15 November, 2018

Blog

The Duties Of The Election Commission: A Proactive Or Bureaucratic Stand?

By S. Ratnajeevan H. Hoole

Prof. S. Ratnajeevan H. Hoole

We have a new Election Commission. Appointed in Nov. 2015, it will go on until Nov. 2020. It is the Commission’s immense responsibility to establish strong norms of governance as precedents for future Commissions.

It is legitimate in matters of national importance in a democracy to seek input from the public to engender a national debate. I raise two issues: 1) How we deal with big shots who violate election laws, and 2) Accepting unlawful nominations;

Dealing with Big Shots and Friends: Charging them?

There are many dos and don’ts at election time. In July 2011 I reported after a visit to Kayts that police jeeps were running around without number plates, President Rajapakse’s cutouts were inside polling booths and that EPDP cadres were preventing rivals from entering Kayts for canvassing purposes and villagers were having their poll cards forcibly purchased. For that, a criminal charge was filed against me for inciting a riot. I fled the country on legal advice and was forced to live abroad for 4 years. Even after my return and surrender to court in Aug. 2015, I was out on bail while our cowardly and corrupt police kept coming to court saying they need time to investigate. Finally, early this year, the judge discharged me saying he has seen no evidence of an investigation and doubts there ever was one. 

As I breathed a sigh of relief thanking God that the country has come out of its sordid past, I find it depressing that we are returning to the past. To date, however, we have been spared of white vanning. Ironically, these high minded principles underpinning free and fair elections are being flouted by our new rulers.

In Election Law, these practices are described as corrupt practices.

For example, Colombo Telegraph reports that under the National Sasundoya Program launched on 5 Dec., 1000 Temples are to be built using state funds all over the island (presumably in Tamil areas too as part of the continuing state-funded colonization of Tamil areas).

President Maithripala Sirisena laid the foundation stone for a Kidney Hospital in Polannaruwa on Dec.6 in the middle of the nomination period.

Education Minister Viraj Kariyawasam will distribute Rs. 700 mn worth of schoolbooks to children.

Madam Vijayakala Maheswaran is building free roads in Thinnavely close to the Farm School.

Douglas Devananda, Rishard Bathiudeen, and Sivasakthi Anandan have for several years been using government guesthouses in Vavuniya without paying any rent, and are now launching their election campaigns from these, reports Uthayan.

The parties of ministers are using Ministry offices in the Vavuniya Kacheri for elections. So, officials of the ministry sit on one side and do their work while the rest of the offices are used for political campaigns. Our officials have confirmed that the UNP, the president’s SLFP and Rishard Bathiudeen are engaged in this corruption.

In Mullaitivu District’s Maritime Paththu, Rs. 98 lakhs is to be distributed by the Ministry of Industry and Commerce only to party supporters. Divisional Secretary S. Gunapalan says he did not prepare lists for distribution and he has refused to sign anything, and he has been asked by his bosses to sign and be done with it to avoid the hassle. The Government Agent for Mullaitivy Rubavathy Ketheeswaran reportedly says that she does not know anything about it but that such functions can be conducted without politicians.

The response of the Commission has been to write letters to the politicians who are flouting the law, asking them to stop.

I gave on Saturday 16 Dec. at the Nallur District Secretariat in Jaffna to inform the public on the new system. A participant suggested that merely writing when laws are so freely violated is a petty excuse by the Commission to keep up good relations with the Prime minister, President and even GA Vavuniya whose good offices we need to set our salaries and conduct elections. When we write, they stop but do it again elsewhere, reducing the Commission and our letters to a joke. Why not charge them, he asked. I replied that I fully agreed with him.

Accepting unlawful nominations

In background to the problem, the Constitution in §3 defines the franchise as part of our fundamental rights. Further §104B says “It shall be the duty of the [Election] Commission to secure the enforcement of all laws relating to the holding of [elections]”.

The Local Authorities Elections Ordinance says in §8 that to be qualified as a member of a local authority, a nominee must be on the first day of June in the year of the commencement of the preparation or revision of that register, ordinarily resident in that electoral area.

I received a complaint that one Makathevan Sutharsine of NIC No. 875463675 V was nominated by the Tamil Congress for the Chavakacheri Urban Council, and that this person is not registered as a voter under that Council area. I checked up and found the person not registered anywhere in the Island. So, I passed the complaint on with a recommendation to reject the nomination.

However, the nomination was accepted along with, I understand, many others to other Local Authorities of people not registered in those authorities. It was explained to me that the long practised position of the legal division of the Commission is that §31 of the Local Authorities Ordinance gives reasons for rejecting nominations, and that the reason of not being a resident of the local authority is not among the reasons. The Legal Division adds that it is not really a serious problem because if the person is elected, the jurisdiction of the courts may be invoked to get the person removed the way Ms. Gita Kumarasinghe was removed as an MP for Matara.

