Sunday Times 2
Will the Elections Commissioner help Sri Lanka have a free and fair poll?
Free and fair elections are an essential part of democracy. There is significant concern in Sri Lanka today whether the presidential election scheduled for January 8 would be free and fair.
There are two major features of a free and fair election: one is the freedom to campaign within the law of the land; the other is the conduct of a free and fair poll.
A free and fair election is the outcome of interplay of a multiplicity of factors and forces during the campaign and the poll proper.
Polls Chief Mahinda Deshapriya: If the polls are free and fair, the nation will owe him a deep debt of gratitude.
The Commissioner of Elections as the principal official in charge of the conduct of the election has direct control over some parts of this process but not over others. For example, he has no control over the Police who are tasked with enforcing some sections of the election law. Neither has he any say in how funds are raised and spent by the rival candidates and parties. However, he has full legal and practical control over how the poll proper is conducted, votes counted and results tabulated and released. This article attempts to provide a fact-based review of that part of the presidential election process that is under the direct purview and control of the Commissioner.
The Presidential Elections Act No. 15 of 1981 (hereinafter The Act) is the principal legislation that governs the upcoming presidential election.
Powers of the Commissioner
The discretionary powers that the Act confers on the Commissioner of Elections are particularly noteworthy. Section 107 gives the Commissioner the power to “exercise general direction and supervision over the administrative conduct of an election to the office of President; to issue (to all other officials engaged in the conduct of the election) such directions as he may deem necessary to ensure effective execution of the provisions of this Act” and “Execute and perform all other powers and duties which are conferred and imposed upon him by this Act.”
Section 118 of the Act is even more remarkable. It says “If any difficulty arises in first giving effect to any of the provisions of this Act, the Commissioner as occasion may require, may, by Order published in the Gazette, do anything (our emphasis) which appears to him necessary for the purpose or (sic) removing the difficulty.”
18th Amendment
There is a common misunderstanding that the 18th Amendment has reduced the powers of the Commissioner of Elections. This simply is not true. Section 36 (4) of the 18th Amendment specifically states as follows:
“The person holding office as the Commissioner of Elections on the date prior to the commencement of this Act, shall from and after the date of the commencement of this Act, continue to hold office and exercise and discharge the powers and functions vested in him under the Constitution as Commissioner of Elections (our emphasis) until the Election Commission is constituted in terms of Article 103 and from and after the date of the constitution of the Election Commission, cease to hold office as the Commissioner of Elections.”
Under the 18th Amendment the present Election Commissioner’s powers remain undiminished in the absence of an Elections Commission. There is absolutely no derogation of the powers that the Presidential Elections Act of 1981 has vested in the Commissioner.
Free and fair campaign
The following are a few examples of the 1981 Act designed to make the campaign free and fair. However, the Election Commissioner Mahinda Deshapriya neither has effective power nor the resources to enforce almost any of the laws described below.
Section 74 of the 1981 Act explicitly prohibits the display of banners, bills, cutouts, flags or any other such publicity materials in public spaces unless it is at the venue of a meeting or on the vehicle that a presidential candidate is travelling in.
Section 73 (a) of the Act permits a candidate only one central office for each electoral district, and one notified branch election office in each polling district.
Section 77 of the Act says that “before, during or after an election” no candidate or his/her agent is permitted to use food, drink, money or any other form of inducement to persuade a voter to vote for a particular candidate. Let alone state resources this law does not even permit the use of personal resources for inducements detailed in Section 77, the flouting of which is tantamount to corruption that is punishable by law.
Section 78 prohibits the use of force and violence in campaigning but also prohibits the use of religious assemblies to canvas for candidates.
Section 79 provides detailed guidance to prevent bribery in campaigns and at the poll.
Section 83 prohibits the publication of false reports in newspapers and even the distortion of statements made by candidates.
Police
Under section 75 (5) of the Act police are explicitly empowered to enforce at least a few of the above provisions of the law. However, in today’s Sri Lanka they rarely do.
State Resources
Section 82 of the Act spells out illegal practices punishable under the law that includes payments to induce voters to vote for a particular candidate. However, in order to make the law practical it also allows for payments that a candidate may make under his or her normal business. It is this provision, generously interpreted, that allows a sitting president to use state resources for campaigning under the pretext of performing state duties.
Growth of impunity
The J.R. Jayewardene administration enacted the 1981 Act. Starting from the Jayewardene administration itself, the law has been violated with increasing impunity by all successive administrations. This abuse of the law has now reached unprecedented levels under the current Rajapaksa administration as evidenced by the menace of cutouts, mass receptions at the official residence of the President, and the like. While the average voter may not be fully conversant with the election law, s/he is able to sense that there is something fundamentally wrong with the system. Ven. Maduluwawe Sobhitha’s message for good governance appears to resonate well with the broader electorate for that reason.
