The Political Column

CBK appeases Ashraff

The matter has now come up before the Court of Appeal. Several interested individuals have filed action in the Court of Appeal seeking a ‘quo warranto’, stating that the appointment was illegal. Most analysts are questioning the morality of the appointment of Mr. Dassanayake to act as Elections Commissioner by President Chandrika Kumaratunga while she herself is contesting the same election. One analyst said this was like the accused appointing the judge to hear his own case. But when one examines the Constitution and the Presidential Elections Act, one could see a conflict between two provisions, namely, Article 103 (4) of the 1978 Constitution and Clause 19 of the Presidential Elections Act NO. 15 of 1981.

Legal experts are baffled as to what the Legislature intended by these two provisions. Article 103 (4) of the Constitution states: “Whenever the Commissioner of Elections is unable to discharge the functions of his office, the President may appoint a person to act in the place of the Commissioner of Elections” and Part (2) of the Presidential Elections Act No. 15 of 1981 which deals with nominations, states in clause 19: “If the commissioner by reason of weakness or any other cause is prevented or disabled from performing any of his duties under this part (part 2 deals with nominations), he may appoint by name or by office any person to act for him.

This, many legal experts see as a provision inconsistent with the Constitution. Thus, they are of the opinion that it could be considered as an amendment to the 1978 Constitution. (Presidential Elections Act was passed in 1981). They are also of the opinion that once this law is passed, nobody could question whether it is consistent or inconsistent with the Constitution. In principle, they point out there should have been some good reason for the Legislature to come up with this provision.

In the circumstances, they are of the opinion that the matter should be referred to the Supreme Court for a ruling and to reconcile the two provisions.

The same legal luminaries are of the opinion that under normal circumstances the President could appoint an officer to act on behalf of the Elections Commissioner if the Elections Commissioner is unable to perform his duties and the Constitution provides for it. But they say it is inappropriate for her to appoint once an election is declared.

The good reason for the Presidential Elections Act to stipulate under Clause 19 that the Elections Commissioner himself should nominate the person to act on his behalf is to prevent any other authority appointing an officer once the Presidential Election starts. Under normal circumstances, any other law is subordinate to the Constitution. But when the provisions are inconsistent with the Constitution, that particular provision could override the provisions in the Constitution, they pointed out.

However, some others point out that the law does not expect anybody to do what is impossible. It operates in the realm of possibility and nobody expects the governmental authority to go and ask a person who is in hospital to nominate a person to act for him.

There is another school of thought which says that Clause 19 of the Presidential Elections Act only provides for the Commissioner to appoint an Acting Commissioner for the operation of a particular part specified in the law. It means that the Commissioner is required to nominate somebody if he is unable to perform the duties once a gazette notification calling for nominations is published. But in this instance, the President made a second appointment before the gazette notification calling for nominations was published. At this stage, constitutional provisions take precedence over the election law. They pointed out that the President rightly appointed the Deputy Commissioner to act for the Commissioner before the government called for nominations for the Presidential election, and thereafter they feel that the President is free to make a subsequent appointment and it is covered under the Constitution. They pointed out that if some clause is inconsistent with the Constitution, the relevant constitutional provisions take precedence over that particular provision or law, and they argue it is how these two provisions are reconciled. Their contention is that once the President makes an appointment in keeping with the law, she could make a subsequent appointment under the same law. However, all these matters are debatable and the courts are expected to give a ruling very soon.

In the circumstances, it is very unlikely that it would affect the forthcoming Presidential Election.

Besides the dispute over the appointment of the Actg. Elections Commissioner Dassanayake, the government is also worried about the moves by the NGOs and other organizations to bring in foreign monitors. PA’s general secretary D. M. Jayaratne is on record saying that it would be unfavourable for the PA if foreign monitors were allowed to come in. He said that he had previous experience in this connection. But it should be reminded it was the PA which insisted on election monitors when they were in the opposition. In government, it appears they are averse to such things. This was discussed by some ministers and the President at a meeting that followed the cabinet proceedings. They discussed the pros and cons of foreign observers. Minister Ashraff was vociferous and argued for, while the others were against it. Minister Ashraff’s point was that the government would be suspected if they turn down the request to bring in foreign observers. If the government is committed to hold a free and fair election, what does it matter, Minister Ashraff argued. Later, after much deliberations, the government decided to allow the foreign observers to come in. The Minister also discussed the private electronic media. The government was of the view that the private electronic media had a leaning towards the opposition. But whatever it is, the majority opinion was that it has to be allowed but with guidelines for a fair distribution of time. The government’s earlier position was that the candidates would be allowed air time only on National Rupavahini and the Sri Lanka Broadcasting Corporation in keeping with the Presidential Elections Act. But the private media opposed the move saying that the law became obsolete after the privatisation of the media. The government was considerate about what the private TV channels were insisting on. But it is likely that the government through the Elections Commissioner would issue strict guidelines on how to conduct themselves in distributing time for the presidential candidates.

At the cabinet meeting held last week, various ministers pointed out that PA parliamentarians and deputy ministers who have accepted invitations by private media to attend TV debates have sometimes caused embarrassment to the government by not putting the government’s point of view across to the people clearly. They point out that most of the deputy ministers or parliamentarians are unaware of the facts relating to government affairs. Hence, they insisted that it would be advisable to keep them away from the TV debates.

