Electoral Justice and Rule of Law: Undermined by social hierarchies | Sunday Observer

Electoral Justice and Rule of Law: Undermined by social hierarchies

The week of 27 August was active and progressive for the Election Commission. First, we had the “Asian Network for Free Elections” where some 200 people representing 50 nationalities turned up. In my address to the press, I quoted John Donne, “No man is an Iland, intire of itselfe; every man is a peece of the Continent, a part of the maine;if a Clod bee washed away by the Sea, [Sri Lanka] is the lesse, …And therefore never send to know for whom the bell tolls; It tolls for thee.”

Democracies stand by each other. We rise and fall together. We share experiences and build on them. That is why we came together.

Sweden’s Bruno Kauffmann said indices for democracy were rising, while the closing statement, the Colombo Pledge, alluded to “deteriorating democratic conditions across Asia” and committed to creating “sustainable Asian democracies.” We need to be careful not to appeal to nationalism and sovereignty to defend what often passes for democracy. Asian,third world, practices of observing social hierarchies subvert our democracies. In contrast, the stricter commitment to the rule of law in the [pre-Trump] West is what made Kauffmann see democracy positively.

Friday saw the workshop co-organised by IFES (the International Foundation for Electoral Systems) and the Election Commission on Electoral Justice– the rule of law, its impartial implementation, the level playing field (which includes campaign finance, accountability), etc.. The Human Rights Commission, Attorney General, Legal Draughtsman, and other stakeholders were represented.

These were both enlightening exercises because it is the human condition to see ourselves in positive light. It is others’ perspective that provides us a window into ourselves.

In the spirit of sharing experiences, I was picked by the Commonwealth Secretary-General, Patricia Scotland in my “individual capacity” to be an Observer for Pakistan’s 2018 elections. All 14 Observers were of African or Asian stock, save one, who came late and left early.

That experience was a window to Asian Democracy. On Aug. 21, Hanif Abbasi, an ally of outgoing Premier Nawaz Sharif and a candidate, was found guilty of misusing his powers to allocate more ephedrine than his company needed in 2010 and selling it to narcotics dealers. With elections due on the 25th, the Anti-Narcotics Court revived the case first heard in March 2011, delivered the verdict of life imprisonment (thereby disqualifying his candidature), and announced it at an 11 pm press-meet.

Observing with Fiji’s Shamima Ali in the Punjab, we both saw many violations and told our group when we re-gathered in Islamabad. Our experiences were dismissed as an aberration. Our Chairman asserted that we were there to strengthen democracy and not to disrupt Pakistan. Despite Pakistan’s Human Rights Commission, the press, and civil society raising several concerns, our report by consensus watered these down. It declared the election “an important milestone in strengthening democracy” and commended the people of Pakistan for their “commitment to exercising their right to vote.” In contrast, the EU Observer Mission headed its report “Positive changes to the legal framework were overshadowed by restrictions on freedom of expression and unequal campaign opportunities.”

They added, “A number of violent attacks, targeting political parties, party leaders, candidates and election officials, affected the campaign environment. Most interlocutors acknowledged a systematic effort to undermine the former ruling party through cases of corruption, contempt of court and terrorist charges against its leaders and candidates.”

The EU press-meet was scheduled for 4-5 pm and ours 5-6 pm. It was too late to redo our report after hearing the EU. Ms. Ali and I were vindicated when Pakistan’s Free and Fair Election Network gave data showing Punjab to have had the most violations except in holding rallies in religious establishments, in which they ranked second worst.

The Commonwealth report’s style is captured in Disney’s Bambi where Father Rabbit told son Thumper: “If you can’t say something nice, don’t say nothin’ at all.” Sri Lankans follow this adage praising our positives and suppressing weaknesses. Our democracy is really for those in power,not for religious and ethnic minorities. Even though the 19A gives hope, it is undone by our tendency to tribalism and to suck-up to those above.

Election Commission

Our Supreme Court erroneously ruled that the only reason for rejecting a nomination must be in the narrow list in the laws, even though they are not declared exhaustive. So we accepted many improper nominees – e.g., dual citizens and those ineligible for registration as a voter. From our colonial government servant culture, we do only those things explicitly listed as our duty and ignore our broader constitutional mandate to uphold election laws. We fail in not re canvassing the Supreme Court or Parliament; and in not filing cases to remove those improperly nominated and elected, which we expect a public-spirited citizen to do.

Moreover, although the Election Commission has no Commissioner now and three members with one a Chairman, old habits die hard. The Chairman is referred to as Commissioner and Head of Commission by almost everyone including our staff, the press, government and opposition. When I asked an Additional Commissioner to do something, he responded, “Have you checked with the Commissioner?” Outsiders ask the Chairman to do this or why he has not done that,and to make commitments without reference to the Commission. It is as if this significant democratic amendment never happened. Furthermore, in the last Local Government Elections, the UNP manifesto promised Rs. 500 million to build Buddhist temples in the North. No action. I personally photographed an election rally at a temple by Minister Vijeyakala Maheswaran. The complaint “cannot be found.” We boast at meetings of some seven hundred prosecutions. These are for minor infractions for which the Rs. 500 fine is readily paid by the offenders’ political bosses.

