People's action due to police inaction

A gloom of despondency has descended on the people of this country. This has been caused by a rapid deterioration of the law and order, with human rights violations, LTTE terror, bribery and corruption, state terror, narcotics trade, underworld activities, rigging of elections, guns, grenades, and election violence by the legislators, all rapidly increasing.

The Police Force, which is the premier law enforcement agency in this country, is virtually helpless in this regard. One cannot blame the Police Force altogether because, as stated in this column earlier, all powers in Police affairs that matter, are held by the Minister of Defence. That power and accountability go together and cannot be separated from each other is a universally accepted truth. Hence it is the Minister of Defence who has to be held accountable for the state of affairs in the Police Force.

Some are blaming the people for not making a correct choice during elections. Seeing the manner in which our legislators get themselves 'elected', it is not fair to blame the people. How can the people make any choice, leave aside the correct choice, when elections are not free and fair? When it is a question of getting elected "somehow or other," and the means are not free and fair, it is superior power that will win.

The idea that people will have to devise their own 'act' outside of legislative enactments, has been a concept I have held out for some time. I hasten to add that I expect such action to be non-violent and lawful. It is commendable that many groups of apolitical people have now formed themselves into an organisation known as the Alliance for Democracy to campaign for free and fair elections. The Yellow Ribbon (Swarna Bandana) Campaign is the sort of social action I had envisaged. Now here is an opportunity for the people to form themselves into an organisation strong enough to ensure free and fair elections.

The Police who have found it virtually impossible to ensure free and fair elections enforcing the law by themselves, should now co-operate and encourage such social action by the people to achieve the same goal. A free and fair election will pave the way for the various democratic institutions that the people of this country are entitled to, and are yearning for. Laudable as this campaign by the Alliance for Democracy is, the people will do just as well to beware of disruptive elements that may have plans other than free and fair elections. It has been the practice of politicians in power to treat impartiality as anti-government, and use state agencies to discredit and disrupt impartial action. Why state authorities should fight shy of lawful and impartial action by state officials, private individuals or groups for the greater good of the people, is anybody's guess.

Ashraff and the Muslim factor

By Kumbakarna

Handshakes and photo-ops notwithstanding, the Ashraff-Fowzie feud goes on. On October 11 we will be able to ascertain the truth of the respective boasts and challenges. In any event, the "Muslim factor" in Sri Lankan politics will continue to be a marked presence.

M.H.M. Ashraff's king-maker ambitions have a long history. In 1977 he worked with the TULF to set up a separate Tamil state, even going to the extent of claiming that he would continue this struggle even if Amirthalingam jumped ship. In 1982 he supported the SLFP and in 1986 he set up the Muslim Congress. He came into the political limelight only in 1988 when with the financial and political backing of India he contested the Provincial Council election, prompting Qadri Ismail, the would-be "un-maker" of the nation to write a piece titled "The Importance of Being Ashraff". After the LTTE started its massacre of Muslims, he took on the leadership of a project to set up Sapistan. He too contributed to Mr. Premadasa's victory in 1988 and thereafter joined that dubious and motley band called "King -makers". And now his National Unity Alliance is predicting that he will capture power in 2012. As such, it is probably time to deconstruct this character and his ancestors.

He has quietly and not so quietly at times built a firm political foundation for the Muslim people in the Eastern Province. He has taken a page from the Eelam Mythmakers 'Almanac' and got his Ministry to publish a book claiming that the Muslims in Ampara have a 1500-year-old history and that this area has never been ruled by Sinhala or Tamil kings!

This historiography itself has a history. During the 1930s when Muslim racists were demanding a Muslim Confederation in India, Rahman Ali Chaud-ary's position was that there should be 10 states outside of the current region called Pakistan and this included a Sapistan in the Eastern Province of Sri Lanka and a Nazaristan in the West. Ashraff has taken this further, his racist and fundamentalist arms reaching into the Central Province as well. At the same time, Muslim history has shown the answer to this kind of minority mania.

