Hulftsdorp Hill

Democracy died, but there's still hope

By Mudliyar

For the first time Buddhist priests, Catholic priests, and prominent members of the civil society have in one voice appealed to the Government to declare the election null and void. The Attorney-General who appears on behalf of the Commissioner of Elections should give his consent to enable the Supreme Court to do so. This is the only chance for the survival of democracy .

I have always stressed the fact that democracy pre vails in this country, not due to the government or the opposition but due to the efforts of the Judiciary. 

But the recent election held in Wayamba was the clearest indication that we may have come to the end of democratic elections. The postmortem as reported by many independent observers is grim. Therefore to save the country from anarchy it's hoped The Supreme Court would give the widest possible interpretation to the Articles in the Constitution which guarantee the fundamental rights of the people.

Immediately after the bloody election, I received an article exhorting me to publish it in my column. I felt the contents of the letter did not permit me to publish it in this column, specially as it had no connection with Hulftsdorp Hill. But excerpts of it pertinent to the column are published herewith. It behooves two ministers of the Chandrika Government to resign from their portfolios in protest of the undemocratic election. 

The article titled- "Wayamba Elections - The Government of the goon, the thug and the underworld reads thus: 

" January 25, will be remembered like the Black July of 1983. Black July was the darkest day for Tamils. Jan. 25 was the day democracy died in Sri Lanka. This happened one year after the Dalada Maligawa was bombed by terrorists. Professor G.L. Pieris is a prominent jurist and a person who resigned from the Vice Chancellorship of the University of Colombo to join the SLFP, as he deplored certain acts of the Wijetunga Government, like the pardoning of convicts. Lakshman Kadirgamar, President's Counsel, must have joined the PA administration in the hope of re-establishing a Government which would respect the Rule of Law. 

"According to available reports these two ministers did not indulge in plundering the people of their votes, the sovereign right to elect their representatives. But the Government committed the worst kind of election offences unheard of in the annals of Sri Lanka politics. Can they remain as ministers in a Government now controlled by goons of the underworld! I respect their scholarship and their commitment to preserve the Rule of Law. It is up to them to take a bold step in the interest of the country and the future of our children and resign from their Cabinet portfolios in protest. 

It is said that the reign of terror unleashed by the PA in the Wayamba Electorate was absent even under the dictatorship of Marcos and Pinochet, who conducted sham elections and referendums. Professor Pieris and Mr. Kadiragamar if you have any honour left in you, you should resign forthwith from the Cabinet and have nothing to do with a Government which virtually killed and snuffed out the faint flickering flame of democracy.

"I believe the sentiments expressed by Ms. Ramini Gunasekera are shared by many, even hardcore PA supporters in Hultsdorft. A President's Counsel appointed by this Government who had burnt the midnight oil for a number of years preparing and appearing for the petition of Mrs. Bandaranike filed to challenge the election of President Premadasa said that he appeared for Mrs. Bandranaike in the hope it would put an end to the kind of election that brought in President Premadasa, but was shocked by the manner in which PA stalwarts, ministers, lawyers and professionals, conducted themselves in Wayamba-openly and brazenly committing election violence.

Is this the end of free and fair elections in this country? If the PA gets away with the Waymaba, Provincial Council elections, it would mean the PA Government would become another Government like that of Marcos. The tradition of democracy and the democratic form of Government which has been the proudest achievement of the Sri Lankan people will come to an end. 

I have always maintained that the people of this country would have to lookup to the supreme protector of their rights, the Supreme Court. After being informed that in Wayamba, in some polling booths even the PA supporters were not permitted to vote by goons, that at some centres the polling was over by 8.30 am and in others there were more votes that had been stuffed into ballot boxes than the registered voters, and in others ballot boxes had been taken to the counting centres when the stuffing ended by noon though the booth should have been opened till 4.pm, I was engulfed by a sense of utter helplessness.

