Sri Lankan elections: A new dimension

Another round of elections has been fixed and the country is turned into election mode. Elections are said to be a benchmark of democracy, and then why are we bothered when more and more elections are held? More and more elections, have we correspondingly increased democracy in Sri Lanka? What does an election mean and how does it help a democratic framework in a country? Is there anything new in Sri Lankan form of elections? Where are we heading to? This article is dedicated to find some answers to these issues.

Concept of elections and universal suffrage

“Election” has been an immeasurable topic, studied and analysed from different disciplines. It has an impact directly on politics, economics and legal sphere and it is also part of international law. For example, International Covenant on Civil and Political Rights – Article 25 guarantees “right to vote and to be elected at genuine periodic elections, which shall be universal and equal suffrage and shall be held by secret ballot, guaranteeing free expression of the will of the electors”.

Encyclopaedia Britannica defines “election” as a formal decision making process, by which a population chooses an individual to hold public office”. They are, however, not limited to electing of representatives and officers in Executive capacity or Legislature; in some countries even judicial officers are elected. Nevertheless, all categories of elections, including Presidential, Parliamentary, Provincial Councils and local authorities are within the legal meaning of elections.

Historically, elections were intended to elect “representatives” for oligarchic institutions. In other words, through elections, rulers were elected but “right to vote and to be elected” was limited to people distinguished by royalty, family ties, military control and wealth. That was the evolution of elections but with the emergence of the concept of suffrage, the electoral process became a totally different concept.

Suffrage is basically a question of who is entitled to vote, which is a central issue of elections. We have witnessed historic movements of development of suffrage from a” limited group” to a “larger group” and then to include all citizens, beyond a certain age. In order to be clear, we must also not forget that there is a concept called “universal or adult suffrage”, which consists of the right to vote by all adult citizens; and where universal suffrage is accepted, the right to vote in not restricted by race, sex, belief, sexual orientation, gender, social status and wealth.

Reportedly, it was in France, in 1792, that universal male suffrage was first practiced and in 1913, Norway enjoyed first full universal suffrage including for women. No far behind, in 1931 Ceylon recognised universal franchise for all above the age of 21.

Elections are generally associated with democracy and there is also a misconception that democracy resembles elections. This narrow view is no longer valid, particularly where many despotic rulers manipulate the electoral process to perpetuate their authoritarian regimes. Even many democratic countries failed to adhere to the principles of democracy in the electoral process. Therefore, election is a concept that is not always synonymous with democracy but democracy requires, among others, the conduct of genuine, periodic, free and fair elections. In modern democracy, what happens in between elections is as important as the election itself.

Concept of elections in Sri Lankan Law

Sovereignty of the people is a cardinal principle in our system of law. In Article 3 of our Constitution, “sovereignty” has been defined to include three components i.e. “powers of government, fundamental rights and franchise”. Further elaborating sovereignty, Article 4(e) guarantees franchise to all those who attained age of 18 years. Many other provisions of the constitution refer to elections and sovereignty and how it is exercised.

Though “right to vote” is not recognised as a fundamental right, our courts have recognised the right to vote as being embodied in the fundamental freedom of expression (Karunathilaka v. Dissanayaka (1999 - 1SLR157). To ensure “free and fair” elections, all voters must be guaranteed of equal opportunities before and prior to the Election Day. On Election Day, all voters are equal and should walk to the booth with equal right to exercise their sovereign power.

Sri Lanka’s electoral history has been marred with many notorious intrusions affecting electoral integrity. We do not practice the concept of caretaker government in Presidential or Parliamentary elections. Thus electoral integrity cannot be protected only by the Election Commission. There is ample opportunity for many officials – elected and unelected – to abuse the legitimately vested power for their personal gain during elections. Let me give a few examples: The President and Ministers being appointing authorities can appoint partisan supporters to high positions (including Directors in public corporations) seeking favours during election campaigns; Grama Sevaka Niladharies and Samurdhi officials can easily be used to change the electoral registration process; the management of State media institutions can be used as “propaganda tools” favouring the candidate backed by them; entire State assets can be released for the use of one political party through “undisclosed” directives.

