muslim Congress — but is a basically Muslim party. The Ceylon Workers’ Congress and the Upcountry People’s Front cater to the interests of Hill Country Tamils although there is no reference to Hill Country Tamils in their names.

Election Commission, a ‘cultural Policeman’?

The EC would not allow a political party to even have a reference to an ethnic group or religion in its constitution. If a party does so, it is not entitled to be recognized or continue as a recognized party. But the EC would not have a problem with a party that makes no such reference but, for all practical purposes, stands for the rights of a particular ethnic or religious group.

According to the EC, such references violate the Constitution. Does a citizen violate the Constitution by taking a particular position on the rights of his community? Do not like-minded persons have the right to form a political party so that they could articulate their position collectively and more effectively? Should such parties be excluded from the electoral process?

The only instance where the Constitution provides for the proscription of a political party is Article 157A which prohibits any political party or other association or organization from having as one of its aims or objects the establishment of a separate state within the territory of Sri Lanka. Where the Supreme Court declares that an entity has such an aim or object, it is deemed to be proscribed. Chandrasoma v. Mawai S. Senathirajah was an application made under Article 157A seeking a declaration that the Illankai Thamil Arasu Kadchi (ITAK, also known as the Federal Party) is a political party which has as its ‘aims’ and ‘objects’ the establishment of a separate state. The Court dismissed the application, holding that the ITAK had established that it supports and advocates the establishment of a federal state within a united Sri Lanka and is not for the establishment of a separate state. But according to EC criteria, the ITAK cannot continue as a registered political party as it has the word ‘Tamil’ in its name.

The EC should, rather than trying to be a ‘cultural policeman’, use its time and energy to fulfil its constitutional obligation as set out in Article 103 (2): ‘The object of the Commission shall be to conduct free and fair elections and Referenda.’

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Latest comments

  • 5
    1

    It is correct to say that EC’s main or only requirement is to have FREE &FAIR elections or Referendums.
    But can one define what is fair & free means? As currently, Lake House newspapers& State run radio are just a mouth pieces of the the government. In addition the Private Newspapers owners are subservients to the rulers who practice SELF CENSORSHIPS.Some parties has access to unlimited money that has been printed in billions or that had been looted before.
    the EC should limit the money spent on elections by all Parties that are taking part in the election.
    EC should make sure for both International and Local election monitors to see that the ELECTIONS are truly fair and free. There should be TV media debate[times 3] between ALL the National Party Leaders prior to the elections.

    • 3
      1

      What is this ……. the bad suits catwalk?

      • 2
        0

        Lankan tailoring talents on the catwalk ……… Savile Row, eat your heart out !

        We should give Lankan tailoring industry a leg up.

        • 1
          0

          Nimal,
          It seems we have come back to square one. In 1956, the fake wavul suit was de regueur. Now only the top hats are missing. Oh, and another thing missing. The brain under the top hat.

          • 0
            0

            OC,

            All this would be such a tragedy …….. if it wasn’t so funny!

    • 0
      4

      Naman,
      Did Prabhakaran conduct fair and free elections when he ruled North East of the country?

      • 1
        0

        Eagle Blind Eye

        “Did Prabhakaran conduct fair and free elections when he ruled North East of the country?”

        Had he allowed the election department to conduct a free and fair elections in North East he would have denied Rajapaksas the opportunity to loot, kill and destroy this island.

        See how your brethren Prabaharan is wreaking revenge on the smart patriotic Majority.

  • 4
    6

    It’s a good decision to ban ethnicity and religion based political parties. They have not done any good for SL.

    • 12
      1

      All political parties are ethnicity and religion based. UNP and SLFP which ruled Sri Lanka since independence have acted as Sinhala Buddhist parties, committing racial discrimination and state sponsored violence on Tamils. Now SLPP is doing the same. At the beginning LSSP and CP were secular, but after 1963 they threw away their principles and pampered to racism. Instead of banning others, these parties have to shed racism.

      • 5
        5

        Dr. Gnana Sankaralingam,
        Do not talk rubbish. UNP and SLFP had MPs and Ministers from other ethnic groups and religions. It was SJV Chelvanayakam, an illegal Demala immigrant from Malaya who opened the door for race based political parties. He was the founder and leader of the Illankai Tamil Arasu Kachchi and Tamil United Liberation Front.
        Repeating the same humbug “committing racial discrimination and state sponsored violence on Tamils.”
        It was Malabar Vellala Tamils who were the most privileged group in Sinhale/Ceylon and controlled the Administration at the time Sinhalayo gained Independence that started racial discrimination against Sinhalayo. It was Demalu who smuggled arms and ammunition from India during British rule and started violence against Sinhalayo.

