“I have been deprived of my future” laments Elections Chief
By Shelani Perera
In a rare occurrence in the Government Service, the Supreme Court last month refused to allow a top public servant to retire on grounds of a constitutional impediment.
Elections Commissioner Dayananda Dishanayake filed a fundamental rights case, citing health reasons after he was informed by the Attorney General that despite reaching the retiring age of 60 he had to continue in service until the Independent Elections Commission is set up.
Mr. Dishanayake says he has to abide by the Supreme Court ruling, but the decision had deprived him of job opportunities abroad. The Commissioner maintains that setting up of the Independent Commission will not benefit the electoral process in Sri Lanka unless changes are made to the existing laws, giving additional power to the Commission. He describes the Elections Commission set up in India as the best in the region as it is strengthened by the constitution and the Supreme Court of India. The Commissioner points out that he has doubts in the Independent Elections Commission in Sri Lanka as the appointees are nominated by political parties which leaves their bona fides questionable.
Excerpts from the interview:
What is the present status of the Independent Elections Commission?
I am not sure of the present status of the Commission, but I have come to understand that the Constitutional Council has selected some persons and the list has been forwarded to the President. Apart from that I don't know what the real situation is.
With the Independent Elections Commission yet to be established, how will it affect a Provincial Council Election?
My personal belief is even though an Independent Elections Commission is appointed, it cannot function unless the commission is strengthened by additional powers. There are areas where the law has to be strengthened. Either new legislation has to be brought in or the existing law has to be amended. By merely appointing an Independent Elections Commission one cannot do miracles as they have to act within the legal framework. One cannot compare the so-called Elections Commission of Sri Lanka according to the 17th Amendment with any other Elections Commission in this region. Normally people have a perception. When we talk of an Elections Commission, we always correlate with the Indian Elections Commission in this region, but the Indian Elections Commission is about 100 per cent powerful than any of the Elections Commissions in the region. It has been strengthened by the constitution itself and the Supreme Court of India, whereas in Sri Lanka the Supreme Court has weakened the Elections management body.
How has the Supreme Court weakened the Elections management body in Sri Lanka?
The Supreme Court judgments on elections petitions on some occasions have affected the body. I am unable to elaborate further as it would be contempt of court.
How is the Elections Department being affected due to the delay in constituting the Independent Elections Commission?
More than it has affected the Elections Department it has affected me. I was to retire after my 60th birthday. Now I have been compelled to continue in this position until the Commission is set up. I went before the Supreme Court, it held that I have been caught in the constitutional net. They were sorry about my situation and I have to continue as at present, whether I like it or not. I abide by the decision. I will continue but I don't know how long I will be here.
On what grounds did you file action?
I consulted the Attorney General before I reached the age of sixty, to get the correct standing once I reached the retiring age. I was informed by the Attorney General that I cannot retire until the Commission is set up. I waited for one and a half years hoping that the Commission will come into effect but nothing has happened. So I decided to resort to legal action.
It is a unique case where a government servant cannot retire as the Constitution does not allow it, how has it affected your life ?
It has deprived my right to retire and at the same time it has deprived me of my plans. I was offered two international positions which I have been deprived of, that cannot be compensated by any means, either by making any payments to me because when you enter the international arena, you can do a lot of things rather than being confined to a position in this country.
Was legal action taken citing new avenues?
No. I presented the fact that I had reached the age of retirement, of course, I cited that this was a very stressful job. My health was also brought to the court's notice.
Do you think the Supreme Court decision is a violation of your fundamental rights?
The Supreme Court held that the decision was not due to an administrative or executive action, therefore my fundamental rights have not been violated. I just cannot comment on it, I have to accept the decision.
The Supreme Court decision has left you with hardly any option. Are you expecting the Government or the President to help you?
The only way they can help me is to appoint the Independent Elections Commission, that is the only option they have.
Are you planning to take the issue to an international body ?
I don't want to do that, I have already missed the bus. Even if I go to a higher level I won’t gain anything.
What made you take legal action?
The last day given to me to take up the position was July 1. I waited for the Commission to materialize but nothing happened and then I thought of seeking some remedy. And there too I was deprived.
Are you dissatisfied with the set-up, having been a victim of a constitutional snag ?
The 17th Amendment was enacted within a course of 11 hours. That is a small period of time to get the views of the public, civil society and civil organizations. Most of them were unaware of the 17th Amendment till the last day. The relevant authorities were not consulted when they amended the relevant sections, this includes the section dealing with elections. At least they should have consulted me to get my view but it was not done. They need not accept my view, they should have at least consulted me.
The Government has set up a Parliamentary Select Committee on election reforms. Will you be forwarding your views ?
I will forward my proposals. Registration of electors in the present system has to undergo a lot of changes. At present we do it annually, I personally feel that this has to be changed. We can do a census on a particular day to have a general census. This will be valid for about ten years. Voters can make relevant changes any day of the year. In case of a death of a voter, the Grama Sevaka can be informed and the name deleted. At present the qualifying date is June 1. So if a person reaches the age of 18 on June 2, he has to wait another year to be eligible, even when it comes to a change of address. In the Parliament Election Act, which deals with violence at polling stations, there are three factors where a poll can be annulled, firstly if polling does not commence at the appointed time, secondly, if it does not continue till the appointed time and thirdly, if the ballot box could not have been delivered to the counting centre. I have identified several other aspects to annul a poll, where the polling agent was not allowed to come to the polling station, if the ballot box has been stuffed or any other violence takes place at the polling station, and at the same time the Commissioner, without consulting the contesting political parties, should call for a re-poll for that polling station.
You were in the forefront when it was first suggested to set up the Independent Elections Commission, but now you have taken a back seat ?
It is because the composition of the Elections Commission or how it is being appointed is not what I expected. It should be on the lines of the Indian Elections Commission. Only then will it be an independent one. Even the names nominated for the Commission reveal the fact that it is a Law Commission rather than an Elections Commission. The nominees are nominated by political parties and they surely have party affiliations. So it is unlikely that they will be in a position to take independent decisions.
You have mentioned that the Treasury has slashed funds allocated to the Department. How is it affecting the work ?
We do two important functions, which is the revision of the electoral register. We have to curtail the expenditure by the Department and when it comes to the electoral register, there are different procedures until the final stage is completed. We have cut down one item where we do not do field inspections, because we have to spend on fuel, overtime to Assistant Commissioners, drivers and other staff. This is done by the Assistant Commissioner. We are not serving the government but the people.
Local council polls in the North-East were postponed twice, what is the possibility that the elections will be held in January?
The Returning Officers submitted various problems they are faced with, and we must not forget that upto June 11 seventeen candidates were killed. I got reports from the Defence Secretary and the IGP. After evaluating all these I had to give my concurrence to postpone the elections until January 24. It should be noted that according to the present law you cannot have a polling station outside the electoral area. But for a national election the electoral area is the entire district, where you can cluster it and have it in any part of the district. Under the MoU the police is not allowed to go with weapons to an area that is uncleared. The police cannot give protection to my staff and it is not possible to hold elections under such conditions. Even candidates were killed in the run up to the elections, there were hartals and attacks, what if it continues on the day of the elections?
Unless the Government says that they can assure such incidents won't occur, with the concurrence of the LTTE we cannot hold elections.
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