by C.A.Chandraprema Courtesy The Island

February 24, 2018, 8:43 pm

After the recent local government elections, political discourse has been dominated by the overwhelming victory of the Sri Lanka Podujana Peramuna against all odds to emerge as the single largest political entity in the country. The aftershocks of that political tsunami are still continuing even as we pen this column. SLFP ministers in the government are still in a state of shock after their abysmal showing at the LG elections and some have not been seen at Cabinet meetings since that day. Dayasiri Jayasekera the SLFP spokesman has not been seen at Cabinet press briefings. Now a proposed cabinet reshuffle is to take place with new infighting over ministries. While public attention is distracted by these events, a far more dangerous and far reaching development has gone almost unnoticed – the state of near collapse of the Elections Commission. Even though the unprecedented delay in announcing the election result was commented on, it has been pushed into the background by other events.

Elections Commissioner

The Elections Commission is the body that makes representative democracy possible in this country. If this state of dysfunction continues any longer, it’s going to place in jeopardy the entire political system that we have come to take for granted. The state of collapse in the Elections Commission extends to all its functions. For example, this writer wanted to do an analysis of the election results and after accessing the Elections Commission website, clicked on the tab saying ‘Election Results’. This brought up only the results of the recently concluded local government election. Originally, this tab provided access to a menu that had the results of past Presidential, parliamentary, provincial council and local government elections. Now all details of those past elections have vanished and all that is left are the results of the recent local government elections.  Earlier, when there was a new election, its results were displayed on a page that could be accessed through a highlighted link. Now there is only the result of the most recent election in the EC website with no way to compare the latest result with the results of previous elections.

Furthermore, this time the Chairman of the Elections Commission declared that it was not his business to declare a final result. Perhaps the law does not specifically say that a final result should be declared following a local government election. But there is a need to present election data in a manner that can be used by researchers and analysts. There is no law that is violated if the Elections Commission indicates the island-wide aggregate of the total number of votes, seats institutions etc. won by the various political parties and independent groups and also shows the district-wise breakdown of the results. What we now have on the EC website as the results of the 2018 local government election is a long list of the 340 institutions that went to the poll with a link to a page that gives the detailed result of each institution.

As there is no final aggregation and a district-wise breakdown of the election result, anyone trying to do an analysis of the results and to compare them with previous election results will have the Herculean task of preparing the district-wise breakdowns and the national aggregates himself. This is a time consuming task and explains why there have been no analyses of the elections result in the media. The Elections Commission can easily compile district wise and island-wide aggregates of the result with just a click of the mouse. There seems to be a deliberate attempt on the part of the Elections Commission to prevent people from analyzing election related data by presenting election results in a manner that makes it possible only for well staffed institutions to be able to undertake such a task. This is a matter that came to this writer’s notice a couple of years ago and has now been confirmed by the way the Elections Commission has presented the data of the local government election that was just concluded.

Signs of collapse worsening by the day

Some years ago, before the present Elections Commission was instituted, the Elections Department website presented information about past elections in generally satisfactory detail. The national final results were given, the district wise breakdowns, the polling division breakdowns, and those elected on the basis of preference votes were also indicated on the website. However when the Present Elections Commission was instituted, the website also underwent a change and the way the data relating to past election results was presented also changed. When I say that the earlier Elections Department website had adequate information about past elections, I must add that they had only the results of elections held in the new millennium but at least this was available in a usable format. After the change of the website, the same data that was presented earlier in a usable format was now presented as just long lists of elections results by polling division and the number of members elected and some of the more useful information like the names of the members elected and the preference votes they received have been omitted.

The crowning glory is what has happened now with the result of the latest election and the Elections Commissioner himself stating that it is not his business to declare a final result. I recently went to the Elections Commission and made inquiries from the officials there whether I could have the detailed results of all elections from 1947 to the present day. I assumed that they would have all such details on CDs. But they had nothing. All the data that the EC had was on the website and the presentation even of that limited information was being changed in such a manner as to make it unusable.

In contrast to this, if anybody visits the website of the Indian Elections Commission, they have minutely detailed results of all elections at the central government and state level held in Independent India from 1951 to the present day. When data is presented on a website, there need not be any concerns about the number of pages the details will go into. If data relating to election results are to be useful, it should have all the necessary details such as who contested, who won, how many votes the winning candidates and political parties and independent groups got, the number of votes received by the defeated, and the aggregation of all this information at the national level, the district level and perhaps even the polling booth level so that one can observe the trends. A body like an Elections Commission need not be told how vital this information is. They have a duty to provide data relating to past elections to the public.

