Despite the Nineteenth Amendment, most newspapers write of the nonexistent Election Commissioner. An Island editorial (10.02.2017) reports a meeting of the Joint Opposition (JO) with the Election Commission (EC) where all three members were present, as with the Commissioner.
It is a natural outcome of government’s undermining the EC by starving us of resources. We all know that our parliament has murderers, liquor dealers, embezzlers, sexists and other assorted crooks. They have impunity except when in the opposition. The Prime Minister justifies a travel allowance for MPs in addition to their luxury vehicles saying it is undignified for them to travel by bus. However, as a diabetic EC member, I need to travel by bus from Jaffna and urinate in public streets wherever my bus stops. I am offered dingy hotels in Colombo where I dare not go outside for my meals because of loitering prostitutes.
On Douglas Devananda’s complaint, I had criminal charges filed against me for writing of election rigging by the last government. I became an EC member out on bail. Police prosecutors under this government made lengthy statements against me in Sinhalese (although I do not understand Sinhalese and the law says the language of the courts in the North is Tamil). Court Sergeants would manhandle me, pulling me by the arm to make me stand where they wanted me in the dock. The 2011 case was finally dismissed on 25.01.2017 by a skeptical judge who ruled that the police keep asking for time to investigate, he has seen no evidence of an investigation and no longer believes there ever was one. How did that happen under Good Governance? Is it any surprise that the EC has no status? Indian protocol puts us at the level of a Supreme Court Justice and we receive that respect when dealing with India.
Naturally, with a toothless EC, Local Government (LG) elections have for long been delayed – in Tamil areas since 2011. By filing a case the right to representative government, and the right of a citizen to exercise his franchise, are easily thwarted. Such delays restore the power devolved to LG Authorities back to the minister in the central government who appoints and orders officials who run the LGs for him. The Supreme Court has a special obligation to fast track these cases instead of letting ministers usurp the powers of LGs. Justice is denied in the name of justice!
In the meeting misreported in the Island editorial, the JO asked the EC for a meeting. We met on 09.02.2017 at our premises. I recall 9 stalwarts of the JO coming. Their main grievance was that elections are long overdue, “everyone” blames the “independent EC,” and we should therefore hold elections or resign.
The EC is reluctant to go public, although we felt the way things are going there may be no elections till 2020. The public has a right to know why.
The Delay and Delimitation
Power is all in government hands. For delimitation of wards, a Delimitation Committee (DC) appointed by the Minister for Local Government; then their work is subject to appeal. Upon resolution, the wards are gazetted, and the EC conducts the election.
Delimitation was done under the previous government and President Sirisena gazetted the wards on 21.08.2015. However, the boundaries were said to be gerrymandered. Despite gazetting, a new DC was appointed by Minister Faiszer Mustapha to hear appeals with senior SLAS official Ashoka Peiris Chairing.
Facilities, it is generally agreed, were inadequate as to translators, transport and money. The members, most of whom had other full-time commitments, had to visit every Secretariat and spend 3-5 days on hearings.
The first deadline extension to 30.11.2015 portended the disasters to follow. The EC was promised the report on 15.08.2016. Other dates followed. We had two DC members telling us that Minister Mustapha had explicitly asked them to delay. Mustapha told me at an EC meeting to which he came 2 hours late that he had asked the DC to slow down because he did not want them to lose their health.
Final submission was after several delays precipitated by the deaths of Mr. Peiris’ wife and mother, the UNP and SLFP nominees refusing to sign the report, etc. January end saw the Minister assuring the Supreme Court in a related case that he would gazette the report within a month.
However, mistakes are being found. I do not know whether they are grammatical and spelling mistakes or substantive. If the latter, would the 5 members need to sign again? The government has sacked Peiris even from his job as Competent Authority of the Mineral Sands Company. (The importance of the 19th Amendment is seen in this sacking and his replacement by Attorney Maithree Guneratne who himself was sacked recently as the head of the Lanka Coal Company and brought back after teaching him the importance of compliance). What now? Does the DC need to meet again to ratify the changes?
After the Second JVP insurrection, a report by G.L. Peiris led to a mandated 40% allocation to youth nominations using the word shall (Act No. 25 of 1990). However, because of some not meeting the age criterion, all nomination papers were rejected for the UPFA and UNP in the 2006 elections in Gampaha and Colombo, respectively. Consequently others got elected in these UPFA, UNP strongholds. Act No. 22 of 2012 therefore changed the word shall to may, and youth to women and youth. The word may allows all parties to ignore this, fearing that stronger candidates from the other parties, that is older men, will beat any youthful or female candidate put forward by them.
There is widespread support to change this to ensure proper youth representation. If that is done, there will be need for new delimitation. So no one knows when there will be elections.
What if there are Local Government Elections?
A lot has changed since the elections of Jan. 2015. Even if we assume that the same majority will back the government despite the nonfulfilment of promises, the adjacent map of who voted for Sirisena and who for Rajapaksa tells us who will win. They garnered 51.28% and 47.58% respectively of the vote. In LG elections unlike the presidential elections where Tamils and Muslims by and large supported Sirisena, they will contest separately in the North and East to get their own Councils. Without any reduction in votes, Sirisena can at best hope to win in the few remaining places. The vast areas in blue are far more numerous in Councils. The outcome in terms of Councils will allow the JO to claim victory.
Holding LG Elections
Regular, periodic elections define a democracy. The poll delay is wrong. The EC just does not have it in its power to hold elections. We implement the law. Parliament makes the law.
We cannot simply hold elections under the wards gazetted by President Sirisena on 21.08.2015 as requested by the JO because in the intervening Act No. 1 of 2016, there is an allocation of 1/3 more representatives and then 25% more seats for women. This number too has to be gazetted by the President. So the government holds all the trumps. This increase itself is fraught with problems as LGs cannot accommodate some 70% more in present buildings. Excuses galore to exploit.
Real change in the constitution, making Sri Lanka a better democracy and embracing minorities, is urgent. Any electoral reversal of the government in LG polls would abort the constitutional process. Is that why the delay in the polls? Do the ends justify the means?
No they do not, especially when analysts allege the government is backtracking on the promised ends. Elections are a right. The only way is for the government to push through the reforms with the LG polls. That way, minorities will be assured that the government is not fibbing on reforms.
Even if Elections are Held
I am told I need to be in Colombo every day if elections are called. I will not spend my money for public work, urinating on the streets, when the PM has a fleet of BMWs and the use of a helicopter, and will not let MPs travel by bus.
Despite being told the constitution is wrong in the EC having three members and a quorum of three, the government has asked us to ignore that. On the 9th the EC had a meeting scheduled with Mustapha. He advanced it to the 8th when I was in Jaffna. The EC and he decided to edit the mistakes in the DC report. In the absence of a quorum it is illegal; Besides, it is not our report for us to edit.
Likewise, if elections are ever called, any certification of election results will be invalid without all three present. Nothing is ready for polls. Perhaps it is as intended.
*S. Ratnajeevan H. Hoole – Member, Election Commission