Here is how §31 (1) on the Rejection of nomination papers reads: “The assistant returning officer shall, immediately after the expiry of the nomination period, examine the nomination papers received by him and reject any nomination paper that … [ listing the reasons, etc.]”.

My position is that this list of §31 (1) is not exhaustive because it does not say “reject only any nomination paper that … etc.]. As it is, thanks to the Commission, people will vote for this unqualified person and waste their franchise violating their fundamental rights of §3 of the Constitution cited above. Further, if elected, it will take another two to three years for our lazy courts to finish hearings – it took that long to remove Ms. Kumarasinghe after paying her as an MP with perks like car permits which most MPs sell for Rs. 2.5 million. In the meantime, people will be deprived of an elected representative while an imposter will parade as their representative. Is this not the worst form of violation of franchise?

It is imperative that we get the bigger picture. The Commission has the wider, overarching object as in §103 of the Constitution of conducting free and fair elections. When voters are tricked into voting for an unqualified candidate who can never be their representative, the Commission would be failing its object to hold a free and fair election. Indeed, no election can be fair when voters waste their franchise on these dummy candidates planted there because a party could not find fit persons to place on their nominations and chose to trick the country. Commission officials had advised that we will not reject nominees because of residence outside the local authority or lack of Sri Lankan citizenship (as required in §9(1)(a) of the Local Authorities Ordinance. 

The Commission must keep in mind that the Constitution says in §104B that “It shall be the duty of the [Election] Commission to secure the enforcement of all laws relating to the holding of [elections]”. We failed to secure the enforcement of the Local Authorities Elections Ordinance that says in §8 that to be qualified as a member of a local authority, a nominee must be on the first day of June in the year of the commencement of the preparation or revision of that register, ordinarily resident in that electoral area. This was never checked for anyone. While it is a longer process to verify citizenship, residence can be checked in under 5 minutes on our database.

The Little Boy and his Shirt

A story illustrates the Commission’s bureaucratic use of the non-exhaustive list of reasons for rejecting nominations which are not listed as the only reasons for rejection. A little boy got a new shirt for his birthday and his mother told him, “Son, wear that shirt to school today.” So, the son went to school wearing only that shirt and nothing else. When asked by the principal why he came without shorts, he said “I am a good boy. I listen to my Mamma. Mamma said wear that shirt.”

He had forgotten his over-arching duty to be dressed. “Wear the shirt” does not mean wear nothing else. “Reject nominations for such and such reasons” does not mean do not reject for other good reasons. To do so is a bureaucrat’s approach to playing safe, lacking imagination. Institutions over time develop these play-safe, do-nothing mechanisms for avoiding difficult decisions. One is to write to the Attorney General asking what we should do – whereas we are the Commission, not he, and must make our own decisions. After that, if necessary, we may ask if that decision is defensible. The AG in turn, a master at this do-nothing game, has developed similar mechanisms to avoid carrying our baby and not give any meaningful advice while seeming to do so, as he did to the Speaker over the Provincial Council Bill.

We as a Commission have an overarching duty “to secure the enforcement of all laws relating to the holding of [elections]”. This entails even charging the President and Prime Minister when they are on the wrong side of the law.

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Latest comments

  • 7
    1

    Thanks, Professor Hoole, for boldly and clearly explaining the practicalities of conducting these elections.

    *

    It is good for us to have a rounded account of what is happening. It looks objective to me; it certainly shows us that the commission is independent.

  • 4
    2

    This is what happens when an elite educated person holds a position as a Member of an important Council and also with an axe to grind – the President and PM have to
    face true Democratic status from now on or split the Council by underhand activity,
    to suit some hidden agenda – this will not be surprising?

  • 2
    3

    Vote for JVP to save Sri Lanka from nepotism; corruption and family domination and all short of looting of public funds

    • 1
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      Singhalese pundit

      “Vote for JVP to save Sri Lanka from nepotism; corruption and family domination and all short of looting of public funds”

      Are you for a little Pol Pot state?
      JVP is another racist party, out of touch with people, with outdated ideology(?), anti Indian, …….
      During the war years, under Somawansa’s leadership it supported the Clan for an accelerated war. It neither appeal to others nor it needed their support. It also believes it could ride the tide on a competitive racist platform. No wonder the party produced Wimal Sangili Karuppan Weerawansa.

      It never occurred to the rotten leadership which was hiding in India during DIG Udugambola’s days to protest against the state for violating all forms of human rights. It never occurred to them they should call for a independent investigation for the war crimes committed by all parties to the conflict.

      It never occurred to them the Tamils too have right to remember their kith and kin a right the JVP has been enjoying since 1995.

      JVP while sitting on pile of arms demanded LTTE to surrender its own, what a hypocrites they are.

