Colombo Telegraph Interviews Prof. Ratnajeevan Hoole, Member, Election Commission, Sri Lanka: Free and Fair Elections?

1. Comment on the just concluded 2019 Presidential Election. Many call it free and fair. Do you? 

It is the freest and fairest I have seen and am proud of the EC staff for that. But there is room for improvement and that space closes when everyone congratulates us despite the shortcomings. We are like the emperor without clothes, blind to our nudity.

The result accurately captured the real vote. Our staff is good at ensuring that the technicalities are right – timely opening of the polls, right counting, etc

Our monitors, excepting the European Community mission, assume incorrectly that observing the technicalities qualifies them to pronounce an election free and fair. I described the widespread pre-election violence and intimidation against Muslims to observer Damaso G. Magbual, Chairman of ANFREL, when he congratulated us on holding a free and fair election. He responded “That is not cheating. That is election propaganda.” Observers should not excuse abominable practices.

Elections were marred by a lot of pre-poll cheating. One, Mr. Gotabaya Rajapaksa‘s (GR’s) lawyer Ali Sabry, in a video with our complaints unit, tells Muslims that GR has practically won the election and Muslims must take ownership of the victory by voting for him, and if not, they will be smashed up. We lack the guts to prosecute the new President’s Counsel.

Two, Karuna Amman is caught on video saying Muslims need to be controlled and put down, GR is the man to do that, and that is why he is working with him. Further, when I passed on this complaint reported to me about this stirring of the communal pot, someone from either the Commission or the Police, told the press that I am the complainant – violating the privacy of complainants and spreading fake news.

Many, therefore, surely did not go to vote out of fear. But now because of the support that GR received from the Sinhalese, I am confident that, despite the atmosphere of fear created, the overall result was correct. That is why, although the elections were neither free nor fair the overall result was trustworthy. That is why I certified the result with my two colleagues.

2. The North-East polled for Mr. Sajith Premadasa in overwhelming numbers. The rest of the country for Mr. Gotabaya Rajapaksa. Pre-election, very ethnically divisive statements were made by responsible persons. Your comment.

The results show us to be a divided communalist country. “The intelligentsia in this country has collapsed. No one challenges this collapse. The courts are not standing up as they should,” says my brother Rajan. This is what the public thinks but dares not say.

3. GR’s dual was an issue that is still not resolved. The Election Commissioner said that he did not check national ID or passport of any document of the candidate but only took affidavits. Should the Commission  have shown a greater interest in upholding election laws?

Yes, but first, there is no Election Commissioner, no Head of Commission, no Chief of Commission. We are three members of whom one is Chairman. Calling the Chairman Commissioner undermines the Nineteenth Amendment, which is a good achievement of the outgoing administration.

Our Acts tie up our hands in being active. A while ago, I asked at the US embassy about GR’s citizenship and was told they could respond only to an official request from the Commission. I put it to the Commission, where my request was refused saying GR was not yet a candidate.

Subsequently GR, Ali Sabry, and another came uninvited to the Commission. Only the three members were present. Without our asking, GR placed on the desk a letter from the US embassy purporting to say his US citizenship had been relinquished, a cancelled US passport, and a Sri Lankan dual-citizenship certificate. My two fellow members handled the documents but briefly.  I noticed issues with dual citizenship that potentially make GR stateless. The Court of Appeal should have settled that issue.

A lot followed. Press friends said that Deshapriya had communicated to GR’s camp not to worry and that only I am a problem and he could handle it. I was disturbed because I thought he was putting my life in danger. I asked him in Mr. Abeysekere’s presence, and he denied it. Ali Sabry released a subsequent secretly recorded private conversation with Deshapriya. In that my name came up, and Deshapriya seems to confirm that citizenship documents had been given to us. If so, that was at another meeting.

I thought citizenship serious enough to raise on nominations day as an objection from me but was advised by my two colleagues and lawyer friends that others would object, and I should keep myself dissociated from such objections to examine those objections when they are filed. I was assured that typed up objections were circulating. However, no objections were raised.

The affidavit you refer to is a statement in the nomination paper that swears there are no impediments to the nominee’s candidature. That covers citizenship.

4. The chairman tried to punish state TV ITN for what he saw as partiality but claimed to have no authority over private media. Is this true? Can private media or any other institution not be restrained?