Firstly, there is what appears to be a deliberate whittling down of information available to the public. Then for the first time in history, there is a failure by the Elections Commission to announce the results of an election on time. If such a thing had happened in the 1970s, it would have been excusable. But today, with it being possible to relay information around the globe in a matter of seconds, such a thing is inexcusable. It was providential that this time, the results of the various local government wards were announced to those present at the polling booths, and the signed documents were photographed and made available on social media and certain websites. So people knew at least informally who had won and who had lost and that ensured that people would remain calm despite the delay in releasing the official results. Can one even imagine what would have happened if there had been no social media to relay the polling booth and ward level results? We are told that the release of the official results was delayed because of calculations that had to be done regarding the number of seats a political party was entitled to on the proportional representation quota. But the results of the election could have been released earlier leaving the announcement of the number of seats each party was entitled to, for later.

Candidates treated like convicts

Furthermore, the public pronouncements of the Chairman of our Elections Commission when an election comes around makes one wonder whether somewhere down the line, we have not lost sight of what an Elections Commission should be doing. When an election comes around, the first thing that we hear is the Elections Commissioner bellowing that those who try to disrupt the election will be shot in the head. Then we hear him listing the punishments that will befall those who violate elections laws. At the last elections we heard him saying that those who hold meetings in temples will be lose their civic rights for seven years. Every time an election comes around we hear these ‘yama rajjuruvo’ style pronouncements from the Chairman of the Elections Commission so much so that one wonders whether he has missed his vocation and should have been the Chairman of a Prisons and Correctional Facilities Commission instead.

Indeed at election time, the candidates are treated like felons by the Elections Commission. During the recent local government election campaign, this writer saw a report in the newspapers to the effect that the former Ududumbara PS Chariman, one Senarath Bandara who had been caught putting up posters had been arrested, hauled before a Magistrate and then released on two bail bonds of Rs. 50,000 each and the vehicle he used to transport the posters released on a bond of Rs. 6 million. The Magistrate had also warned the hapless candidate that if he is caught violating election laws again, he will be remanded until the end of the election. This was just for putting up posters, not for threatening a rival candidate or causing any real harm to anybody. This is obviously a case of overkill. The elections law in Sri Lanka is such that it has made offences of almost everything that candidates do at election time.

If we point this out to the Elections Commission, their reaction will be predictable. They will say in the fashion of typical bureaucrats that such is the law and they only implement the law. Today however the Elections Commission is an independent body and not a government department, and one would believe that it is they who should be making recommendations to make corrections in the elections law. Occasionally, one sees someone taking up the matter of the impractical elections laws. On 6 April 2014, the Sunday Observer carried an article with the title “Election laws outdated and impractical” where the heads of elections monitoring bodies had said that candidates are compelled to breach the elections law since they are so impractical and they stressed the need to amend these laws urgently. Take for instance the following provisions in the Parliamentary Elections Act of 1981.

Section 69 – Restriction on processions: From the time nominations open and till one week lapses after the election result is declared, nobody can conduct or take part in processions to promote any candidate. During this period, non-political processions of a religious or social nature may take place, but even at such processions, it is illegal to promote a candidate. Those violating this law are liable to not just a fine but a prison sentence of up to one month as well. Section 74 – Display of handbills & posters: From the commencement of the nomination period until the end of the poll, no handbill, placard, poster, drawing, notice, photograph, symbol, sign, flag or banner of a candidate can be displayed on or across any public road. The same cannot be displayed in any premises whether public or private either. However candidates may display banners and posters on the vehicle used by the candidate. Posters and banners may be displayed in public or private premises only on the day that an election meeting is to be held in those premises.

In addition to the fine and one month prison term for violating this law, a specific provision in Section 74(3) says that the fine and prison term or both can be imposed on anyone even ATTEMPTING to commit the offence described in this section. The police are also authorized to use such force as may be reasonably necessary to prevent the violation of this ban and they are expressly given the authority to seize any handbill, placard, poster, notice, drawing, symbol, photograph of a candidate, sign, flag or banner used in such contravention. Section 75 – Restrictions on house to house canvassing: From the day the nominations close until the day after the poll, candidates and the members of their immediate families are prohibited from going house to house canvassing for votes. They are also forbidden from distributing handbills and election propaganda material from house to house.

