Another election passes by

By Kishali Pinto Jayawardene

(April 12, Colombo, Sri Lanka Guardian) So another general election has passed by with a historically low voter turnout in Sri Lanka's history. This does not augur well for the so called first general election to be held in a post war environment after some three decades of active internal conflict.

Stranglehold on democratic processes

However, the record absentee voter percentage was not surprising. Given the stranglehold that the ruling administration had imposed on the democratic processes, many who were thoroughly disillusioned with the situation stayed away from the polls. Great numbers were not particularly interested either in seeing what the final outcome of this Thursday's General Elections was. The contrast with this election and January's Presidential Election could not, indeed, have been greater.

Much distasteful water has, of course, passed under the bridge since January. The fate meted out by the Rajapaksa administration to the former Army Commander and erstwhile common candidate for the Opposition at January's Presidential polls showed what would happen if a strong challenger throws down the electoral gauntlet. The lacklustre campaign mounted by the United National Party and the Janatha Vimukthi Peramuna in the run up to the General Elections was an inevitable byproduct of what happened consequent to January's Presidential elections. Confronted with the extreme anti-democratic actions of the government, the Opposition collapsed like the proverbial pack of cards.

No doubt, this unhappy subversion of the electoral processes is as much due to the omissions in the Opposition camp as well as due to commissions by the ruling administration. More than anything else, it was the ludicrous position and complete lack of public faith in the Commissioner of Elections that gave rise to the low rate of voter percentage this Thursday.

Perilous months ahead

The months ahead will no doubt be the most perilous for Sri Lanka's democracy. We heard talk of reform of the Constitution in a manner that raises considerable disquiet. For long, this country has grappled with the question as to whether proportional representation (PR) should be continued in its present form, whether we should go back to the first past the post or adopt a combination of the two, whether to have by elections, whether to have multi member constituencies and if so, on what basis and whether to have reserved constituencies and if so, the basis of reservation, namely whether it should be on race, religion, age etc.

A fundamental underlying principle is whether these reforms should apply across the board to all categories of elections or to any particular elections and if so, which type of elections. The questions also included as to whether (if PR is to be retained), it should be national PR, provincial PR or district PR and further as to whether two ballot papers are to be issued to each voter, one to choose the party and one to choose the individual and in the latter event, whether cross voting is to be permitted. Significantly, in the event of PR, is the choice to be left entirely to the party or is the electorate to be given some voice in the selection of candidate?

Other questions also include whether to make the production of the National Identity Card or other recognised means of identification compulsory for voting, whether to require candidates to make deposits at the time of nominations, to appoint a delimitation commission in case of constituencies being re introduced and the nature of such a commission.

The integrity and accountability of the electoral process

Yet, amidst all these complicated and complex questions of electoral systems, the very integrity and accountability of the election process remains unaddressed. While clarifying the system of elections in force in Sri Lanka is a matter of the first importance, guaranteeing to some extent at least, the proper working of the framework within which elections of any kind can be held in this country, is by far more important.

A singularly vital question in this sense is the lack of the Elections Commission and the almost total disregarding of the directives of the Commissioner of Elections reducing him to a pathetic position where he is compelled to openly admit that he has virtually no substantive authority. In all elections as well as this recent general election, we saw public property being abused to a horrendous extent. The Elections Commissioner was powerless to prevent this. The law was violated with impunity by those who should know better.

Other vital areas of law reform impacting on the accountability of the electoral process vis a vis political parties include the need for all political parties to be obliged to maintain regular accounts clearly and fully recording therein all amounts received by them and all expenditure incurred as is, for example, the requirement in Germany. This was, in fact, a major proposal put forward by the Law Commission of India, when considering reform of India's electoral laws. (Law Commission of India, One Hundred Seventieth Report on Reform of the Election Laws, May 1999)

The Law Commission recommended that the audited accounts be submitted to the Elections Commission before the prescribed date every year with the Commission being required in its turn to publish the said accounts for public information. The Commission reasoned that it was important to introduce an element of transparency and openness in the financial matters of political parties, being backed in this regard by a powerful judgement of the Supreme Court in Gajanan Bapat v Dattaji Meghe (1995, SCC, 347).

India has legal provision requiring candidates to keep separate accounts of all expenditure incurred by him or her from the date of nomination to the date of election but these provisions were made nugatory by later amendments to the Representation of the Peoples Act, 1951 which exempted expenditure of the parties and supporters of candidates from disclosure. The amendments were passed in order to offset the effect of another judgement of the Indian Supreme Court in Kanwarlal Gupta v Amar Nath Chawla (1975, 3 SCC, 646) which ruled that the section applied in its ambit to political parties and friends or supporters of candidates.

One question in this respect remains as to whether actions of commission and omission covered by offences, corrupt and illegal practices of individuals acting as agents of parties should result to the discredit of such parties rather than only the individuals. Parties themselves should be made to suffer severe penalties.

Tinkering with electoral systems

This tinkering with systems of elections without addressing the serious lack of integrity in the electoral process needs to stop. This General Elections's low voter turnout surely teaches us this very salutary lesson.

Are we serious at all about making any changes to the veritable disasters that now pass for elections in this country?