I think our guidelines need to be obeyed by all. Otherwise why issue them? I also believe we can ask TRC to withdraw the frequency license of errant broadcasters. We weakened ourselves when Deshapriya signed orders in the name of the Commission without our knowledge. I reliably know that in an interview Deshapriya has accused Mr. Abeysekere and me of leaving all the work to him. He is a workaholic and wants things done instantly even late at night. I do not see the hurry to jump the gun in our absence

I suspect this hurry is what led him to de-accredit the observer group CaFFE and issue orders to the ITN in the name of the Commission without our knowledge. When this came to light, he had to rescind both directives. The long-term damage is that when there is a real directive from the Commission as a whole, those not wishing to be bound by us ask “How do we know it really is from the Commission?” This has been part of the problem with controlling ITN. The private media say if you do not control ITN, do not try it with us.

There are other problems too. The frequencies are of high monetary value but are routinely renewed for a mere annual Rs. 1 lakh. They should be auctioned. Political patronage prevents those responsible from tackling this

5. Muslim voters going from Puttalam to Mannar were attacked and held against their will in Mannar until the evening, and some from Mullaitivu returning from Manna were stoned and were hospitalized with broken teeth. What happened?

There was a focused attempt to keep Muslims from the polls. The law allows us to have special polling stations for those under threat, but my request was refused. I warned that Muslims would be attacked. I was ignored. Muslims going to vote were fired on. They persisted in voting. Returning they were held up. I found a few buses near Chettikulam, filled with crying children and scared, hungry passengers. I offered to escort them using my police guard. I was refused saying the police were holding them on the orders of the Chairman and Senior SP. The route I took through Tantrimale is too dangerous and required their escort said the police. I offered to go through Madawachchi. I emphasized they are a free people and could not be held up. They would leave at 5pm when 40 more buses turned up said the police. I said our people are always late. The police agreed to take them in 10 minutes and asked me to proceed. I did and learnt they took hours to leave and went through Madawachchi and were assaulted by Sinhalese mobs. It was punishment for voting.

It is sad we refused them special poll-stations despite the Act allowing us to do that. We promised them STF guard en route to the polls. Fat lot of good it did.

6.  You have spoken publicly of the dangers faced by Muslim voters. Why did the EC not arrange for them to vote in their places of resettlement?

It is the increased racism. Sad we ignored so many warnings and refused special polling stations as provided in law.

7. There has been concern that the EC does not possess the required IT capabilities.. What are the areas of the EC that need to be developed? 

A problem is the government salary-structure. Our scales do not allow the payments required.

But more pressing are our personnel and governance issues. The regional assistant and deputy commissioners have severe issues with the Chairman and had got a commitment from him to leave after the presidential election. He now wants to stay longer. I am told that about 4-5 key staffers from the Head Office will leave soon. What will that do to the General Election?

8. Social media was unrestrained even during the silence period. Should social media be controlled? 

There is a need but not by an outright ban, which would be a ban on free speech. 

We need to be serious first about punishments – practically nothing. So our laws and directives are freely flaunted. Our Government Agent and Returning Officer for Colombo has called Sajith Premadasa the son of a donkey and a lot more in his Facebook posts and we let it pass. When in our other 24 districts voters left out of our registers were often zero and rarely exceeding 5, in Colombo it was 2400 where minorities were deleted. Let’s put right first what we can and then worry about other important things. E.g., there is subtlety in our sending up Karuna Amman  for prosecution but not Sabry or Mahinda Rajapaksa for his atrocious claim on 80% of postal votes.

9. Can the EC make Sri Lanka more inclusive and respectful of different ethnicities? 

It is our responsibility. There can be no full and free franchise without equality. The Chairman rightly speaks of the need for national empathy for minorities. Yet I hear on Commission premises cruel jokes about Muslims being cheats who will vote again if allowed to return to Puttalam, of a particular Muslim staffer who drinks being a good Muslim, and so called jokes about a Muslim girl Faathima wearing a miniskirt being asked if she has changed her name to Fatima, a double-barreled shot at Christians as well. 

Our country is so racist and at once confident that we are liberal and modern that we need leadership from the top to dig our way out of this morass.

10. Do you wish to add anything? 

This time we computerized processing. It was done free for us by Lanka Software Foundation. While thanking them, I have several questions. We did not see the system with real data till 16.11.2019. LSF ran the system. Unknown people were in the control room. Who will pay for changes? The program is written in Python and we are not capable of taking over and examining if everything is as it should be. The Commission is yet to be informed of the mistakes. This is like our mistake at Wennapuwa from the Local Government Election where the extra candidate who was returned is yet to be removed and the country is yet to be told. 

A police sleuth fled to Switzerland after the elections. One lady on local terms at the Swiss embassy was arrested on Monday and released on Wednesday. 

I have received a message “Prof. Ratnajeevan Hoole, if you ruin my name, I will not be silent.”

Déjà vu? Free and Fair Elections?