All these abuses, by its nature, amount to “corruption” and, therefore, many democracies have taken measures to deal with them at all levels, not being confined to virtually ineffective post-election judicial challenges.

State resources – Key form of abuse to manipulate elections

Election monitors and political parties in Sri Lanka for several decades concentrated on “monitoring the polling booth” as the place where most of the violations took place. Use of force and impersonation were the main unlawful methods resorted to by political parties to win elections.

Notorious elections such as Jaffna DC Election (1981 during JR Jayawardana period) and Wayamba PC elections (1999 during Chandrika Bandaranaike period) will never be forgotten for this type of abuses. However, during the last decade, more and more efforts were successfully made to identify how elections are, in fact, “fixed” much before the Election Day – by resorting to “abuse of State resources”.

Reports issued by Transparency International Sri Lanka (TISL) during the last two Presidential Elections and General Elections gave, for the first time, voluminous evidence of the level to which the government in power used “public resources for their political gain”. There is plenty of evidence to establish that the scale of abuses is sufficient to change the final result of any election.

Justice Mark Fernando’s pronouncement in the leading case of Mediwaka v. Dissanayaka (2001) 1 SLR 177 @ 214 throws light on the depth of the issue:

“I must hasten to add that a genuine, free, equal and secret poll is not confined to what happened within the polling station……. A genuine democratic election by universal and equal suffrage demand many other safeguards; including but not limited to (a) proper and timely registration procedures, which ensure the speedy inclusion of all citizens entitled to vote and the exclusion of all those disentitled, as well as the prevention of duel registration and the impersonation of the dead and the absent, (b) ensuring that during the pre-election period all candidates are allowed the freedom to campaign on equal terms and without unreasonable restrictions, with election laws being enforced, and uniformly enforced, and without any misuse or abuse of State media, resources and facilities; and (c) the prevention of electoral wrongdoing, and whenever that is not possible, the prompt investigation and prosecution of election offences.”

Many governments have abused State resources in Sri Lanka for electoral purposes. With my experience in closely monitoring many elections, particularly the abuse of State resources, I can without any hesitation state that the Rajapaksa regime will go down in history as the most innovative and costly violator of State resources.

To remind the readers of the nature of such violations, let me mention a few – using State vehicles, helicopters and all possible methods of transportation, releasing public officials and employees of public corporations for elections, securing without any payment costly advertisements from public institutions published in newspapers and hoardings, using many possible buildings belonging to public institutions, all possible facilities at official residences including Temple Trees, State broadcasting facilities and State media of every description. The expenditure of the abuses are costlier because many of those holding high positions in the regime and their families are used to high spending at public expenditure!

Weak electoral scrutiny and accountability

When one considers the election petition procedure, judicial decisions and present election law, there is hardly any chance to unseat (or recall) an elected member in any election. Further, main “election offences” that are described in election laws of the country require permission from the Attorney General (AG) for prosecution.

For example, corrupt practices and illegal practices defined in the Presidential Elections Act No. 15 of 1981 can only be prosecuted with the sanction of the AG. Another issue is that abuses of State resources, irrespective of its impact on the outcome, have not been criminalised. Under the 17th Amendment, the Elections Commissioner then had authority to somewhat effectively prohibit the use of all State assets for the purpose of promoting or preventing the election of any candidate but this provision was diluted with the 18th Amendment.

The legislative history shows beyond doubt that the only motive for the Rajapaksa regime to clip with the Elections Commissioner’s powers through the 18th Amendment was to ensure a full weight for the governing party to exploit State resources for their benefit in full swing, without any hindrance from the Election Commission. In my view, with this, no reasonable peaceful electoral victory can be expected by any opposition in Sri Lanka now on.

