Disabled electoral system and Gotabaya’s candidacy

Friday, 4 October 2019 00:00 -     - {{hitsCtrl.values.hits}}

Gotabaya Rajapapksa 

The methodology adopted to elect people’s representatives and the elections held for towards that end can be considered a mirror that reflects the extent of decency of the political culture of the country. 

There is no political party system in our country in which internal democracy is practiced. All political parties can be considered to a lesser or greater degree as entities being led by leaders of dictatorial tendencies. Further, there is no party system in our country that depends on the funds of their own. All parties can be considered to be dependent on black money, to a certain extent. 

Sri Lanka has an Elections Commission but it is not so advanced like the Elections Commission in India. There is no system to audit the funds of political parties or their internal democracy.

The system that we inherited from the British can be said to be more democratic than what we have adopted ourselves. There were laws restricting the amount of money that could be spent on elections by candidates. The laws were strictly enforced. Even by 1977, the laws limiting the expenditure incurred by candidates contesting elections were in operation. The maximum amount that a candidate could spend for a Parliamentary Election was restricted to Rs. 5,000. The candidates contesting elections were obliged by law to submit a report on election expenses to the Election Commissioner. Those who violated election laws could be prosecuted.

People doing business with the government were completely barred from contesting elections. Those with serious criminal charges did not contest elections. As a custom, political parties did not allow such individuals to contest elections. However, it can be said that since 1977, there had been a wholesale abolition or callous disregard of the laws and traditions which were in operation to keep the public life of the people’s representatives clean.


Election Commission

The restrictions imposed on expenses of electoral candidates were abolished in 1977. Now what is in operation is a system in which the sovereignty of people can be purchased for money. It is a system in which the elected MPs can sell themselves at a high price when there is a great demand for them. There are no statutory limitations on the amount that can be spent by candidates. If candidates can afford they can spend any amount for election campaign.

There were instances where some candidates had spent huge sums as much as Rs. 250 million. The average cost incurred by a candidate contesting the Presidential Election from two major parties stood at Rs. 3 billion. There is no need to explain how the money was received.

Strict laws that prevent individuals doing business with the government from contesting elections are in operation in all countries where a democratic system of governance is in place. According to the law of Sri Lanka, those engaged in business with the government are not entitled to contests elections. But the law is not enforced strictly – so much so, the MPs doing business with the government contest elections without any restriction. Neither the Department of Elections nor the Election Commission have adopted a system to prevent such persons from submitting nominations considering it a grave offence.

This error was not seen by the lawyers of public litigation either. It was only after the Punarudaya Movement informed the Elections Commission of this error did the latter carefully consider it and make it compulsory for all candidates presenting nominations to submit an affidavit certifying that neither they nor their family members do business with the government.

This can be considered an important step forward by the Election Commission. Even if the affidavit submitted is false, the person submitting it will be liable for punishment some day if it is found to be false. 

Obtaining affidavits and declarations of assets and liabilities from candidates alone is not enough. In almost every country there is a system in operation under which the contents of the affidavits and declarations made by them are released to the public who are interested in obtaining the information in the declarations. It is the public who should verify the accuracy and the truth of the information produced in the affidavits. 

In India, all candidates handing nominations for elections must submit an affidavit detailing all criminal cases they have or have had against them. The Election Commission has given the public the right to obtain certified copies of the affidavits submitted by the candidates. In addition to the copies of the declaration of assets and liabilities and the affidavits given in writing, the issuance of an electronic copy of same as well can be made mandatory. Further, the copies of the electronic statements of these documents can be released to the website of the Election Commission so that they can be made available to the interested public immediately.


The role of the Speaker

The Election Commission should be commended by the public for its positive and effective response to the submissions made by the Punarudaya Movement with regard to the measures that can be taken to ensure the transparency of the candidates and to prevent those doing business with the government from contesting elections.

Apart from the Elections Commission, we tried to get Parliament and the Judiciary also involved in this process. But there was no favourable response from either party. Most of the MPs are doing business with the Government. Some MPs have acquired State-owned land. There is a large number of MPs who have bar licenses. There are MPs who possess licenses for sand, soil, rubble and timber businesses. This has created a situation which has not only corrupted and distorted the very basis of parliamentary democracy but also has led to deprive the legitimacy of the Parliament itself.

A request was made to Karu Jayasuriya, the Speaker of the Parliament, in writing, to look into this matter and take legal action against MPs who do business with the Government. The response received cannot be considered positive or progressive. His response was that the Speaker did not have the necessary legislative power to act on it. 

Doesn’t the Speaker really know that the MPs are doing business with the Government, contrary to the law? Doesn’t the Speaker have an obligation to inquire into it after it has been brought to his notice? Doesn’t the Speaker have the responsibility to talk to the party leaders about it? Doesn’t the Speaker have the responsibility to take appropriate measures to stop the ugly behaviour of a large number of MPs doing business contrary to the law?

Whatever the law, the Speaker of the Parliament has the responsibility of rectifying the situations in which natural justice is violated. Ignoring a wrongdoing that one is aware of is a serious offence done not only to the Parliament but also to the country.

Acquisition of the best sources of Government revenue by public representatives is one of the main reasons for the bankruptcy of the Government. Incurring an unreasonably heavy cost to please the public representatives is another important cause that had led to the heavy burden on Government expenditure. 