        “UNP and SLFP which ruled Sri Lanka since independence have acted as Sinhala Buddhist parties, committing racial discrimination and state sponsored violence on Tamils.”

      • 2
        3

        No.

        BJP, IC, DP, RP, BCP, BLP, SLPP, UNP, SLFP, JVP are not ethnicity or religion based. They have elected MPs from all major ethnic groups and never talk about a single ethnic or religious group.

        Only some parties in SL are racist. They only represent a single ethnic group in their name or a single religion in their name. Shame!

        • 1
          1

          Scratch the skin to detect the ethnic and/or religious interests represented.

    • 6
      2

      2500 yrs of history and 70 odd yrs independent even though we didn’t ask for it where are we now may be behind Bangladesh even our head of state wants his US citizenship intact for future that alone tells you
      EC said that’s not their business to check his citizenship what a system we have a convict murders can contest from cell what a freedom ,they locked them in cell for dangerous to public

      • 1
        1

        “…even our head of state wants his US citizenship intact for future”
        Did he say so? To whom, and when?

  • 10
    1

    This the 20A and after effects.
    Concentrated power.
    This not the only area of abuse of power.
    See : -http://www.adaderana.lk/news/72827/sinopharm-inoculation-drive-in-sri-lanka-commences
    No ok by NMRA or Drugs Regulatory Authority. Can even the govt bring in drugs medicines vaccines without ok from these Authorities, like adulterated coconut oil.

  • 10
    2

    One country, One Law.
    No ARs or FRs. No circulars allowed – only SIRCULAR to lay down that One Law.
    Constitution ? Ha Ha.
    Reminds me of :
    I am monarch of all I survey,
    My right there is none to dispute.
    …..William Cowper

  • 10
    1

    Dr. Jayampathy,
    EC is a body appointed by President Gotabaya who made the 20th amendment to the constitution to get a full power to do whatever he wants to do. According to Gota, he is superior to the constitution. EC is just there to carry out his orders. Even a gazette notification is enough to implement his orders. He is taking the country to convert as a Buddhist Sinhala only Country belongs to Gota Rajapaksa Family. In other words, genocide of Tamils and Muslims.
    Fools can believe that One Law One Country is the best for Country but nobody knows what is that one law and what is that one Country. This is what Gota said:
    “I am the President for 6.9 Buddhist Sinhala who voted for me”.

    • 3
      1

      Ajith: “Even a gazette notification is enough to implement orders,” you say. No, you have not updated the information. The latest is “MY WORD”. Those “Gazettes” and “Circulars” are not in use anymore. Even where “Gazette” notices are used for the moment (in rare cases) those also can be “Pre-dated” as in the case of the Sports Minister’s Ministry appointing an “Administrator” for the Cricket Board. Please note, it is “MY WORD” now.

    • 1
      3

      Ajith,
      President Gotabhaya Rajapakshe is not converting this country to a Sinhala Buddhist country belong to Gota Rajapakshe family. He is converting this country to a Sinhala Buddhist country belong to Sinhala Buddhists because before Europeans colonized Sinhale, this country was a Sinhala Buddhist country. Sinhalayo who are the native people in Sinhale have the right to undo what colonial rulers did.
      —-
      “He is taking the country to convert as a Buddhist Sinhala only Country belongs to Gota Rajapaksa Family.”

    • 3
      0

      Ajith – I must emphasize that future elections with Nandasena`s EC will guarantee him a
      electronic win whatever the circumstances are and the Legal stages next too are set-up
      as required. Sri Lanka has to take this route for the Regimes existence, despite whatever
      the SB intelligentsia can or will do.

  • 8
    1

    Is it ok Buddhism the foremost religion
    In the constitution

  • 4
    2

    The five Muscateers of the Election Commission are overreaching themselves and seem to be interlopers.
    Dr. Jayampathy W. HAS CLEARLY told them their constitutional responsibility.
    Should we also say Disce aut Discede?

  • 5
    2

    Also ban the prelates like mana sangha Rev Malcolm Ranjith etc not to interfere day to day politics make everyone equal and respect fellow citizens
    Looks like following the Taliban path

  • 4
    1

    Dr Wickramaratne,
    .
    In today’s context, no law would be given precedence. Unfortunatley, it was also not unbiased with MACO in terms of taking nominations from already US Citizenship holder. Unfortunately, the dominnance in that 3-member group, 2 other members had no voice. In a civilized country, alone the nomination of GOTA to be the presidential candidate would have been avoided.
    :
    Today the consequences are glass clear, but there are MEDIA that would not transport the message across the nation. Now it is becoming clear their capabilities are not all it’s cracked up to be. Gramasevaka from a rural place could achieve a lot for the benefit of the masses.
    :

  • 5
    2

    Read George Orwell’s 1984 and you will see the light..