There is no effective institution that is capable of dealing with the election abuses. The institutions that are expected to impede the abuses are all politicised and under the control of the politicians having vested interest in elections. Be it regulatory bodies, public corporations or law enforcement officers, all are subject to this dilemma. The Election Commission has not been appointed for almost 11 years and is operated through the Elections Commissioner. Virtually, the Commissioner is clipped of his powers. The Government is not prepared to accept reasonable criticisms from any one; not to mention comments from the Elections Commissioner – the best example in recent times is the angry response and denial of the Government when the Commissioner said that a scattered election was costly.

“Abuse of state resources” is not criminalised but most of the abuses, in my view, can be dealt with by the Bribery Commission because all elements of corruption can easily be recognised in the abuse of State resources. However, this Commission has constantly failed to take note of and take action against abuses of State resources. Similarly, the Auditor General has failed to prevent the release of State resources during elections, though these abuses cost billions of public funds. Apart from the systemic issues, the institutions are struggling with the socio-political atmosphere which prevents majority of individual officers taking up these issues fearlessly, not to mention white vans.

Under our system of law and constitutional traditions, Parliament is responsible for public finance and the Finance Ministry is expected to follow up with all compliance. Secretaries of the Ministries are the chief accounting officers. This structure cannot, in the present day, play any effective role because Parliament seems irrelevant in controlling public finance when the Executive is determined to “spend”, and in any event, Parliament has now lost its independent scrutiny power with the Presidential system. The fact that the President is the Finance Minister has hampered even further the scrutiny process in relation to electoral expenditure, because the President has vested interest in all elections in the country.

Election to election seasons

President Rajapaksa should be given the credit for innovatively replacing the term “elections” with “election seasons” – where particular elections such as Provincial Councils and Local Authorities are held from time to time – and sometimes, throughout the year. In strict legal interpretation, such electioneering is not prohibited in law but undoubtedly undesirable for many reasons.

Presidential and Parliamentary elections must be held on the day allocated for such elections and it cannot be scattered or stretch for many days to suit the political party in power. Look at the cost aspect and adverse societal impact due to continuous elections. As recently admitted by the Elections Commissioner, the cost is “simply higher as the central operational cost is high”.

What about the cost of advertisements and preparatory costs of parties and officials which increase manifold when elections are not held on a single day. We have also seen elections often interrupting with school work, public examinations, public and private sector voters and officials, security arrangements, etc.

None of these are considered when fixing a date for elections – shamelessly, in Sri Lanka the horoscope of a political leader determines the date of election! “Election seasons” naturally make the Governing party at an advantageous position because for them the state machinery is available for propaganda and so on; not for the Opposition. With the present ‘national political philosophy,’ other factors such as national economy and societal or national interests are never relevant.

Anyway, another election season has now commenced. Who is responsible for fixing the election, in law? Firstly, the Government in Sri Lanka does not mean Parliament but primarily, the President and Cabinet. The President does not come into the picture in the legal framework in dissolving a Provincial Council or a local authority and it is done through a Governor or the Cabinet Minister in charge of Local Authorities. However, for all practical purposes, the President has full control over the Governors and the Minister in charge of Local Authorities because both of them hold office at the pleasure of the President. They are also not holding independent positions to decide a political issue, independent of the President.

Secondly, the Elections Commissioner has no authority to dissolve a Provincial Council or a Local Authority and his powers are limited to conduct of the polls, once a political decision is taken to hold elections. Elections have different connotations in Sri Lanka and it has an effect of crippling the normal functions of schools, work places, general administration and so on. Even if the elections are held in one Province, there is “election fever” having effects on other provinces. This has a drastic adverse impact on the economy, let alone the cost of holding elections.

Media hype of the government will change the country into a victory mood of the party in power leaving the public with almost no alternative but with a captive and partisan “media culture”. Participatory democracy requires a resting period for the public to decide on other aspects of life.

What is new?

Elections have a legitimate purpose, but the present trend of elections in Sri Lanka is certainly something. It is only an instrument to show power and divert attention of the communities away from possible governance challenges on the ground.

Future elections will have (two new) different dimensions. The increased role of the military and commitment to keep the regime in power forever are the two new notions, on which the elections will be based in future Sri Lanka. These two approaches seem unnoticeable to an outsider. Let me explain this briefly.

