Musings on the Rule of Law and Ethics for Election Commissions

Musings on the Rule of Law and Ethics for Election Commissions

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A Keynote Address delivered by S. Ratnajeevan H. Hoole at the Fourteenth International Electoral Affairs Symposium under the auspices of the International Centre for Parliamentary Studies at the Jetwing Blue Hotel, Negombo (25-26, May 2017).
While my subject is the design of electromagnetic devices, I am also asked often to teach ethics for engineers which we must include in our treatment for degree accreditation. Last week Chairman Mahinda Deshapriya gave a fine interview with the Daily Mirror. He challenged the government for delaying local government elections. I think he set a fine example for all election administrators in leadership. It is therefore natural for me to muse on the Rule of Law and Ethics for Election Professionals.

Ethics for Election Professionals

It is my intention to explore the limits of ethical behavior for a member of an Election Commission. The usual model is for us to be faceless civil servants. This, I question. In this exploration, rather than ask if something is ethical, I will describe the state of politics in Sri Lanka and let you,the listener, ask yourself whether it is ethical for me to say what I will now say. I hope you will affirm my duty to say what I say.
It is conventional wisdom, as I have noted, that we election administrators keep away from politics. I have been told that I have no political rights as a Member of the Election Commission. In Sri Lanka we make much of our nominations for office by our Constitutional Council of ten persons as if to suggest that we have no politics behind us.
Rubbish, I say! These ten persons of the Constitutional Council include 7 politicians who, with the exception of the JVP nominee, belong to the government – and I count the Tamil National Alliance, the TNA, here among the six government MPs. Most worked against the outgoing regime in January 2015 or at least were sympathetic to regime change. We cannot, by any stretch of the imagination, be claimed to have been appointed by a neutral body.
I had been writing a weekly newspaper column and had to flee, after I reported the rigging of local government elections in Kayts in July 2011. A Minister of the then government moved the magistrate to issue an open warrant for my arrest. I returned in August 2015, and was tapped for the Election Commission while out on bail. The police had stalled for two years for time to investigate the former government’s charges. Two months ago the new magistrate threw out all charges saying he did not believe the police had any investigation going on. With that experience, I am not neutral. Indeed, I am partial. I believe with my all, that justice must be fiercely upheld. There can be no free elections without justice.
As for keeping away from politics, yes, party politics is not permissible for us because we are the arbiters in electoral dispute resolution. On the other hand, when a party engages in hate speech for example and we put a stop to it, it is expressing political views without engaging in party politics. A football referee who calls a foul is not being partial. His neutrality demands that he blow the whistle against a foul.
Moreover, in all matters of rights and ethics, there is a hierarchy. For example, the right to life of the UN’s CPR must, when in completion, trump the right to vacations with pay in the Convention on ESCR. Likewise, when policies of government threaten the life of a nation or a section of its people, the right to life must trump any need for, or the ethics of, political neutrality by Election Commissions.
So let me please express myself today. Let me say that as a member of the Election Commission, I will always uphold the mandate of the people. However, it does not mean that we make no moral judgements. As thinking persons, as moral persons, we act strictly on ethics considerations.

January 2015

The Winds of Change from January 2015 were a watershed in Sri Lanka’s political history. Before that Tamils had been, according to UN reports, slaughtered in several tens of thousands. Muslims were attacked and Churches burnt. White vans plied our streets, disappearing opponents of the ruling regime. There were calls to eject us from the Commonwealth because of our violations of human rights; Canada boycotted the Commonwealth Heads of Government Meeting in 2013. We were under the UNHRC’s microscope for human rights violations and genocide. Corruption was visible everywhere. There were 97 ministers out of 173 government MPs in a parliament of 225 MPs. It was a sign of our corruption as MPs in opposition were induced to join the government through a ministerial seat on the cabinet. Our GSP-Plus status for easy exports to Europe was revoked. The UN Human Rights Council was readying to charge Sri Lanka.
Then the dark stormy clouds over us lifted in January 2015. A new government was in place promising change. And change there was. White vans are no longer heard of. Tamil and Muslim parties became part of the ruling coalition. Tamil areas saw demilitarization. People no longer lived in fear. A constitutional change clipped the wings of the president limiting terms to two. Independent Commissions were created under the Nineteenth Amendment. These included our Election Commission. The size of the cabinet was limited to 30. A Tamil Chaired the Delimitation Commission. Tamils were suddenly proud to be Sri Lankan.
The two major parties of the Sinhalese people for the first time joined hands in effecting these changes. After a long time a major Tamil party, the TNA, was in partnership with the government. However, the TNA chose to sit in opposition despite the partnership. The reason was caution. Previous deals between the Sinhalese ruling party and the Tamils were reneged as the other major Sinhalese party claimed a sell-out. This time both parties were in power together as a national government. Neither party would, neither could, claim a sell-out by the other. So there was hope.