Last hope
The bleak picture that we have highlighted above makes the prospects for a free and fair election look quite hopeless. But there is a silver lining despite the dark cloud. The conduct of the poll itself is the sole responsibility of the Commissioner of Elections and a set of officials under his command. The authority of the Commissioner was on display on the day of nomination when all the candidates had to go to the Office of the Commissioner of Elections to handover their nomination papers. Each candidate, including Mahinda Rajapaksa, had to walk to the Commissioner who sat in his chair and accepted the nomination papers. This perhaps is the only occasion when a public servant is now able to perform his duties without appearing to be beholden to the executive president or to any other likely to occupy that post after January 8.
Impersonation
Impersonation is one form of poll rigging. After much debate and discussion, the production of an official identification document at the time of casting one’s vote has been made compulsory and this has greatly reduced impersonation.
In the last week or so Grama Niladharis reportedly have visited homes in many parts of the country to identify names of household members who are registered to vote on January 8 but are currently aboard. This has not been a normal practice in the past. A rough estimate of the total of overseas-based eligible voters would be around 500,000 to 750,000 (3.5% to 5.0%) of the total registered voters of about 14.5m.
The reason given for the above Grama Niladhari exercise is that the Election Commissioner wants to update the voter registers so that presiding officers at the polling stations will know those who are abroad and impersonation could be prevented. That will help in the conduct of a fair poll.
There are others who believe that the exercise of checking on absent eligible voters in a household list could instead of preventing mass impersonation actually lead to it. Given the fact that there may be 500,000 or more registered voters who are out of the country, it is possible, at least in theory, to tamper with the computer tabulation of results to adjust the numbers to include them as actual voters who cast their ballots. That could be decisive to the final result in a closely contested election where the winning margin could be around 100,000 to 200,000 votes. It is the responsibility of the Commissioner to prevent such an occurrence.
Counting the vote
Election Commissioners, including the current incumbent, have used their discretion to find new avenues to improve the integrity of the poll count. One example of such improvement is the facility given to each candidate to place his own special sticker on the locked and sealed ballot box.
The facility to allow the Polling Agent/s to follow the ballot boxes while being transported to the counting centre is another. However, there is an inadequacy here, as these Agents are allowed to do so only up to the barrier of the counting centre. Thereafter the boxes are unloaded and placed in a room where there is no Agent or Representative of the candidate.
The Commissioner can yet devise a strategy to ensure that each ballot box remains under the surveillance of the candidate or his agent at all times. If an agent can be allowed to accompany the box right into the holding room and stay within sight of “his” box and then follow it right in to the counting room where he can “hand over” to his counterpart, namely the authorised Counting Agent of the same candidate, the above-referenced inadequacy can be avoided. Should this be done, it will remove any suspicion in the minds of voters that genuine ballot boxes are being replaced with stuffed false boxes.
Computerisation and final result
Section 51(7) of the Act permits a Counting Agent of a candidate to place his signature on the Counting officer’s written statement giving the final tally. Acting under the terms of Section 118, the Commissioner has allowed three Counting Agents of the candidates securing the highest number of votes to get a carbon copy of this statement. These carbon copies can then be added up by each of the leading candidates and the final result worked out, independently of the result that will be declared by the Commissioner. This will be a manual count without the use of computers and will be a cross check of the final result in each district and finally of the entire country. The final result, whether it is processed manually or by computer, has to tally with the initial certified results. The opposition has to insist that the above procedure be followed to protect the integrity of the election and the good name of the Commissioner and his officials. This is of the utmost importance no matter who wins because people will know that they have the president that they actually voted for and not a computer-generated president.
The Commissioner has the power to introduce procedures such as those suggested above to ensure a free and fair poll. The major poltical parties also have an obligation to cooperate with him to make that happen.
Conclusion
Our analysis demonstrates the following:
(a) The Presidential Elections Act of 1981 is breached with impunity by nearly all candidates during campaigns. The voters are in a position to judge for themselves who does what in any electoral campaign.
(b) The 18th Amendment notwithstanding, the Elections Commissioner has the opportunity under powers vested in him by the 1981 Act to conduct a free and fair poll. If Mr. Deshapriya and his team successfully deliver, the nation will owe them a deep debt of gratitude. The world will get the message that Sri Lanka, after thirty or more years of war and turmoil, is ready to re-emerge as a resilient country willing and able to protect its democratic traditions.