The military getting involved in taking decisions affecting elections was not uncommon. Probably the first instance in Sri Lanka was during the 2001 General Election, where the military on their own (obviously on the tacit instructions of the Executive) prevented the Tamil voters living in the then LTTE-controlled areas from coming into polling booths, which had been arranged in Government-controlled areas. However, the Supreme Court, having considered a petition filed by affected voters, held that such interference by the military is unconstitutional. (Thavaneedan v. Dissanayaka 2003(1) SLR 74).

That took place during a period where the military was not engaged in a war. Now things are different. The partisan use of military was evident in the last Presidential Elections where the serving military officials directly campaigned against a particular candidate Mahinda Rajapakse. There was evidence of military vehicles transporting election publications against a particular candidate – General Fonseka. Contrary to the well-established norms in public service, found in the Establishments Code, the Secretary Defence, who enjoys de facto immunity, was seen campaigning for his brother. This is only what we know in the public domain but obviously much more would most certainly have happened.

The problem at present is the psychosomatic condition of the undecided voters, who will be made to think that even if the opposition wins an election, the military will not allow a transfer of power. The role of the military under this Government has been converted from “national security” to a “saving the Regime” and therefore, the military is seen as an instrument of protection of the Regime and its political leadership. Silence of the public makes things worse for themselves.

There are haunting lessons from the Asia Pacific region on the use of military at elections and its ramifications. Probably the best example is from the Philippines. I reproduce below from the often quoted publication titled ‘The Military and Democracy in Asia and Pacific,’ where the academic writer Viberto Selochan has summed up the dictator Marcos’ journey and involvement of the military:

“When he was elected president of the republic in 1965, Ferdinand Marcos believed that in a developing country where the military was not occupied with external threats, it should assist in developing the country. He used the military in civic action programs and to enhance his chances of being re-elected. Marcos was the first Philippines president to be elected to a second term in office. Constitutionally deprived of seeking a third term, Marcos declared martial law in 1972 and facilitated the military’s playing a larger role in government. When he was forced to leave office in 1986 elements in the military found difficulty in adjusting to the requirements of the democratic system restored by Corazon Aquino. To assist in this process, military personnel were subjected to instruction in democratic principles and the role of the military in a democracy. Yet Aquino had to endure seven attempts by the military to seize political power.”

For all countries which had experienced democracy prior to militarising civilian administrative, what Marcos has done cannot be forgotten. Judging from the political atmosphere in Sri Lanka and from the conduct of the top brass of the political elite, there is no doubt that the element of militarisation of the electoral process has entered from the backdoor. Let me reiterate that when the electoral mechanism is manipulated with abuse of State resources and when the civil administration is totally politicised, the only element that was missing to stage-manage the elections is the availability of a strong military “supporting the political masters”. This is what we see now!

Conclusion

We hear every day in media quoting some one or the other of the Government is that “people vote for us so what is your problem?” This question was earlier directed to the national voter base; now it is directed also to the international community. The real test of democratic elections is the ability to change the existing government and therefore, in all working democracies, governments do change regularly. The corollary is also true. If the governments do not change with “elections”, then either the democracy does not work or the electoral process is manipulated in such countries.

As I started this essay, I emphasised that the elections were initially held to elect people for oligarchic institutions. Elections were only limited then to people distinguished by royalty, family ties, military control and wealth. I pose the question now to you – have we passed the history or is history repeating itself?

We are faced with a national challenge to re-establish values in all processes, including integrity of elections. Probably the masses, clergy or the so-called political parties may not have realised the seriousness of the situation. Should we be silent? Let me wind up with often quoted words of Mahatma Gandhi: “A small body of determined spirits fired by an unquenchable faith in their mission can alter the course of history.”



(The writer, LLM (Colombo), is a Constitutional Lawyer, former Executive Director of Transparency International Sri Lanka, National and International Election Observer, Eisenhower Fellow and Senior Ashoka Fellow.)