When a Government robs the people's right to vote and does so openly, the intelligentsia knows that such an exercise could lead to violence, mayhem and lastly anarchy. This has been a familiar scenario in the recent past. In 1983 with the sham referendum the youth of this country took to arms as they witnessed a sick politician robbing their right to vote.

Every time the JVP returns to mainstream politics the sick monster is reborn and the JVP is driven away believing it will never have a future under a democratic set up. JVP supporters are assaulted, their heads shaven and placed in junctions holding posters. Their platforms were destroyed even before the meetings were held by goons of the underworld who have embraced the PA completely. 

Their flags, banners and posters were destroyed. Their candidates were assaulted and were subjected to the worst ridicule by thugs who had taken over the election campaign. This is being done as if the Government in power does not want the JVP to come back to active politics where justice, fair play and democracy prevails. The Wayamba election is a good example where rulers have gone mad and think they can rule the country as long as they want to, by any foul means. Naturally the youth of this country will get disenchanted with the whole set up and have faith only in an armed struggle-a revolution. 

Though there was a sense of hopelessness when the news filtered to Colombo of the blatant violations of election law and every other known law leaving the people in a dark abyss, on Jan 27, The Supreme Court of this Country delivered a judgement which was chaired by the Chief Justice G.P.S. de Silva which at least gave a ray of hope for the masses of this country.

Ironically, the Petitioners to The Supreme Court were Waruna Karunathilake and Sunanda Deshapriya. Mr. Karunathilake on behalf of the Free Media Movement carried out a massive campaign requesting all concerned to hold a free and fair election. When he knew violence was the order of the day and thought mistakenly that it was perpetrated only by a few individual politicians on both sides of the divide, he met the proprietors of all media establishments and requested them to publish advertisements in their publications requesting the voter not to vote for those who perpetrate violence.

I believe he and Mr. Deshapriya got the shock of their lives when they saw the daylight robbery of votes that took place at Wayamba. Some of the top PA politicians who indulged in these acts of election violence were people who had opposed violence and rigging of elections. Mr. Karunathilake and Deshapriya who witnessed the incidents would have learnt a lesson and would have to rethink their strategies of preventing such occurrences in the future. Be that as it may, as Petitioners, the Supreme Court gave them and to all the people who relish the Rule of Law a gift in the form of judgement which under the present context would be priceless.

When other parties including the main opposition party were uncertain whether postponement of PC elections was good or bad for their health, it was the Free Media Movement that unanimously condemned the action of postponing elections under the dubious excuse that security could not be provided. They decided to test the entire concept of a person's right to vote in the Supreme Court.

It was an interesting point as the Constitution does not make the right to vote a fundamental right. But Article 4(e) of the Constitution -the right to vote at the Presidential and Parliamentary elections and at referendums had been proclaimed as a sovereign right. Through judicial interpretation this has come to include the right to vote at Provincial Council elections as well. The question that was before the Supreme Court was whether the postponement of the Provincial Council election denying the people of the respective province to vote could be construed as an infringement of a fundamental right guaranteed under the Constitution. 

Sometimes it has been said that in Sri Lanka judicial activism is confined to the narrow interpretation of the Constitution. It has been said that in Sri Lanka the Judges unlike their brethren in the sub-continent are slow to widen the scope of fundamental rights jurisdiction. 

When the Executive acts in an arbitrary manner it has been said the only safeguard against such malefic influence the Executive has over the public is the exorcism of the evil action by The Supreme Court. But I for one do not agree with this criticism of the Supreme Court. 

The judges of the subcontinent have acted in some cases without any justification, usurping the powers of the Executive. But The Supreme Court of Sri Lanka has not extended its power to interfere or infringe the powers of the Executive. But it has in every instance delivered orders in the larger interest of the people. In this case The Supreme Court had to consider whether the conduct of the Elections Commissioner by not holding PC elections amounted to a violation of fundamental rights.

But R.K.W Goonesekera, the senior counsel for the petitioner, developed an argument that the right to vote is one form of speech and expression which is guaranteed under the constitution and the Supreme Court accepted this argument.

