18th February 2001

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An attempt to define electoral malpractice

By Victor Ivan

The United National Party withdrew the petition they had filed before the Supreme Court against Presidential election. What the statement issued by Mr. Gamini Atukorale, (the deputy leader of the party) shows is the extent of dissatisfaction in the main opposition party about the manner in which things happen in the Supreme Court.

According to Mr. Atukorale's statement, permission had not been granted to lead evidence with regard to some of the accusations in the petition. Of the 87 divisions where, according to the petition, acts of corruption had taken place, evidence was permitted to be led in the case of 67 divisions only. In order to substantiate what was said in the petition it would have been necessary to prove that his candidate would have got 1,230,258 votes or 29.23% more if not for corrupt practices.

It is difficult to understand why the Supreme Court decided that evidence should be led with regard to the accusations which were difficult to prove and refrained from inquiring into the accusations that could have been proved easily. This may lead to a situation in the country where illegal use of government media at an election, carrying on propaganda activities in the 72 hours prior to the election, the use of government resources for propaganda activities, and providing employment for the purpose of getting votes, may no longer be considered serious offences.

It is not clear why a request was made to prove that if not for the electoral malpractices, the UNP candidate would have got 1,230,258 or 29.32% votes more, in order to substantiate the petition. The number of votes that Ms.Kumaratunga received was 4,312,157.

The amount of votes that the UNP candidate received was 3,602,748.

Although it was presumed that the number of votes that Ms. Kumaratunga received would remain unchanged even when the number of votes that the UNP got would have increased if not for the corrupt practices, (such presumption cannot be correct), the number of votes that the UNP candidate required for victory over Ms. Kumaratunga was 7,090,80 and not 1,230,258.

The meaning of electoral malpractice cannot merely mean, illegally depriving a person of the votes he might have got. Illegal appropriation of votes too would be an electoral offence. When representatives of the opposition are chased away from a polling booth and intimidating members of the opposition from outside are allowed, the number of votes that the opposition parties would get are not only limited, the government party also gets the opportunity for illegal use of the vote. Consequently the number of votes that one candidate gets is reduced while the number of votes that the other candidate gets is artificially increased. However, this two-fold factor inherent in electoral practices does not appear to have been taken into consideration by the Supreme Court. For instance if the number of votes that Ms. Kumaratunga received was brought down by 354,705 and that number was added to the UNP candidate's number, the result would have been entirely different.

On the other hand, for victory at the first count, it is essential that the winner gets more than half the number of votes polled. Otherwise a second count becomes necessary.

The total number of valid votes at the presidential election was 8,635,290. Half of it would be 4,317,645. The number of votes that Ms. Kumaratunga had received above the minimum required for victory at the first count was 5489. This shows that if there had been a difference of 5490 votes, that would have led to a second count.

Election petitions are meant to prevent elections through malpractices. If the Judiciary feels obliged to protect the winner even when the winner is elected through malpractice, the contest for election would inevitably take a violent form. Although the Wayamba elections were utterly corrupt those elections were not declared illegal. This kind of happening destroys the people's confidence in the law.

There may be occasions when the appointment of a wrong person is identified at an inquiry into an election petition. There may also be occasions when it becomes impossible to find who the winner could have been. Even if the gap between the winner and the loser is very wide, it would be the responsibility of the judiciary to annul the result of the election if electoral malpractices have been substantiated and to make provision to prevent such malpractices at the next election, and to take action to assure clean elections in the future.

For example if an athlete wins a race through the use of banned stimulants, it will not be correct to justify his victory on the grounds that even when the additional speed he gained from the banned stimulant is removed from the difference between his speed and that of the second competitor. What the judiciary should have looked into is not who would have won if not for the malpractices but whether the malpractices that had occurred were serious enough to warrant an annulment of the result and the holding of a new election.

The main accusation that had been made about the Presidential election was that bogus ballot papers similar to the official ones printed at the Government Press had been used in the most organised manner in many areas. If that is true it may be considered the most serious of all accusations.

The ballot papers used at the presidential election cannot be destroyed. If there are among them ballot papers that had not been printed at the Government Press, they can be easily identified. If bogus ballot papers had been used, their numbers as well as for whom they have been cast can be found out.

Even the Elections Commissioner had not rejected the accusation about the use of bogus ballot papers. It was because the accusation was not phony that the Elections Commissioner had to take special steps to prevent the use of bogus ballot papers at the last parliamentary election.

As the judicial scrutiny relating to the Presidential election has come to an end with the withdrawal of the election petition, now the ball is in the Election Commissioner's court. The Alliance for Democracy requests the Elections Commissioner to hold an impartial and an open inquiry into whether there had been a use of bogus ballot papers at the last presidential election.

The Elections Commissioner has no right to ignore that request. What is most important is to dispel doubts in the minds of the people on this matter. It is only through a just and open inquiry that it will be possible to prevent a repetition, if there had been any malpractice and the doubts in the minds of the people can be dispelled if no malpractice has occurred.

However, if at an inquiry it is found that bogus ballot papers have in fact been used and the number of bogus ballot papers used is substantial, the legitimacy of the entire Presidential Election will inevitably be affected.

The writer is the Editor of Ravaya

Lumbini to loom as world Buddhist centre

Buddhist nations have pledged to expedite development of Lumbini, the birthplace of the Buddha, as a holy site on the lines of the Vatican and Mecca.

Earlier, Nepal had sought their assistance to develop Lumbini, a backward village lying close to the Uttar Pradesh border about 300 km south of Kathmandu, as an international pilgrimage site.

The master plan for Lumbini was prepared by Japanese architect Kengo Tange, who had earlier designed the Tokyo Olympic village, about 20 years ago.

