By S. Ratnajeevan H. Hoole –

Prof. S. Ratnajeevan H. Hoole

Influencing aw Enforcement

In Sri Lanka, anything unlawful we are caught doing, can be “shaped up.” It is the “Asian Way” we say proudly, indirectly alluding to upholding the law as the “Western Way.” In that self-congratulation we forget that we bury our democracy in our feudal grave where our past belongs. For who can shape-up any crime they commit? It is our elders – our clergy like Rathana Thero (who should have been allowed to starve to death rather than let him thwart our democracy), and Gnanasara Thero, the Prime Minister, the President, our clergy, and our ruling class. 

Our 71 years of independence are wasted on us as we vote and revote for our politicians who openly take bribes, and kill our kith and kin, just because they are our feudal elders. 

Voting Right Held to Ransom

Several complaints have been received that Grama Nildaris (GNs) are collecting information on Muslim residents during voter beginning June 1. The GNs have refused to work only with our form saying they must use the second unauthorized form. That gross insubordination has been “shaped up” letting GNs do as they wish because it is some bigwigs who drafted their Nazi form. In effect, it is saying “If you want to vote, follow us and our communal leadership in disfranchising the Muslims of this country by driving in the fear to register and reveal where they live.”

Rathana and Gnanasara: Unelected Clergy holding a democracy to ransom with impunity and pardons

Parliamentary and Provincial Council Elections

PC elections are long overdue except in Uva Province. The government passed the new PC Elections Act after the Attorney General (now the Chief Justice) pulled some shenanigans through wrong advice to the Speaker on changing the Act in Committee when it was against the Standing Orders. He thereby shaped up some problems for the government. The new law, nevertheless, is a good law going by similar changes to the Local Government Act. It provides for mixed elections combining first past the post with the old preferential vote. It gives women quotas. 

The men in Parliament did not like the new law because many of them do not want to give up their places for women. Perhaps for that reason when the electoral boundaries were drawn up by the Delimitation Commission, Parliament balked at approving it. At that point a Committee under the Prime Minister had to modify and approve it within two months. That committee we were told was working on it but our sources informed us they had met only twice. We were being strung along. 

As the Speaker told us, Ministers Mano Ganeshan and Rishard Bathiudeen had asked the Committee to wait as they had sought two clarifications from the President. The Speaker did not know what they were. As he put it, they were in deadlock.

Then the question arose if the new Act was operational and if not whether the old Act was still valid under the Interpretation Ordinance. On one side the argument was that since the new Act was stuck without delimitation – to hold elections we need electorates – that new Act was nonoperational. The counter argument was that the delimitation process was begun under the Act so it was already operational.

The Commission wrote to the President reminding him of his constitutional duty to create a climate for free and fair elections by gazetting the delimitation report. He did not respond. Then we asked for an appointment and asked him to seek the opinion of the Supreme Court (which only he can do) as to whether we can hold elections under the old Act. He promised to instruct the Attorney General but so far no news. We also wrote to the Prime Minister who promised to convene a Party Leaders’ meeting on going back to the old Act. No news.

For the Election Commission to call for PC Elections, either the government must approve the delimitation report for us to go with the new Act, or legislate the abolition of the new Act and the revival of the old Act. Till then we must assume the government wants no Provincial Council elections. With the government refusing to do neither, we cannot have PC elections. 

Presidential Elections: Proverbial Parrot

We have waited for PC elections like the proverbial parrot waiting for a fruit that never ripens to ripen. No one except women and those of us who want to empower women wants the new Act. Even if the conditions for PC elections get ready, ever, by the government deciding to go ahead with the old act, it will take at least a month for parliament to enact the necessary legislative changes. And then we will want 10-12 weeks to prepare. That will take us to the end of September. However, if the presidential elections are to be held in November, the call for nominations and preparation of ballot papers for that will clash.

The presidential elections are declared by the EC and no one else (although the president has unlawfully declared 7 Dec. as the date). The laws are in place for those elections and have been implemented successfully.  I doubt that the government will change those laws to seek a delay because if there is a delay the current President will go out of office in December and there is no law under which he can stay on without a fresh mandate. If he resigns before his term ends on Jan.15, parliament will vote in a person within a month till Jan. 15. The President will not relish that.

Instead of being the proverbial parrot, let us shoot for the presidential elections which the EC has control over, and let the people speak at the earliest possible date. No more shaping up.

Upholding Election Laws

For the people to speak, the election laws and their violations must not be shaped up. Consider the numerous violations we saw during last local government elections: there was only one successful prosecution from Kurunagala leading to loss of civic rights. That too by accident in Mawatagama. The leader of an independent group had been charged with a minor violation. His bad lawyer had misadvised him that the fine being a mere 200 rupees, it is simpler to plead guilty and pay the fine than to languish in court for years. He accordingly pled guilty and promptly lost 5 years of his civic rights and his seat. 