      While publicly making anti Indian anti IPKF statements their leadership and cadres sought asylum in the South of India, including another public racist windbag Somawansa.

      The party never confirmed it has revised its lessons on Upcountry hard working people who were according to JVP the Fifth column. JVP never apologized to the people.

      Above all they never appologised to the nation/country/people for the terror they caused in 1971 and between 1987 and 1990.

      The party is yet to call for the release of Tamils who have been in custody for many years and some of them are for 20 years. It didn’t demand them to be charged either. What sort of inhuman leadership that the JVP think best suited for the present time?

      • 2
        1

        Dear NV,

        *

        You usually write comments that are refreshingly crisp. This one is just a lot of commonplace observations.

        *

        Yes, I’m sure that many typical CT readers DO feel this way about the JVP. However, I find that many Tamils whom I have asked say that the JVP no longer spouts racist rubbish.

        *

        Let’s go on their recent record. The major issue that I am unhappy with them about is the lengths to which they went to protest against SAITM. I appreciate their ideological opposition to free education, but they were surely cynical in the way that they manipulated the Medical Students in the State Universities and forced them to protest for about 9 months.

        *

        the JVP must understand that there are people like me who would like to think issues out and act rationally – not get marched about the streets according to their whims and fancies.

        *

        The JVP may not be prefect, but nor are the other parties. It is possible that I may vote for them.

        *

        NV, please get back to being yourself! You have sounded like some Sinhala or Tamil chauvinist in this comment. You keep re-telling things that we all know very well.

  • 0
    0

    some one said that MY3 is saying he paid for every house that amarasiri built. Now, at the end, he is giving only the fish bones.

  • 0
    0

    I herd some one is looking for a Tamil election commissioner.

  • 2
    0

    Prof. Hoole is a member of the Independent Election Commission. What you have described is as good as looking up and spit. It no doubt falls on your face. Yet, thank you for the exposure. I believe the Returning Officers who have been very well briefed have an obligation , a responsibility and a duty to abide by the law and act independently. If not, what is the use of having an “Independent Commission”? Please get cracking and get the job done as per the Laws and of the Statutes. Let us see what happens then. In one instance, you have stopped that distribution of the books in Matale; but when the Prime Minister summoned the Buddhist Clergy to Temple Trees and distributed “Big Fat Cheques” nothing happened. All the UNP MPs have been told by the PM, that if any of the Local Government elections are lost in their respective Districts, those MPs would be held responsible. That is why one “Senior” (both in age and experience) said, “We have the Government and the Police”. Then another said at a TV debate, “Vote the candidate put forward by the party in Government; if not no do not expect any development in your Local Authority”. These are “THREATS” to the voter. How do you interpret such types of “Canvassing”. This has reached a stage of ROTTING and STINKING. Therefore a CHANGE is a MUST.

  • 1
    0

    Mahinda Rajapakse is worried ans was regretting in front of monks because he does not have money even to give a Dane to Monks because, Namal Rajapakse has moved all the money in foreign banks every where in the world. Money got from Porcelain sale, money moved from constructions in North India are all deposited in safe places. MY3 is also saying that is true he worked for 50 years he should have some. It looks they have used Arjun Aloesisu’s method just leaving money some where in a closet or underneath the house etc.,

  • 1
    1

    Sorry Prof. Hole, You disagreed with the LTTE then, Now you are dissatisfied with the Yapalana elected by people, you also like your colleague Prof. Peries, a square peg in a round hole. Why should we follow the western nations? We have a proud history, our justice system very good, if required we know how to adjust, we have our human right standards to hell with western standard, we have our way of winning the elections. Unfortunately, Election Commission may refuse to understand the traditions.

  • 4
    1

    So, Prof Hoole, you are a lone crusader. Very Good. For your stand you were not allowed to function as the VC of Jaffna even if you were appointed. Government, Non-government, LTTE etc. are all the same, they want YES MEN. All what you say is dumped into the waste paper basket. It is sad! But I encourage you, Prof, DON’T GIVE UP. DON’T YIELD. At all costs PERSIST. All the very best to you Sir.

  • 1
    0

    Like all new born babies all new political parties too appear to be innocent and lovable at the inception. But the rot starts only after assuming power. JVP may not be an exception. We live in the land of POLY-TRICKS.

  • 4
    1

    Dear Prof
    Thanks
    Translate this in Tamil and Sinhala and publish so that most of the voters read it.

  • 2
    1

    Problem is not with the commission but with that joker Mahinda Deshapriya…he raises his voice through his throat but does exactly what the politicians in power needs…even the day for election was declared by Minister Harrison much before the commission. He did not do anything for the people who violated election law even on the day of the election. He has a habit of giving cricket examples and pass the ball nicely when confronted by the press on serious issues. Rest of the commission members must get together and throw this useless guy out, then may be we can see some progress.