What is the truth about the Muslims in Sri Lanka? It was in the 14th and 15th centuries that Muslims began coming to Sri Lanka. In 1526 the Portuguese declared the coastal areas out of bounds for Muslim traders. In 1626 Constantine launched a campaign to wipe them out from Sri Lanka and it was the Sinhala king Senarat who came to the help of the Muslims. Another group of Muslims fled to the Maldive Islands and overthrew the Sinhala state there and established a Muslim fundamentalist order. The Muslims of the Eastern Province have always remained distant from the Sinhalese. When the Wellasa rebellion took place, a group of Muslims led by Naina Marikkar sided with the British. After the rebellion, all Sinhalese were annihilated in Ampara. The British then helped the Muslims to settle in Kandy, supporting their expansionist ideology.

In the 1880s, Siddhi Lebbe, an exile from Egypt, helped orchestrate a Muslim revival in Sri Lanka. Their demand for representation in the legislature was granted in 1889. This was the beginning of a distinct Muslim identity in Sri Lanka. It was in 1927 that a Muslim political organisation was founded for the first time. Thereafter the discourse among the Muslims was simple; are they to join the Sinhalese or to take the separatist path taken by the Tamils?

People like Razik Fareed and Macan Markar argued for integration with the Sinhalese and thereby prevented the creation of a Muslim monster akin to the Eelam monster created by Tamil racism. Later, H.S. Hameed attempted to carry the separatist message of Chelvana-yakam to the East, without success. In 1960, one of Chelvanaya-kam's acolytes, M.S. Kariappar created the Islamic United Front and later Badi-u-din Mahmud formed the Islamic Socialist Front. In opposition to this M.H. Mohammed formed a group called "Jihad". Finally, in 1976, Faleel A. Majid and A.M. Samsudeen formed the Muslim United Liberation Front on lines parallel to the TULF. When it aligned itself with the TULF in their separatist project, Ashraff was a prominent youth leader. After 1980 some Muslim youths joined the Eelam militants and later some of them broke away and formed groups of their own. So we have today a situation where Mr. Ashraff has lit the fuse of Muslim racism. Ms. Kumaratunga and Mr. Wickremesinghe continue to sacrifice the Muslims in their parties to keep him happy. They are in fact playing the same game that Mr. Senanayakeand SWRD Bandaranaike played with Chelvana-yakam. And the people of this country are paying for this.

Focus on Rights

The dilemma of the Polls Chief

By: Kishali Pinto Jaywardene

That all this hysteria could arise over electoral security measures taken by Commissioner of Elections Dayananda Dissa-nayake, however misguided they may seem in the opinion of some or redundant in the opinion of others, is possible only in this country. As state media spin doctors work themselves into a frenzy to show that something underhand had been taking place with regard to the whole exercise, the allegations that are being levelled against the unfortunate polls chief have to be heard to be believed. And that this process of intimidation has been largely fuelled by hard hitting statements issued by Ministers S.B. Dissanayake and Alavi Moulana comes, of course, as no surprise. But let us now take a moment to separate this distastefully politicised rhetoric from the law.

At the start itself, these Ministers of the Government who seem unable to comprehend that public officers are capable of acting on their own without kowtowing to every political paper god should be speedily disabused of their misapprehensions. The Commissioner of Elections is, under no circumstances, obliged to report to the Government on every move that he makes. Similarly, he is, under the law, not obliged always to use State resources in order to ensure the conducting of free and fair polls.

In this instance, the issue boils down to simply one question. Was the action of the Commissioner in ordering secret stickers to be printed by a person in whom he had personal confidence and trust and not the Government Printer, so very drastic as to take it beyond the line of reasonableness? It may be argued that his actions could have been better planned or even that stickers on polling cards (unlike on ballot papers) will not go a long way towards preventing election malpractice but that is not the point. The focus is only whether his actions, from an objective viewpoint, were beyond the pale. For the law is precisely this. Within the discretion given to him, the Commissioner is allowed to use his own judgement in matters relating to the conducting of free and fair polls. Undoubtedly, whatever measures that he takes must necessarily not be perverse or totally unreasonable. But within his own discretion, he is the judge, even though opinions may disagree as to whether he made the right choices.

