In the current conducting of elections in Sri Lanka, there is superficial understanding that the only missing element in this scenario, insofar as the right to vote freely and fairly is concerned, is an Elections Commission.
Yet, this is far from the case. It is conceded that the absence of an Elections Commission is perhaps, the most vital factor. And, in that context, one is justifiably puzzled regarding the signal failure of the current Elections Commissioner to reiterate his fervent appeal that was telecast countrywide after the 2005 Presidential Elections, imploring the then President elect Mahinda Rajapaksa to ensure the appointment of the Elections Commission in terms of the 17th Amendment to the Constitution in order to enable the Commissioner to retire. If my memory serves me correctly, Mr Rajapaksa, smilingly agreed to this request at that time but went on to do the exact opposite. One would, of course, have had no conception at that time that, not only would the Elections Commission not be appointed in later years but that the entire 17th Amendment would be diabolically engineered to deprive Sri Lankan citizenry of its many benefits towards good governance.
However, leaving that aside for the time being, it would serve the current Elections Commissioner well if he exhibited some continued commitment towards the need for the executive to conform to the conditions for free and fair polls, laid down in what has been perhaps the most important constitutional amendment in recent times.
Conduct of the police and the
role of the NPC
As last week's provincial polls have shown, the police deployed to the North Central province in particular exhibited remarkable passivity in the face of election violence, candidate intimidation and voter intimidation in the run-up to the polls. It is therefore a moot question as to the exact responsibility of the National Police Commission (NPC) in that regard. While it may be well and good (from the point of view of the current NPC) to transfer the entire responsibility in this respect upon the Inspector General of Police, this is not at all what was contemplated by the 17th Amendment which vested the NPC (one of its most novel features) with the powers of appointment, promotion, transfer, disciplinary control and dismissal of all officers other than the Inspector General. (Vide 17th Amendment, Article 155G(1)(a).
To its credit, the first NPC, the members of which were constitutionally appointed with the due nomination of the Constitutional Council unlike the incumbent members, attempted to prevent the political transfers of police officers during the pre-election period and was successful in these efforts. They were rewarded by disgruntled politicians who, claiming that the 'independence' of the NPC was not necessary,
united to ensure that the NPC was rendered dysfunctional. This was one major reason as to why the 17th Amendment was deprived of its substantive force in later years.
Duties vested in the Elections Commissioner
From other perspectives, the helplessness of the Elections Department, the total inadequacy of circulars and directions ensuring the right to vote within a hopelessly politicised police force and extreme political intimidation are matters of public record.
With regard to the deployment of police during election times, for example, the Commissioner (in lieu of the Elections Commission) is vested with particular duties under the 17th Amendment which is still operative to all intents and purposes. In this respect, every police officer thus made available, shall be responsible to and act under the direction and control of the Commissioner during the period of an election. Certain immunities from suit have also been specified for acts done in good faith by police officers in pursuance of directions issued by the Elections Commissioner. The public has therefore a right to know what specific measures have been taken by him in this respect and in what specific manner, the Commissioner has called upon the IGP to ensure free and fair polls under the 17th Amendment as he is compulsorily required to do.
Right to know about the
candidates
In this exceedingly criminalised political culture meanwhile, we could also borrow judicial precedents from India where judges have asserted that the right to vote has meaning only if people know and have the right to know the full antecedents, criminal record and suitability of the candidates that they vote for (judgement of the Delhi High Court in the Association for Democratic Reforms case, November 2, 2000). Accordingly, a duty was judicially imposed on the Elections Commission and the prospective candidate to reveal firstly, criminal records, including where the candidate is accused of an offence, secondly, assets possessed by the candidate, spouse and dependant relatives and thirdly, facts giving insight to the candidate's competence, capacity and suitability for political office. The Indian Elections Commission, in that sense, was given a roving power to make this information available to the public in a country where, as in Sri Lanka, regional and national thugs have become political leaders.
This is not, of course, to say that if there had been greater discipline, the electoral result may have been different. The fundamental inability of opposition parties, and particularly the main opposition party, to come to grips with problems faced by the common people and to build a strong rural voter base on strategic political thinking is undoubted. However, what we are concerned with here is not electoral results but electoral governance. And there is no doubt that, we have much to be seriously perturbed about in that context.
Failure of the opposition in regard to good governance
Indeed, while the Government's aim to crippling the 17th Amendment is understandable in terms of political exigencies, it is the silence of the opposition parties on this issue that is truly astounding. The current reason given by the Rajapakse Presidency through its ministerial spokesmen, is that the 17th Amendment cannot be implemented through the appointment of the Constitutional Council, (even though we are presumed to assume that all the members have now been nominated), due to the fact that a Parliamentary Select Committee is sitting to 'revise' this Amendment. Even if this transparently ridiculous excuse is taken at face value, the question as to why the combined opposition cannot take this Select Committee by its throat and shake it into some measure of finality, is beyond all explanation.
This again, remains a facet of their parliamentary failure to 'oppose' the government in any effective way whatsoever, to our collective detriment.
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