The Sputtering Engine

 

However, even when the government was new, there were indications of an intention to cheat. The Nineteenth Amendment limiting cabinet to 30 had an escape clause for forming national governments with the permission of parliament – a trivial requirement for any government with a majority. There were 47 cabinet ministers now.
Two years later, the engine is sputtering. The mandate to clean up has not been fulfilled. Private Tamil lands taken over by the army and promised to be returned, are very slow in being returned. Refugees away from home can never participate fully as candidates or electors. The President and the Prime Minister insist that Buddhism will continue in the new constitution as the foremost religion with state sponsorship. Generals who murdered Tamil civilians have been declared national heroes who will never be prosecuted. It is a free pass for anyone wishing to massacre Tamils.When a minority’s right to life is so challenged by policies of government as is happening in Sri Lanka now, for us to remain silent is suicide. For, people living in fear can never participate in elections.
Local Government Elections, overdue in some Tamil areas from at least 2013, are yet to be held.

The Tamil leader, Rajavarothayam Sampanthan, says in frustration that he is at the end of his tether. Generally, accusations that the government has no intention to fulfill promises of reconciliation and justice for victims of war crimes, are widely accepted by Tamils. Mr. Sampanthan himself – I think I assess correctly – is being widely blamed by Tamils for being taken for a ride again. God forbid! Tamils who voted overwhelmingly for this government, I doubt will be so trusting again. That forebodes ill for a united Sri Lanka.
What went wrong? I believe it is the fact that there is no rule of law despite the appearance of all being well. There can be no fair elections without it. As Rajan Hoole of the University Teachers for Human Rights said, everything is puluda (meaning bluff).
In the two years the government did little, it made the people skeptical of its intentions. To effect the constitutional changes necessary for reconciliation, the government needs a two-thirds majority. This means accommodating as ministers the very crooks the people kicked out using their vote. This goes to the heart of the rule of law and democracy. Should the government, while claiming the rule of law, selectively prosecute well-known crooks from the outgoing government while exempting those who join it from accountability? Are the means of accommodating crooks in government, justified by the end of possessing a two-thirds majority to effect the noble changes promised?
The government has lost the enthusiastic support of many who voted for it. Tamils, by and large, believe that the government’s promises contained in UNHRC’s Resolution34/1 on promoting reconciliation, accountability, and human rights will never be kept.
 

The Eviscerated Rule of Law

 

