Constitutional Lawyer Canishka G Witharana, in an interview with the , spoke about nomination lists of some political parties being rejected and the legality involved. The interview done with Witharana follows:
Q You filed two court cases regarding the rejection of the SLPP nomination list for Maharagama. What is your opinion about rejection?
A particular rejection referred to in your question is bad in law and against the very purpose and objectives of the Local Authority’s Elections Ordinance. There are two cases, one filed in the Court of Appeal against the Returning officer of the Maharagama Urban Council. The other is in the Supreme Court where the members of the Election Commission are also made Respondents in addition to the Returning officer. Both are writ applications seeking to quash the decision of the returning officer to reject the nomination paper.
If the returning officer ‘examined’ the nomination paper carefully such additional information was there for the returning officer to decide that such a candidate was female
Q Being a lawyer tell us how the political parties and independent groups can avoid the rejection of nomination papers?
Leaders of Independent groups and Party secretaries should have their own teams and systems to attend to the responsible job of completing nomination papers. Ultimately it’s the responsibility of the Party secretaries and leaders of independent groups to submit legally valid nomination papers. They should sign each nomination paper certifying the accuracy of the information contained. The adoption of a pre-scrutinizing system before submitting nomination papers for the signature of party secretaries and leaders would avoid such rejections.
Q Some lists have been rejected on the basis such as the inadvertent reference to a male as a female, the non-mention of dates etc. What do you think of the political parties making such trivial mistakes?
The rejection of nomination papers shouldn’t be used as a tool of consideration to pass judgments on political parties or independent groups. Humans aren’t perfect and tend to make mistakes. The law excuses these mistakes. Inadvertent mistakes (themselves) don’t authorize returning officers to reject nomination papers.
Nomination papers could be rejected only if they fail to contain the requirements of the law. On the other hand returning officers are also vested with the legal duty and power to “examine” nomination papers before rejecting them. Returning officers and other officers acting under the authority of the Elections Commission should exercise statutory powers to achieve and uphold democracy; but not to curtail the democratic rights to vote or contest elections.
Q The Elections Commission states that the political parties rush through when compiling nomination lists, eventually resulting in mistakes. Do you agree with this viewpoint?
An election is a legal process. A nomination paper is the method or instrument by which the candidate enters this process. When elections are declared, political parties and independent groups would have to deal with a sudden flux of prospective candidates competing with each other to secure an opportunity in the nomination paper. It’s a time when the decision making ability and management skills of party secretaries, leaders etc., are being tested. As said earlier parties and groups should have proper management systems to face this situation. However a case-by-case study is to be conducted to conclude whether mismanagement caused these mistakes which led to the rejections.
There are two instances in section 31(3) applicable to individual disqualifications, where without rejecting the entire nomination paper
Q Do you believe you have a strong case in Maharagama?
In my opinion, Yes. However, it’s ultimately in the hands of Their Lordships to decide. The crux of the argument raised in the petitions presented to Courts is as follows. Under section 31 of the Local Government Elections Ordinance, the returning officer is authorised to reject a nomination paper if it “does not contain the total number of women candidates as required to be nominated under subsection (2A) of section 28 of this Ordinance.” The SLPP nomination paper handed over for the Maharagama Urban Council did contain the required number of women candidates (4 candidates). However with regard to one of them, the gender was (inadvertently) mentioned as ‘male’ instead of ‘female’. The Authorised agent of the party (SLPP) informed the returning officer in writing that it was a mistake and that the candidate was in fact a ‘female’. Her national identity card number was also available, hence any Government officer should have the basic information to identify the gender of a candidate in relation to meeting the required number. Further her name was stated in a separate ‘list of women candidates’ submitted with the nomination paper. If the returning officer ‘examined’ the nomination paper carefully (as required by law) such additional information was there for the returning officer to decide that such a candidate was female. However, the returning officer, without examining whether the nomination paper contained the required number of women candidates, only considered whether the same had been stated specifically (the manner in which it was stated). That officer knew it was a mistake by that time. So the Returning Officer ignored the correct information with regard to the gender and mechanically acted on an admittedly mistaken statement and rejected the nomination paper (purely on a curable clerical mistake). The Petitioners state that the conduct of the returning officer was arbitrary and malicious. There are other grounds where a challenge can be made in those cases as well.
Q Mostly the nomination papers of SLPP have been rejected this time. Why is this?
I don’t wish to present political theories and explanations. I can only state legal and practical reasons of the rejections. They aren’t party specific. I have already stated them earlier.
That officer knew it was a mistake by that time. So the Returning Officer ignored the correct information with regard to the gender and mechanically acted on an admittedly mistaken statement and rejected the nomination paper (purely on a curable clerical mistake)
Q What is your view on the conditions stipulated in the law to be fulfilled in the submission of nomination lists?
As far as the Local Government Elections are concerned, the requirements to be fulfilled are stated in sections 28, 29 and 30 of the Local Government Elections Ordinance. A Nomination paper should contain the information as stipulated in section 28 and in accordance with the format in first Schedule to the Ordinance. Sections 29 and 30 deal with making of deposits and their disposal. The law provides good guidance. Additionally the Elections Commission also issued several documents containing instructions and guidelines to follow.
However grounds of rejection are stated in Section 31. First there is a duty on the part of the returning officer to ‘examine’ whether these grounds do exist. Such rejection could only be done when nomination papers are (i) not delivered in accordance with the provisions of subsection (5) of section 28, (ii) do not contain the total number of candidates required to be nominated under subsection (2) of section 28, (iii) respect of which the deposit required under section 29 has not been made; (iv) where the signature of the secretary in the case of a recognized political party or of the group leader in the case of an independent group does not appear on the nomination paper or where such signature hasn’t been attested as required by subsection (5) of section 28; (v) that doesn’t contain the total number of women candidates as required to be nominated under subsection (2A) of section 28 of this Ordinance.
There are two instances in section 31(3) applicable to individual disqualifications, where without rejecting the entire nomination paper, the name of the candidate or the person concerned who is found to be disqualified due to any of the reasons specified in that subsection shall be removed from the nomination paper.
Q How complicated are they?
They aren’t so complicated. You don’t need a lawyer to complete nomination papers. Any reasonable person working with due diligence and care could complete them. I feel that we needn’t change the law. Instead the standards and of both the candidates (including party secretaries and leaders) and election officers implementing the law should be elevated to meet the standards of the law. Such changes are essential to strengthen the democratic process of elections and pave the way to achieve its sacred objectives.
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