Hulftsdorp Hill

Courts and Lanka's election culture

By Mudliyar

Mangala Samaraweera has challenged Ranil Wickremesinghe, the leader of the opposition to give a clear reply to the President's allegation that he committed malpractices and thuggery at the 1983 Mahara by- election, before January 25.

Mangala Samaraweera got this information from Lake House Chairman Aloy Ratnayake P.C.who had been unfairly identified as a provincial lawyer. I believe Mangala Samaraweera in turn would have told the President, that this was a fact recorded in the most respected publication of the Government Press-the 'Sri Lanka Law Reports'. 

By dabbling in law Mangala Samaraweera has transformed himself from fashion designer to an eminent jurist. This is further proved by the fact he had quoted the volume and page of the law report and its contents. The President unlike Mangala Samaraweera studied law at Aquinas University. She has said that Ranil Wickremesinghe had dragged a SLFP organiser, Alahakoon, from a polling centre by his blue shirt and prevented him from entering the polling booth.

What the President did not tell the voters at Wayamba was that these allegations were not findings of the Supreme Court, but allegations contained in a petition. . 

The petition which alleged these matters was rejected by the Election Judge who heard the petition. He said: "I reject the affidavit filed by the petitioner on the grounds that the petitioner has not verified and confirmed the facts stated in the petition. I uphold the objection that there was not a proper affidavit supporting the allegation of corrupt practice pleaded in the petition and therefore the Petition was defective".

The petition was rejected by the Election Judge upholding the preliminary objection. 

Later the petitioner appealed to the Supreme Court. What the President and Mangala Samaraweera did not disclose to the electors at Wayamba was that even the appeal was dismissed by the Supreme Court. Therefore the allegations contained in the petition about Mr. Wickremesinghe or the others were not even supported by affidavits, let alone being proved in Court by witnesses. They remain to date allegations contained in a petition filed on behalf of an unsuccessful candidate.

The unsuccessful candidate in this instance was the late Vijaya Kumaratunga. He lost the Mahara by election by a mere 45 votes. Mr. Kumaratunga contested the election from the SLFP, and even at that time it was a well known fact that certain elitist elements in the SLFP worked closely with the UNP to defeat Mr. Kumaratunga. 

A second petition filed by the late Vijaya Kumaratunga was dismissed as the President, J.R. Jayewardene had been impleaded as the 2nd respondent. Mr. Jayewardene had allegedly made a false statement as to the personal character and conduct of the late Vijaya Kumaratunga calling him a Naxalite. He had also said Mr. Kumaratunga had said if Mr. Kobbekaduwa won JR would be killed and his intestines hung up and he would walk into the Presidential Palace on the blood of J.R Jayewardene. The Supreme Court held the constitution gave blanket immunity to the President from proceedings of any kind, instituted or continued against him in any Court in respect of anything done or omitted to be done by him either in his official or private capacity during the tenure of his office.

Justice R.S.Wanasundera who is related to Mr. Jayewardene and Mr. Wickremesinghe dissented from the majority in the Supreme Court and held that both appeals should succeed and the Election Judge should be permitted to proceed with the inquiry. 

He made some important observations about Presidential immunity. "The Solicitor General said this immunity was unparalleled in any part of the world and there may be some truth in this statement when we compare his position with that of many other Heads of State. 

"But, on closer examination it does not appear to be that wide and one discerns certain limitations, some expressly indicated and others of an extraneous nature inherent in the matrix in which this immunity is embedded. This immunity, whatever its coverage and range appears to be, is of a functional nature designed to ensure the smooth functioning of the office of President- for the President under the present constitution exercises the totality of the Executive Power of the State…..As to whether any further proceedings can be taken in respect of the President at a later stage, that is not a matter on which an expression of opinion is called for now, as it is a hypothetical question "

But the Mahara by election will remain, though the Courts of this country rejected the petition due to some technicality, a permanent blotch on the tradition and history of free and fair elections in this country. The SLFP candidate was shot at and though he escaped, a person close to him died. The President allegedly used his Presidential immunity to make a false statement as to the character of one of the most charismatic leaders of this country, Mr. Kumaratunga. Though he was accused as a Naxalite he was freed from detention as there was no evidence against him.

