Grave concerns have been raised over the neutrality of the Chairman of the National Election Commission Mahinda Deshapriya as Sri Lanka heads into a critical election in just over two months. 

Chairman Deshapriya who was hailed for his independence in the aftermath of the fraught 2015 presidential elections campaign, has turned turtle sources told Colombo Telegraph and now appears to be ‘playing ball’ with Gotabaya Rajapaksa who he believes to be the front runner in the 2019 race.

Suspicions about Deshapriya’s independence were recently raised when the Chairman sent messages to the former Defence Secretary through several intermediaries, trying to reassure the SLPP presidential hopeful that the Commission was not going to stand in the way of his candidacy. The messages were dispatched a day after a meeting between Gotabaya Rajapaksa and the Commission at 2PM on August 26. During the meeting Rajapaksa showed the three member commission copies of his dual certificate and his certificate of loss of US citizenship. However none of the three commissioners scrutinized the documents or indicated much interest in the affair. Gotabya Rajapaksa was accompanied to the Commission in Rajagiriya by his attorney Ali Sabry PC and another junior legal counsel. 

“Mahinda Deshapriya was eager to reassure Gota that although he did not get the reception he expected during his meeting with the commission, the way was cleared for him. He also indicated that the problem was only with one of the Commissioners and that the other two were going to be extremely accommodating,” a source who was familiar with the messages sent to Rajapaksa by the Elections Commission Chairman told Colombo Telegraph speaking strictly confidentially. 

Since then the problems have only been mounting. 

Earlier this week the CID began an investigation into a voter fraud allegation in the Rajapaksa family’s polling division in 2005. The complaint was first made to the Elections Commission but Deshapriya has been slow to act. The Commission called for extracts of the Mulkirigala polling division electoral register on August 26 to study the issue. However Deshapriya is insisting that the matter should be forwarded to the Attorney General for action. 

However after the CID investigation got underway, Deshapriya was quick to call the Hambantota Returning Officer. He asked the RO to give him a list of information and documents were being handed over to the CID.  Concerns have been raised about whether Deshapriya was hoping to pass the information back to the Rajapaksa camp. 

Furthermore after the Supreme Court ruled that the Elpitiya PS election must be held as soon as possible, Deshapriya (apparently acting on political instructions) took it upon himself to consult the Returning Officer for the area and set the election date for October 11. This is despite Prof. S. Ratnajeevan S. Hoole having raised concerns about the election being held too close to the presidential election which could be an influencing factor in the bigger poll scheduled for mid or late November. 

However without calling for a meeting of the Commission – which requires a quorum of three – Deshapriya made hectic telephone calls individually to the commissioners before first leaking the information to the media about the date of the election and then issuing a gazette the following day. Prof. Hoole has insisted he will urge a discussion on the matter on Monday when the Commission next meets. Prof. Hoole told the media that no decision could have been arrived at without the commission meeting. 

The Elpitiya PS election is one the SLPP is desperately keen to hold as soon as possible, as a precursor to the November-December presidential poll. The Galle District electorate has traditionally polled heavily in favour of the UPFA. In the 2011 local government elections when Mahinda Rajapaksa was still President, UPFA polled 58.54% of the votes, while the UNP obtained 30% of the vote. Throughout the years, with a peak of 62% in favour of Mahinda Rajapaksa at the 2010 presidential election, Elpitiya has leaned solidly blue. The SLPP machinery is confident of pulling off an efficient ground game in the one off election. A huge win in Elpitiya, weeks ahead of a presidential election will  have a psychological effect on electors around the country and cement already growing perception that a Rajapaksa return was a foregone conclusion. With SLPP pushing hard for the Elpitiya poll to be held as soon as possible, and the party expected to concentrate resources and political star power in the electorate, Deshapriya seems eager to oblige with a convenient date. Interestingly based on Deshapriya’s own estimates, nominations for the presidential elections could be called the very same week. 

But Colombo Telegraph learns the Chairman of the Elections Commission expects to go one step further. He has recently assured the Rajapaksa family that he will ensure November 23 would be the presidential election date since that is the preferred date astrologically for Gotabaya. UPFA MP Dulles Alahapperuma who was recently appointed spokesman to Gotabaya Rajapaksa has specifically requested the Commission to consider the date since it was favourable. Once again Deshapriya has indicated to the former ruling family that he was more than ready to oblige, and instead of locking down dates for the election and nominations, the Chairman of the Elections Commission continues to play guessing games in the media. 

Concerns about Deshapriya’s independence have been mounting for a while especially after it became clear that he was pressuring President Sirisena to ask the Supreme Court if the Provincial Council elections could be held under the old law. During the 52 day failed coup, Deshapriya blithely walked into President Sirisena’s residence to discuss dates and timelines for a parliamentary election after the President violated the constitution and dissolved Parliament by way of gazette notice. At no point did Deshapriya advise the President that the illegal dissolution was a violation of the people’s franchise, which had fixed Parliament’s term at 5 years unless it voted to sack itself earlier than that date.  In fact while most political parties saw the act of illegally dissolving Parliament as a step too far, Deshapriya decided not to go to Court, allowing Prof. Ratnajeevan Hoole to do so in an individual capacity instead. Lawyers for Prof. Hoole took the position that since Parliament had been unlawfully dissolved, there were no vacant seats to hold an election to fill. A seven judge bench of the Supreme Court led by Chief Justice Nalin Perera held with Hoole and 12 other petitioners in the famous dissolution case, unanimously ruling that President Sirisena had violated the constitution and was about to hold an illegal election. 

