A paper presented at the 8th Annual Meeting of the Forum of Election Management Bodies of South Asia, 23-27 Sept. 2017, Kabul, Afghanistan on the theme “Election and Dispute Resolutions & No Voter to be Left Behind.”
Distinguished friends. Greetings from Sri Lanka: For all of us to defend the institutions we represent is the human condition. Thus, country reports and like documents tend to gloss over the failures of our institutions. This enhances our view of ourselves. However, it is in owning up to these deficiencies that causative factors are resolved or at least ameliorated. None of us has a perfect democracy. We have ideals that we strive to achieve and move towards.
Sri Lanka’s is a multiparty democracy. We have our failures that have impeded our island nation’s progress towards democratic-franchise for all communities. Social, political and economic influences have undermined our democratic ideals. For example, five of our failures are provided below.
1. At independence in 1948, 11% of our population were Tamils of recent Indian origin enjoying the franchise. One of the first acts of Ceylon’s Parliament was to disfranchise them. Voters were left behind.
2. The Sri Lanka Freedom Party under its then leader Sirimavo Bandaranaike, enacted a new constitution in 1972, and used that effectively to extend her term by two years. She also did away with Article 29 of the previous constitution affording protection to minorities. The change made Sri Lanka a very different country from the pluralistic society previously envisioned.
3. In 1982 President J.R. Jayawardene, who had been elected in 1977, with his party commanding a two-thirds parliamentary majority, held a referendum on extending the life of parliament by 6 years without an election. According to the book by Paul Brass , “The December 1982 Referendum saw rigging on a grand scale, with UNP supporters – especially those in the party’s trade union – resorting to ballot stuffing, intimidation, and violence to ensure a UNP victory.” Yet, our Department of Elections certified the result.
4. In the 1994 elections, the separatist group, the LTTE, ordered a boycott of the elections. It was understood that anyone who defied the ban would be executed. Thus, only one rival militant group was a key contestant and their members got elected to parliament with as few as 9 votes . We certified the result instead of cancelling it.
5. Perhaps the big success of the Election Department was the Jan. 2015 Presidential Elections. The story is yet to be told fully – and may never be unless the then Election Commissioner and present Chairman of the Election Commission writes a book as he promises to do upon retirement. As the incumbent president seemed to be losing, troops under the command of his brother were moving to the capital city of Colombo, where the nation’s votes were being counted under our watch. The Election Commissioner ordered the police assigned to him to “shoot aiming for the head .” The Presidency changed hands peaceably.
The courts have now determined that the Secretary to the outgoing President with the former Director General of the Telecommunications Regulatory Commission had defrauded the state of Rs. 600 million to distribute religious clothing to Buddhists just before the 2015 elections. They have each been sentenced to 3 years in jail with a hefty fine. While it shows the sea change in high-ups being sentenced for the first time, the impunity that pervades Sri Lanka is seen to be difficult to shake off – both, although sentenced to rigorous imprisonment, were found to be “sick” in prison and given luxury quarters in the prison hospital. Curiously, that President in whose cause the fraud was perpetrated making him answerable, has not been touched. It shows that challenging impunity at top is a long process.
However, despite the monumental failures of our democracy, Sri Lanka is moving towards its ideals under international pressure. The President’s Secretary, effectively the Head of the Civil Service, being jailed was unthinkable till recently.
We as the people of a country are best off operating in a fraternity of global partners sharing best practices. Examples are forums such as FEMBOSA, and the Commonwealth Electoral Network, as well as international organizations like the UN Human Rights Commission and INGOs like The International Federation of Electoral Systems. Not only do we learn from each other, but such forums bring likeminded partners to put pressure on offending parties and publicise problems. Methods used are often consultative and advisory, as with INGOs that need government permission for presence in a country, and at other times coercive and directly confrontational, as often necessary. Some call the latter colonialism in new forms but for those at the receiving end of a bad government, it is welcome relief.
Thankfully, due to the intervention of India and the political organization of our plantation workers, despite their statelessness all those rendered stateless have been offered Sri Lankan citizenship and their franchise. Thus external inputs are sometimes necessary to make a country do justice to its citizens.