As President Kumaratunga seems to rely so much on the averments contained in this petition, she should ensure that such incidents don't happen in the forthcoming election for the Wayamba Provincial Council. It would be instructive to place more reliance on the judgments of the Judges of the Supreme Court, than the petition which was rejected by the Court. Justice Wanasundera in his dissenting judgment has stated some pertinent matters concerning the holding of free and fair elections and the role a president should play. 

" The effect of the Respondent's argument for the dismissal of the whole petition is that, if a corrupt or illegal practice is committed by the President, acting in his political capacity as agent of a successful candidate, the immunity of the President should be regarded as extending to cover the action of such candidates so as to make him immune from action, thus preventing the validity of his election being challenged, although founded on an illegality. This would place such a candidate in a special position not enjoyed by other successful candidates. Such a view appears to strike at the very roots of the democratic process that prevails in this country. If that argument is valid, then it would be possible for a party, whose majority is due solely to the fact that some of its candidates have been improperly elected, to foist on this country a Cabinet and Government, which in the eye of the law should have no legal validity. The question about the validity of an election, therefore, is a serious matter, if we are concerned about the proper working of the Constitution and the protection of democracy in this country. The immunity given to the President is not a blanket cover to protect the wrongful activities of other persons, who may have some indirect connection with the President. The President himself is a component of our democratic process and functions within its confines. He does not stand beyond or above it. The immunity he enjoys is a shield to protect the President alone from harassment as long as he holds office. It cannot be used as a sword especially by others."

As Mangala Samaraweera has shown some interest in legal literature specially concerning the elections he ought to read a recent judgment of the Supreme Court with regard to another election under the PA regime. Mr. Samaraweera must recommend the judgment to the President who is accusing the UNP of committing violence in Wayamba. The judgment was written by one of the most respected Judges of the Supreme Court Justice A. S. Wijetunga. 

We believe when the President in a speech at Wayamba referred to a President of a Gamsabava being appointed as Judge, she did not refer to Justice Wijetunga. Justice Wijetunga was appointed as a Magistrate and had to climb the hard way to the top. In fact in that judgment he refused an application made to Court by the Secretary General of the UNP to quash the declaration of the Commissioner of Election's final results electing the members of the Negombo Municipal Council.

The Petitioner, UNP General Secretary, in his petition made allegations which were extremely serious- much worse than grabbing the hands of a SLFP supporter called Alahakoon and dragging him saying '"Ado Paraiah' we intend to teach you politics". 

The allegations in the Negombo election were that gangsters broke into the polling stations, drove the UNP polling agents out, forcibly took ballot paper books from the officers, marked such ballot papers, perforated them and inserted them into the ballot boxes. 

It was alleged that the present Mayor of the Negombo Municipal Council led the gangs. These incidents are alleged to have taken place between 1 p.m. and 4 p.m. resulting in the polling stations being abandoned and voters being dispersed. These allegations contained in the petition were confirmed by the reports prepared by presiding officers. 

The Election Commissioner had to give instructions to the counting centres when gangs had forcibly entered the polling stations and had taken ballot papers from officers, had marked and perforated them and stuffed them into the ballot boxes. He gave specific instructions to the counting centres to remove such ballot papers. The Supreme Court had this to say about these allegations contained in the petition and admitted by the Commissioner of Elections: "While the Court unreservedly condemns the actions of those who attempted to disrupt the poll, thus interfering with the voters right to a free and fair election, their identity has unfortunately not been sufficiently established in these proceedings."

If the President and Mr. Samaraweera are concerned about holding a free and fair election the judgment of Justice Wijetunga must be read as it clearly establishes that the PA outdid the UNP's Mahara episode. 

The petitioner in the Mahara Election never contended that gangs invaded the polling booths and forcibly took the ballot papers form the presiding officers and perforated and stuffed the ballot boxes with such votes. Justice Wijetunga adds: "The acts of general intimidation complained of in these proceedings should be an eye-opener to those vested with the responsibility of good governance to take appropriate steps to prevent such occurrences in the future, lest it be thought that even after 50 years of Independence, the oft lamented but hitherto uneradicated scourge of election violence has become a part of our 'election culture'."

The Jungle Telegraph

Editorial/Opinion Contents