Are we going the 'Wayamba' way again?

By Kishali Pinto Jayawardene

(January 13, Colombo, Sri Lanka Guardian) Given the current violence of the pre-polls period, there is no doubt that this will only intensify in the weeks ahead. There are two key questions in this regard. First, what are the precise directives issued by the Commissioner of Elections and the Inspector General of Police to ensure freedom of movement to electors from their residences to the polling station on the day of the poll, security to the polling agents who accompany Senior Presiding Officers to the counting centre and the security of election staff? Secondly, what are the directives issued by these officers in regard to the deployment and conduct of police officers during the election period itself?

This second concern relates in particular to the refusal or failure of police officers to entertain and record all election-related complaints, the failure to categorise these complaints correctly and the delays in so doing. Further, omissions in investigating the offences revealed in the complaints and taking legal action against the offenders and the responsibility of police officers posted to protect the polling station in preventing unauthorised persons from entering the polling stations, including persons accompanying candidates are of immediate interest.

Deployment of police by the Elections Commissioner

It must be recalled that in regard to the deployment of police during election times, for example, the Commissioner (in lieu of the Elections Commission) in terms of the 17th Amendment is mandatorily required to notify the IGP of the facilities and the number of police officers required for the holding or conduct of such election, which then shall be made available accordingly. These police officers and facilities may be deployed by the Commissioner in such a manner as is calculated to promote the conduct of a free and fair election. Importantly, every police officer thus made available to the Commissioner shall be responsible to and act under the direction and control of the Commissioner during the period of an election.

Certain immunities from suit have also been specified for acts done in good faith by police officers in pursuance of directions issued by the Elections Commissioner.

It is therefore quite clear that (however much one may sympathise with the Commissioner's constant complaint that the powers granted to him ought to be strengthened), he already has considerable authority at his command. At a time when other constitutional monitors such as the Human Rights Commission of Sri Lanka and the National Police Commission have been deliberately deprived of their authority by the Rajapaksa Presidency, the Elections Commissioner is, (perhaps unfortunately for this gentleman), the singe individual holding the reins to some measure in his hands.

The public right to know regarding the Commissioner's instructions

The public therefore, in the exercise of its collective right to know, needs to be informed as to what precise instructions and circulars that the Commissioner in particular has issued in this regard and what concrete and practical measures he intends to take come January 26th 2010. There is no point in clinging onto the single act of stopping the unjust transfer of one police officer if the Elections Commissioner is found to be derelict in his duty in manifold other instances. This is singularly the crux of the matter.

Where the Indian Elections Commission is concerned, Clause (1) of Section 324 of the Indian Constitution vests in the Indian Elections Commission, the superintendence, direction and control of the electoral rolls for and the conduct of elections.

The government is obligated to make available to the Indian Elections Commission such staff as may be required by it for the discharge of its duties. Clause (1) in Article 324 has been authoritatively held to constitute a 'reservoir of power' for the Commission whenever enacted law is silent on any electoral aspect or makes insufficient provision to deal with a particular situation. (Mohinder Singh Gill v. Chief Elections Commissioner, 1978).

Article 103(2) of Sri Lanka's 17th Amendment is similar in effect and states that the object of the Commission shall be to conduct free and fair elections. This is a provision that should be strongly utilised by the Commissioner to prevent the most blatant election violations including increasingly frequent attacks on political offices of opposition candidates, the continued prevalence of cutouts of one candidate with open police protection while even legitimate posters of contending candidates are torn down by goons with the police as passive observers.

Calling for the declaration of assets in a wider sense

Meanwhile, does it suffice that we should expect only a bare declaration of assets from our Presidential candidates? In contemplation of this question, Sri Lanka may well draw lessons from a 2000 judgment of the Delhi High Court in the Association for Democratic Reforms case (November 2, 2000), where the prospective candidate was asked to reveal firstly, criminal records, including where the candidate is accused of an offence, secondly, assets possessed by the candidate, spouse and dependant relatives and thirdly, facts giving insight to the candidate's competence, capacity and suitability for political office.

The Indian Elections Commission was conferred a roving power to make this information available to the Indian electorate which like segments of its Lankan counterpart had begun to rebel against national thugs continuing as political leaders.

In any event, the Indian Elections Commission has been a model example for the region, erring on the side of brashness perhaps but never on the side of caution. While much of this authority may stem from specific powers being given to the Commission in law, the abrasive personalities of those who have headed the Elections Commission have been the key reason as to why this Commission has been a potent force in the Indian political scene. The Sri Lankan public should not be satisfied merely with the filing of a declaration of assets by the Presidential candidates. Instead, the candidates should be called upon through the weight of public opinion to declare assets possessed by the candidate's spouse and dependant relatives. Further, it is moot that in this country's context, perhaps the declaration should not stop at the assets of only the dependant relatives.

Are we seeing a repetition of the 'Wayamba debacle?

There are therefore some vital questions that all Sri Lankans need to ask themselves. True, this country has seen election violence in the past as much as it has seen corruption and political nepotism. But here, the scale of the violations appears to be unprecedented; the one example of an undeniably violent election in recent times was, for example, the Wayamba Provincial Council elections. This was held under the watch of former President Chandrika Kumaratunge who was herself as much culpable for the defeat of the 17th Amendment as is her successor. Yet now we see the unholy spectacle of the Wayamba debacle being repeated on the much grander scale of a Presidential election itself.

Are we willing to let this happen and condone an even greater deterioration of a society that is already gravely undermined at its democratic core?