Democracy in crisis: avoiding dictatorship

Sri Lanka Parliament

The President on March 2, 2020 by Gazette Extraordinary No. 2165/8 legitimately dissolved Parliament from midnight and fixed April 25, 2020 as the date for the General Election.

While the proclamation was legal, it was poorly thought out because it was made well after the  COVID-19  outbreak had begun. Passengers at many international airports like Kuwait were being tested for fever before letting them enter, but our government seemed hell-bent on holding elections.

Our Senior Regional Management Staff met the Commission at our Secretariat on March 11 and told us that April 25 was just too soon. There was insufficient slack time to recover from problems. They said that while our staff would come, other government staff cannot be prevented from taking leave during the local New Year and Vesak.  They pleaded with us to advise the government to move the election date back. But Chairman Deshapriya, who has many conversations with the government in the absence of the other two members, was adamant.
On March 16 our Senior Staff returned. Many people whose services are usually commandeered by us for election work had not turned up on Monday (March 16)  after the government declared it a holiday because of COVID-19. They pleaded with us to tell the government to move the dates back. Commission Member Nalin Abeysekere and I agreed, but Member/Chairman Mahinda Deshapriya refused. He argued that if we postponed elections the people would panic just as they had panicked when that day, Monday, had been declared a holiday for COVID-19.

After much argument on March 16, it was agreed that April 25 for the poll was impossible, but that the Commission had no power to postpone nominations. Only the President could do that by cancelling his own gazette announcement, but Mr. Deshapriya was insisting that April 25 is possible. It seemed that he was afraid to disagree with the President.
Here is the strategy that was finally agreed upon. It was decided to accept nominations as announced, and then gazette the names of candidates and polling booths as required in Section 24(1) of the Parliamentary Elections Act of 1981.

At this point the EC gets it within its power to postpone polling under Section 24(3) of the said Act which provides for postponement of polls “due to any emergency or unforeseen circumstances” in any district, but can be used to postpone polling in all districts. The new poll date has to be “not earlier than the fourteenth day” after the postponement order. To do this postponement, nominations have to close for us to know who the candidates are to be able to publish the gazette under Section 24(1).

General consensus was reached on the above strategy and the chairman said this is not to be announced because it would panic the country on the COVID-19 matter.
We were urged not to talk about it because of such panic, but I said I would not be comfortable being untruthful to the public. 

Problems

If we had listened to the advice of senior staff like Namal Talangama we will not be in this position. What are the problems?

1) Article  70 (5) (a) states:

“A Proclamation dissolving Parliament shall fix a date or dates for the election of Members of Parliament, and shall summon the new Parliament to meet on a date not later than three months after the date of such Proclamation.”

That is, parliament must meet by 2 June. For this, elections must occur by late May for results to be declared and newly elected members to attend parliament. 

Speculation

In the meantime, there is speculation that is panicking candidates. One is that an All-party meeting convened by Basil Rajapaksa had decided that the election be put off till November. But that is the Commission’s decision.

Reporters alleged that the Commission had decided on this. As I had been in lockdown in Jaffna, I denied it after verifying with the Commission. A candidate who is a university lecturer who had taken no-pay leave so as not to violate laws on using government property, was panic-stricken by this November date saying it is not possible to go without pay for so long. I asked that person to write to the Commission if the leave might be put off until the actual poll date is known.

Books are right – but not reality

We have officials who will record election complaints, others who will look at them and say the complaint is investigated and dismissed (when it involves a high profile person like an MP or Prime Minister) or referred to the police. 

The police after some months will refer it to the Attorney General who, after some more months, will hope no one will ask. I have a case from Jan. 2018 where the judge without any basis in law sent me for Arbitration as if its involves something personal. When I refused arbitration, the police suppressed the evidence and wrote down inapplicable charges. At that point, the file was referred to the Attorney General who has sat on it for almost a year. The judge says the next date will be set only after he hears from the AG. The Commission will change in November and the matter will die as expected without witnesses. 

Yet, complaints are deemed to have been processed according to law!

Cheating: Books in Order

Like the Attorney General, we have all learnt that making books in order is enough of an excuse for anything. To experienced SLAS officers and other administrators, cheating is not a problem they cannot handle through seemly papers. After the March 2 Gazette, there was need to punish a high-up government official high-up. In this case, K. Theivendram was to be moved out of Jaffna on 6 March in punishment for several frauds according to Chief Secretary A. Pathinathan,  but really as political victimization according to Theivendram and his wife who also is a high-up in the Provincial government. 

