As the parliamentary election campaign gathers momentum, candidates belonging to all political parties are chafing under the Elections Commission’s decision to implement the 1981 elections law to the letter. At this moment, the rule that all candidates are most annoyed with is their inability to display their number so that voters will know who to vote for. Only those with the wherewithal to be able to get their numbers known to the voting public through advertisements in the media will be able to survive such restrictions. But even in such cases, there will be so many such advertisements appearing in the formal media, TV and newspapers, that none will stand out except for those of the richest candidates who will be able to afford longer and more intense coverage.
Last week, this columnist wrote on the Elections Commission’s decision to implement the law to the letter stating that this may motivate Members of the new Parliament to change the law once they are elected. That was due to the fact this writer has been drawing attention to these incongruities and anomalies in the elections law for years. Last week’s column drew some sharp rebukes from politician friends on both sides of the divide. One said that it was all very well for journalists to be discussing the practicalities of the elections law but for those contesting this election, life has become a nightmare. To be sure, there is another side to this story, which has to be laid out. Even veteran politicians who have been contesting elections for years have to inform their constituents about their number so that they can get the required number of preference votes.
It’s nearly 40 years since the Parliamentary Elections Act of 1981 was passed and there is much speculation as to why the Elections Commission decided to implement that law in its entirety at this election when it was never implemented at any previous parliamentary election. For one thing, this is the first time that a parliamentary election is being held by the present Elections Commission, which was appointed only at the end of 2015. Until this Elections Commission was appointed, the work of the Commission was carried out by the Elections Commissioner who was Mahinda Deshapriya. If this election was also being held by him in his capacity as the Elections Commissioner, the greater likelihood is that it would have been held in the old way with certain provisions of the elections law being ignored by an agreement between the Elections Commission and the political party secretaries.
This writer is probably the only journalists who has interviewed all three members of this Elections Commission together. That was on a programme on ART TV some years ago. At that interview, this writer brought up this issue in the parliamentary elections law and it transpired that Mr N.A.Abeysekera one of the members of the present Elections Commission had been in the Legal Draftsman’s department when the 1981 Parliamentary Elections law was drafted. If he had something to with drafting the present elections law, it’s unlikely that he will be happy that sections of the law are being openly ignored by the elections authorities, the police, the political parties and the candidates. So we can perhaps guess where this push to implement the elections law to the letter may have come from.
Candidates penalized unfairly
All candidates at this election are being penalized for no fault of theirs. The present 1981 Parliamentary elections law was brought at a time when very few of the present candidates were in parliament. In fact the only candidate this writer can think of who was in the parliament that passed this parliamentary elections law is UNP leader Ranil Wickremesinghe. The most senior parliamentarian contesting the present election, Prime Minister Mahinda Rajapaksa was not in parliament in 1981. The question that can be raised is, if the present law was observed in the breach for nearly four decades, can this attempt to implement it in full at this late day be justified? As former JVP parliamentarian Vijitha Herath told this writer, an agreement had been reached between the Elections Commissioner (Dayananda Dissanayake) and the political party secretaries in the early years of this century to ignore certain sections of the elections law so as to enable a campaign to be held, and this agreement had been observed until the last parliamentary election in 2015. Is it ethical now, to flout that agreement, which everyone took for granted?
One has to acknowledge that the final responsibility for this fiasco lies with parliament. The parliamentary elections law can be amended with a simple majority. So it can be argued that at any point in the past four decades, any government could have brought amendments to the elections law and removed these incongruities. There are many reasons why this did not happen. Firstly, even after the 1981 parliamentary elections law became operational, political parties and candidates carried on as they were used to under the 1946 parliamentary elections law. Nobody reads Acts of parliament unless some dire need manifests itself. That dire need as far as the 1981 parliamentary elections law is concerned, has manifested itself only now, after four decades. As virtually all candidates are not really aware as to why all these restrictions are being applied at this election when such restrictions were not applied at any previous election, the assumption is that this is due to an arbitrary decision on the part of the Elections Commission. The latter is allowing the entire concept of independent commissions to be called into question by candidates on both sides of the political divide by not explaining matters to the public.
One has to acknowledge that parliamentarians from the 1980s right up to the present would never have dreamed that irrational laws which never existed in the 1946 Act would have been introduced into the 1981 Act. This country after all has had parliaments from 1947. The natural assumption would be that the 1981 parliamentary elections act would be a clone of the 1946 act. Some may have even wondered why a new parliamentary elections act was necessary at all, but then they would have reasoned that a new parliamentary elections law may have been made necessary because of the introduction of a presidential form of government by the 1978 Constitution. So the crazy provisions in the 1981 elections law remained largely unnoticed for four decades. Of all the media outlets in this country, only The Island has consistently raised this issue about the 1981 Parliamentary Elections Act.
