Disregard for the law

However, on the occasion of accepting nominations on November 16, that rule did not apply to the candidate from the PA who submitted her nomination although it applied to all others. PA Secretary D.M. Jayaratne, President's Counsel H.L. de Silva, the President's Secretary Kusumsiri Balapatabendi and Mr. Arthur Samarasekera also participated in addition to the President. No candidate protested against that action.

This is the first time at which a President appointed, after the declaration of a Presidential election, a person hand-picked by her, as an acting Commissioner of Elections. At the time that the President had declared her wish for a new Presidential election the Commissioner of Elections was sick. He had expected to report for work on November 1. But the President apparently had her own time-table and wanted to hold the Presidential election before Christmas. Although according to the Presidential Elections Act when the President declares her wish for a Presidential election, the Commissioner of Elections must gazette it, and must declare a date not less than sixteen days and not more than one month from the gazette notification as the date for nominations, the Act does not specifically state the number of days within which the Commissioner should gazette it, when the President expresses his/her wish to have a Presidential election. 

Accordingly the Commissioner of Elections had the legal right of carrying out that act, even after reporting for work on November 1. However, if the gazetting was done after November1, it wouldn't have been possible to have the election before Christmas as the President had apparently wanted. In my opinion, in order to achieve her aim of getting a date before Christmas, she appointed the Deputy Commissioner of Elections, Mr. Arunthavachelvam as acting Commissioner of Elections. Thereby she was able to obtain a date before Christmas. Then, she appointed to that post before the nominations, a person who might be considered a complete outsider (who had no experience at all of having worked in the Department of Elections, viz. Mr.D.M.P.B. Dassanayake) to that post though he did handle the 1989 General Election in the Badulla District as Returning Officer. According to accepted tradition, if the Commissioner of Elections is incapacitated, the person who should be entrusted with the work of conducting an election, is the next in seniority in the Department. But what happened was something entirely different. At the time when a Presidential election had been declared the President who was herself a candidate had selected a person of her own choice to function as the authority in charge of elections. But surprisingly not a single party which is in the contest had protested at all. The institutions and persons who shout about democratic freedoms and human rights, too, are completely silent. That was exactly the way in which they conducted themselves at the time of the appointment of the Chief Justice. In my opinion, the appointment of an acting Commissioner of Elections by the President is totally illegal. The President's legal advisers had taken into consideration only the Constitution. The Presidential election is ruled not by the Constitution but by a special law which had been created for that very purpose. That law is called Election of President Act No. 15 of 1981 and it includes amendment No. 16 of 1988. That law states clearly how and when if the Commissioner of Elections is incapacitated by sickness or some other reason, another person should be appointed to act for him. 

Section 19 which is for that purpose is as follows: "If the Commissioner is unable to perform his duties under this Section due to illness or some other reason he on his own can appoint some person, by name or by post to act for him."

From the inception of the Elections Department to 1981, as the accepted tradition, persons were selected and appointed to the post of Elections Commissioner from within the department and in accordance with seniority. Every party that came to power appeared to consider that following such a policy was an essential condition for protecting the honour and the independence of the Elections Department. It must however be said that this is not the first time that matters happened in a way that violated the independence of the Elections Department.

The UNP which wanted to win the Jaffna Development Council election of 1981, which was held in the midst of attacks by militant Tamil organisations, brought a group of their own supporters on the day before the elections, in place of 150 officers selected and appointed by the Commissioner of Elections. 

That was the first occasion on which the power of holding elections was taken away from the empowered authority and the ruling party exercised it.

Due to this situation that emerged, the Elections Commissioner M.A. Jayasekera reigned from his post. President J.R. Jayewardene wanted to fill the vacancy created by Mr. Jayasekera's resignation with Mr. M.S.M. Marikkar who was functioning as an Additional Secretary in the Presidential Secretariat, and announced it. Mr. Marikkar was only a person serving in the Presidential Secretariat. He was not a person who had served in the Elections Department at any time before. The person who raised a powerful voice at that time against that action of the President was Mr. Nadesan of the Civil Rights Movement. 

From the Green Corner

Editorial/ Opinion Contents