Women’s participation in governance is an area where Sri Lanka fairs poorly with only 5% of our MPs being female. However, there has been a reversal of late. Parliament has enacted laws to force a 25% quota for women in Local Government. There is continued opposition and the Bill was gazetted, passed with substantial modification at the Committee Stage, and is again being modified as this paper is being written.
This sunrise as it were on women’s rights has been because of external criticism and advice. Field trips have been organized for MPs to visit countries that have successfully included women. Training programs have been funded for women encouraging them to be candidates. Foreign leaders have come to canvass our political leaders on this score. They made us do what we should have done by ourselves.
Caste is another frontier where obstacles exist but are not admitted, which makes a solution even more difficult. The agricultural castes dominate and the Executive Prime Minister and later the President have all been agriculturist Sinhalese – except when during a violent insurrection no one wanted to be President. The Northern Provincial Council of 38 has only two of depressed caste origin, while the provincial demography has over 50% from the depressed castes.
Such inequalities are entrenched in the socio-political order. It is a given that Sri Lanka is a Sinhalese Buddhist country where Buddhism is foremost and must be fostered by the state. As a new constitution is being drafted, this clause so inimical to concepts of democracy and an egalitarian order, will be retained, both the President and Prime Minister are on record as having said. Certain flags need to be waved to win elections.
That attitude asserting Buddhism has twisted Sri Lanka’s democratic fabric into a grotesque shape. Towards the end of the civil war with the LTTE in 2009, the UN estimates that over 40,000 Tamil civilians were massacred by the army . Others give a higher figure of over 70,000 . The government, on account of pressure from the global community, had in 2014 cosponsored UNHCR Resolution 30/1 promising prosecution of war crimes through a credible transparent process overseen by international judges.
The problem is that in our communalist polity, Sinhalese soldiers who killed Tamil civilians are national heroes. Punishing the killers is political suicide. Promises of prosecution thus become a game of double-speak where we do not know what or whom to believe. The ruling coalition’s Malik Samarawickrama announced:
“The UNP welcomes the statement of the Cabinet of Ministers, the Prime Minister and the President to use the full force of the law against those causing religious tensions, racial hatred and undermining the efforts at reconciliation since the new government came to power.”
Then President Maithripala Sirisena vowed not to prosecute soldiers, saying
“[I] would not subject the Sri Lankan military personnel to any probe. […] I have clearly said that I am not prepared to serve charge sheets to our soldiers or to have foreign judges to try our security forces … It is my duty to protect the troops.”
Prime Minister Ranil Wickremesinghe has also joined the President in rejecting government’s commitment to the world to have foreign judges probing into violations by the troops. Instead, he has expressed confidence in the domestic judiciary, despite repeated incidents proving our judiciary to be communally biased.
These contradictory statements are of great concern. The inexorable application of the law is intrinsic to a democracy. This protection of lawless armed forces challenges democracy. In protecting murderers, the government encourages anarchy. Indeed, few members of the Tamil minority would feel free to engage in politics.
In the recent exercise by the Election Commission calling for applications to register new political parties, there were applications to register well-known acronyms of existing Tamil alliances and parties such as TNA, TULF and TELO. Although none received recognition from us, it seems a crude attempt by military intelligence, paying Tamil militants living abroad to enter politics with these party names to take votes away from established Tamil parties and to trick the electorate into voting for masqueraders. The Commission has heard allegations of Rs. 70 million being offered to hand over a party. That diminishes Sri Lanka as a democracy. Besides, who would stand for elections against former armed militants?
However, international attention has helped make Sri Lankan democratic. The EU is presently inquiring into Sri Lanka’s progress since cosponsoring UNHRC Resolution 30/1. The review is to help decide on extending our GSP-Plus tax preference. It is recognized that many of the promises made by Sri Lanka have not been kept. Indeed the President’s promise to save soldiers from war crimes charges, shows there was never an intention to fulfil obligations under Resolution 30/1. Now with these reviews, as the UNHRC is meeting this month (September 2017), the long-delayed Office of Missing persons was activated. Further, the International Convention for the Protection of All Persons from Enforced Disappearance was at long last put on the order paper of parliament for 21 Sept. 2017 for ratification.
Foreign pressure does keep Sri Lanka on a democratic course. To get better we must be citizens of the wider comity of nations. Until there is accountability, Sri Lankan democracy will be for the majority, while minorities would be marginalized, fearful of full electoral participation.