This is evident very particularly in the constitutional and statutory provisions relating to his office. Dayananda Dissanayake is positioned as an independent officer of the State by Article 103 of the Constitution. By Article 104, he is authorised to exercise, perform or discharge all such powers, duties or functions as may be conferred or imposed on or vested in him by the law for the time being in force relating to elections. Similarly, Sections 128 and 129 of the 1981 Parliamentary Elections Act give him the authority to exercise general direction and supervision over the administrative conduct of elections under the said Act and to take special measures on the arising of an unforseen situation on due notification. This is the bare essence of the relevant constitutional and statutory provisions. Let us now examine as to how courts in this country have hitherto responded to these issues.

In the past, the dilemmas have been singularly different. Thus, the Commissioner has been faulted for blindly obeying the direction of the executive without using his independent judgement in a crisis. The classic example is, of course, the situation that arose in the country last year when President Chandrika Kumaratunge postponed elections to five Provincial Councils by emergency regulations in a clearly politically motivated exercise. The Commissioner's failure to exercise his independent mind to fix a new date for elections even after the original date had passed and after the Regulation had lapsed, was censured by the Supreme Court in no uncertain terms. In so doing, the Court found it necessary to remind the Commissioner that the Constitution assures him independence so that he may fearlessly insist on due compliance with the law with regard to all aspects of elections, even, if necessary, by instituting appropriate legal proceedings in order to obtain judicial orders. So much for ensuring, as was pithily editorialised this week, that the Commissioner is "no lackey of the Government"

But, for our present purposes, yet another pronouncement of the Court delivered one month after its judgement in the Provincial Councils case, becomes even more crucial. This was when a Bill seeking to privatise the Department of Posts was challenged on the basis that it affected the rights of citizens of this country to use the postal service in a fair and even manner. Clause 7(1) of the Bill provided that the proposed Postal Corporation will have the exclusive right to convey standard articles and also letters sent by any government department, including letters sent by the Commissioner of Elections containing ballot papers or poll cards. The Supreme Court ruled that this clause was unconstitutional for the following reasons. The Bill compulsorily subjected the Board of the Postal Corporation to general or special directions by the Minister. The Bill also provided, unprecedentedly, for Presidential directives with regard to the interception, detention and delivery to the Government, of any postal articles. Officers of the Corporation were also given immunity from the law in respect of their actions. All this was determined to add up to a dangerous situation. If such ministerial or presidential directives or directions are given, they may prevent the safe or timely delivery of poll cards and ballot papers. In the thinking of the Court, ultimately, such power would affect the authority of the Commissioner of Elections. And their reasoning as to why this would be so is very interesting.

The Court acknowledged that the Commissioner is given general authority to act by Article 104 of the Constitution which states that his powers are spelt out in "written law" and that there is no specific constitutional provision with regard to the delivery of postal ballot papers. "Written law" meanwhile provides for delivery by post, which is by the existing postal service as provided for by the State. However, the Court reasoned that this did not mean that the Commissioner has no residual power or discretion to act if, in his opinion, delivery by post will not ensure safe receipt of poll cards or ballot papers. On the contrary, Articles 4(e) and 93 of the Constitution safeguarding a free and fair right of franchise were not merely pious aspirations but conferred this power on the Commissioner over and above his specific statutory authority. The Commissioner does not have, within his direct control, the ordering of such matters essential for the conducting of a free and fair elections such as premises required for polling booths and counting centres, the personnel to man them, vehicles to transport them, personnel to provide security for them and to prevent the intimidation of voters. For all this, he must depend on State officers and State services. If however, what is made available to him will not suffice to ensure a free and fair elections, the Supreme Court stated that he is entitled to insist on reasonable alternatives necessary to guarantee a due exercise of the franchise. Clause 7(1) © was ruled to run against this inherent power of the Commissioner to make "alternative arrangements" and to detract from his discretion in this context.

It is this latter injunction that the Commissioner can now use to give more strength to his elbow in terms of the law. And the thinking of the Sri Lankan Supreme Court in this sense is no wildly unusual thing. Indeed, it reflects practices adopted not only internationally but also in neighbouring countries such as India where the Elections Commissioner heading an Elections Commission enjoys an extraordinary amount of discretion and has not hesitated to exercise it in the same spirit. Regardless to say, such a brouhaha such as this which the Sri Lankan public continues to be unwillingly subject to, would be laughed to scorn in those far less insecure political systems.