This open letter is from a veteran and widely respected Sri Lankan lawyer
It was first published in Lanka-e-News 20 March 2010
A Free and Fair Election – An impossible dream?
We, the People have a Sovereign right to exercise our franchise at free and fair elections. The very last time we could do so was in 1977. Giving vent to our disgust with the governance then prevailing, we gave J.R. Jayawardena, who claimed to be the long-awaited saviour of the Sri Lankan nation, a 5/6th majority. Free and fair elections were soon relegated to history. The election process rapidly degenerated to the level of the notorious Wayamba Provincial Council election in 1999.
In an attempt to stem this ominous trend, the OPA beginning in 1994, attempted to monitor elections. At the end of a discussion some of us had with you re monitoring the 1999 Presidential election, you claimed to have been at the receiving end of my lectures in SLIDA. I immediately assumed (rightly or wrongly?) that you had endorsed the need for exemplary conduct I consistently tried to instil into those who chose to listen to what I said.
In an attempt to reduce rigging at the Presidential election of 1999, you had affixed the now infamous “stickers” to Polling Cards. The potential abuse of such stickers was prevented by the accidental detection of this secret move of yours, by a VV.I.P. Consequent attempts made by a triumvirate of the most powerful personalities at that time, with the obvious connivance of a state agency, to sideline you and replicate the Wayamba election, were thwarted by justification of your bona fide and lawful, though admittedly futile, and costly, act. However, you had not been vested with any power to control or even contain the violence and blatant violation of election laws that took place.
Disgusted with the mockery that passed off as “free and fair elections”, we the people, through our elected representatives in Parliament, adopted the 17th Amendment to the Constitution, drastically curtailing the extent of the Executive power of the Sovereign People which had been delegated to the President, and creating an Elections Commission of five members, endowed with extensive powers, for the sole purpose of restoring the conduct of free and fair elections.
The 17th Amendment, passed with only one abstention and no one against, became operative on 3rd October 2001, and provided the Elections Commission (EC) with sufficiently extensive powers, inter alia, to appoint other officers to the EC and delegate to them any power, duty or function of the EC, to notify the Inspector- General of Police of the facilities and the number of police officers required and then deploy them to secure the enforcement of all laws relating to the conduct of free and fair elections, to prohibit the misuse of any state property, and to enable the Competent Authority to take over the management of SLBC and SLRC in respect of all broadcasts which impinge on the election.
Regrettably, no Elections Commission was constituted and consequently, in terms of Section 27(2) of the said Act, you were vested with all the extensive powers, duties and functions of the Election Commission. Your failure to exercise most of these powers culminated in your validating the 2005 Presidential election where about 500,000 electors in the South and almost all the electors in the North were unlawfully disenfranchised.
Rather than invoking the extensive powers vested in you, so as to promote the conduct of a free and fair 2010 Presidential election, you only requested the IGP to continue to deploy the police officers himself, in the manner indicated by you. Belatedly, you issued directions for the immediate removal of cut-outs (and even provided the funds needed for same) and the cancellation of certain transfers. However, such directions were disregarded with impunity. You had chosen not to take cognisance of the fact that this IGP had been appointed by the President in violation of the Constitution, and had even been vested with the powers of the National Police Commission, also in violation of the Constitution, and certainly had to display greater allegiance to the President who appointed him, and to the Defence Secretary to whom he reports, rather than obey your commendable directives, confident that you would, deliberately or otherwise, not exercise the extensive powers vested in you to ensure compliance with your directives.
The “directives” reportedly issued by you to Ministry Secretaries and others re the abuse of state resources were largely disregarded, in violation of the Constitutional requirement that “every person under whose control such property is, for the time being, is required to comply with and give effect to such directions”. You did nothing further. You appointed a Competent Authority to control the broadcasts of SLBC and SLRC. The issuance of comprehensive Guidelines and even Directives failed to have any significant effect on the SLBC and SLRC. Without invoking any of the powers vested in you to “secure the enforcement of your directives”, you frequently appeared on TV, and attempted to exculpate yourself from your betrayal of the trust placed in you, by repeatedly complaining that your many directives, inter alia, to the IGP, to all Secretaries and the Media and those of your Competent Authority were not being heeded, and that you were helpless. You merely revoked the appointment of the Competent Authority without enabling him to take over the management of SLBC and SLRC, in respect of all political broadcasts or any other broadcast, which impinges on the election, under Arts 104 B(5)(c) and Act No. 3 of 2002.
