Focus on Rights

Is this what the voters of the North deserved?
My acute sympathy for a long-suffering Elections Commissioner was perhaps at its lowest ebb following the November 17th Presidential elections. Make no mistake, this is not to excuse the lamentably (but predictably?) shortsighted decision by the UNP not to raise objections in relation to the impediments confronting voters in the North before the counting of votes commenced, reportedly because they were anyway confident of a victory. This is also (heaven forbid) not to pursue the argument that if the votes of these intimidated voters had been counted, the UNP would have won.

Assuredly, the antagonism (at least on my part), that had been escalating immediately prior to the elections was directed quite equally at the two Presidential contenders in so far as their sublime bypassing of responsibilities of institutional governance was concerned. Now that one of the two contenders is in office, it remains to be seen as to whether he could in fact, check the degeneration of the institutional process that we have been subjected to in recent years.

However this column is occupied in this instance, with a dereliction of duty on the part of the Commissioner of Elections which cannot be excused by his passing the responsibility on to a political party. Regardless of who the winner and the loser has been in the recently concluded elections, what occurred in relation to the North poll has alarming repercussions for future elections in this country.

The simple truth is that, the primary responsibility of intervention at a point when it had become demonstrably clear that a free and fair poll was not taking place in the North was the Commissioner's responsibility. His complaint that even if he had ordered a re-poll, that would have been of little use as there was nothing to have guaranteed that the LTTE would have permitted the people to vote a second time around is painfully simplistic in its reasoning. Essentially, this ignores the fact that the Commissioner has been vested with the constitutional duty of conducting the franchise in a manner that secures the right to vote of all citizens to the fullest extent possible. At the very minimum, if a re-poll had been ordered, it would have put the LTTE into a difficult position of having to repeat their tactics with the attention of the international community being directed towards them.

It is opportune to refer to an instance where, in vastly less intimidatory circumstances in relation to the conducting of Provincial Council polls, the Supreme Court laid down principles that had to be followed by the Commissioner at all times. (see Mediwake v Dissanayake [2001] 1 SriLR 177 (the Egodawela Case).

The Commissioner himself is fond of quoting this judgement as indeed, he did in the days preceding the November polls to assure the voters of his swift action if intimidation occurred. Regrettably, his assurances lost their significance in the post polls period.

In this case, four registered voters of the Kandy District, petitioned court regarding various incidents alleged to have occurred on election day at twenty five polling stations in the District during the run up to the Provincial polls in April 1999. These included the premature closure of one polling station, ballot stuffing, driving away polling agents and intimidation of several others. The petitioners 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.

As far as the respondents were concerned, the Commissioner of Elections and the Returning Officer for the Kandy District (through their counter affidavits), admitted that certain incidents had taken place at some polling stations but claimed to be unaware of most of the incidents. In the absence of specific answers from the respondents, the court had recourse to the journals of the Special Presiding Officers (SPO's) to determine as to what actually had happened.

Intricate procedures had been evolved by the Commissioner of Elections in reporting and ascertaining what had actually happened at the polling stations on elections day, which duties had devolved on the SPO's to report to the Commissioner. These included instances where it was not possible to conduct the poll due to any reason. beyond the control of the Presiding Officer, if one or more polling agents are chased out during the poll, non-arrival of the polling party at the polling station due to obstruction on the way, if any disturbance of peace at the polling station makes it impossible to take the poll and if any stuffing of ballot papers is forcibly done by unauthorised persons

Examining these legal duties, the Court considered two questions in respect of each of these polling stations. First, did the incidents warrant the annulment of the poll under Section 46A of the Act? Secondly, was the Commissioner of Elections under a duty to order a repoll? Both questions were answered in the positive with the Court rejecting a "narrow and mechanical interpretation" of the law as opposed to a purposive reading of the statutory provisions.

The judges proceeded on the basis that the incidents were not simply a matter of "x ballots being stuffed or polling agents being driven out." On the contrary, the court found itself compelled to consider the effect of the incidents on the electors. Thus, it was pointed out that "ballot stuffing and driving out polling agents go hand in hand with violence or the threat of violence - which in turn, will have a deterrent effect on electors in the vicinity as well as those still in their homes………driving away polling agents is a classic symptom of graver and more widespread electoral malpractices ranging from the intimidation of electors and the seizure of polling cards to large scale impersonation."

Importantly, the Commissioner was required to see whether the cumulative effect of a repoll at all the twenty three polling stations (at which serious irregularities were found to have been committed) was likely to have resulted in the preferences obtained by the candidates being affected. Proceeding from this reasoning, the judges held that even those irregularities which affect only the preferences and thereby the identification of the candidates elected, do affect the result. The Commissioner of Elections was thus left with no choice but to order a repoll at those specified polling stations.

An interesting postscript to this was the judicial caution that even though a repoll might have caused considerable delay in determining the overall result for the Kandy District, delay or inconvenience could not be used as an excuse for depriving voters - however small their number may be - of their vote.

As in the case of the Provincial elections law, Section 46A of the Presidential Elections Act No 15 of 1981 (as amended)(brought in by Special Provisions Act No 35 of 1988) outlines instances in regard to which a poll could be declared void which are similar in content. The inability of the Commissioner to utilise this judgement in his aid is, (looking at it charitably), an undoubtedly startling error of judgement.

A bolder decision by him would not have resulted in the LTTE intimidation being brushed under the carpet but would have put in issue the unreservedly totalitarian nature of its functioning. This was the very least that the people of the North and East deserved in their plight. Instead, what we had was a fait accompli, vigorously assisted by the very individual tasked with the responsibility of holding elections in the entire country. In retrospect, (while I sympathise with his plea to release him with the appointment of an Elections Commission), this failure of constitutional responsibility remains undeniably disturbing.

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