by C.A. Chandraprema
An issue that this writer has been highlighting in this newspaper from time to time for the past several years has now finally come home to roost and how! Today it has become a national issue affecting the candidates of all political parties in the country. This Parliamentary election will have to be fought strictly according to the rules laid down in the Parliamentary Elections Act of 1981. One cartoonist aptly portrayed the situation by depicting the present election as a situation where all contestants are standing by to participate in a swimming contest with their hands tied behind their backs and with the Chairman of the Elections Commission with the whistle to signal the start. Another cartoonist depicted a candidate putting up a poster of himself with his number in his own bedroom because the Elections Commission has banned the display of posters everywhere else.
The evening news bulletins showed one candidate in the Badulla district, being forced to remove stickers advertising his candidacy on a vehicle. A previous news bulletin showed a car that had been ‘caught’ by the police for no other reason than it had stickers advertising a candidate. Last Thursday’s Divaina reported former Parliamentarian P.Harrison as having told supporters that he will have a picture of the Chairman of the Elections Commission with his (Harrison’s) number put up in his office so that the Elections Commission will not be able to take it down. On Thursday, officials from the Elections Commission visited the headquarters of the Samagi Jana Balawegaya in Colombo and ordered them to remove images of Sajith Premadasa from the signs on the building because he is a candidate contesting the election. Former Minister Ajith P. Perera was shown standing in front of the SJB headquarters complaining that the new rules imposed by the Elections Commission were very unreasonable.
SLPP candidate Indika Anuruddha was shown on the TV news bulletins expressing his perplexity as to why all these restrictions are being applied at this election when such restrictions were not applied at previous elections.
We are still at the incipient stages of the campaign for this parliamentary election. These restrictions are going to prove increasingly oppressive as the days go by. This election is proving to be a new learning experience for all candidates. The lesson being taught in this manner is – don’t keep irrational, meaningless laws on the statute books especially when it pertains to all important matters like elections! This may be the first time that the 1981 parliamentary elections law has been implemented in its irrational entirety. At previous elections, there was an express agreement between the Elections Commission and the political party secretaries to enable an election campaign to be held by ignoring certain sections of the elections law.
Because the elections law is being implemented in tandem with health regulations pertaining to Covid-19 control measures, some less well informed candidates are likely to assume that these new and burdensome restrictions which make an election campaign all but impossible have more to do with Covid-19 than with the elections law. It is important for all politicians contesting this election to realize that the fault lies with the elections law, so that they can do something about it once they are elected to parliament.
The irrational restrictions
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 difficult 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 precisely the period in which the present law seeks to place restrictions on candidates from promoting themselves. Under the Parliamentary Elections Act of 1981, the following activities are prohibited between the time the nominations period ends and the poll is held:
Section 69 (Restriction on processions) From the time nominations open and until 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 offense 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. (Under the Covid-19 guidelines, this requirement has been further restricted with only three persons allowed to do house to house canvassing.)
Thus we see that the Parliamentary Elections Act of 1981 seeks 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. However under our laws by doing what he is supposed to do, a candidate becomes a violator of election laws!
By some stroke of luck, the 1981 Parliamentary Elections Act 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 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 candidate has to be always sitting inside the vehicle that sports stickers promoting him or it will be a violation of the law. Now because of Covid-19 restrictions, the number of people attending these rallies has been restricted to a maximum of 500 in the case of major meetings. For nearly four decades, Sections 69, 74 and 75 of the Parliamentary Elections Act of 1981 were observed mostly in the breach.
Those over fifty would remember the first parliamentary election held under the Parliamentary Elections Act of 1981 which was held in April 1989. There were more posters and cutouts at that election than any previous election that we could remember. There would have been more meetings, more processions and more house to house canvassing as well at that election than at any previous election if not for the JVP terror which was in full swing at that time.