Today all candidates at this election are being publicly flogged for no fault of theirs. If the elections Commission was going to implement this impractical law to the letter, they could at least have issued a warning before Parliament was dissolved so that remedial action could have been taken and the Act amended. Once the earlier Elections Commissioner transmogrified into the present Elections Commission in late 2015, they could have advised the government about the impracticality of the 1981 law. This is especially so because former elections Commissioner Dayananda Dissanayke had agreed to ignore parts of the elections law to enable a campaign to take place. That would have been ample grounds for the newly appointed Elections Commission to make representations to the government. The Elections Commission has intervened to correct technical errors in election related laws. It was a Bill of this nature that the yahapalana government used in 2017 to bring committee stage amendments so as to change the entire system of elections to the local government institutions.
So there was no reason why the Elections Commission could not have notified the government in writing that there was an issue with the 1981 elections law which needed to be rectified. If the politicians had ignored that advice, then perhaps the elections Commission would be justified in implementing the existing law in all its irrational rigidity as they have done at present.
Democracy itself endangered
The rule being strictly enforced now, which prohibits the display of the candidate’s number, could well have a detrimental effect on the entire democratic system. Under section 73 of the 1981 Parliamentary Elections Act, the district leader of any political party or independent group is entitled to have one central election office in the district and sub-offices in each of the polling divisions (electorates) of that district. The candidates on the list are entitled to have one election office each. The candidates can also use their ordinary place of residence as an election office. Even though Section 73 thus allows each candidate to have an election office, Section 74, prohibits the display of posters or images of the candidate or his number in those premises except on the day that a meeting is held at that location. Under section 74, the number and image of a candidate can be displayed on the vehicle he uses, but the candidate has to be inside the vehicle all the time for even that display to be legal.
A UNP candidate contesting the Polonnaruwa district has commenced a fast against the action taken by the Elections Commission to remove some cutouts advertising his candidacy which had been put up in the vicinity of his own campaign office in Bendiwewa. The irate candidate has constructed a platform under a tree and is fasting demanding an investigation into what he calls the illegal removal of his cutouts. Even though the candidate thinks he has been the victim of some illegal action on the part of the Elections Commission, he is wrong and the elections officials are right. The elections law is so contrary to commonsense that it is difficult to convince a candidate that such laws exist. This is why the Elections Commission should have issued a warning first before implementing the law to the letter.
As of now, the only way candidates can advertise themselves and their number is by having advertisements in the media and through the social media. Under section 75 of the Parliamentary elections law, candidates and their immediate family members are not allowed to go house to house canvassing, but there is no prohibition on the supporters going canvassing. Due to Covid-19 restrictions, only three people can go house to house canvassing in one group. This may be a way of getting the people to know a candidate’s number but the problem is that the candidates have to obtain preference votes from the entire district and canvassing for votes all over the district is just not a practical proposition. So the pressure and the angst continues to mount with each passing day. To be able to elect an MP of one’s choice is a bedrock principle of parliamentary democracy. Now that is what is being endangered by the Elections Commission’s actions.
How the SC handled an irrational law
In a way, what the Elections Commission is now doing is comparable to what the Supreme Court did when the yahapalana political parties petitioned the SC against the dissolution of Parliament and the holding of a fresh general election in 2018. In the judgement that the SC delivered in that case, the following points had been made quoting various sources:
= Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to commonsense the result may be.
= If the language employed is plain and unambiguous, the same must be given effect to irrespective of the consequences that may arise.
= It is not competent for the court to proceed on the assumption that the legislature knows not what it says, or that it has made a mistake. We cannot assume a mistake in an Act of Parliament. If we think so, we should render many Acts uncertain by putting different constructions on them according to our individual conjectures. The draftsman of the Act may have made a mistake. If so, the remedy is for the legislature to amend it.
= The legislature is presumed not to have made a mistake even if there is some defect in the language used by the legislature, it is not for the court to add to or amend the language or by construction make up deficiencies which are left in the Act.
In the face of mind-numbing legislative stupidity such as the provisions of the 19th Amendment banning the dissolution of Parliament whatever the circumstances, until the lapse of four and a half years, or the restrictions on campaigning in the 1981 parliamentary elections law, there is no alternative but to throw it back at the legislature and tell them to clean up their own mess. However, the 2018 SC judgment was on an issue that had arisen for the first time. The present action taken by the Elections Commission is different because the 1981 parliamentary elections law has been operational for nearly four decades and during that period it was implemented in a way that is very different to the way it is being implemented at this election. It will be obvious to anybody that there is an ethical issue here which the EC should address.
Putting out legalistic arguments like saying “well, this is what is on the statute books so we are implementing it”, or “what happened before this is not our business because the present Elections Commission was constituted only in late 2015” will not do. They have to acknowledge the fact that the 1981 parliamentary elections law has not been implemented in full at previous parliamentary elections because it was not practical to do so, and this was accepted by a former Elections Commissioner who had an agreement with the political party secretaries to ignore certain sections of the law. The present Chairman of the Elections Commission had himself adhered to that agreement until he became the Chairman of the present Elections Commission. The Elections Commission needs to call a press conference and thrash these issues out for the benefit of the public.