Duties of Elections Commission: A proactive or bureaucratic stand?

We have a new Elections Commission appointed in November 2015. It will go on until November 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 democracy to seek inputs from the public to engender a national debate. I raise two issues; 1) How we deal with big shots who violate election laws; 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 Rajapaksa’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 August 2015, I was out on bail while our cowardly and corrupt police kept coming to court saying they needed time to investigate.

Finally, early this year, the judge discharged me saying he has seen no evidence of an investigation and doubt there ever was one.
As I breathed a sigh of relief thanking God that the country had 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 instance, Colombo Telegraph reports that under the National Sasunodaya Programme launched on December 5, one thousand temples are to be built using State funds all over the island (presumably in Tamil areas too as part of the continuing State-funded colonisation of Tamil areas).
President Maithripala Sirisena laid the foundation stone for a kidney hospital in Polonnaruwa on December 6 in the middle of the nomination period.

Education Minister Viraj Kariyawasam will distribute Rs. 700 million worth of schoolbooks to children.
Madam Vijayakala Maheswaran is building free roads in Thinnavely close to the Farm School.
Douglas Devananda, Richard 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 Kachcheri 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 Richard Bathiudeen are engaged in this corruption.

In Mullaitivu District’s Maritime Paththu, Rs. 98 lakhs is to be distributed by the Industry and Commerce Ministry 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 Mullaitivu, Rubavathy Ketheeswaran, reportedly says she does not know anything about it but that such functions could 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, December 16, at the Nallur District Secretariat in Jaffna to inform the public on the new system. A participant suggested that merely writing when laws were so freely violated was 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

Against this backdrop, the Constitution in §3 defines the franchise as part of our fundamental rights. Further §104B says, “It shall be the duty of the [Elections] 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, bearing 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 them.

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.

“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"

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 would 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 [Elections] 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 less than five 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 overarching 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.