  • 8
    5

    We all did know yesterday that, today, Supreme Court will reject Ranjan’s petition. It is not Sumanadasa Abeyagunawardane told us, but the public media printed it yesterday; no hanky panky secreat!. That kind of fearless criminals, who pollute the justice system are ones want to bring the new law for political parties.
    Hoooo! I ask a question, where are those who always find that America did war crime in ME, America used Atomic Bomb in Japan, to tell these guys that in Britain there are parties with Scottish, Irish and Wales names are standing for election. In Canada Parti Québécois rule the Quebec. In Montreal only parties specific for “Montreal” only become Mayors. Never a candidate from PQ, NDP, Liberal or Conservative became mayor. Whole India has this type of parties, including TN’s DMKs
    .
    If I open a party, under the Chairmanship of Suren Ragavan, the Tamil Buddhist, as “Northern Bodu Bala Sena” to preserve and protect Tamil Buddhists’ hereditary artifacts that are being stolen by Appe Aanduwa, will that be illegal for EC? Isn’t the constitution says Buddhism must be protected? It didn’tsay only Sinhala Buddhism should be protected; so why not Tamils Buddhism!

    Come on EC, this EC is the one allowed King to stand for election while the the law is EP position is not for dual citizens.

    • 2
      0

      Good point Malli-uran.
      Technically it should also be banned. But Article 9? May be someone should try it just to prove how racist the government is.

      Keep uran!

  • 7
    1

    The reality is regardless of name all capitalistic parties have either ethnic identities or dominance by an identity.
    Prohibiting explicit identification will not stop the use of one of a myriad labels that closely hint at religious, linguistic or regional identity.
    I can off the cuff think of Holy Cow Party, Ashoka Chakra Party, Dutu Gemunu Party, Good Friday Party, God is Great Party and Singing Fish Party for starters.
    Will Gloriosa Superba Party be a good proposition for reviving the LTTE?

    • 4
      1

      …………The reality is regardless of name all capitalistic parties have either ethnic identities or dominance by an identity…………..
      Yes it is the reality. The system demands that any party needs a slogan to get ahead – not a formulated national policy for development of economy and the well being of all citizens.
      That is why even the socialist parties like LSSP and CP which had no religious or ethnic bias, fell by the wayside and the few leftovers, are now baggage carriers for the major parties.
      Either the system needs a change or the voting population needs to be discerning of the truth. Nothing else will help.

      • 1
        0

        MV
        They fell by the wayside because they thought that there was a parliamentary road too socialism, despite lessons to the contrary starting with British Guyana, now through Chile and beyond.
        How can elections, where money is a decisive factor for success, be democratic?

        • 0
          3

          Yes, that is true. Demockerycy has been well cared by communist’s murders, and by their weeding the enemies rather be beaten by capitalist’s money. But within next 10 years, other than Lankawe & China, there won’t be any communist government in the world. After making and possessing double the amount of atomic arsenals than US, USSR collapsed. A man with a brain would like to explain why USSR failed rather than chest beating for Honduras.

        • 1
          0

          OK if …”How can elections, where money is a decisive factor for success, be democratic?………….
          I personally agree that Voting at an election or any other instance, does not give the best result as few voters consider the “real issues” while most vote for personal considerations of ethnicity religion money or other various bias.
          But what alternative till EDUCATION of the voters to discern the true meaning and value of their VOTE.
          Also if socialism as defined by a political and economic theory of social organization which advocates that the means of production, distribution, and exchange should be owned or regulated by the community as a whole, is this efficient in today’s context ?
          Though they may call themselves “socialist”, what country is socialist in fact.

        • 1
          0

          MyView

          SJ types:

          “How can elections, where money is a decisive factor for success, be democratic?”

          Therefore we should proscribe all other parties and set up Communist Party of China (CPC) as the only legitimate party in this island. Then money won’t have any role in the democratic process.

          Isn’t it a good idea to have one party rule in this island where CPC will be the only party?

          • 0
            0

            Dear NV,
            .
            SJ often makes brilliant comments, but I’m beginning to understand what convoluted logic he sometimes dabbles in that make so many wary of taking him seriously.
            .
            Look at the only response to this short article that can be read in 5 minutes:
            .
            https://www.colombotelegraph.com/index.php/what-should-be-the-political-economic-alternative/
            .
            Egalitarianism in North Korea? It looks as though cleverness is equated by SJ with saying the weirdest things possible.
            .
            About Cuba, it is true that America is to blame for imagining it all right to deliberately stifle this thing called Marxism. Having seen that comment of his, I’ve got scared to say something about
            Dr Michael Fernando’s unassuming article. Perhaps, tomorrow.

