| by Kishali Pinto-Jayawardena
Courtesy: The Sunday Times, Colombo

( October 12, 2014, Colombo, Sri Lanka Guardian) Strenuous efforts are being made by the Government and its propagandists in the state/private media to justify planned attempts to amend Sri Lanka’s election laws, legalising what are currently classified as election violations.
Sufficient justification for prohibitions

But such prohibitions did not come about by a casual throw of the dice as these rude proponents of government power appear to believe. They were carefully and meticulously thought out in order to ensure free and fair elections at a time when Sri Lanka’s governance was not purely a matter of corruption and abuse of power as is the case now.

In preceding years, the restrictions have been observed more in the breach due to the ugly nature of what passes for politics in this country, not due to any fault in the laws themselves. This at least must be made explicit in the face of the audacious lies that are spun.

Indeed, what is needed is a further tightening of the legal electoral scheme through the appointment of an independent Elections Commission, not the relaxation of existing restrictions. It speaks volumes for the immensely arrogant tone of this administration that its ruling politicians are not content with merely violating the laws. Instead, we are being told now that these violations will be legalized. What greater hubris than this?

Further fraying of a thin thread of legality

Consequently, in the months preceding the holding of national elections next year, we may look forward not only to hurriedly put together baskets of pre-election goodies but also the further marginalization of the law. Even the thin thread of legality which is holding this country’s scarcely democratic systems together will be frayed to the point of virtual non-existence. Amendments approving the continuation of heads of local authorities despite the defeat of the budgets are already through. Where these other amendments are concerned, they may well be a precursor to even more radical changes that will turn the existing law on its head.

Though the precise details of these proposed amendments still need to be clarified, they appear to relate to the removal of restrictions on the canvassing, the putting up of posters and taking part in processions which are prohibited during particular periods. These restrictions were part of the law not due to some oddity but for the purpose of safeguarding the integrity of the electoral process. What we have is a calculated destabilizing of Sri Lanka’s electoral process, pure and simple.

Supposedly President Mahinda Rajapaksa had declined to accept that component of the amending proposals which suggested that the application of indelible ink on a voter’s finger must also be done away with. In any other political environment, it would have been inconceivable that such a recommendation could have even been made in the first instance. Yet the implied message through the government release on the proposed amendments appears to be that we must be grateful to the Office of the Presidency for refusing to accept this outrageous proposal. This is reflective of the utterly surreal situation that we are in.

Why is an independent Elections Commission not called for?

And so we return to the establishment of the Elections Commission which is surely that most important safeguard of all. Propagandists who characterize restrictions imposed by our election laws as ridiculous may be rightly questioned as to why similar outrage is not shown by them in regard to this regime’s steadfast refusal to bring back the 17th Amendment’s provision for the appointment of an independent Election Commission.

Are we to be told that the establishment of such a body will be a hindrance to anti-terrorist efforts? This question is reasonable given that when the Government refused to enact a Right to Information law (RTI), it was said by these very propagandists that an RTI law will obstruct government efforts to deal with terrorism. One can scarce forbear to chuckle at the ludicrous nature of these justifications.

Rather, the regime’s profound antipathy to an RTI law and to an independent Elections Commission stems from the same poisoned source. The issue has nothing to do with legitimate government policy and everything to do with an obsessive desire to cling onto power. What this Government wants is certainly not a free and fair election.

Enabling further degradation of the process

Even with the decimation of the 17th Amendment, the remaining little powers that are left in the hands of the Sri Lankan Elections Commissioner cannot be exercised properly in the prevalent political climate. The Government’s blatant use of state resources and state media for its propaganda is evidenced despite restrictions imposed by the Competent Authority (Powers and Functions Act, No 3 of 2002. Judicial precedents forbidding the use of government officials for election propaganda work are disregarded. As the Supreme Court observed more than a decade and a half ago in vastly more civilized times, ‘the most effective way in which a voter may give expression to his views is by silently marking his ballot paper in the secrecy of the polling booth’ (Karunatilleka and Another v. Dayananda Dissanayake, Commissioner of Elections and Others [1999 Sri.L.R. 157]. Such precedents are however not cited or followed in the present day.
In the absence of an independent National Police Commission (NPC), pre-election transfers of good police officers out of stations where they may prove to be troublesome are rife. These transfers were prevented by the NPC in its first term of office when the 17th Amendment was in force. Such good practices however led to the disbanding of the NPC and the eventual discarding of the 17th Amendment itself.

What this Government so desperately wishes is an electoral playing field that is even more tilted towards itself. This was evidenced in full force during the Uva provincial elections. The use of the police to threaten, intimidate and coerce opposition candidates was shocking. Contempt was shown by government politicians for election officials who tried to do their job fairly and squarely leading to the assault of such officials. As we may recall, one particularly ugly incident occurred when an Assistant Elections Commissioner was threatened by a ruling party candidate after he tried to stop an unlawful vehicular procession. The proposed relaxation of the election laws will undoubtedly result in such infringements being made perfectly legal. In sum, what is sought to be created is an environment where opposition candidates would have to literally claw their way through to achieve a win. Let us be clear about this.

Comparisons with India are nonsensical

Government propagandists have also attempted to show that the relaxation of the election laws are nothing very much to be excited about, pointing to the Indian electoral scenario to demonstrate their point. These comparisons are nonsensical. The Indian election process is supervised by a formidably strong Elections Commissioner who has not hesitated to tackle the manifold problems that arise in that giant democracy by forcefully wielding the power of the office.

We could also borrow from laudable Indian judicial precedents where judges have asserted that the right to vote has meaning only if people know and have the right to know the full antecedents, criminal record and suitability of the candidates that they vote for (judgement of the Delhi High Court in the Association for Democratic Reforms case, November 2, 2000). Accordingly, a duty was judicially imposed on the Elections Commission and the prospective candidate to reveal firstly, criminal records, including where the candidate is accused of an offence, secondly, assets possessed by the candidate, spouse and dependant relatives and thirdly, facts giving insight to the candidate's competence, capacity and suitability for political office. The Indian Elections Commission was given a roving power to make this information available to the public.

Indeed, at times, the reservoir of power in the hands of Election Commissioners in India has been used in excess, leading to public critique. In any event, the rumbustious Indian media and an independent judiciary have ensured that the balance of power remains intact. Therein, (and even with all the problems of the teeming Indian multitudes), lies the strength of that democracy as contrasted to the pathetic state that we have been reduced to.

Not learning lessons from Uva

Apparently this Government has not learnt from the Uva provincial election result to soberly look at itself and change course in its mad rush to certain disaster not only for itself but also for this country. Instead, its efforts appear to be directed towards proverbial quick fixes and the further degeneration of Sri Lanka’s legal framework.

The electorate’s informed answer to such despicable ploys must be to use the ballot wisely. The corrupt use of power through the manipulation of the law must be resisted with might and main even in the face of unrestrained thuggery, as much as the Uva voters did in a most praiseworthy manner.

The alternative is far too frightening to contemplate if Sri Lanka is ever to pull itself back from the brink.

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