The President said she would not allow anybody on the PA side to participate in TV debates without her permission or permission from the delegated authority.

Talking about foreign observers, the Carter Centre has indicated to the UNP that it would not be available for the next presidential election scheduled for December 21. Marian Creekmore, former Ambassador for Sri Lanka, and now attached to the Carter Centre has indicated that the time was bad in view of the Christmas holidays and other assignments that had been undertaken by the Carter Centre. However, the Paffrel and CMFV were expected to bring down several other organisations to monitor the elections.

In this backdrop, Minister M. H. M. Ashraff had a long and a cordial discussion with the President to remind her of his five demands including an independent election commission, holding a free and fair election, shedding her legal immunity as president, and to be accountable to parliament, not participating in the debates.

Minister Ashraff insisted that the President should hold a free and fair election for her name to remain in the country untarnished. If she fails to do so, he pointed out that it would be difficult to survive and the people would not respect the name Bandaranaike. The President agreed that she would hold a free and fair election, but told Minister Ashraff not to press her on the other issues right now. However, she pledged that she would fulfil those demands once she is re-elected. Soon after, they went down memory lane and she recalled how her father groomed her. She said how her father showed much affection to the sweet little boy Anura Bandaranaike. But she said today he is a different man and she fears that he would indulge in divisive politics if he is accommodated in the PA. The President also recalled Minister Hector Kobbekaduwa who pushed her into the political swimming pool in the 70s. She said at a meeting at Yatinuwara which Minister Kobbekaduwa attended in 1970, she was suddenly asked to speak on the platform without any prior intimation. She said she had to fight with Mr. Kobbekaduwa for embarrassing her. But Mr. Kobbbekaduwa had told her what Prime Minister S. W. R. D. Bandaranaike told him during the early days. Mr. Bandaranaike had apparently told Mr. Kobbekaduwa that Chandrika Bandaranaike would be his political heir. Mr. Kobbekaduwa said that at least he had the privilege of introducing Chandrika Kumaratunga on stage as the first step towards the realization of her father’s dream. The President has said that she was grateful to Mr. Kobbakaduwa for showing her much kindness and held him in high esteem.

Minister Ashraff, too, listened to the President very attentively and pledged his support to the President. But at present, he is doubtful whether the president could make it at the presidential hustings. He had told a journalist friend that it would be difficult to predict under the present political climate. He said that in 1988, he predicted victory for President Premadasa, but today the political situation is so uncertain that it is very difficult.

Minster Ashraff drew large crowds last week to Kalmunai for his party’s annual convention. There were conflicting reports about the crowds that attended, but it is confirmed that the gathering exceeded 25,000 which was a large crowd in terms of the area. There he made available an opportunity for the President to appear on a large screen through the satellite. President’s media adviser Sanath Gunatilleke was present at the meeting to make sure that the President was on the screen in time. On his return flight, Mr. Gunatilleke was with the contingent of ambassadors who participated at the SLMC convention and in Ratmalana he found that there was nobody to pick him and he was driven home by the Saudi Ambassador in Sri Lanka.

In another development last week, the UNP addressed the diplomatic community in Colombo at the Mayor’s residence. In all, thirty diplomats participated in this discussion which lasted for nearly two hours. UNP leader Ranil Wickremesinghe along with Chairman Karu Jayasuriya told the diplomats of the escalating incidents of election violence in the country, and how the government was perpetrating violence against the UNPers. Thereafter the diplomats raised many questions about the UNP’s future programme and its economic policies. One diplomat asked as to whether they were receiving funds from Germany and Britain as alleged by some politicians. Mr. Wickremesinghe said there was no basis to this allegation and that the person who made these allegations should answer them. Eventually, the UNP leader appealed to the diplomatic community to create an environment and form an opinion among themselves to force the government to hold a free and fair election.

A similar thing was initiated during the 1994 elections by the People’s Alliance with the help of the diplomatic community. However, it appears that election violence is spiralling unabated. But in Moratuwa, something different happened. Minister G. L. Peiris who is also the organizer for Moratuwa who to eschew violence, warned some of his supporters who were supposed to have cut down a UNP banner and engaged in some sort of trouble in the area to refrain from such acts. Minister Peiris who called them had warned them that it would not be his intention in politics. He said his effort was to create a different political culture in the country and that this kind of thing would negate the good work that they had done for the people in the area. Subsequently, Minister Peiris telephoned former Minister and UNP organizer for Moratuwa Mr. Tyronne Fernando and regretted that such a thing had happened. Minister Peiris assured that in future he would see that nothing of this sort takes place in Moratuwa and invited Mr. Tyronne Fernando’s co-operation to have a peaceful election in the Moratuwa area.

In another similar incident, UNP MP, Ravi Karunanayake has written to the Inspector General of Police on the serious breakdown of security in the Kotte area. He said that his office had been attacked twice but no positive action had been taken by the police in this regard. He has said that if the police failed to apprehend the culprits he would be left with no alternative, but to seek legal action,

Election violence has become a malignant feature in Sri Lankan body politic for the last three decades. Though it was not acute during the earlier days, it has been there from the 40s as part and parcel of the political system of Sri Lanka. It is now time for the people to realize that violence would not serve any purpose, but would produce destruction and suffering. All politicians should think as Minister G. L. Peiris does and take immediate and prompt action to stem such criminal acts. Then, Sri Lanka would be a better place for the people to live.

The Fifth Column

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