What sense can anyone make of these laws which seek to ban candidates from engaging in activities that are most visibly associated with elections? An election is all about candidates marketing themselves by putting up posters and cut outs of themselves, distributing hand bills, going from house to house canvassing for votes and holding processions in support of his candidacy. By doing what he is supposed to do, a candidate becomes a violator of election laws. Very often, a candidate does not know whether he is going to stand for election until the day nominations close. So it is really after nominations close that the election campaign begins in earnest. This is also exactly the period in which the law seeks to place restrictions on candidates from promoting themselves.

Mercifully, the Sri Lankan elections law does not seek to stifle public meetings, that other great sign of an election. Section 70 stipulates that public meetings have to stop only 48 hours before the date of the poll. But as we saw earlier, even with regard to these meetings, posters announcing such events can be displayed only at the venue that such meetings are to be held, and that too only on the day of the meeting itself. How can anyone expect to pull crowds for an election meeting that is not announced beforehand? If someone puts up posters announcing the meeting a few days early, that too will be an election law violation.

In India, putting up posters and cut outs, distributing leaflets, holding processions and house to house canvassing between the time of handing in nominations and polling day are not illegal. According to Article 126 the Representation of the People Act of 1951, in India, election campaign processions, the distribution and broadcasting of propaganda material etcetera is prohibited only in the 48 hours preceding the closing of the poll. As for canvassing for votes, Article 130 of the Representation of the People Act suggests that in Indian elections, canvassing for votes is possible until the last moment even on polling day provided that such activities do not take place within 100 meters of the polling booth. In Sri Lanka however, according to Article 68 of the Parliamentary Elections Act of 1981 canvassing for votes on polling day is absolutely prohibited.

Arbitrary power in the hands of the unfit

On top of all this is the completely arbitrary power that Elections Commission bureaucrats have in accepting or rejecting nomination papers in Sri Lanka. At the recently concluded local government elections dozens of nomination papers were rejected for unbelievably petty reasons. The Nivitigala PS nominations of the United Left Front led by Lal Wijenaike was rejected because there were 15 names in the second nomination paper whereas the requirement was only 12 names. The bureaucrats in the Elections Commission did not allow the ULF to delete the last three names even though they had letters from the three candidates consenting to the removal of their names from the list. The SLPP nominations for the Tirappane PS were rejected because the date had not been written below the party secretary’s signature. The Maharagama UC nominations of the SLPP were rejected on the ground that in the column where the gender of each candidate to be stated, the gender of one female candidate was inadvertently written as “male” instead of “female”.

Once these nomination papers were rejected by elections officials, even the Supreme Court did not intervene to put things right. Thus we have a situation where an Elections Commission that cannot present data relating to past elections in a proper format, and which cannot conduct an election without a major mess up in announcing the results is given arbitrary power to reject nominations on the flimsiest of excuses.  We have to forgive the Elections Commission for failing to release the election results on time, and causing a delay that has never before been experienced in this country in living memory but the Elections Commission fails to ‘forgive’ someone who had written ‘male’ instead of ‘female’ in the column indicating the gender of candidates. In India which has a competent Elections Commission, the bureaucrats are not vested with such arbitrary power over nomination papers. Section 36(4) of the Indian Representation of the People Act of 1951 stipulates that the returning officer shall not reject any nomination paper ‘on the ground of any defect which is not of a substantial character’.

The Indian Elections Commission (IEC) has given specific instructions to its returning officers that there is a presumption that every nomination paper is valid unless the contrary has been made out and further that if there is a doubt as to the validity of a nomination paper, the benefit of such doubt must go to the candidate concerned and the nomination paper should be held to be valid. The IEC has specifically instructed their Returning Officers that a nomination paper should not be rejected for a defect, which is not of a substantial character. Any mistake or error of a technical of clerical nature should, therefore, be ignored. The IEC expected their returning officers to ‘interpret the provisions of the law intelligently and with commonsense’. Under the Indian elections law, if any objection has been raised against a nomination paper, and the candidate needs time to rebut that objection, the affected party can immediately apply to the Returning Officer for time and the latter can allow up to two days for the rebuttal of the objection.

The Indian Elections Commission is what an Elections Commission should be like. In comparison to the IEC, our Elections Commission is in a state of collapse. They can’t present data on past elections in a usable format, they can’t announce election results on time, yet they have arbitrary power to reject nomination papers on the flimsiest of excuses. If this situation continues any longer, future governmental change is going to take place in this country through street action, not through elections. The Elections Department was functioning generally satisfactorily until it became an independent commission and one wonders whether there is a deliberate attempt to run down and undermine the elections mechanism in this country. When you turn it over in your mind, you realize that one creative way to destroy the entire Sri Lankan state will be by running down the body that conducts elections.