Focus on Rights

Ensuring electoral accountability
In a country comfortable with a largely deadened conscience, the closure of entry points from the 'uncleared' areas of Batticaloa and Wanni to the 'cleared' areas where the polling stations were situated (on the orders of the Army Commander) during the General Elections of 2001, aroused no great outrage. The consequent decision by the Commissioner of Elections not to order a repoll in the affected areas at a later point in time was also met with the same insouciance despite the denial of voting rights of some fifty five thousand voters.

One and a half years later however, the Supreme Court has found in explicit terms as to why these actions on the part of public officials of this country offended fundamental constitutional norms governing the conduct of elections. Taken to its highest, this means that the Army Commander should resign for mala fide actions that were judicially found to be shrouded in secrecy and haste, even more at a time, aptly pointed out by Court when there was a "serious erosion of public confidence in the integrity of the electoral process."

The Court, (in the judgement of M.D.H. Fernando J., with Ismail J. and Wigneswaran J. agreeing), delivered this week, pinpoints the flawed nature of the decision taken by the Army Commander in commonsensical terms. The closure of the entry points was consequent to orders given by the Army Commander without any notification to the Commissioner of Elections, who ultimately learnt of the closure only at the eleventh hour and through others. The manner in which this was done was ruled by Court to give rise to grave suspicion as to its bona fides.

The reason stated was the fear that LTTE cadres, some having voting rights, might mingle with voters and infiltrate into 'cleared' areas. However, these reasons did not stand up to the scrutiny of Court in that they were found to be based not on factual reports showing an objective and reasonable basis for the fear but rather on speculative fears and possibilities.

The 'possibility' of LTTE infiltration, disruption and destabilization was, as pointed out, " a known and obvious danger" from the start when it was decided to allow candidates to campaign in the "uncleared" areas and to establish "cluster" polling stations in the 'cleared' areas for voters coming in from the 'uncleared' areas. At that time, all were of the view that adequate safeguards could be taken in respect of the risks involved, as indeed had been the case in past elections.

The Army Commander had not shown whether and how that 'possibility' had changed to a clear and present danger. Whatever reports relating to this in the possession of the Commander had been produced before court, he had not offered any reason for the non-production nor had the Court been informed of their contents, even in a general way. Thus, the requirement to establish reasonable grounds, based on national security, for the closure of the entry points had not been satisfied.

But, there was more to this. The failure of the Army Commander to promptly inform and consult the Commissioner of Elections of this decision to close the entry points prevented the former of exploring the feasibility of making alternative arrangements under the Parliamentary Elections Act No 1 of 1981 in order to enable the affected voters in Batticoloa and Wanni, to vote.

The whole thus made it likely that the real intention of the Army Commander was to prevent over sixty five thousand voters from "voting either then or later, knowing that this would further the interests of parties or groups not hopeful of their support." The consequent judicial finding is that the Army Commander was responsible for violations of the right to freedom of speech (inclusive of the right to vote), freedom of movement and the right to equal protection of the law, of five citizens so prevented from exercising their vote.

In the second instance, the Commissioner of Elections is also visited with culpability in that while the law provided him with the remedy of a repoll, he had not done so, thereby violating the right to freedom of speech and expression (and necessarily the right to vote), of those citizens. As on previous occasions, it is observed that the Commissioner made an honest effort - although inadequate - to ensure a genuine election but that his authority was insidiously undermined by withholding the necessary support and resources.

More stringent blame is however laid on the Commissioner with regard to a piquant contradiction of sorts impacting on the conducting of elections. This is in reference to the order of the Commissioner providing facilities to vote from home for six persons, namely President Chandrika Kumaratunge and front runners of the previous regime, Ratnasiri Wickremenayake, Lakshman Kadirgamar, Anura Bandaranaike, Anurudddha Ratwatte and Mangala Samaraweera while, as pressed by one citizen of Batticaloa before court, he and others were prevented from voting at all.

The Commissioner's order was made under Section 129 of the Parliamentary Elections Act. He is found to have acted blindly on the unsubstantiated representations of the Secretary to the President and extended quite extraordinary privileges to six persons without even receiving a request from them.

Thus, the Court finds the complaint of one of the petitioners justified, namely that "a few who had the privilege of extensive security provided by the State were given the additional facility of voting at home while from those who had no security at all, even the right to vote had been stealthily taken away.

In more provocative reasoning, it is found in any event that such an order could not have been made under Section 129 of the Act which would not give the Commissioner the power to issue general directions that are contrary to the fundamental principles of the Act, including 'voting at home.'

The high award of personal costs to be paid by the Army Commander (totalling Rs 90,000) stresses the issue of electoral accountability underlying the ethos of this week's judgement in no uncertain terms. At the very minimum, this should awaken our sense of outrage so that such blatant violations of basic democratic rights do not occur ever again in this country.

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