Please see Judgment below

Soon after this judgment an application made on behalf of Gamini Jayawickrama Perera to the Supreme Court to declare null and void the elections for the Wayamba Provincial Council was argued by K.N. Choksy, P.C. and leave to proceed has been granted. It is reported that the Commissioner of Elections Dayananda Dissanayake,had made a statement that this was the worst election ever held in Sri Lanka. 

The Commissioner is supposed to have said that he does not have the power to declare the election a nullity. Mr. Dissanyake would be the 1st Respondent in the petition filed by Mr. Jayawickrama Perera. The Commissioner would be defended by the Attorney-General. 

The Solicitor General Mr. Kamalasabesan has earned the respect of the Bar as a fair and independent person. If what has been attributed to the Commissioner of Elections is true and the evidence that had been collected by both the Commissioner and the others including the Petitioner are so overwhelming it would be in the interest of the people and the country that the election be declared null and void. This is the only way the goon, the thug and king-pin of the underworld and other cohorts of politicians would understand the futility of polls plundering.

This I believe is the sacred duty of every right thinking citizen. They should agree in unison to hold a re-election at Wayamba and permit the people to elect the representative of their choice without the goon the thug and henchaiyas casting their votes on behalf of them. 

For the first time Buddhist priests, Catholic priests, and prominent members of the civil society have in one voice appealed to the Government to declare the election as null and void. The Attorney-General who appears on behalf of the Commissioner of Elections should give his consent to enable the Supreme Court to do so. This is the only chance for the survival of democracy.

Historic judgment

“… The Respondents have attempted to disclaim responsibility for the continuing failure to hold the elections to those five Provincial Councils. The written submissions filed on their behalf claim that “the petitioners’ application is misconceived in law for the reason that their main challenge which is in respect of (the impugned Proclamation and Regulation, which) are totally unrelated to the functions of the Commissioner of Elections”. It is argued that the impugned Regulation compelled the 1st Respondent “to refrain from taking any further steps”, and that any action by the Respondents contrary to the impugned Regulation “would be dangerous and expose the people and the voters to unnecessary risks”. And so, it is urged, “the Respondents’ action in not proceeding with the election and thereby giving effect to (the impugned Proclamation and Regulation) cannot infringe upon the fundamental rights of the Petitioners”.

That plea is misconceived both in law and in fact. The Commissioner has been entrusted by Article 104 with powers, duties and functions pertaining to elections, and has been given guarantees of independence by article 103, in order that he may ensure that elections are conducted according to law: not to allow elections to be wrongfully or improperly cancelled or suspended, or disrupted, by violence or otherwise. He was not entitled to assume that the impugned Regulation was valid; and even if it was valid it was his duty, in the exercise of his power under section 22(6), to have fixed a new date on which in his best judgment - a free and fair poll would have been possible.

Further, the undisputed facts establish that the1st Respondent was not acting independently. The learned Solicitor General was unable to cite any statutory provision justifying the ‘suspension’ of the issue of postal ballot papers even before the impugned Regulation was made. The Respondents have not given any explanation for that suspension. It was therefore unlawful, arbitrary and not bona fide. They do not claim, and it is inconceivable that it was a mere coincidence that the 2nd to 13th Respondents simultaneously decided to suspend the issue of postal ballot papers on the eve of the impugned Regulation: and there is no doubt that suspension was with the full knowledge and approval of the 1st Respondent. The irresistible inference is that the Respondents had foreknowledge of the impending Proclamation and Regulation. Had that decision been made bona fide, the 1st Respondent’s official files and documents would have contained the official communications, between him and “outsiders”, and between him and his officers, leading up to that suspension, as well as his reasoned decision in respect of that suspension, and there would have been a full and frank disclosure of all that material. However the Respondents have failed to produce a single document relating to that suspension, and that failure gives rise to a grave suspicion that the decision was for a collateral purpose. That is not speculation. Clause 3 of the Bill indicates what that collateral purpose probably was. If the issue of postal ballot papers had taken place on 4.8.98, voters would have received ballot papers and could have proceeded to cast their vote. If the postal voting process had commenced in that way, substitution of candidates in the nomination papers would have required the drastic step of cancelling ballot papers already issued, and postal votes already cast. That would have been a serious interference with a pending election. The suspension of the issue of postal ballots would have facilitated the subsequent substitution of candidates without the need to cancel any part of the voting process and it seems probable that was the purpose of that suspension.

