Testing sovereignty through a genuine election

By Basil Fernando
Courtesy: AHRC

(January 22, Hong Kong, Sri Lanka Guardian) The election for the Executive President will take place on the 26th January. This election will test the sovereignty of the people as enshrined in the Constitution and the possibility of genuine election in Sri Lanka as required by the International Covenant on Civil and Political Rights.

Article 25 of the International Covenant on Civil and Political Rights provides the right of the people to vote to be election at genuine and periodic elections which will be by universal and equal suffrage and shall be held by secret ballot guaranteeing free expression of the will of the electors.

In terms of Article 3 in the Constitution of the Democratic Socialist Republic of Sri Lanka, “In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.” Voting for the formation of a government needs to be genuine. Genuineness would be that the people would have the complete freedom to exercise their franchise without fear and thereby to express their political will as they wish. An election that is not genuine is not an election at all.

The very notion of the sovereignty of the people which is the foundation of the constitutional framework of Sri Lanka also presupposes the capacity of the people to genuinely participate in exercising their right to vote. The sovereignty of the people would have very little meaning if the people cannot exercise their freedom in a genuine manner.

Therefore the problem of an election in the Sri Lankan context could be reduced to the problem of whether the freedom to vote can be exercised genuinely. In a situation where there is a functioning democracy the use of the ballot in a genuine manner can be taken for granted. However, in a situation where for decades now there has been an attempt to close the electoral map the question of the genuineness of an election cannot be taken for granted.

Ever since the 1978 Constitution was promulgated the possibility of a genuine election has been put to the test. The architect of the Constitution, J.R. Jayewardene also had the grand plan of closing the electoral map. Therefore the question of the sovereignty of the people and the scheme for closing the electoral map has been in constant conflict. As Sri Lanka has already established a tradition of exercising a ballot for the choosing of representatives the scheme of closing the electoral map was not an easy task. The idea that the people have the right to elect their own representative has sunk into the consciousness of the people in a very deep manner. It can easily be said that the belief of the power of the vote and the capacity to elect representatives is very much in the deep subconscious of the people of Sri Lanka.

Thus, when the architect of the 1978 Constitution contemplated the scheme of closing the electoral map he knew that it was not possible to do so by merely denying the possibility of having elections. It was not possible for him to legislate that the people will no longer have the right to elect their representatives. As he could not achieve his scheme through legitimate means the architect of the 1978 Constitution had to use his political shrewdness to find a way to achieve this by other means. Therefore the idea of closing the electoral map had to be accompanied by schemes to deny the genuineness of elections.

Developing the ways to have a façade of an election, while at the same time denying its genuineness, was experimented on in many elections. The elections conducted during the rule of J.R. Jayewardene with the stout support from his then Prime Minister, Premadasa, were enormous experiments of electoral violence and fraud.

The political scheme to deny genuine elections began with the scheme to deny civil rights to the best known political opponent of the then ruling party, the leader of the Sri Lanka Freedom Party, Mrs. Sirimavo Bandaranaike. The sole purpose of litigation against Mrs. Bandaranaike and some of her closest associates was the first most comprehensive attempt to deny the genuineness of elections. Having achieved this, still it was not possible to achieve the entire aim of closing the electoral map.

There was an example of how the electoral map was to be closed which was followed in Singapore. This was by creating the impossibility of the opposition parties functioning in a democratic manner by many schemes adopted within the Singaporean system. However, it was not possible to achieve this same aim within Sri Lanka where the habit of voting and electing representatives has become so much a part of the culture of the people.

Forced disappearances to intimidate voters

That was the problem J.R. Jayewardene and his colleague Premadasa had to deal with over a long period of time. The adoption of a referendum in order to extend the life of the parliament and thereby denying the people the right to vote for their representative was one such scheme. However, by 1988 all these schemes were failing and the large scale disappearances which were practiced in the period immediately before the election was also a scheme for denying the possibility of genuine elections. The reports of the commissioners on forced disappearances clearly indicate that the highest numbers of disappearances occurred in the periods closer to the elections. By using the political unrest that prevailed during the time and creating intense political propaganda it was possible to create the impression that the disappearances that were caused during the time were unrelated to the elections. However, closer scrutiny demonstrates that they elections and the forced disappearances of the time were, in fact, deeply connected.

In the period that was to follow the conflict with the LTTE provided the pretext for enormous violence during elections. This violence provided the excuse for denying genuine elections. The political violence and fraud that happened during this time were little noticed because of the greater preoccupation of the people with the problems of violence associated with the violence of the internal civil conflicts.

It is, in fact, the first presidential election outside a period of political violence that is taking place in Sri Lanka now in 2010. The LTTE internal conflict ended in May 2009. The present election takes place in an atmosphere where there does not exist a pretext for the massive use of electoral violence or easy attempts at electoral fraud. Unexpectedly the election has become one in which the ruling regime has been seriously contested. Unexpectedly enormously political contests have developed within the country indicating once again the hidden forces of society in which the tradition of electing representatives has been deeply imbedded in the people’s consciousness and political culture.

The contest so far has not been conducted in a peaceful atmosphere as required within a democracy. Four people have already been killed and large numbers of electoral violence incidents have been reported by the monitors. The greatest reflection of the absence of an atmosphere of genuine elections is the fact that the election commissioner himself has been forced to complain openly that he has not been allowed to conduct his duties in a free and fair manner. The enormous dissatisfaction expressed by the commissioner himself is now a well-established fact.

The failure to appoint an Election Commission in terms of the 17th Amendment to the Constitution was also a reflection of the attempt to deny the genuineness of the election. In the overall scheme of things the idea of the closure of the electoral map still remains. Genuine constitutional provisions for a free and fair election do not operate even now.

The conflict between the schemes of the 1978 Constitution for having an absolute power for an executive president who could rule as long as he wished by closing the electoral map still remains a problem for the people of Sri Lanka. Today a contest exists between a deeply established tradition among the people embedded in the political culture to want their representatives to be elected freely and fairly and the scheme to close down the electoral map. The future of this contest is to be seen in the days to come.