How big is the cost incurred to the Government for a year by the provision of private staff to the Ministers at public expense when they have already had a team of official staff? Isn’t this unofficial staff system a method adopted for the ugly purpose of giving salaries and perks to the family members of ministers? How can it be reasonable to keep eyes closed in the presence of such serious wrong doings?


Gotabaya’s candidacy

Although the next president has no executive powers, in a symbolic and figurative sense the president is considered the head of the State and the leader of the people of the country. 

When candidates are nominated for such a celebrated position, the political parties should have a responsibility not to put forward questionable persons to contest the election. In a civilised country there should be policies to prevent political parties nominating questionable persons to contest elections, ignoring the civilised norms and standards that the political parties ought to follow. 

Although Gotabaya Rajapaksa, the presidential candidate of the Podu Jana Peramuna, can be considered a talented and skilled person, it is alleged that several horrific incidents took place during his tenure as the Defence Secretary. The number of indictments made against him is huge. The nature of accusations levelled against him in the indictments is serious. 

In addition, there are two cases filed against him in the District Court of California. One case has been filed by Ahimsa Wickrematunge, Lasantha Wickrematunge’s daughter. The other case has been filed by ITJP, a South African organisation, on the issue of 10 people who had been brutally tortured while in detention camp and alleging that the Defence Secretary must be held responsible for the offence. Of the 10 persons tortured, eight were Tamils and two were Sinhalese.

In addition, Gotabaya Rajapaksa was summoned to give evidence at the habeas corpus case heard by the Jaffna Magistrate’s Court in connection with the disappearance of two student activists – Lalith Weeraram and Kugan Muruganathan – who disappeared in 2011. He had to go to the Court of Appeal to avoid giving evidence at the Jaffna Magistrate’s Court in this case.

This shows that the presidential candidate of the Podu Jana Peramuna is a questionable character who has caused great debate in the legal field. The number of indictments against him is huge. The charges against him are grave. The nature of the accusations is also serious. It is not in keeping with the dignity of the post of presidency for such a person to contest or to be nominated for the Presidential Election until and unless he is exonerated and acquitted of all charges. 


Rajapaksa Museum

Under Article 14, 1 (b) of the Presidential Elections Act 1981, a person convicted for a corrupt or illegal practice is not qualified to submit nominations for the Presidential Election. 

How can a person who has not one but many indictments submitting nominations for the Presidential Election be justified until he is exonerated of all charges? In the event of such a person winning the election, it would not be possible to bring forward the old cases against him by virtue of the presidential immunity he is entitled to. Therefore, it cannot be considered fair to give nominations to a person who has been indicted on several issues for the Presidential Election.

Gotabaya Rajapaksa had been contemplating contesting the Presidential Election. Such a person should have taken necessary steps to expedite the proceedings against the indictments, instead of attempting to delay the process. He went to the Appeal Court and the Supreme Court four times, arguing for the dismissal of the case being heard before the Special High Court against him in respect of the conversion of the premise where his parents lived and their house and the graves are located into a museum by appropriating Rs. 33.9 million to cover the cost incurred by the project from a Government institution which came under the UDA of which he was the head. Although he was not able to achieve his objective, it however delayed the special Court’s ability to hear the case and make a quick decision.

It is said that the money obtained from the Land Reclamation and Development Corporation for the construction of the museum had been repaid soon after the Presidential Election 2015. If that’s true, it can be considered an instance in which a serious offence had been admitted. Perhaps, the sum of money spent on the museum project may have been refunded to avoid litigation. However, can a person who has committed such an offence in regard to public property contest the Presidential Election?


Identity Card and passport

Out of all investigations related to Gotabaya, the investigation being made in response to a complaint of Gamini Viyangoda and Professor Chandraguptha Thenuwara in respect of the Identity Card and the passport that Gotabaya had newly obtained can be considered the worst test affecting his presidential candidacy.

According to the facts revealed in this investigation, Gotabaya Rajapaksa was granted US citizenship on 31 January 2003. As per Citizenship laws, when a citizen of Sri Lanka obtains citizenship in another country, his or her Srilankan citizenship automatically terminates and ceases to exist. 

Prior to the Presidential Election 2005, Gotabaya had come to Sri Lanka as a US citizen on a temporary tourist visa. Mahinda Rajapaksa was elected to the presidency on Friday, 18 November. Saturday and Sunday were not working days. Gotabaya had been granted dual citizenship on Monday, 21 November 2005. 

The process of granting dual citizenship seems to have conducted at an extraordinary pace. The date of commencement of his dual citizenship was 30 November. But before that, he had cast his vote and was appointed the Secretary to the Ministry of Defence on 24 November when there was no dual citizenship. In the application submitted for dual citizenship, he had introduced himself as a Computer Engineer. It is a serious offence committed deliberately and the application submitted by him should be regarded as a false document.

One of the important findings of the inquiry was that he had obtained a National Identity Card (194917210010) on 10 May 2016 and a passport (N 192600594) on 7 May 2019. Yet, following the receipt of the new Identity Card, he still used the old Identity Card, 491724021V, which had become invalid upon receipt of US Citizenship, for enrolment of his name in the electoral register for the years 2017, 2018 and 2019. Use of two NICs simultaneously can be considered a deliberate violation of the law.

At the time of conclusion of this article, I heard that Gamini Viyangoda and Professor Thenuwara had filed a case seeking an order proscribing Gotabaya’s candidacy. Perhaps the PA might have to field another candidate for the Presidential Election, instead of Gotabaya.

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