Democracy is upheld by the law. The law in turn is upheld by the judiciary. Our judges at the highest level are politically corrupt as brought out by the saga of our Chief Justice Shirani Banadaranayakebeing sacked and put back.
Our tainted judiciary is best exposed by former Chief Justice Sarath Silva in the Helping Hambantota case. Quoting from Colombo Page of 18.10.2014, “Mr. Silva confessed to BBC Sinhala Service that he had delivered a judgment favorable to then PM Mahinda Rajapaksa.” Mahinda Rajapaksa was accused of misappropriating tsunami funds.
In the rape and murder of Krishanthi Kumaraswamy, the 17-year-old Tamil school-girl and the 25 Sinhalese school-children of Embilipitiya forcibly disappeared in 1989 by soldiers, the ICJ says “junior officers were convicted while their superiors were left untouched, despite evidence that responsibility for these grave crimes lay higher in the chain of command.”
The International Independent Group of Eminent Persons was nominated by donor countries and our government to observe the Commission of Inquiry into alleged human rights abuses. Its history completes the story of our judiciary. They withdrew because our Commissions were biased and did not go by international standards.
War crimes culpability goes very high up the Sri Lankan chain of command. General Sarath Fonseka, a minister in the present government, has stated in an interview with Frederica Jansz that then Defense Secretary Gothabaya Rajapaksa – the former President’s brother — had spoken with Brigadier Shavendra Silva, Commander of the Army’s 58th Division, giving orders not to accommodate any LTTE leaders attempting surrender and that ‘they must all be killed’. Fonseka, by his own admission, heard the defense secretary order murders. Yet, he did nothing. In law, this may be construed as a war crime. How is he a minister in our government?
Our government claims that our war crimes can be professionally handled by our tainted judiciary without the foreign participation called for by the UN HRC. At the same time, our President says the accused killers are heroes whom he will never allow to be charged. When Tamils have no right to life, can they be fearlessly free to vote and stand for elections?

 

A Partial Judiciary’s Effect on Elections

 

The earliest judicial electoral meddling in Sri Lanka was when hill-country Tamils who had been voting at independence and who, it was presumed would continue to vote, were rendered stateless and voteless. The judiciary failed them. I think the Election Commission, as part of voter education, must comment before we boast of our democracy.
Then the demise of Article 29 of our 1947 Constitution. It required advantages and disadvantages from legislation to affect all communities equally. In the 1972 Constitution it was completely removed and Buddhism was awarded foremost place with state fostering. As election professionals we know that offering arrack in exchange for votes is wrong. Is offering to foster the religion of one community for votes very different?
As a Commission, we discourage parties having words like Tamil, Sinhala, and Buddhist in their name. Consistency then demands, a fortiori, that we also decry this partiality to Buddhism.

Cross-overs
Moreover, from our early years, MPs elected from one party moving to another has been justified on grounds of conscience. Article 99(13) of our 1978 Constitution provides thatMPs expelled from their party lose their seat. Yet, when such expulsion is challenged, our Supreme Court typically allows an MP to remain in parliament even after leaving his party. This seriously challenges the sovereignty of the people and demeans respect for their franchise. So bad had been the practice that in the 2010 parliament, after getting 144 seats, the government induced 29 cross-overs to get 163 seats.
Tissa Attanayake, then UNP General Secretary, addressed a meeting on 27.07.2013 where he said the government is buying opposition MPs through cross-overs for millions of rupees to win the election. So powerful must have been the inducements that even Tissa Attanayake crossed over just before the 2015 elections claiming to show a signed secret deal between Maithripala Sirisena and Ranil Wickremesinghe. The signatures were allegedly forged, and he was arrested. In our murky state of politics, Attanayake has now been invited by the UNP to come back to its fold. It would appear that the charges will be withdrawn if he comes back. Should the Election Commission not comment? We need to take on issues of real substance, rather than putting all our focus on things we all agree on like voter registration.

 

Our much touted voter education on registering to vote becomes an empty boast when the people’s mandate is thwarted like this and elections are postponed.

Depressing Experience

There are errors in the law which need correction before the long overdue local government elections can be held. Mr. Deshapriya had asked for these changes from over two years ago before the time of our Commission. Minister Faiszer Musthapha said last week that the changes to the law had been approved and would now go to parliament.
I was elated.
It was a good moment for me to address the women interested in politics and political party representatives in Vavuniyain the North, fortuitously scheduledfor 19 May.
However, the daybecame one of mixed feelings. After promising to commemorate May 18 as “Day of Remembrance” for all who died in the war, news came that the government made it a ‘War Heroes day’.The government seemed only interested in Sinhalese votes. Those upholding the integrity of elections and appointed by such a government – the police, judges, and even the Election Commission – become suspect.
On my way to Vavuniya, around 7:00 AM on the 19th, we passed Muhamalai just before Pallai where several soldiers and policemen were on the road. Web-newssaid that someone had shot at a soldier and missed.
As I spoke to Tamils, the general view was that the incident was staged to refuse to withdraw the army. “See,” said a Tamil government official, “By Sunday Colombo newspapers will report that the LTTE is regrouping.”And they did.
The peoples of Sri Lanka have their own different versions of history. Even at the Election Commission, we could not agree on the preamble on history for our Strategic Plan, and had to droplarge sections of it. That we agreed to disagree without quarrelling shows the Commission to be functional.

