Nominations: Legal blunders galore

By Mudliyar

The question is, if any candidate has not submitted their declaration of assets and liabilities, will the learned Attorney General prosecute him. Of course, this depends on a certificate obtained from the Commissioner of Elections by any citizen to the effect that a candidate has violated the law of the land, by failing to declare and file this information in the Magistrates Courts under Section 136(1)(a) of the Criminal Procedure Code. If convicted, the offence carries imprisonment of one year and a fine not exceeding Rs. 1,000. 

We are keeping our fingers crossed, hoping that the Commissioner of Elections will issue the requisite certificates, thereby preventing any concerned citizen from making an application to the Court of Appeal for the issuance of a writ mandating the Commissioner to issue them. 

According to information available, only two Members of Parliament have declared their assets and liabilities to the Commissioner of Elections as required by the amendment brought by R. Premadasa in 1988.

The appointment of Acting Elections Commissioner D. M. P. B. Dassanayake by the President after she declared that she would be contesting Presidential elections, has raised many eyebrows. If the Elections Commissioner is ill and indisposed, who could legally fill that vacancy? It is well known that when the head is indisposed or ill, the Department must function smoothly, and a deputy will act for him. 

Article 103 of the Constitution gives the power to the President to appoint the Commissioner of Elections. Article 103(2) of the Constitution enumerates how the office of the Commissioner of Elections becomes vacant. The only relevant provision that has some bearing on the present situation is section (d) which is about the removal of the commissioners by the President on account of ill health or physical or mental infirmity.

The Commissioner Dayananda Dissanayake earned the respect of many independent observers for the manner in which he handled one of the worst ever elections – the Wayamba Fiasco. According to information, the President has not removed the Commissioner. 

We know the Commissioner is sick or is unable to perform his duties at the moment. It is obvious that someone should wear his shoes. The important question is can the President, even if she is not, appoint anyone of her choice, an outsider, as the Acting Commissioner of Elections.

Presidential elections are conducted by the powers granted to the Commissioner by an Act of Parliament called "Presidential Elections Act No. 15 of 1981" which was amended in 1988. According to Section 19 of this act, it is not the President but the commissioner, and only the commissioner who can delegate his powers and appoint an acting commissioner. "If the commissioner by reason of sickness or any other cause is prevented or disabled from performing any of his duties under this part, he may appoint by name or by office any person to act for him".

K. Balapatabendi, Secretary to the President by a gazette extraordinary issued a proclamation, which read: "It is hereby notified that Her Excellency the President under the powers vested in her by Article 103(4) of the constitution, appointed Mr. D.M.P.B. Dassanayake, the Chief Secretary of the Sabaragamuwa Province provincial council to act in place of Mr. Dayanananda Dissanayake, Commissioner of Elections, with effect from November 12th 1999 until he resumes duties after the expiry of sick leave."

The important question is whether the President can appoint a commissioner of elections until the present commissioner resumes duties after sick leave. Most erudite scholars seem to think that the appointment is totally invalid and illegal. 

The appointment is not in accordance with the provisions of the Presidential Election Act No. 15 of 1981. If the acting commissioner has been appointed without any legal authority, can he receive nominations from candidates? If the answer is in the negative, are the nominations invalid under the law? 

In the anxiety of appointing someone as soon as possible to overcome the date of the nominations the Government should have requested Dayanananda Dissanayake, the Commissioner of Elections to delegate his power to a person nominated by him. Mr. Dissanayake, being a senior civil servant, without any hesitation would have appointed M.C. Arunthavachelvam, the senior Deputy Commissioner of Elections, or any other person from the department of elections as the Acting Commissioner. 

What is surprising is not the fact that the Government has bungled for the umpteenth number of times, but that the opposition UNP which has gone all-out campaigning has not made any effort to challenge the appointment of an acting commissioner by the President.

PA General Secretary D. M. Jayaratne has objected to the private electronic media opening their channels to the presidential candidates. He has urged the acting election commissioner for an order to limit the other presidential candidates to the state electronic media. 

We are aware that the state print media and the electronic media never misuse their inputs, to propagate the candidature of the President or that of Government politicos. Our "Rupavahini" and "ITN" are far more independent than the BBC. That is an undisputed truth. Mr. Wickremesinghe himself admitted that the channels utter his name more frequently than that of the President. 

Any TV viewer knows the adulatory epithets used by the unbiased commentators of the government-controlled TV stations when they refer to Mr. Wickremesinghe. Nonetheless we are awaiting the decision of the acting election commissioner on the objection raised by the Minister. 

A photo journalist attached to the Lakbima Sunday newspaper, Buddhika Weerasinghe was one of the mediamen covering the UNP protest march in Colombo on July 15. When the protest march proceeded towards the Red Cross Society building, about 50 armed persons carrying clubs, poles and iron rods attacked the group of media personnel, journalists and cameramen, and robbed their cameras. 

The "Lakhanda Radio" carried a live broadcast of the incident to the nation, allegedly giving the impression that the UNP had not only organized the protest march but had unleashed a wave of violence on the police, and the security forces and the UNP goons attacked the photo journalists and robbed their cameras lest they capture the UNP attacking the Police.

Like in all detective stories the murderer leaves a clue for the detective to finally capture the culprit. The goons could not rob all the cameras of all the photo journalists who were present on that day. One photo journalist some- how or other escaped arrest and released the photographs to the press.

The Government originally blamed the UNP goons for the attack on the media personnel and broadcast the news over the state controlled TV showing pictures of Richard de Zoysa and reminding the public that the UNP alone attacked the journalists. Later evidence poured in and those in the pictures were allegedly identified as members of the President's Security Division. The Media Minister then defended the stand taken by the PSD stating that it was the duty of PSD to protect the president as the procession and the march had entered the High Security Zone near Temple Trees.

In October, Weerasinghe got the bright idea of instructing his service provider to reconnect the phone, which he lost during the attack, so that he could know whether someone was using it. On October 26, he gave a call and to his surprise a person answered. He soon came to know that the phone had been given by someone for repairs. Weerasinghe immediately informed the Cinnamon Garden Police who traced the suspect, Janaka Tillakeratne.

Tilakeratne made a shocking statement to the Cinnamon Gardens. He said the mobile phone was given to him by one Sanjeeva of the Presidential Security Division. Sanjeewa is said to be a confidant of PSD Chief Nihal Karunaratne. The matter has been referred to the CID for investigation. Whether the CID has the audacity to investigate an allegation made against the members of the Presidential Security Division is another matter. For the moment Weerasinghe has to be content with that he at least got back his mobile phone.

One of the main rea-sons why the think tank of the British Labour Party thought that Sri Lanka should be expelled from the Commonwealth is the present Government's record on media freedom. It is unbelievable how the PA when in the opposition accused the UNP of stifling the media. 

It alleged that the UNP won responsible for the killing of journalist Richard de Zoysa. In a similar manner. the present UNP leader alleged recently that Rohana Kumara, the editor of 'Satana', was killed by this Government.

A recent publication in the internet by one Sanath de Silva carried in the website of the "Our Heritage Foundation of Sri Lanka US Chapter – Presidential Elections – 1999" commenting on the SLFP and Chandrika Kumaratunga says: "She would be remembered as the Head of State who is about to get Sri Lanka expelled from the Commonwealth of Nations, a feat even late Premadasa was unable to achieve." 

If the government is seriously interested in preventing its international image from drifting towards that of a 'pariah state', it must make a concerted and sincere effort to arrest those responsible for the attack on the media persons, as a first step, and pay adequate compensation to all those who were injured, and lost their equipment. 

Reflections

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