The AG, as the Government’s lawyer, is the people’s lawyer. When a state official abuses his position and is challenged in court, as the upholder of the law and the people,the AG must advise the official he is wrong and to settle. But our AG wants to win and loses sight of his function. Thus,many technical objections are raised so as not to address the substantive issue of the official’s lawlessness.

This ‘must win’ attitude reached scandalous proportions when the UGC’s ordinances were violated by universities and challenged by an abused academic. As the lawyer for both the university and UGC, the AG argued that the university was right and let down the UGC.

When I, as UGC Member then, pointed out the conflict, the AG demanded that I apologise and refused to represent us until then. Errant government institutional heads, however roguish,will not be let down by the AG. Currently, I am aware of cases where a university has been abusive and the AG has used technical objections and no-shows for two years to avoid argument on the substantive issues. Recently as Parliament took up the Provincial Council Bill, the AG failed the people by not advising the Speaker that standing orders were being violated in considering substantive changes in Committee. Now we have an Act that, after certification by the Speaker, cannot be challenged and the very people who steamrolled it through do not want.

Is it any surprise then that in the 2015 campaign,the previous government abused state media and transport services and huge bills remain unpaid? Will the AG file action?

In 2005, the LTTE was paid to prevent 600,000 Northern voters from voting. Tiran Alles has been charged. AUS WikiLeaks cable tells us that he implicated a senior politician in that transaction in a detailed affidavit. Why has the AG made no serious attempt to make Alles a state witness? Is the politician too big, or are 600,000 Tamil people’s electoral rights insignificant? A criminal offence, it enjoys no statute of limitations.

Can we trust our judges to do the right thing?The brazen judicial misconduct in Pakistan naturally led to a conversation with my fellow observer from Britain, Judge Shamim Qureshi,on judicial corruption.I told him of my failure to eject a non paying doctor to whom I had leased my house in Bambalapitiya without a single hearing nearly a year after filing because those serving papers asked to be ‘looked after.’ My lawyer will not complain because if she does her cases will never move.

Qureshi said Britain overcame misconduct by not taking up a new case until what is before them is finished. I have sat through a Magistrate’s Court where the morning is to postpone cases. “Things happen,”Qureshi said, only during long lapses between hearings.

In the ‘Helping Hambantota’ case, according to ColomboPage (18.10.2014)CJ Sarath Silva “confessed…that he had delivered a judgment favourable to then PM Mahinda Rajapaksa,”who was accused of misappropriating Tsunami funds.

Says Kishali Pinto-Jayawardena the judgement “symbolised the pattern of law and justice being subordinated to political preferences.” Justices Shirani Tilakawardena and N.E. Dissanayake had signed “I agree” on the judgement.

When justices boast of their favouritism to politicians, why call us out for contempt? As Pinto-Jayawardena records, it was an amusing spectacle to see the Attorney General resisting interim relief being granted by the Court to President Rajapaksa prior to the elections but deciding “not to continue” with the case after Rajapaksa’ selection as Executive President.

Interpretation Ordinance

Provincial Elections are overdue. Prof. GL Peiris argues that under Section Six (ii) of the Interpretation Ordinance, the PC Act has not come into force because Parliament has been negligent in approving delimitation in time, and therefore the old Act is still in force and we should hold elections under that. The AG has informally advised the Commission that Peiris is wrong.When that was conveyed at the Commission, I was doubtful and consulted lawyers if we may use Peiris’ argument to uphold the franchise of the people. I was advised, “What is the point? They will apply for a stay order. The Supreme Court will happily comply as in the Geeta Kumarasinghe case. As the matter drags through the court for years on an obvious matter, in the name of upholding justice, justice will be denied to the people as their constitutional right to franchise continues to be violated.”

Is our Supreme Court willing to expedite cases of national importance by taking up no new cases until what is on the table is dispensed with, as advised by Qureshi?

Corruption, financial and political, is endemic to both parties and until that changes, Sri Lanka will remain a dead democracy. We cannot take our leaders at their word. The Opposition, which demands immediate PC elections, was happy to postpone them when in power. There are no prosecutions after the promises of 2015 and in Geneva. Corruption continues.

The corrupt will not want elections. We need a judicial system that treats all equally and an electoral system that will hold all officials accountable to their word. When politicians trick us with promises,they must be answerable.For that, big or small, the legal system must treat us equally and elections must be predictably regular for us to endorse our representatives.

As Prof. Peiris says, making laws and not doing what they require to be done, can be an easy means to postponing any election. A Provincial Council Member pleaded with the Commission, “The Europeans gave us the franchise. I ask only for the same from you.” But that franchise has been robbed by Lanka’s Parliament and not the Commission.

The writer is an academic and a member of the Election Commission of Sri Lanka.

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