Focus on Rights

Why should we celebrate the forthcoming polls?
Now that the fuss and furore over the date of the next Presidential poll is over, (ending in scenes in court that were strongly and quite curiously reminiscent of the Mad Hatter's tea party in Carroll's inimitable classic), perhaps it is time to focus on what the scheduled polls actually demand in terms of a credible electoral process. These fundamentals have now become immediate by reason of the relatively close date of the poll.

In reasoning that may seem like the tired rewinding of an old tape, it is nonetheless imperative to ask as to whether we are really so blind to the norms of governance to contemplate holding this election without the establishment of the Constitutional Council and the Elections Commission?

Where, pray, is this agreement that was supposed to have been almost reached some weeks back between the Leader of the Opposition and the current Prime Minister, (both candidates of their respective political parties for the forthcoming presidential polls), in respect of the five persons jointly nominated by them to serve on the Council? Has the Presidential nominee been named? And, what of the nominee of the minority political parties? Whose default is holding up the process? Or, (unsurprisingly) is it a collective default? Should we not call upon the Presidential candidates in particular to declare their stance on these questions and come to judgement against them in the alternative?

Despite some serious flaws in its working as seen during the term of the previous Constitutional Council, (CC), there is no doubt that its interventions bring in a measure of control on the single and arbitrary choice of a President who has been invariably driven by party political motives when appointments to key public bodies and posts are called for. Given our dysfunctional democratic functioning), the choice is between the lesser of the two evils. The immediate establishment of the CC should be succeeded by the appointment of the Elections Commission. While it is to the good that the UNP recently, through public addresses made by some of its frontliners, acknowledged the need to have the Elections Commission constituted, this by itself, is not sufficient to lend seriousness to the intentions of the party unless actual action is evidenced.

Far more however is required, of course, to ensure the exercise of a genuine right to franchise than the establishment of these two bodies. Crucially, we need to see specific provision being made in regard to the voting rights of tsunami affected internally displaced persons as well as those displaced by the North-East conflict. Procedures to enable voting at embassies abroad by migrant workers are also imperative.

Along with this, the 17th Amendment itself ought to be strengthened in several of its provisions, commented upon earlier in previous instances in this column. Essentially, the Elections Commission or Commissioner should be vested with punitive powers in regard to abuse of state resources. Currently such authority is merely exhortatory. The prohibition should relate to, not only movable or immovable property belonging to the State or any public corporation but also include misuse of government officers, whose coerced services for the benefit of one political party alone has been outlawed in key decisions of the Supreme Court). Ideally, the prohibition should relate to abuse of incorporeal interests as well.

Then again, specific sections of the Presidential Elections Act No 15 of 1981 (as amended) need to come in for further amendment in order to prevent replication of previous polls where misconduct reigned high. Similarly flawed provisions exist in other election laws, including the Parliamentary Elections Act No 1 of 1981, (as amended) which would also be referred to in this regard since it is unsure as to whether a parliamentary election would also be held in the near future.

For example, Sections 46A of the Presidential Act and the parallel Section 48A of the Parliamentary Act, (which, together with the parallel Section 46A of the Provincial Councils Act No 2 of 1988, were brought in by the Elections Special Provisions Act, No 35 of 1988) relates to the situations where the Elections Commissioner is empowered, subsequent to receipt of an information by the returning officer and after making such inquiries as he may deem necessary, to declare the poll void in respect of disturbances at polling stations.

These instances should not be confined to instances when it is not possible to commence the poll at a polling station at the hour fixed for the commencement of the poll or the poll at such polling station commences at the hour fixed for the opening of the poll but cannot be continued until the hour fixed for the closing of the poll or any of the ballot boxes assigned to the polling station cannot be delivered to the counting officer.

Election monitoring groups have long been calling for extended authority where it is not possible to conduct the poll due to any reason beyond the control of the presiding officer or as a consequence of the presiding officer failing to perform his/her functions if one or more polling agents are chased out during the poll.

Other defined instances include non-arrival of the polling party at the polling station due to obstruction on the way, if any stuffing of ballot papers is forcibly done by unauthorised persons and generally, if the poll cannot be conducted in a manner that is free of any improper influence or pressure, where all those entitled to vote (and no others) are allowed to express their choice as between parties and candidates who compete on equal terms and where the secrecy of the ballot is respected.

These are concerns that have arisen out of substantial election monitoring experiences as exemplified moreover by a number of judgements of the Supreme Court on electoral misconduct. Amendment of the relevant sections therefore remains important.

In addition, other provisions need to be looked at, including Section 68 of the Presidential Elections Act (and the similarly numbered provision in the Parliamentary Elections Act. The provision should be amended to totally prohibit canvassing on election day etc by any person and not merely in the vicinity of the polling station. Enhanced punishments should be stipulated for violation therein.

This week, we saw loud pronouncements from all political parties about the right to franchise being safeguarded by virtue of the Supreme Court's decision that the Presidential poll be held this year. While this is so, such celebrations may perhaps have been more sincere if we had been successful in bringing about the appropriate environment of an informed right to vote, including the appointment of an Elections Commission. There is nary a murmur regarding these issues however in the opportunistic political climate that prevails.

The amendments outlined above comprise the merest essentials. A far more holistic process of amendment is called for if we are serious about the validity of our election laws. Ensuring that the minimal amendments are effected is the responsibility of the voters if the political leaders remain sluggish as they have so obviously been.

Whether we will get the shifting, faltering and power hungry political leaders that we deserve this time around as well, remains contingent on this critical mass of public opinion. Such critical opinion yet needs to be manifested.

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