That suspension had two unsatisfactory consequences. If the postal ballot papers had been issued, postal voting could have taken place on and after 4.8.98 without any fear of disruption: as postal voting did not require public polling booths and the kind of security needed at polling booths. Consequently, if the impugned Regulation had ceased to be operative - as, for instance, if Parliament had refused to approve the Proclamation, or if H. E. the President had revoked the Regulation - the poll could have taken place on 28.8.98. But the suspension of the postal voting process virtually ensured that the poll would not take place on that day. The Respondents were thus indirectly and partially responsible for the failure to take the poll on 28.8.98. Secondly, the 1st Respondent had power to fix a new date, in terms of section 22(6), with fourteen days notice. But as a result of the suspension of the postal voting process it became impossible for the 1st Respondent to fix such an early date: he had to allow additional time for the postal voting process to commence afresh. Thus the suspension virtually compelled the postponement of the original poll and also placed an unnecessary fetter on the 1st Respondent’s discretion, compelling him to give at least five weeks notice of any new date of poll.

The 1st Respondent therefore was at least partly responsible for the failure to take the poll on 28.8.98; and was wholly responsible for the failure promptly to fix a new date, on and after 28.8.98, after that regulation had spent its force.

I must now consider whether the conduct of the 1st Respondent resulted in an infringement of the Petitioners’ fundamental rights. Learned Counsel urged on their behalf first, that there was an interference with the franchise, contrary to Article 4(e); that although Article 4(e) does not expressly refer to Provincial Council elections, that was because Provincial Councils were introduced only subsequently, by the Thirteenth Amendment; and that it must now be interpreted as applying to Provincial Council elections as well. The learned Solicitor-General contended that by the Thirteenth Amendment Parliament could have included Provincial Council elections, if it wished to, and that the omission to do so was deliberate; and that in any event a violation of article 4(e) may not by itself amount to a violation of a fundamental right. It is unnecessary to rule on this issue in view of my findings in relation to Articles 12 (1) and 14(1)(a).

Learned Counsel for the Petitioners submitted that the right to vote is one form of “speech and expression” which Article 14 (1) (a) protects. The learned Solicitor-General urged, however, that there is a clear distinction between the franchise and fundamental rights; that the franchise cannot be incorporated as a fundamental right as contained in Chapter III; and that the position is different under the American Constitution because specific provisions are contained therein which convert the right to vote as a fundamental right.

When Article 14(1)(a) entrenches the freedom of speech and expression, it guarantees all forms of speech and expression. One cannot define the ambit of that Article on the basis that, according to the dictionary, speech means ‘X’ and ‘expression’ means ‘y’, and therefore ‘speech and expression’ equals “x” plus “Y”. Concepts such as “equality before the law”, “the equal protection of the law”, and “freedom of speech and expression, including publication”, occurring in a statement of Constitutionally entrenched fundamental rights, have to be broadly interpreted in the light of fundamental principles of democracy and the Rule of Law which are the bedrock of the Constitution.

