Right of Reply: Criticism of EC
Thanking the Editor of The Island for his editorial, I am writing in my individual capacity as a Member of the Election Commission to address comments by Gomin Dayasri (25.02.2016): “Dayasri castigated the National Election Commission, […] for accepting Democratic Party Leader Fonseka’s appointment in contravention of the law: ‘I have lost respect for [Mahinda] Deshapriya to some degree’.”
He added that the alleged irregularity should have been pointed out and the opinion of the Supreme Court sought. I will confine myself to EC decisions that I too was party to.
First, I am advised that there is no provision for the Commission to refer interpretations to the Supreme Court. Only the President may. We invoke that privilege by initiating actions that are challenged like the CPA’s plaint on Sarath Fonseka’s appointment.
Second, the charge that we should not have accepted Fonseka’s nomination. The Constitution’s §109A third paragraph says that the Election Commission shall by notice require the Secretary of the [UNP] to nominate “persons whose names are included in the list [defined in paragraph 2] to fill such seats and shall declare elected as Members of Parliament, the persons so nominated.”
The words “shall declare elected … the persons so nominated” gave us no choice. If the UNP Secretary nominated persons not qualified under §109A, he has to defend his decision, not we. That will be settled by the Supreme Court now.
In the rest of this article, I will deal with the idea that officials like me should not discuss these matters in public. Nonsense! Such ideals really help cover up dirt while letting us think we are being principled. We are called not to be neutral but to be on the side of right against wrong. When a party cheats at elections, we need to condemn that and not hide behind neutrality. The EC neutrally facilitates the free exercise of citizens’ franchise.
Sub Judice Matters
We have this notion that we should not express opinions on matters like this before court. When people write that we were wrong, we have the right to say otherwise. I am absolutely unhappy with our legal system and am not prepared to sit back and pretend our judges are gods. They have the same failings we do – it was the Supreme Court that faulted a 12 year old victim in Bindunuwewa rather than his murderers.
In the several cases that pile up weekly naming me as a Respondent, I have to either sign over my proxy to the Attorney General (AG) with a reputation for playing politics by agreeing with the party in power – or go without representation. I am never asked for my opinion. Anonymous juniors will determine my answer.
AG Throwing Cases
In 2004 there were several cases by CIMOGG against universities for violating UGC ordinances. The AG represented both, the universities and the UGC, and made joint submissions denying the charges against the universities. As a UGC Member I objected. In one case so thrown, a person who cheated his way to a professorship was the brother-in-law of a DSG and brother of a senior judge (Island, 22.09.2004). The President of the Court of Appeal referred to my article and declared that he and his brother judge, both formerly from the AG’s office, would never have agreed to hear the case if they had known. Finally the AG was forced to withdraw from representing the UGC.
It is widely known that the AG threw a 2004 case involving the university admission of the daughter of an AG high-up who soon joined the Supreme Court. It led to several medical students having to be admitted with the daughter.
If we talked openly about these judicial scandals, they will not recur.
For writing in The Sunday Leader (24.07.2011) on election rigging in Kayts, I faced a criminal complaint. The Magistrate Joy Mahadeva whom I had seen on ruling party election platforms issued summons. I was advised the summons were improper and to flee. Thereafter I wrote several articles critical of the then government. I returned in Aug. 2015 with the change of government and went to court straight from the airport. The new judge called both parties to his chambers and mentioned that the case cannot be sustained because my writing an article is not a criminal offence, that the court had no jurisdiction because publication was in Colombo, and that he had written to the AG for advice long back saying he did not wish to throw out the case as he normally would because he knew me from school. He had not received a reply. He instructed the police to consult the AG and either charge me or withdraw the case. Released on bail, I have been visiting court regularly with nothing from the AG!
I filed an FR case in 2014 challenging the previous University Services Appeals Board (USAB) decision to not object to its own order not being implemented. As reported to me by my lawyer, Chief Justice Mohan Pieris dismissed the case because he said it should rightly be filed before the USAB – an atrocious decision given that the complaint involved the USAB itself. I tried to get a copy of the decision but the file simply disappeared! Two years later when I happened to read the decision that an AG official produced at the USAB, it claimed I had withdrawn the complaint to pursue other remedies. It was fabricated.
The Courts and the AG’s are stuck with people promoted for political obedience rather than acumen. Mohan Pieris has been kicked out but many remain. The new government was elected to clean up and return the country to the rule of law. And that is the catch. The rot cannot be removed without lawful processes. We just need to understand with patience. However, the more we discuss and put these facts out in the open, the more awkward it will be for them to serve their political masters.
University Autonomy: Minister Kiriella
Another so-called principle is that the Minister must not interfere in universities. Statutorily the Minister issues general directions and the UGC regulates university administrations. But then, in USAB 873 where Jaffna and Peradeniya refused to implement national policy that the UGC said had to be followed, the AG who is to uphold the law, decided to defend lawlessness. He filed answers in the UGC’s inimitable English:
“These Respondents [the UGC and it Chairman] further wish to state that the Universities are separate legal entities and the UGC has not given power [sic.] to compel Higher Educational Institutions to do things by the Universities Act.”
Amazing! A competent UGC will know its power to compel universities to be lawful. The Act §3 reads the objects of the Commission shall be “the regulation of the administration of Higher Educational Institutions;” and §15 reads
“The Commission shall have […] the following powers […] (xii) to investigate or to cause investigation into such matters pertaining to the discipline of the students, or to the academic, financial or general administration, of any Higher Educational Institution, and to take remedial measures; and (xiii) to do all such other acts or things […] for effectively exercising any of the powers specified by this act and for the attainment of the objects set out in section 3.”
When the UGC will not uphold lawful governance, it is the political authorities who will be blamed. They are not precluded from issuing particular orders as policy. Indeed, a minister always may tell universities to start new programmes or to examine the credentials of a highly qualified Sri Lankan abroad who seems a useful addition to the staff. It is ensuring within the law that universities in their charge do well. It is the Minister’s job, especially when the UGC thinks it has no power to order lawful behaviour. What Minister Lakshman Kiriella did was to ask for a temporary appointment needing no advertisement (says the Establishments Code) after examining his credentials for suitability. Several usually thoughtful and balanced people jumped into the fray to criticize him.
Let’s stop our pretended principles which really are an excuse to support our political masters and attack our enemies.