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.’