I find it unnecessary to refer to the various authorities cited, because in my view the matter admits of no doubt. A Provincial Council election involves a contest between two or more sets of candidates contesting for office. A voter has the right to choose between such candidates, because in a democracy it is he who must select those who are to govern - or rather, to serve - him. A voter can therefore express his opinion about candidates, their past performance in office, and their suitability for office in the future. The verbal expression of such opinions, as, for instance, that the performance in office of one set of candidates was so bad that they ought not to be re-elected or that another set deserved re-election whether expressed directly to the candidates themselves, or to other voters would clearly be within the scope of speech and expression and there is also no doubt that speech and expression can take many forms besides the verbal. But although it is important for the average voter to be able to speak out in that way, that will not directly bring candidates into office or throw them out of office; and he may not be persuasive enough even to convince other voters. In contrast, the most effective manner in which a voter may give expression to his views, with minimum risk to himself and his family, is by silently marking his ballot paper in the secrecy of the polling booth. The silent and secret expression of a citizen’s preference as between one candidate and another by casting his vote is no less an exercise of the freedom of speech and expression, than the most eloquent speech from a political platform. To hold otherwise is to undermine the very foundations of the Constitution. The Petitioners are citizens and registered voters, and the 1st Respondent’s conduct has resulted in a grossly unjustified delay in the exercise of their right to vote, in violation of article 14 (1) (a).

Turning to Article 12 (1), the Petitioners’ contention was that the failure to take the poll on 28.8.98 and the failure to fix a new date resulted in a denial of equality before the law, and of the equal protection of the law, to voters in the five affected Provinces, vis-a-vis voters in other Provinces. The Respondents’ reply was that when the impugned Regulation came into operation the only elections that were to be held were for those five Councils; that no other Councils were involved; and that therefore the postponement of the poll affected all the Councils which were in the same class equally and without discrimination. They conceded that “presently, (the) date for election has been fixed in relation to (another) Province which is not referred to in (the impugned Regulation). This process has followed the normal procedure in terms of the existing law”.

Two distinct issues are involved: first, whether the impugned Regulation was valid and the 1st Respondent acted properly in not taking steps to hold the elections on 28.8.98 (which I will consider later in this judgment), and second, whether the 1st Respondent’s conduct, in permitting the suspension of postal voting and in failing to fix a new date, was in violation of Article 12(1). Even before the impugned Regulation was made, the 1st Respondent acquiesced in, and probably authorized, the suspension of the issue of postal ballot papers; that was unlawful, arbitrary and not bona fide: that was done with knowledge that the impugned Proclamation and Regulation would be made the next day, and for a collateral purpose; and he thereby placed a fetter on his discretionary power under section 22(6). Upon the impugned Regulation being made the 1st Respondent had power to act under section 22(6) - whether that Regulation was valid or not - but failed even to consider whether he had such power and he failed to exercise that power even after 28.8.98 (when the Regulation had ceased to be applicable), despite the decision and observations of this Court; and even when it became evident that elections would take place in the North-Western Province before the elections in the other five Provinces, thus denying to the voters in those five Provinces the protection of the law, by his failure to exercise, perform and discharge the powers, duties and functions reposed in him by the Constitution and the Act, and treating them less favourably than voters in the North-Western Province. Article 12(1) has been infringed.”

Should the1st Respondent have insisted on the poll being held on 28.8.98? While I appreciate the difficult situation in which he was, nevertheless it is necessary to remember that the Constitution assures him independence, so that he may fearlessly insist on due compliance with the law in regard to all aspects of elections even, if necessary, by instituting appropriate legal proceedings in order to obtain judicial orders. But the material available to this Court indicates that he made no effort to ascertain the legal position, or to have recourse to legal remedies.

I grant the Petitioners declarations that the 1st to 13th Respondents have infringed their fundamental rights under Articles 12(1) and 14(1)(a) by the suspension of the issue of postal ballots, thereby contributing to the postponement of the poll; and that the 1st Respondent had infringed their fundamental rights under Articles 12(1) and 14(1)(a) by failing to take steps to enable the taking of the poll, for the five Provincial Council elections, on 28.8.98 and by failing to fix a new date of poll.

I direct the 1st Respondent to take immediate action to fix, within two weeks from today, in respect of all five elections (a) a new date or dates, not later than four weeks from today, for the issue of postal ballot papers and (b) a new date or dates of poll, not later than three months from today.

The Petitioners have not prayed for compensation. They will be entitled to costs in a sum of Rs. 30,000 payable by the State.”
 

The Special Assignment