            • 2
              0

              Sinhala_Man

              I have read the article as well as SJ’s comment.

              Both are trying to have the socialist cake and eat it too.

              SJ never provided reference to his assertions. Like Dayan he is in the habit of dropping one line conclusion as if it’s been fact checked.

              A country must produce efficiently before it start distributing its income. Country must save and invest. …..Country must provide education, health, ….. lower cost transport, ….. SJ is still drunk with Weeping Widows Sirimaoism when growth was almost nil or negative, …. Bicycle (a popular affortable transport) Tyre price jumped from Rs 1.75 to 2.25 to 7.25 within a short period of time. Rice prices shot up.

              Country was grounded, industries couldn’t be modernised nor started because of he license Raj, corruption was rampant, only the cronies benefited from Socialim, State jobs were handed out to party organisers, MPs, ….

              Able men and women couldn’t start their own industries because the dump asses at the misnistries and Central bank wouldn’t let them import, machines, tools, raw materials, modern technologies, know how, ………….. spare parts, etc the only excuses was Foreign Exchange crunch.

              Country could not increase its GDP at a rate where near full employment was possible. All because so called socialists thought Socialism was the panacea.

              • 2
                0

                Sinhala_Man


                The lazy, greedy, corrupt, … bums at the helm destroyed the moral fabric of the society. The country started tearing apart and start losing its moral authority when the state first disfranchised millions of hard working and less demanding people in 1948. Then of course it has been always downwards spiral. Country never recovered from its man made crisis one after another.

                like soma SJ thinks with his cheap shots he is making good arguments sadly he is making a socialist fool of himself.

                In North Korea people have to perform well in the competitive grieving category if the leader dies, in order to get in the good books of the party official.

          • 1
            0

            Dear NV.
            That was amusing.
            …….(1)Then money won’t have any role in the democratic process.
            (2)Isn’t it a good idea to have one party rule in this island where CPC will be the only party?…………
            If (2) then forget (1). Democracy and “one party” are contrary.

      • 1
        0

        MyView

        There isn’t much difference between UNP, SLFP and rest of the so called socialist parties. All are taking part in competitive racism. Al least UNP and SLFP are openly racist unlike the rest.


        Their dishonesty is the main reason for their downfall and the level of cronyism is also partly to blame.

  • 2
    0

    As a person promoting unity and harmony within the country, I would welcome the principle that political parties should not have an orientation to promote ethno-religious interests, whether in its name or objectives or even in its decisions. This is a matter, in my opinion, requires a referendum and as such if it were held I would most welcome. But I wonder, can the Elections Commission through a specification of criteria for registration of parties, not-withstanding ones already recognized by law? Going entirely by the article, it appears that the Commission is exceeding its bounds. As the virtual regulator of political parties, it is entitled to propose law and such law put forward to the people for its enactment through a referendum would give a clear signal of the attitude of the common man on this subject. Although the description of “cultural policeman” has no relevance the author clearly spells out the limits the Commission can act.

  • 3
    0

    All the laws and commissions cannot give a man a stature which he was not born with.

    Look at them , do they look like men with character, with any standards ?

    You can justify anything, even so called Marxists doing constitutions for capitalist UNP. But all that nonsense will not give you respect.

    Such people will always be scavengers, looking for a morsel of food from another’s table

  • 1
    0

    Well said Jayampathy,!

    But the theme of your article give an impression that you challenge only the legality of the action by the Election Commission.

    If it is made legal, you have no problem.

    We advocate that it should not be legalized, even the so called national parties had historically been racist in their attitude and actions.

    Not only racial and religious based parties, but even caste or territorial based parties should be allowed to freely function, because there exists systematic institutionalized discrimination that may not appear at first sight.

    There is a huge gap left by the traditional political parties, that have to be bridged .
    .
    As a human rights activist and long standing leftist you should be in the forefront to fight on behave of all marginalized people of our country.

  • 2
    0

    The end of the civil war about 12 years ago, has been a blessing for Rajas to accumulate enormous [Can someone put a figure to it] WEALTH. How did they do it? Did KP contribute $$$ to the King? Why he along with Karuna and Pillaiyan not being charged for their part in the uprising?
    JVP uprising too suppressed by GoSL with the help of the rest of the world especially USA. Did they give the “green card” to the princes in return?
    The worse form of TERRORISM is the ECONOMIC one—-Robbing the National Coffers.
    Not having a Genuine principled, Honest educated LEADER has cost our country a lot.
    In a country where the EDUCATED dance according to the tune of the rulers is NEVER going tobe developed one. The EC Gentlemen INCLUDED.

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