There are lawyers in Jaffna who could have advised him on shaping up the police as they appear to have done, shaping up, it seems to me, even a Magistrate at Mallakam whom I have referred to the Judicial Service Commission for investigation. If we are to hold the presidential elections well, we cannot shape-up for money or for big-wigs.

Seminar on Election Dispute Resolution (EDR)

Are the people free to speak? An eye-opener for many was the EDR Workshop on 12 June sponsored by IFES, Australian Aid and us. One session was led by our officials heading our 25 district offices. It was no-holds-barred.

We empower our officials through the millions we are spending on technology to monitor election law violations. But real empowerment is of the heart of our officials bravely refusing any shaping up.  Among their grouses were

a) In the 2015 parliamentary elections, Assistant Commissioner Sajith Welgama referred for investigation  how, as he alleged, the SLMC Eastern Chief Minister Naseer Ahmed’s Secretary Aseez made 50 labour grade appointments through the Health Ministry. Welgama sent all details to the then Election Department in a file. He believes the matter was shaped up and the file disappeared or buried.

b) Waiving the Law: While parliament is supreme, it is now common practice from Commissioner Dayanada Dissanayake’s time to be generous in waiving the law as a favour to party leaders. Thus while the law disallows something, a Party Leaders’ meeting convened by the Election Department and now the Commission claims the right to waive laws as it wishes. That group has agreed to override Parliament which does not allow cutouts – that we may violate the law and allow cutouts of certain dimensions which seem to change from time to time. Our officials on the field then produce one circular while the parties in violation of the law produce another. The law allows no cutout. Similarly the law allows only 1 party office per polling division. When the then District Commissioner for Colombo, Achchuthan Sivasubramanaim, ordered during the 2015  presidential elections that all unlawful offices be removed immediately, Dinesh Gunawardena argued that they had the permission of the Party Leaders’ meeting. Kamal Pathmasiri, the GA and Returning Officer, had not been communicated that decision (which had no standing even if the Election Commissioner agreed to let the law be violated). Pathmasiri stood by Achchuthan. 

c) Assistant Commissioner R. Sasilan of our Batticaloa office caught then-Minister MLAM Hizbullah distributing gifts at a parliamentary rally going on after 11 pm using loud speakers (which too is a Party Leaders’ fiction in violation of sound-pollution laws). The police did not stop the meeting. Sasilan went with another police party, stopped the meeting, confiscated a gift pack, and filed a report with the OIC Wethagethara, giving him the confiscated pack. Withagethara charged Hizbullah supporters with threatening a public officer rather than treating for elections which would have put Hizbullah in trouble. He urged Sasilan unsuccessfully to admit himself to hospital to sustain the false charge which under law is sanctioned by the Attorney General. In time the OIC informed court that there is no evidence and told Sasilan that he had not given him the pack. Similarly when I gave evidence of the Tamil Congress threatening me with assault, the Jaffna Police failed to produce it in court for a year, allowing the special acting judge to throw it out. It is natural to wonder who collaborated in shaping-up.

d) In the 2014 Uva elections, Rs. 2500 was given per family in the name of drought relief. In the face of attempts to shape up, the courts had to intervene but by then a lot of money had been used to bribe voters.

e) Assistant Commissioner Soumia Fernando in the 2015 Presidential Elections asked for the dismantling of a UPFA Office in the centre of Matara invoking regulations about the 48 hour silence period preceding voting. But he was abused by UPFA’s Chandima Rajaputhra. Assistant Commissioner Bandara Mapa had his camera broken by UPFA thugs. None paid for his camera. At the request of the then President, says Kandy’s Deputy Commissioner Namal Talangama, no press statement followed. Namal reports that in Uva’s provincial elections when he stopped an illegal parade, UPFA’s Anura Withanagamage told him, “This is Mahiyangana, not Kandy. We can kill you and your family.” UPFA officials filed a police complaint against our officials whose Welfare Society had to pay for their lawyer, the department having declined to pay Rs. 12000 for a private lawyer. Nissanka of the presidential security detail assaulted Mervyn Perera’s son, but no police charge. 

f) In another shaping up of the 48 hour silence rule, parties are allowed to make any propaganda speech just before 48 hours like “vote for so-and-so” and then publish that as news during the silent period. This waiver of the law, shows intent to do favours.

Let’s not wait like parrots for the never ripening fruit. Let’s give teeth to our laws with no shaping up for anyone. Let the people speak at the presidential elections. I ask our rulers to ensure that the laws will be enforced impartially and election officials truly empowered. 

Wails Talangama.”When we defend the franchise, there is no one to defend us.”