As the rigging of elections and the use of party thugs described above show, to resist thuggery one must have one’s own thugs. This means money to pay and keep thugs in one’s service.
Liquor licences are therefore given to MPs. Transferable permits to import cars are given to MPs (ostensibly to serve the electorate). They then sell the permits for several millions. Money is allocated for MPs to hire secretaries who then are often their wives.
There is another reason, besides the need to maintain thugs, why politicians need money. Previously we had the first-past-the post system where there are electorates and the person commanding the highest vote got declared as MP for that electorate. However, small parties and communities commanding, say 20-40% of the vote distributed evenly across electorates, got no representation. As a result, Sri Lanka switched from first-past-the-post to proportional representation. Here a whole district gets its share of MPs who are elected based on their share of the vote. Small parties and geographically distributed minorities have done better since. However, what this means is that candidates needs to contest in a wide district in most parts of which they would be unknown. This has made campaigning very expensive and politics very corrupt. After all, when people contest an election spending their carefully saved family savings, upon winning it seems natural and justified to recoup their expenses. Enter corrupt deals and misuse of office. So changes are being made to go to a mixed system. Numbers being suggested are 60 or 70% for first-past-the-post seats and the rest proportional representation.
Again, international best practices and their sharing are proving important. Campaign finance reform initiatives worldwide and the Indian Election Commission inviting its Sri Lankan counterpart to join in the discussions, have helped to get a discussion going in Sri Lanka. Today, the Election Commission is active in enforcing laws on asset declaration by MPs and publicizing the names of those who have not made the statutory declarations. Agencies like Transparency International are carrying out workshops stressing the importance of campaign finance reform. IFES conducted a very useful workshop on controlling money in politics. Historically the biggest offender in Sri Lanka is usually the government in power with a large newspaper and TV grouping, and state resources like a bus company to abuse. However, improvements are being made as in jailing the former Secretary to the President.
Shared Best Practices – Sunset Clauses
Sharing best practices between successful democracies, and remaining a part of the comity of nations is the way to go. At the time of writing, Sri Lanka is meddling with the election acts, delimitation, women’s representation, mixed systems etc. The Twentieth Amendment to the Constitution was proposed by the government, ostensibly to hold all Provincial Council Elections together by extending the lives of those that expired early and letting Parliament run them till elections could be held with the rest. Our Commission was not consulted violating tradition. Not only did this bill give executive powers to Parliament but it also extended the mandate of Councils beyond what the people had authorized. The Speaker announced on 19 Sept. 2017 that the Supreme Court had ruled the bill violative of the constitution and therefore requiring a 2/3 majority vote followed by a referendum, As this is being written, moves are afoot, says the opposition, to achieve the same deferment of elections by changes to the provincial councils act. There is chaos. The Election Commission is working with laws as they change. As a result, long overdue local government elections, especially in minority areas since 2011, will be delayed more. The Commission is unaware of what Parliament has passed because revisions are being re-revised.
As a university professor, this writer is used to the norm that when a course syllabus is changed, the change comes into force only after a certain sunset period on the old syllabus. Thus, students do not need to sit for exams based on a syllabus on which they were not trained.
Likewise, the Commonwealth Electoral Network advocates a relevant best practice. When a new law is passed, give it two years for it to come into force. In common parlance, in everyday jargon, “Do not change the rules of a game after the game has started.” It is commonsense that all Election Management Bodies and governments need religiously to adhere to.
A Positive Note
Things are getting better certainly in one area despite the shortcomings. Previously it would have been impossible for a Member of the Election Commission or similar body to point out these deficiencies in public in Sri Lanka, let alone in an international forum, and survive. Slowly but steadily we are moving towards an ideal democracy.
 This paper reflects the author’s own views as a Member of the Election Commission and not necessarily those of the Election Commission or the Government of Sri Lanka.
 Routledge Handbook of South Asian Politics, 2010
 For a detailed understanding, see report by the EU Election Monitors and D.B.S. Jeyaraj, “Birth and Growth of Nexus Between the TNA and LTTE, Daily Mirror,5 July, 2014.
 Report of the UN Secretary-General’s Panel of Experts on Accountability in Sri Lanka (the Darusman Report).