To cap it all you announced that a “Sticker” would be placed on each ballot box to signify that it had been duly “checked”, “closed” and “sealed”. The necessary implication was that any ballot box which carried this “sticker” must necessarily be presumed to have been duly checked, closed, and sealed by the Senior Presiding Officer in the presence of the Candidates and/or their duly nominated agents. You cannot plead that you did not realise that this procedure lent itself to mass-scale non-verifiable corruption. A news report of ballot boxes having been transported in a Navy Vehicle was immediately suppressed.
We the People, looked up to you to honour the trust placed in you by us, through our elected Representatives, and to hold a free and fair election. You signally failed to invoke the extensive powers set out in Articles 104C and 104E, to notify the IGP of the facilities and Police Officers required, appoint competent, non-partisan retired officers (of whom there are many) to direct the deployment of the facilities and Police Officers made available by the IGP, so as to ensure a “free and fair election”.
At about 2.30 p.m. on January 26th, 2010, a public announcement was made on several TV Channels that casting a vote for General Sarath Fonseka was of no value because his name was not included in the list of Electors and that, even if elected, he could not lawfully hold the post of President. On this being brought to your notice, you issued a written statement that General Sarath Fonseka was indeed, lawfully entitled to be elected and function as President. Soon after this was broadcast on the TV, two or more VV.I.P.P of the UPFA visited you at the Elections Secretariat and after some time you left the Secretariat in their Company. Thereafter you were seen in the Secretariat only minutes before you announced on 27th January, 2010, inter alia, that this was the worst election you have ever conducted, it was only when Indra de Silva was IGP that you were able to conduct a peaceful election, you had been told by powerful persons that your only function was to count the votes in the ballot boxes and announce the result, your election staff could not even ensure the safety of the ballot boxes, you will attend to the incidental functions relating to that election in the next few days in January and not thereafter even set foot in the Secretariat premises, and you wished to particularly thank the IGP Mahinda Balasuriya because he complied with all the requests made to him by you.
To the astonishment of the Public, you returned to the Elections Secretariat on 2nd February 2010, and retracted all the statements you made. You also declared that you were willing and able to conduct the General Election which will determine the future course of this country. Many, including me, have lost all faith in your commitment to conducting any free and fair election. You are, once again making attractive statements which, from your own recent experience, you no doubt know very well, will go unheeded. You have not even bothered to appoint a Competent Authority but have directed Party Secretaries to seek fair play from the very Chairman who blatantly refused it. You have left it to the IGP to deal with any Police officers who failed to actively support the President. You have turned a blind eye to the flagrant abuse of State Resources. You are just going through the motions.
I challenge you to appear live on TV and truthfully divulge to the country where, and with whom, you and your wife were between 3.30 p.m. on 26th January 2010 and 4.45 p.m. on January 27th, 2010, and also invoke all the Constitutional powers vested in you, not for the purpose of boosting your tarnished image, but for the purpose of conducting a free and fair election. If you do so, public confidence in your ability and willingness to conduct a free and fair election may well be restored, and it will not be necessary for me to tender an unqualified apology to you and your wife for having brought you to this state, and also to the Sri Lankan Nation for having prevented your removal from the election process in 1999 and thereby facilitating, what I believe, were fraudulent elections in Sri Lanka.
Please be aware of the maxim “Facts cannot lie, but men can”
With best wishes to you and your wife.
Elmore M. Perera
Attorney-at-Law & Past President, Organisation of Professional Organisations,
Vice President, Citizens’ Movement for Good Governance