28th November 1999

Legal battles for free poll begin

By Mudliyar

We have in this column on innumerable occasions pointed out that anyone who makes a derogatory statement about the supreme law of the land, namely the Constitution, is guilty of an offence. All Government servants, especially attorneys, who have taken oath to uphold and defend the Constitution of Sri Lanka, have heard the President making many statements attacking the very Constitution she has pledged to uphold.

Ms. Kumaratunga on assuming the office of the President, took an oath under the Seventh Schedule to the Constitution Which reads: "I, Chandrika Bandaranaike Kumaratunga, do solemnly declare and affirm that I will uphold and defend the Constitution of the Democratic Socialist Republic of Sri Lanka".

Mr. Balasubramaniam cites various instances on which the President has made statements ridiculing the Constitution. "The object of the premature presidential election is to solve the ethnic problem by enacting a new Constitution which is presently impeded by the requirement of a two third majority contained in J.R. Jayewardene's Bahubootha Constitution," Mr. Balasubramaniam quotes the President as saying.

He says the President is seeking a mandate from the people to abolish a monstrous Constitution which is the only hurdle for peace, exhorts the voters to reject the Constitution.

He also says: "She (the President) has also stated that the present Constitution has become a stumbling block to the Government's peace package, as the opposition was not willing to support the Government to form a two thirds majority to pass it. Therefore we need to do away with the present Constitution to solve the ethnic problem."

Mr. Balasubramaniam claims in his petition that the statements made by the President with reference to the Constitution are impeachable offences under Article 38(2) of the Constitution. This matter is now before the Supreme Court which has to decide whether the proclamation made by the President to hold presidential elections is valid.

Besides, Mr. Balasubramaniam, Sunila Abeysekera, President of the Movement for Inter-Racial Justice and Equality and Executive Director of 'Inform' and member of the Executive Committee of the 'Movement for Free & Fair Elections,' has also filed an application in the Supreme Court praying that the amended Emergency Regulations prohibiting the publication and transmission of sensitive military information be made ultra vires of the Constitution and declared void.

She states that the right to free speech and information is vital if people are to fully monitor the conduct of their Government, be politically informed and participate fully in the democratic process. Ms. Abeysekera contends that informed public opinion is the most potent of all restraints on this Government and arbitrary censorship prevents free and general discussion of public matter which is absolutely essential to prepare the people for an intelligent exercise of their rights.

She argues that the right to initiate responsible and responsive communication of public interest issues is of crucial importance in times of national emergency and civil unrest, and the pretext of national security is not used to place unjustified restrictions of these freedoms.

Ms. Abeysekera, as a human rights activist, has stated that the arbitrary imposition of censorship was due to the unprecedented high level of casualties among the security forces, which was consequent to a renewed phase of a military operation in Wanni launched on May 28 1999.

Following the imposition of censorship due to a setback in military operation in the Wanni, all media personnel were required to submit reports to the Competent Authority.

As a registered voter Ms. Abeysekera says she is entitled to seek, receive and impart information on the policy of the Government on the ethnic conflict and the war, and has the right to seek, receive and impart information on the military strategies and draw backs in the North and East.

In the meantime, Newton Seneviratne, a journalist, has filed an application for a Writ Quo Warranto Certiorari, Writ of Mandamus, Writ of Prohibition and Writ of Procedendo in the Court of Appeal asking the court to quash the appointment of the Acting Commissioner of Elections, notice of the Presidential Elections, prohibiting the Acting Commissioner of Elections from proceeding with the polls and directing the Commissioner of Elections and preventing or restraining the Acting Commissioner of Elections from conducting the elections.

Mr. Seneviratne states that Article 103 of the Constitution ensures that elections be conducted by an independent Commissioner of Elections as independence is important to ensure that a Commissioner duly exercise efficiently and impartially the functions entrusted to him.

He states that the incumbent Commissioner Dayananda Dissanayake has served in the Election Department for more than 25 years and is able and competent to conduct an election. In addition he states the present Acting Commissioner, D.M.P.B. Dassanayake, is an SLAS officer and has no specific knowledge or competence in the conduct of an election and if he conducts a presidential elections the public will be deprived of free and fair elections.

The important matter that has been brought to the notice of the Court of Appeal is the contention that the President has no power or authority to appoint an acting commissioner, and there is no reason for her to appoint an acting commissioner as the commissioner has not informed her that he is prevented or disabled to perform his duties, and he has merely taken leave for medical treatment. He also claims that the concept of free and fair elections does not permit a presidential candidate to appoint an acting commissioner to conduct her own election.

These three matters now before the Courts have been filed by public spirited citizens who fear that there are signs that the upcoming presidential elections could be violent.

The concept of a free and fair election where the electors dressed in non-partisan colours proceeded freely to polling booths to cast their votes is a thing of past. Today, power and holding on to it have become more important than holding on to one's life line. Therefore, elections are fought with greater intensity than the war in the North and the East. The appointment of an outsider as an acting commissioner of election, and restrictions such as censorship of military news and trying to hold a free and fair election in the war-torn North and East are matters that concern every person who is interested in the democratic way of life.

If the Government unleashes a wave of violence and stuff the ballot boxes like what is alleged to have taken place in Wayamba early this year, it will be the death knell for democracy.

Reflections

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