A symbolic washing of hands

The taint of serious and fundamental election malpractice should not be left unresolved in respect of last month’s Presidential elections.
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By Kishali Pinto Jayawardene

(February 07, Colombo, Sri Lanka Guardian) So the cynics were proved right all along in their assessments of Elections Commissioner Dayananda Dissanayake’s performance (to put it at the kindest level) as Sri Lanka’s elections chief. From tragedy, as epitomized by his emotional outburst last Wednesday in respect of the recently concluded Presidential elections, we descended into the proverbially unbelievable farce when we saw him exactly one week later, retracting almost all that he had said before.

To add classic insult to injury, his earlier emphatic pre-poll and post-poll pronouncements never to return to his post as he could not work in the current scenario leading him to suffer unbearable mental agony, were also retracted. So we are compelled to ask certain questions in the public interest; what exactly occurred in the space of one short week to lessen this supposedly extreme mental agony that he was labouring under on the day of the declaration of the election results?

Waxing and waning on the electoral process

What are the guarantees that the Commissioner appears now to be satisfied by, that would ensure that he could, in fact, engage in his tasks without such tremendous stresses and strains? Are we to believe that the extreme mental perturbation that the Commissioner, a senior public servant with years of experience in his post, showed clearly last Wednesday, stemmed merely from the various rumours that had been in circulation at that time, as sought to be explained by him somewhat unpleasantly and aggressively a week later?

This column had consistently refrained from unduly critiquing the Elections Commissioner given the immense difficulties that any individual in this position currently faces in trying to conduct free and fair polls in this undoubtedly anti-democratic climate. However, one must now justifiably question as to how the voting public in Sri Lanka could repose trust in the Commissioner when he waxes and wanes so unconvincingly on an issue as fundamental as the integrity of the electoral process? His accusations directed at the media and the political parties of misinterpreting what he said on the day of the declaration of the results is a glossing over of his own laments, including that it has come to a situation where he may even not be able to ensure the safety of ballot boxes. Are we now to assume that the entire country heard him wrong or that (miraculously as it were) this is now no longer a problem? Or that his returning officers and counting officers will no longer be abused and threatened?

Washing of hands may not suffice

In addition, the Commissioner’s change of heart in staying on to conduct the Parliamentary polls was attributed by him to pleas put forward by his officials, the political parties as well as the legal position regarding his inability to step down until the Elections Commission is appointed. But were these all not matters that ought to have been in his mind in the first instance, before he announced (pre-polls and immediate post-polls) his decision to step down despite any consequences that may occur? Ultimately, he appeared to say this Wednesday that he had done his utmost to ensure that state institutions and the state media was not abused but that this pattern of abuse would most certainly continue for the Parliamentary elections and that there was nothing further that he could do. Indeed, and if one may be pardoned for resorting to an uncannily apt metaphor, this is akin to Pontius washing his hands to show that he is now innocent of any blood that may be spilled. As history has shown us, this symbolic act of cleansing has been to very little purpose in absolving the hand washer of complicity in the act.

Appointment and dismissal of a Competent Authority

And indeed, (for that matter) did the Commissioner, in fact, do all that he could do in the pre-polls period to ensure the integrity of the electoral process in terms of the powers vested in him under the 17th Amendment to the Constitution? On a previous occasion, this column raised the incongruity in the Elections Commissioner appointing a Competent Authority to monitor the state media and then dissolving that very same Competent Authority on the basis that the heads of the state media institutions were not obeying him. Was the Elections Commissioner naïve enough to believe that the appointment of a Competent Authority would automatically ensure that the state media institutions would be put on their good behaviour leading him to, in a fit of pique, dissolve the Competent Authority when it was found to be otherwise?

On the contrary, the Competent Authority should have exercised to the fullest the very considerable powers vested in him by the Competent Authority (Powers and Functions) Act, No 3 of 2002 (passed by Parliament in March 2002), including taking over the management of the two state media institutions as empowered to do so both constitutionally and statutorily. Importantly, the Authority has the discretion to advise the relevant Minister of the extent to which the guidelines have been contravened, as well as to seize broadcasting apparatus, acquire property and prohibit the broadcasting of any material considered to be counter to the public interest. The Authority also possesses general powers to take any action it deems necessary to ensure a free and fair election. Why was this plethora of powers not exercised without the Commissioner resorting to a weak dissolving of the Competent Authority? Surely these are justifiable questions that the public are entitled to ask?

An Elections Commission and our collective conscience

For one painfully long decade, allegations of political partisanship hung over the head of Sri Lanka’s former Chief Justice Sarath N. Silva. Two impeachment motions brought against him in Parliament listing numerous instances of abuse of office were defeated through political brinkmanship by former President Chandrika Kumaratunge. These long standing allegations irrevocably tainted the office of Sri Lanka’s Chief Justice earlier held internationally and regionally in high esteem. Are we now resigned to accepting this taint to visit each and every high office in this country even though constitutionally, the independence and integrity of such offices are fundamental for the democratic process?

The taint of serious and fundamental election malpractice should not be left unresolved in respect of last month’s Presidential elections.

Clearing these doubts should be the primary - and public - concern of each and every voter regardless of who he or she may have voted for. Above all, the public call for an independent Elections Commission has never been more vital than at this point in our collective conscience. This must be seen not as a constitutional luxury but rather as an absolute necessity for our democratic existence.