By
C.A.Chandraprema
Sri Lanka must be the country with the silliest election laws on the planet. This is a country that got universal suffrage in 1931 just three years after the British public won the same privilege and from that time onward, elections to various levels of government have been a part of life in this country. For more than 60 years governments have changed through elections and democracy has put down firm roots.
One would think that in a country with such a profile, the laws under which elections are held would be among the most rational and practicable in the world. But every time an election comes around, we hear strident cries from elections monitoring NGOs and even some political parties that one party or the other are violating election laws.
What is often meant by ‘violation of election laws’ is not outright violence, intimidation, bribery and the like but the displaying of posters, cut outs, holding processions and the like. TV channels often show elections authorities and the police cutting down banners and removing posters put up by candidates saying they violate elections laws. Many people would have silently wondered how putting up an election poster and cut outs violate election laws when there is an election on.
When they are unable to figure out why, they may be telling themselves that if there is a prohibition on such things in the election laws, then there must be a good reason for it and basically forgetting about this incongruity until the next election comes around. Contrary to all commonsense, our election laws prohibit processions, the putting up of posters the distribution of handbills and even canvassing from house to house at election time! The Parliamentary Elections Act of 1981 which applies mutatis mutandis to other elections as well for example, has the following restrictions:
Section 69 – Restriction on processions
From the time nominations open and till one week lapses after the election result is declared, nobody can conduct or take part in processions to promote any candidate. During this period, non-political processions of a religious or social nature may take place, but even at such processions, it is illegal to promote a candidate. Those violating this law are liable to not just a fine but a prison sentence of up to one month as well.
Section 74 – Display of handbills & posters
From the commencement of the nomination period until the end of the poll, no handbill, placard, poster, drawing, notice, photograph, symbol, sign, flag or banner of a candidate can be displayed on or across any public road. The same cannot be displayed in any premises whether public or private either. However candidates may display banners and posters on the vehicle used by the candidate. Posters and banners may be displayed in public or private premises only on the day that an election meeting is to be held in those premises.
In addition to the fine and one month prison term for violating this law, a specific provision in Section 74(3) says that the fine and prison term or both can be imposed on anyone even ATTEMPTING to commit the offence described in this section. The police are also authorized to use such force as may be reasonably necessary to prevent the violation of this ban and they are expressly given the authority to seize any handbill, placard, poster, notice, drawing, symbol, photograph of a candidate, sign, flag or banner used in such contravention.
Section 75 – Restrictions on house to house canvassing
From the day the nominations close until the day after the poll, candidates and the members of their immediate families are prohibited from going house to house canvassing for votes. They are also forbidden from distributing handbills and election propaganda material from house to house.
What sense can anyone make of these laws which seek to ban candidates from engaging in activities that are most visibly associated with elections? An election is all about candidates marketing themselves by putting up posters and cut outs of themselves, distributing hand bills, going from house to house canvassing for votes and holding processions in support of his candidacy. By doing what he is supposed to do, a candidate becomes a violator of election laws. Very often, a candidate does not know whether he is going to stand for election until the day nominations close. In most political parties (or the two main parties at least) finalizing the nominations list is a wrenching process which occurs only in the final 48 hours before nominations close. So it is really after nominations close that the election campaign begins in earnest. This is also exactly the period in which the law seeks to place restrictions on candidates from promoting themselves.
Mercifully, the Sri Lankan elections law does not seek to stifle public meetings, that other great sign of an election. Section 70 of the Parliamentary Elections Act of 1981 stipulates that public meetings have to stop only 48 hours before the date of the poll. But as we saw earlier, even with regard to these meetings, posters announcing such events can be displayed only at the venue that such meetings are to be held, and that too only on the day of the meeting itself. How can anyone expect to pull crowds for an election meeting that is not announced beforehand? If someone puts up posters announcing the meeting a few days early, that too will be an election law violation. If we go by the letter of the law, the only way to advertise such public meetings within the law would be to fit loudspeakers onto a vehicle and send it around to announce the meeting in the surrounding villages! That practice has not been expressly banned. But these vehicles that go around to announce a public meeting should not display any posters of the candidate they are promoting lest it violates the election law!