Colombo Telegraph learns that while election monitors have had concerns about Chairman Deshapriya for some time, they are wary of raising issues because the organisations must work with the Commission in the future. 

However, with Deshapriya seemingly compromised and heavily tilting the scales towards Gotabaya Rajapaksa, and at least one other Commissioner willing to go along, the entire presidential election process could now be compromised, legal experts warned. 

Speaking to Colombo Telegraph, Elections Commission Member Prof. Ratnajeevan Hoole confirmed that a meeting of the Commission had not been held before a date was set for the Elpitiya election. “A meeting requires a call by the Secretary with an agenda, proper minutes and all three members present to meet the quorum of 3 out of 3, as specified in Section 104 (1) of our constitution. 

The Supreme Court judgment on the Elpitiya election was received on Friday. 

“That Saturday itself I said in writing why I think it is wrong to rush the Elpitiya election and during our phone call, I told the Chairman we may have to go with a 2-1 decision at our Commission meeting,” Prof. Hoole told the Colombo Telegraph. “Next I heard instructions had gone from the Commission to announce a date and when GA Galle had requested if October 11 was alright, that was also agreed to by the Commission,” he added. 

Asked if he believed the PS poll should be held on the cusp of a major election, Prof. Hoole responded that he did not. “Our own guidelines to media direct that no polling data can be published because that would distort the poll and violate the free franchise. Section 104B (5) (a) of the constitution empowers the Commission to issue these guidelines that now have the force of law. Is an election, Local though it may be, not a pre-election poll on a major election?” Prof. Hoole asserted. 

Asked if he had concerns about Chairman Deshapriya, the EC Member replied that he was “a bit of a showman, but honest”.  “He likes to talk to everyone and that gives rise to accusations. In the past few elections he has not voted, saying that his having a choice shows bias,” Professor Hoole said, defending the Chairman. 

Prof. Hoole also denied allegations by UPFA MP Vasudeva Nanayakkara that he had “reprimanded” the Returning officer of Galle using strong words. 

“I informed the GA that he has letters from the Chairman claiming they were Commission decisions, and now a fax from me that they are not. I advised him to seek legal opinion on how to proceed. The Chairman informed me that he had checked with the GA who told him that I had never been rude,” Prof. Hoole insisted. 

Speaking about SLPP Presidential hopeful Gotabaya Rajapaksa’s meeting at the Commission on August 26, Prof. Hoole said the meeting had originally been scheduled only with the Chairman, Deshapriya. However since the Commission meeting that day had been lengthy, and Deshapriya had forgotten about the meeting, the other two members also sat in on the meeting by accident. 

During the meeting after Rajapaksa showed his certificates to the Commission members, Prof Hoole said he asked him why a fake certificate of renunciation had been previously circulated. 

“I added that it aroused questions in my mind as to if he had really renounced his US citizenship. He replied that he was not responsible and that some supporters had done it,” Prof. Hoole told Colombo Telegraph.

“Then he gave us his dual citizenship certificate. I am aware that he applied for his dual citizenship on 18 Nov. 2005 (the day after his brother’s election as President) and had it internally approved at amazing speed on 21 Nov. 2005. On 30 Nov. 2005 he was formally awarded dual citizenship. Gazette 1423-4e of Dec. 13, 2005 states he assumed duties as Defence Secretary on 24 Nov. 2005. While looking at GR’s Dual Citizenship Certificate on the 26th I asked him if he had signed his own certificate as Defence Secretary, and he nonchalantly replied that his predecessor had signed it. However, his predecessor could not have been Defence Secretary on 30 Nov. I let it pass,” he said.

Although Prof. Hoole has answered to our questions via email, Chairman, Elections Commission Mahinda Deshapriya has failed to do so. Colombo Telegraph sent the following questions to Chairman, Elections Commission Mahinda Deshapriya. It was also copied to his personal assistant Rizan Manizil and Director General of the EC, Saman Ratnayake. The questions were forwarded two days ago, however no reply has yet been received at the time of publication. 

Colombo Telegraph questions for EC Chairman Mahinda Deshapriya: 

Can you confirm whether the commission held an official sitting before a date was set for Elpitiya PS election? 

How did commission communicate in order to reach a decision on the date? 

Did Gotabaya Rajapaksa come to visit the commission on August 26 at 2pm? 

What documents did he show the commission and what was your response? 

On Tuesday August 27 late morning did you communicate to mutual friends about Gotabaya Rajapaksa’s visit to the commission? Did you urge those friends to convey to Mr Rajapaksa that the Commission would not block his candidacy? 

This week did you call the Hambantota Returning Officer? 

What was the content of that conversation? 

Did you discuss an ongoing investigation by the police about the 2005 voter fraud allegation? 

Did you ask the RO to give you a list of documents he was sending to the police?

If yes, why did you require that information? 

Is it true that the SLPP has requested the election to be held on November 23? 

Have any other parties asked for specific dates? 

What is your reason for not locking down dates for the election?

(By TB Bambaradeniya and Chinthika De Silva) 

Editor’s Note: The previous version of this article inadvertently dropped the sentence, “I let it pass” attributed to Professor Ratnajeevan Hoole. The error has been corrected.