Pressure for Human Rights
It was the pressure of the international community that encouraged us to civilized behaviour. The withdrawal of GSP-Plus had its salutary effects. Then suddenly last week, it was restored even though most of the conditions for its restoration remain unfulfilled. I am happy indeed for those who can now sell their fish and garments in Europe. However, the restoration raises questions as to whether Europe wanted the restoration of our lost human rights or merely a beneficial alliance reminiscent of our colonial days. After the UN HRC gave time to Sri Lanka after our limited progress in the last two years, there is little incentive for the government to give Tamils justice. Justice, democracy, and elections are so closely tied up, that the Election Commission must look at these.

Back to Square 1?

By evening on the 19thon our return from Vavuniya, we saw beautiful Vesak lanterns still lining the road. What was on my mind, however, was not their beauty but that the state was spending our common pool of money belonging to all to foster Buddhism and remind Tamils that this is a Buddhist country. Newly built Buddhist temples lined the road. During Vesak a week earlier, I had seen Tamil children neighbouring Vanni army camps attending Vesak ceremonies dressed in Sinhalese-attire. A local said they had no choice in the forced assimilation fearing being seen as anti-national if they refused. As soldiers offered free ice cream, there were few takers because it was seen as an imposition by the army.
On the way back on the 19th, we saw more soldiers on the road. Vesak ice cream was still on offer but still with few takers. About thirty soldiers in boots were sheltering from the sweltering heat in a temple across the point on the A9 Road where the alleged shooting occurred. To Hindus who do not use footwear in their homes, it was sacrilegious for the soldiers to stand in the temple with their boots on.This upset my companions. Are we going into occupation again? Is the free exercise of our franchise possible under occupation?
At home that evening, I got the Colombo newspapers. The Daily Mirror reported that on Wednesday the President had chaired a Progress Review Meeting of Independent Commissions. His office had issued a statement that members of the Independent Commissions including the Election Commission “attended the meeting.”
Untrue!So utterly untrue! I had not been invited, let alone told about it. Previously when parliament went through the motions of consultation, only the Chairman and officials were invited. The President and the Parliament seem to be ignorant that they created a three-member Commission meant to be diverse and there is no longer a single Election Commissioner. So much for minorities and collective decision-making. The puluda, the bluff, continues. Does Election Commission Ethics involve my keeping quiet as the country is misinformed by the President? I think not. As a Tamil, I see a bleak future for myself and for democracy. To cite ethics to remain silent would be to join the puluda and be irresponsible.
As I write (22 May), Colombo Telegraph reported
“Muslims in the country were coming under increasing attacks once again by the Bodu Bala Sena (BBS) with a mosque and Muslim owned shops in several parts of the country being attacked or torched … Since mid-April this year, there [have] been at least 15 such incidents in various parts of the country.”
A very un-Buddhist monk is going about beating up Muslims and literally pushing away the police that come to intervene. News reports say the police have orders not to arrest the monk. The Prime Minister assures us that the police can handle the matter. What does it portend for democracy, especially for Muslims?
As I continue writing, May 23, a most terrifying sight to behold. For the first time in my two years since I returned, six soldiers on three motorbikes with big guns going by my home in Jaffna – all dressed in dark uniforms from headgear to boots, and their faces covered showing only their eyes. Why did they not wish to be identified?
It is déjà vu. Terror rules again. Ethics is never an excuse for silence the face of injustice and government puluda.

 

Ladies and gentlemen, I hope you agree that this was a responsible and ethical speech. Thank you.

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