A social contract to flout the law
At the second parliamentary election under the Parliamentary Elections Act of 1981 which was held in 1994, all political parties were in competition with one another to flout Sections 69, 74 and 75 of the Parliamentary Elections Act of 1981. Everything that the political parties could not do in 1989 due to the JVP terror, they did with gay abandon in 1994. So there were posters, cutouts, banners, processions, house to house canvassing – the works. People were largely oblivious to the restrictions in Sections 69, 74 and 75 of the elections law at the parliamentary elections of 2000 and 2001 as well. According to a discussion on this topic that this writer had with the then JVP Parliamentarian Vijitha Herath some years ago, it was only after the so called Independent Elections Commission was instituted under the 17th Amendment that the Elections Commission sought to implement what had up to that time been dead letter in the law. What Herath told the present writer was as follows:
“No political party can conduct an election campaign according to the provisions of the present law. You can’t canvass for votes, distribute handbills or even wear a T-shirt or cap promoting a candidate. If any political party adheres to the letter of these laws they will not be able to do an election campaign. So the laws have to be amended. In most cases, it is only after handing in nominations that the candidates will be known with certainty. We have got over some of these problems with an understanding reached between the Elections Commissioner and the political parties on the non-implementation of some of these laws. For example, people are not arrested for violating election laws when they go out canvassing after nomination day.
“At the parliamentary election in 2004 when the independent commissions were in operation, there were instances when members of our party were arrested for offenses like canvassing and wearing T-shirts with the bell symbol. The independent commission tried to implement the law to the letter. At that point, all the political parties got together and told the Elections Commissioner that if the law is implemented to the letter in this manner no political party will be able to carry out an election campaign so a general agreement was reached that canvassing will be allowed though it is an offense according to the law. Every time an election comes around the political parties start discussing the election laws but after the election ends everybody forgets about it. This issue comes into focus again only when the next election comes around.
“Posters and cut outs were not included when that agreement was reached with the Elections Commissioner to ignore some sections of the elections law. The agreement applied only to matters like canvassing, distributing handbills and the like. The law on posters remains as it is in the elections law. In actual fact even this should change and people should be allowed to put up posters. All political parties and the Elections Commissioner himself agrees that the putting up of posters should be allowed. But the reason why posters and cut outs were not included in that understanding was because of the conflicts that may arise when so many parties and candidates compete for space to put up posters. There was the possibility of violence with one party accusing the other of having ‘covered’ their posters and so on. So after much discussion, it was decided to allow canvassing, the distribution of handbills the display of symbols and the like, but to leave the law banning posters as it is.”
What is often meant by ‘violation of election laws’ is not outright violence, intimidation, bribery and the like but the displaying of posters, cutouts, 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 cutouts 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.
A simpler, more rational age
Sri Lanka has been having parliamentary elections long before the Parliamentary Elections Act of 1981 was introduced. Our first parliamentary election of 1947 and all parliamentary elections up to the election of 1977 had been held under the Ceylon (Parliamentary Elections) Order in Council, 1946 which did not have the above mentioned restrictions that we see in the 1981 Act. There were no restrictions on processions to promote candidates, or on the distribution or display of handbills, placards, posters, drawings, notices, photographs, symbols, signs, flags or banners of a candidate, nor were candidates and the members of their immediate families prohibited from going house to house canvassing or distributing handbills and election propaganda material. The only restrictions that we see in the Ceylon (Parliamentary Elections) Order in Council, 1946 in relation to such matters is as follows:
a) Canvassing for votes or persuading any elector not to vote for any particular candidate, or distributing or exhibiting any handbill, placard, poster or any symbol was prohibited within a distance of fifty yards of the entrance of any polling station.
b) The use of any megaphone or loudspeaker or other apparatus for amplifying or reproducing the human voice, within or near a polling station on the date of the poll was prohibited.
c) Shouting or otherwise acting in a disorderly manner within or near a polling station so as to cause annoyance to voters or election officials was prohibited.
d) Every person who, being a candidate or an election agent, or some other person prints, publishes or distributes any advertisement, handbill, placard or poster during an election, has to ensure that this material states the name and address of the printer and publisher.
Thus we see that in the 1946 parliamentary elections law, restrictions on campaigning were mainly aimed at maintaining peace and decorum at polling booths and their immediate vicinity on polling day, and ensuring that all campaign material has an identifiable publisher. Thus we see that the provisions in the Ceylon (Parliamentary Elections) Order in Council, 1946 were much more in accordance with commonsense and practical considerations than the Parliamentary Elections Act of 1981. There are lessons for the present that we can learn from the Ceylon (Parliamentary Elections) Order in Council, 1946. Once the candidates of all political parties have had their fill of the irrational and indeed inexplicable restrictions in the parliamentary elections law of 1981, they will hopefully, be motivated to amend this law as a matter of priority once they are in Parliament.