2nd July 2000
|All the Wayamba election petitions
were dismissed at the stage of preliminary objections. The writer of this
comment has little knowledge of the law relating to election petitions.
As far as I understood it, all the election petitions submitted were dismissed
at the stage of preliminary objection on the basis that the petitions had
not specified in what manner the corruption, intimidations and prevention
of the use of the ballot had affected the elections.
At the inquiry into these election petitions President's Counsel Mr. K. N. Choksy appeared for the petitioners while President's Counsels Mr. H. L. de Silva and Mr. R. K. W. Goonasekera appeared for the government. The arguments used at the inquiry into the election petition submitted by Mrs. Sirima Bandaranaike against the appointment of President Premadasa in 1988 were very similar to those used at the Wayamba election petitions. Those arguments were used on behalf of the government of that time by Mr. Choksy. They were replied to by Messrs. H. L. de Silva, R. K. W. Goonasekera etc. When Mr. H. L. de Silva uses today the arguments used by Mr. Choksy then, Mr. Choksy counters them, in the same manner that Mr.. H. L. de Silva countered Mr. Choksy's arguments. The only difference is that the Supreme Court then decided to inquire into the petition in disregard of the preliminary objections, whereas the Supreme Court has now dismissed the petitions after considering the preliminary objections .
I do not deny that, when there is a fundamental flaw in an election petition, the courts have the authority to dismiss the petition at the very outset. However, this was not a simple dispute between two or more parties but a dispute between democracy and dictatorship. It was a dispute that had arisen between the government on the one hand and the opposition on the other as two contending parties in the election. Even the constitution, which is considered the fundamental law of the land, is based on the theory that sovereignty lies with the people. In that sense I do not know whether the courts have an obligation to consider the matters on which these petitions were based as a fundamental question relating to democratic freedoms in Sri Lanka. Maybe not. Then there must be a flaw in the law. The consequences of a judgment that leads to an idea gaining currency in society that, if it is possible to win an election even by fraudulent means, there is no reason to worry about the courts, cannot be sound. On the other hand, it has legitimized an administration which has obtained power through a kind of wizard.
According to the official admission of the Commissioner of Elections, the most corrupt election up to that date was the Wayamba Provincial Council election. The Jaffna District Council election of '81 can be considered the first time in which a ruling party indulged in corrupt election practices in a most organized manner on a large scale.
Such organized corrupt practices on the part of the ruling party prevailed to a greater or larger degree at every poll from the referundum of 1982 to the parliamentary election of 1989.
However corrupt practices and violence in all of these did not approximate to the organized corruption and violence that reigned at the Wayamba Provincial Council election.
It may be that the petitioners' understanding of the frauds and violence at the Wayamba election was inadeqeuate. But the Commissioner of Elections had a sound understanding of them. It was he who functioned as the chief authority in the electoral process. Although, perhaps, some of the officers who had worked under him may have refrained from reporting to him about facts known to them, a large number of officers had reported to the commissioner of what they knew.
When the seriousness of the facts conveyed by his officers is considered, the first thing the commissioner should have done was to have cancelled the whole election and taken action to hold a new election as the official report indicated shortcomings in the elections.
If it was necessary to obtain a court order for the purpose, he should I believe, have submitted the official report that he had with him, and obtained the required order.
However the Commissioner of Elections did not do that. Instead he invalidated the poll at several polling stations where the ballot boxes had been forcefully removed according to the reports he had received, and in a large number of polling stations he followed a policy of removing the bogus ballots that had been identified counting the rest. He failed to realise that such a simple process would not rectify the massive distortion that had occurred.
The number of polling stations where the poll was invalidated by the Commissioner of Elections was nine. One of them was in the Yapahuwa electorate, while four were in the Kuliyapitiya electorate. There were two in the Polgahawela electorate and two more in the Puttalam electorate.
The number of polling stations from which the officers had reported that persons had forced themselves into polling stations and seized the ballot papers and prevented voting was 236. Of them 165 were in the Kurunegala district while 71 were in the Puttalam district.
Details about corruption that had occurred in the Wennappuwa electorate alone according to a rough estimate made on polling districts by the Commissioner of Elections on the basis of reports received by him from officers were as follows and they give a clear picture of the reality of the Wayamba election. (See table).
It has to be stated emphatically that the Commissioner of Elections has shirked his duty and responsibilities by following a policy of allowing a fraudulent election to become lawful in spite of the fact that he had with him very vital and reliable facts to prove that there had been a massive plunder of votes at the Wayamba election.
Although it may be that the petitioners did not have the capability to show the specific manner in which the incidents that had happened had affected them, the commissioner of elections certainly had that capability. It was the Commissioner of Elections who knew definitely to which party the votes which were removed as bogus from a large number of polling booths had been cast, and to which candidates.
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