    • 4
      1

      Unjustified and irrelevant comment. Most criticisms are ad hominem, centering upon things like physical features and similes.

      *

      The Elections Commission has so far functioned well. You are trying to create dissension among them.

      *

      Dear “thumpane gamaya”, there were worthwhile things that you could have said when Prof. Hoole complained about certain things that were bungled when setting up the Elections Commission, such as having only three members but insisting on 3 also as the quorum for all their meetings.

      *

      Professor Hoole has also written about how very little provision has been made for the comfort of these three elderly men. I believe Mr Nalin Abeysekera is about 80 years old. It is good to see them acting so well in unison. I’m sure that each of you will be voting – and differently. That is your right. Please conduct the poll fairly. I’m sure that you will.

      *

      Thanks, Old Guys in the Commission.

      • 0
        0

        So all these guys in the Election Commission are Octagenarians. Do they know what.’s going on. Even S Ratnajeevan H Hoole is 80 plus ? Then what about
        F Ulrick C Karppiah .? Also same age? Good heavens the electors better be wary of these old buggers.

  • 1
    0

    Political system that was developed in Sri Lanka over the seven decades remain under the influence of Buddhist Sinhala Fundamentalism. The rule of law, justice, the democracy and all institutions are under the control of Buddhist Sinhala Fundamentalism. Buddhist Sinhala Fundamentalism do not bother about humanity or any other aspects of humanity or who become president or prime minister or which party (UNP or SLFP) comes to power or how many people were killed unlawfully. They don’t bother about corruption. They don’t bother about election commissions and election laws. They are there just for propaganda purchases. If the election laws are implemented almost all the existing political parties cannot exist in this buddhist fundamentalist governed nation. The people of this nation lost its independence seven decades ago.

    • 3
      1

      Ajith,

      All talk. The Elections Commission is actually doing their job well. Whether they are sufficiently rewarded or not is not our business. They have undertaken to do a job. Let us praise them for doing their best.

      *

      We do have duty: to vote intelligently. Each of us has to vote intelligently; if possible tell the guys who come for our vote what we feel on certain key issues. If we are in a position to do so, let’s tell those whom we are NOT going to vote for, just why we don’t approve of them. Of course that may be a W.W. In our student days we used WW to signify “vedi veda”.

      *

      This is a secret ballot. Let us use the opportunity wisely. Our votes may cancel out, since we are voting for different people. If the politicians are shown that we are not fools, we will be able to exercise some control over them.

  • 5
    0

    Professor Ratnajeevan Hoole,

    Agreed,

    But what is the position of other members of the commission?.

    You are not simply an individual, but belongs to a group – the commission!

    Why not act jointly?

    The commission should function as an independent body and set an example to all other commissions.

    Powers given under the 19th amendment has to be used. It is not for decorative purposes?

    Try to work in groups as a group member

    It is a crime to blame others whiling ignoring to act? Merely blaming is escapism

    Act jointly and strike jointly for the good of democracy and the country!

    • 2
      0

      Dear Sri-Krish,

      I have seen nothing to suggest that the other two Commissioners disagree, although Mr Nalin Abeysekera, former legal draughtsman, and son of the late Proctor Stanley Abeysekera, MBE, of Badulla is rather more reticent.

      As for remuneration, I think that Prof Hoole has written some other equally bold articles which imply that they are almost not paid. expenses only, or something like that.

      We have to be very grateful that we have people of this calibre still with us, despite all efforts made to make Sri Lanka an uncomfortable place to live in for those who are independent minded.

  • 0
    0

    In India election commissioners are paid salary and other allowances equivalent to that of Supreme Court judges. What is the position in Srilanka? Are these commissioners doing enough work to justify their remuneration? I wish Prof Hoole or any other person post a reply.

  • 1
    0

    Native Vedda: ” Are you far a little Pol Pot state” you said. I do understand your concerns, fears and jitters on hearing those few letters viz. “JVP”. When Anura Kumara Dissanayake, the Leader of JVP appeared in a TV discussion titled “Salakuna”, he was asked why people don’t vote for the JVP. He listed “Three” reasons viz (1) No clear understanding of the policies (2) Has not conveyed what we stand for and (3) The people have a “Fear”. In my opinion this No. 3 must be No.1, as in the case of your comment quoted above. But what are we to look for is the most important and urgent question that is confronting us TODAY. Are we to CONTINUE with this “Change of Pillow” drama OR – TEST RUN an option? Agreeing to what you have enumerated; but consenting to out weigh all those facts as “History”, I tend to TRY the “New Format” of “REFORMED” Leadership and the Management of the present JVP, as we do NEED at least a “Little Pol Pot” type to immediately correct the course of this country. I could be wrong but ready to take a “RISK “and TRY for the sake of the country. Nothing happens, if we don’t TRY. If not, it is “same old shit” repeated.

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