On the 26th January the election for the position of Executive President was held in Sri Lanka and the election commissioner declared the incumbent president, Mahinda Rajapakse, as the winner. The common candidate for the opposition, retired general Sarath Fonseka, rejected the results stating that the announced results were false due to the prevalence of violence, electoral fraud and tampering of the counting process itself. The commissioner while announcing the results to the nation in a televised message stated in strong terms that he was subjected to severe pressure and humiliation to an extent that he was unable to bear it any longer. All commentaries on the election commissioner’s speech interpreted it to indicate that he was not satisfied with the conditions under which he had to carry out his duties in conducting the election in a free and fair manner.
Very clearly, the question as to whether Sri Lanka is any longer capable of conducting a free and fair election has been raised in this election. It is not only the electoral process that is under challenge but the very process of receiving, preserving and counting of the ballot at the commissioner’s office itself which is the issue that has been prominently raised. Besides this, the enormous abuse of state resources by the government for its electoral purposes and particularly the blatant abuse of the state media for direct propaganda to request people not to vote for the opposition candidate, in defiance of the commissioner’s direct interventions, have all contributed to the creation of the overwhelming impression that the conditions for a free and fair election were not observed during this election.
The problem of the difficulties in ensuring a free and fair election was recognised previously. In 2001 the amendment to the Sri Lankan Constitution of 1978 was passed in the parliament with rare unanimity which, among other things, created a Constitutional Council in order to ensure proper appointments to several important public institutions with the view to preserve professionalism in the government service. This was the result of a widely held realisation that political interference which had crept into the public service since the introduction of the executive presidential system in 1978 has contributed to the deterioration of standards in all public services and this deterioration was referred to as ‘politicisation’. This simply meant direct interference by the executive president and his agents into the running of the public service to an extent to make it impossible for it to function professionally.
Among the institutions that were recognised as being polluted by ‘politicisation’ was also the department of the commissioner of elections. Under Article 3 of the Constitution an amendment was introduced regarding the election commissioner. Under this article it was legislated that ‘there shall be an election commission consisting of five members appointed by the president on the recommendation of the Constitutional Council, from among persons who have distinguished themselves in any profession or in the field of administration or education. The President shall on the recommendation of the Constitutional Council, appoint one member as its chair.’
The governments since 2001 have refused to comply with this constitutional provision. The present commissioner of elections who was appointed to the position before this amendment was passed reached his retirement age in 2002. However, as no election commission was appointed according to the new provision he had to continue in office due to the absence of a substitute. On several occasions he publically requested permission to retire and as there was no satisfactory response from the government he even went before the court and sought permission to retire. The court refused his request on the basis that until a substitute was appointed under the constitutional provisions he had to remain in his post. Even the courts did not intervene to ensure that the government complied with the constitutional provision to appoint an election commission.
The failure on the part of the government to appoint an election commission consisting of five members nominated by the Constitutional Council has been perceived by all observers as a ploy to prevent the conduct of free and fair elections without political interference into the working of the election commissioner’s office. It was this situation which has led to the final outburst of the commissioner in which he voiced his frustrations to the entire nation in announcing the election result on the 27th January. Several of his comments are reproduced here due to their importance on any future discussion on this issue. (Translated from Sinhala by Roshan Fernando, quoted from Lanka Guardian).
"Under the empowerment of the Elections Commissioner as indicated in the 17th Amendment to the Constitution, I issued specific guidelines to the state media that were duly ignored. I then installed a Competent Authority for the state media who was completely disregarded. I then met the heads of state media but to no avail. I realized that this was a hopeless cause and so I had the Competent Authority removed.”
" I was able to note that during the election, many state institutions operated in a manner not befitting state organisations.”
"Some blamed me saying that my task was to ensure that the ballot boxes were safe and to ensure that the counting was done right. But under the circumstances I faced today, I could not even ensure the safety of even one ballot box. I did my duties during this time under great duress and mental agony.”
" I hereby state that the situation has reached a dangerous level that is beyond me. I am also advanced in years and have served in this capacity for eight long years so I only ask that I be released from this thankless duty.”
"It is impossible for me to work in peace under the circumstances – I am constantly under stress and find that I may fall sick and have to face consequences of such an illness.”
"Regional leaders harassed my team and I in several areas such as Puttalam, Anuradhapura, Matala Districts, they even bothered the counting centres. This is not a good trend. In fact, it reached an uncontrollable level of verbal abuse directed at Presiding Officers and Asst Elections Commissioners. “
"I have been accused of favouring one party in the process of carrying out my duties. I regret that it is no longer possible for me to suffer such indignity and insult – I am not able to do so physically or psychologically.”
Quite clearly, until the electorate is assured that the process of elections is not abused by violence, by the use of state resources in favour of the party in power, by the abuse of state media and without the tampering of the ballot in the process of receiving, preserving and counting at the commissioner’s office it would not be possible to create public confidence in a free and fair election. However, this cannot be done until a commission of elections is appointed in compliance with the 17th Amendment to the Constitution.
Basil Fernando is Executive Director of Asian Human Rights Commission, Hong Kong.