When Theivendram was transferred out, Mrs. Theivendram came to the Commission on 10 March or so  alleging violation of election laws. With me and a Deputy Commissioner present, Mrs. Theivendram telephoned Ms. S. R. Wijeludchumi (Secretary, State Ministry of Community Relations), to find out the status of her husband’s transfer. We two in the room could overhear both sides of the conversation. Ms. Wijeludchumi quite shamelessly said that the Chief Secretary Pathinathan had asked her to predate the letter to before 2 March 2020 and she had just had the letter typed up and would sign and give it to him.

This kind of cheating is quite normal in government service – predating, adding things to minutes after a meeting, etc. As my Deputy Commissioner remarked, once done and filed with a pre-dated stamp, no one can challenge it. Our administrators ensure that everything is seemly and in order. The law has no place.

Cheating under UNP

Both the major political parties cheat at elections – treating and bribery it is called in our laws. I have referred to concrete instances with names in previous articles and do not need to repeat them. Although the law says government property cannot be used or appointments be made after the date of nominations, both the ruling parties in their time have begun appointment processes a few days before the announcement of elections. 

Cheating under SLPP

This time the background is the transfer of all Northern GAs including some Addl. GAs. The eminent Jaffna GA N. Vethanayagan with some 3 months for retirement was also transferred. He would have been the Returning Officer for Jaffna. Vethanayagan sent in his retirement papers in protest.

There had been a District Secretary in Kopay who had corruption allegations against him and was transferred as DS Puthukudiyiruppu. From there he was sent as Addl GA Mullaithivu. During the recent large-scale transfers just before the elections, an SLPP MP got him transferred as Additional GA Jaffna. He is now in charge of Jaffna’s Election Dispute Resolution Centre. (EDRC) 

My point about seemliness covering up corruption is proved by the story of Krishna. During the last LG Elections he was No. 2 in the Jaffna EDRC of 3 persons under the then Additional GA. He had unearthed electoral violations at a Petrol Shed in Chunnakam owned by Angajan Ramanathan, MP. Nothing happened to the MP. So he got warnings, I was told. Krishna also issued a report on the petrol shed incident which made him persona no grata in SLPP circles.

With the new dispensation for the General Elections and the Commission wanting to see no evil, Krishna was removed from the Jaffna EDRC. So even Commission appointments are tainted. Vethanayagan is not there to instill order.

The Corona excuse

This time around, 2 March the day of the Gazette, the SLPP tried to appoint some 45,000 graduates. They were to assist Grama Sevakas. The UNP objected, just as the SLPP had objected to the UNP doing the same in 2019. The SLPP argued that the process had begun before 2 March, but interviews are on-going with certificated being checked  The argument at the EC, that they had been recruited, does not therefore hold water.

We said no because most of them reported after 2 March.

Being in lockdown, I was not given all the details. But I now know, after speaking to Mr. Deshapriya, that the government announced it would pay them even if we did not allow the appointment. 

The government, again according to Mr. Deshapriya, then changed its story, and said these recruits will be attached to MOH offices to fight COVID-19. The Chairman thinks if we stop it, the public will turn against the Commission saying we do not want to stop COVID-19. 

In any case will these people come to work after joining government service? In Jaffna on March 29 only the GA or Additional GA was there, and our Deputy Commissioner had to take others from outside to type his letters and curfew permit that were requested. Indeed, we have thousands of public servants paid and at home. If the government cannot mobilize them, how does it propose to mobilize as many as 45,000 graduates?  

Enough Foolishness!

The country is functioning with Votes on Account without a Parliament. The army is out doing the work of a police. The hallmarks of military government are fast emerging.
We have made a mistake in dismissing Parliament on 2 March despite all the signs and warnings. There is no need to compound it by making our already corrupt government (in general not specifically the governing party) more corrupt. One solution offered is to summon Parliament under Article 70(7) of our Constitution for when there is an emergency as now. But that summoned Parliament shall stand dissolved “upon the termination of the emergency or the conclusion of the General Election.” What happens if COVID-19 abates but is still on in mild form like the flus we live with? Who is to judge? Would that be an excuse for a dictatorship?

Alternatively, Article 18 of the Interpretation Ordinance says that “any proclamation or order or notification issued or made at any time may be at any time amended, varied, rescinded or revoked by the same authority in the same manner”.

The Gazette of 2 March was issued by President Gotabaya Rajapaksa. Let him simply revoke it. Then we can have Parliamentary elections when Parliament finishes its term in Aug. 2020. Hopefully by then, COVID-19 will be history.  

This article is not for or against any political party, and is written as part of the author’s work as a Member of the Election Commission and in the best interests of Sri Lanka where our limited understanding of impartiality is being used to stifle any informed discussion.