Changing the process, not the system?
Restoring some measure of dignity into the electoral process in Sri Lanka has now become essential. And while the arduous task of the Parliamentary Select Committee on Electoral Reform currently deliberating reform of our electoral systems ought not to be minimised, its recommendations should only be complementary to basic and commonsensical legal reform.

In the alternative, all that this effort reduces itself to is a wearisome debating of forms and procedures rather in the manner of the eternal debates now beloved only of academics as to whether the Presidential or the parliamentary style of governance is best suited for this country.

The primary task of the Parliamentary Select Committee is apparently whether proportional representation (PR) should be continued in its present form, whether we should go back to the first past the post or adopt a combination of the two. It is necessary though that we first determine particular ground rules in order to ensure the democratic conducting of elections in any form or manner in Sri Lanka, for which purpose, fundamental reform of our statutory and constitutional provisions governing elections is necessary.

Three mandatory areas of law reform will only be focussed upon in this column this week due to space constraints. However, these areas comprise the basis of returning our electoral systems to some degree of sanity.

In the first instance, electoral misconduct and its effect on a poll that has been conducted, stand in need of urgent attention. Currently, Section 46A of the Provincial Councils Elections Act No 2 of 1988 (as amended), Section 48A of the Parliamentary Elections Act No 1 of 1981 and Section 46A of the Presidential Elections Act No 15 of 1981 (as amended) relate to disturbances occurring at polling stations.

These sections outline only narrow instances in regard to which a poll could be declared void and are manifestly inadequate in order to curb the multifarious types of misconduct now common. It had been suggested therefore that a poll may be declared void if it has not been possible to conduct the poll due to any reason beyond the control of the Presiding Officer or if one or more polling agents are chased out during the poll. Additional instances include ballot stuffing, intimidation of voters and disturbance of the peace.

Even though these amendments were suggested by the Commissioner of Elections to President Kumaratunga, as far back as in 1999, (immediately following the electoral farce that took place in Wayamba in January of that year), they were disregarded.

Consequent problems that arose were highlighted very well, for example in Jayantha Adikari Egodawela and Others vs The Commissioner of Elections and Others (SCM, 3/4/2001), where the Supreme Court gave relief to four registered voters of the Kandy District, who complained regarding various incidents of malpractice during provincial council elections in the Central Province in April, 1999.

These included the premature closure of one polling station, ballot stuffing, driving away polling agents and intimidation of several others. The voters alleged infringement of their rights under Articles 12(1) and 14(1)(a) of the Sri Lankan Constitution, relating respectively to the right to equality before the law and the right to freedom of expression.

In awarding relief, the Court (comprising MDH Fernando J., Wadugodapitiya J. and Ismail J.), went on to liberally construe the grounds under which specific election malpractice would warrant the annulment of the poll under Section 46A of the Provincial Councils Act. Accordingly, polling must be shown to have taken place at a particular polling station not sporadically but without interruption from beginning to end.

The Commissioner was required to ascertain for himself whether he could reasonably conclude that there had been a genuine and uninterrupted poll at any of those polling stations and was called upon to make a qualitative assessment as to whether the poll was free, equal and secret. In the alternative, he was required to annul the poll.
The Court imposed a further duty upon the Commissioner of Elections to order a re-poll where a genuine and uninterrupted poll had not taken place, affecting therefore the preferences that could have been obtained by the contesting candidates.

While some may contend that the Egodawela decision has lessened the need for specific law reform in this regard, the carefully liberal reasoning adopted by the Court in that instance may always be forsaken, (subtly or otherwise), in another instance by a Bench differently disposed. The need to amend the laws for this purpose conferring explicit authority on the Elections Commission (and in the interim, upon the Commissioner) is therefore still a necessity.

Equally, there remains the need for enforcement powers vested in the Elections Commission with regard to the misuse of state resources to be tightened and made subject to specific penalties. This again has been a pervasive problem in the elections conducted in this country for the past few decades and deserves a degree of attention more rigorous than the prevalent makeshift provisions of the 17th Amendment.

Thirdly, it is necessary that political parties in this country be visited with severe penalties arising from the misconduct of their candidates, including, therefore-the necessary concomitant that they should take care not to nominate any person with criminal records or a criminal past.

These amendments to our laws and the Constitution, (among others), remain a pre-condition for change in any electoral system as such. It is a truism that while the system itself is important, the manner in which it is administered is by far, the more crucial. Without proper consideration of the second imperative, the first is of value only in theory. These are hard truths that we yet have to accept after decades of misgovernance in this country.

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