The Sunday Island spoke to Keerthi Tennakoon the Executive Director of Campaign for a Free and Fair Election (CAFFE) and asked him how anybody can expect a candidate to conduct an election campaign without violating these laws. Tennakoon freely admitted that the laws were archaic and not in keeping with modern day requirements and that candidates should be given the freedom to conduct their campaigns. Tennakoon’s explanation of these laws that defy logic is that they were originally designed for village council elections where everyone knew everyone else and there was little need for election propaganda. He agrees that in a situation where the district is now the electorate, a candidate from Welimada (taking the Badulla district as an example) cannot expect to be known in Ridimaliyadde and therefore election propaganda, posters, processions, canvassing and all other things prohibited by the law becomes necessary.
This writer pointed out that even under the first past the post system when the electoral unit was much smaller, the candidates could not have managed without house to house campaigns, putting up of posters, the distribution of handbills the holding of processions and the like. What this shows is that throughout our post-independence history, these election laws have been observed in the breach. Today, with the proliferation of elections monitoring bodies, there is no shortage of ‘violations of elections laws’ because the law prohibits what comes most naturally at election time. When asked how the elections monitoring bodies deal with this situation, Tennakoon said that because the law prohibits door to door canvassing, the putting up of posters and cut outs and the holding they are compelled to take note these as ‘election law violations’. However he hastened to add that they don’t count each and every poster as a separate violation. If there are six party offices in a town where there should be only one according to the election law, they mark it down as one violation. That too is not a satisfactory state of affairs as this places too much discretion in the hands of elections monitoring bodies. Depending on the inclination of the individual elections monitor, he or she can look at a wall full of posters and note it down as one or one hundred elections law violations.
The only way in which these insane laws can be changed is if the existing government takes the initiative to change them, but in an environment where the opposition seizes on every poster and cut out of the ruling party to cry out that election laws are being flouted by the government, such reform seems unlikely unless there is a public outcry against these illogical and downright idiotic laws. The media has a role to play in informing the public that Sri Lanka’s election laws are cockeyed and that ‘a violation of an election law’ in this country is not the same as what that would denote in another country. Even in neighbouring India, putting up posters and cut outs, distributing leaflets, holding processions and house to house canvassing between the time of handing in nominations and polling day are not illegal.
According to Article 126 the Representation of the People Act of 1951, in India, election campaign processions, the distribution and broadcasting of propaganda material etcetera is prohibited only in the 48 hours preceding the closing of the poll. This means in effect that such activities have to stop only the day before the day of the poll. (Note that in Sri Lanka as well as India election meetings have to cease 48 hours before polling begins. The difference is that in India, political processions, the distribution of propaganda material and all that also can continue up to that cut off point.) As for canvassing for votes, Article 130 of the Representation of the People Act seems to suggest that in Indian elections, canvassing for votes is possible until the last moment even on polling day provided that such activities do not take place within 100 meters of the polling booth. In Sri Lanka however, according to Article 68 of the Parliamentary Elections Act of 1981 canvassing for votes on polling day is absolutely prohibited regardless of how far away from the polling booth it takes place.
In India, advertisements in the electronic and print media to promote candidates is prohibited in the final 48 hours before the poll along with everything else but in Sri Lanka, since there is no express ban in the elections law on advertising in the electronic and print media, we see ads appearing promoting candidates right up to the day of the election. In Sri Lanka, a candidate at an election can be charged under criminal law and even given a jail sentence for campaigning at an election in ways that in India are perfectly above board and acceptable. If we go by the letter of the election laws in this country, virtually every politician who has contested an election is a felon who should be in jail for violating election laws! We reproduce on this page the relevant provisions of the Sri Lankan Parliamentary Elections law and the Indian elections law. Note that in India election candidates have been given the fullest freedom to carry out election propaganda work except during the last 48 hours before the poll is scheduled to end. Having given their candidates this freedom, the violation of the reasonable restrictions imposed during the last 48 hours carries (in comparison to SL law) a comparatively heavy penalty of up to two years in jail and a fine. What we can suggest is that Sri Lanka should copy the Indian elections law which is more practicable.
Courtesy:Sunday Island