Lately, the Lumbini Development Trust, an agency set up by Nepal to oversee development work, has included nearby sites related to the life of the Buddha like Tilorakot, Gorihawa, Sagalhawa, Kudan, Niglihawa, Ramgram and Devdaha in the plan. The cost for development are likely to go beyond Rs 410 crore.

Nepalese Tourism Minister R. Tamrakar said the trust would set up religious, community and construction committees to speed up development work.

Representatives from UNESCO, the Japan Buddhist Foundation and the trust met on February 9 to finalise the construction of the temple of Mayadevi, the Buddha's mother, near the site of the birth of the founder of Buddhism.

S. Miyabara, a senior Japanese Buddhist leader from the World Fellowship of Buddhists, said: "Construction of the Mayadevi temple was stopped two years ago after it was feared that digging work might damage the spot-which is recognised as a world heritage site by UNESCO."

Miyabara was one of the over 100 delegates from 14 nations who came here to attend the second three-day biennial world Buddhist meet that ended on Saturday.

The first conference, held in 1998, had envisaged the development of Lumbini into three components—the sacred garden, the monastic enclave and the pilgrims' village— covering an area of 6 sq km. Japan, Vietnam, S. Korea, Myanmar, Thailand and China have already built impressive temples and monastic quarters in traditional style.

– Hindustan Times

Focus on Rights

The draft consumer protection act

By: Kishali Pinto Jayawardene

Examples of apparently perfect but actually flawed legislation in this country are too numerous to count both in pre and post 1994 times.

Indeed, a particularly adventuresome socio-analyst would do well to embark on a comparative study as to why precisely this phenomenon is so evident here. For example, in India, any law that is to be passed undergoes rigid scrutiny not only by policy makers but also by ordinary people and civil society fuelled by a consistently activist media. In many instances, this leads to a defective law being stopped in mid flow as evidenced recently in the proposed Indian Freedom of Information Act.

All this is not to say that the most recent legislation of this kind, a law setting up a Consumer Protection Authority and providing for "better protection of consumers through regulation of trade and prices of goods….." is all bad.

On the contrary, several of its features are admirable. The Draft Act breaks down the old 1979 Consumer Protection Act, the 1987 Fair Trading Commission Act and the 1950 Control of Prices Act into one law with many innovations. Thus, we have a nine member Consumer Protection Authority comprising persons distinguished in the fields of industry, law, economics, commerce, administration, science or health. The Authority is headed by a Chairman and two Vice Chairmen who are full time members holding office for a period of three years. The Authority is vested with manifold functions, some of which were earlier in the Commissioner of Internal Trade in respect of regulation of trade.

This includes the prohibition on any trader who has in his possession or custody or under his control, any goods for purpose of trade within Sri Lanka, to refuse to sell such goods. Selling or offering to sale above the marked price and hoarding are also prohibited. The Authority has the power to inquire into and investigate consumer complaints with regard to pricing, standard of goods, and warranties and guarantees. It can also enter into written agreements with manufacturers or traders in respect of the maximum price and the standard and specification of goods.

No trader can, in the course of trade or business, engage in any type of conduct that is misleading or deceptive or likely to mislead or deceive the consumer, including making false representations regarding goods or services being a particular standard, quality or grade or that goods are new or of a particular model. Interestingly, where warranties or guarantees have been breached by a trader, the Authority can order the payment of compensation or the refund of the money spent.

The Draft Act stipulates in addition that no manufacturer or trader shall increase the retail or wholesale price of any prescribed article except with the prior approval of the Consumer Protection Council which is a body set up under the Act exercising the executive functions of the Authority.

The Council consists of three persons, namely an attorney at law, a person who has wide experience in the management of business enterprises and an economist. Here again, appointments are made by the Minister. Meanwhile, part III of the Draft Act facilitates competitive markets by preventing monopolies, mergers and anti-competitive practices. A monopoly situation is taken to exist where the supply of goods or services to the market place by a single party exceeds 33.3. per cent whereas a merger is deemed to exist where a party, whether body corporate or not, directly or indirectly, acquires or proposes to acquire any shares in the assets of a corporate or any other person as a result of which, such party would be or would likely be in a position to control or dominate a particular market.

Anti- competitive practices have been defined to exist where a party, in the course of business, pursues a course of conduct with a view to restricting, distorting or preventing competition.

While all this is well and good, crucial provisions in the Draft Act are much more contested. The efficacy of its provisions would depend to a large extent on the calibre of the persons appointed to the Authority and to the Council and to the extent of independence that they enjoy whether from the Minister in charge or from other individuals.

In this respect, the Draft Act is afflicted with the same defects that plague other laws in this country. While the appointment of members of the Authority and the Council are at the complete discretion of the Minister, their removal is without adequate safeguards. Neither does the Draft Act provide for balanced gender representation in the composition of these bodies. Contrast this with bodies of a similar nature set up under the Indian Consumer Protection Act, enacted, mind you, as way back as in 1986. Here, district forums that investigate consumer complaints are mandated to consist of three members, a District Judge, a person of eminence in the field of education, trade or commerce and, startlingly enough from the perspective of gender equality, a lady social worker. The State Commission to which appeals from the District Forum lie, consists of a Judge of the High Court and two other members, one of whom shall be a woman. The National Commission to which again appeal lies from the State Commission consists of a Chairman who is a Judge of the Supreme Court and four other members, one of whom shall be a woman. An overseeing Central Consumer Protection Council has equal provision for gender representation.

Members of the Council may by writing under his or her hand, resign from the Council. Equally, rules under the Act passed in 1987 stipulate that members of the National Commission be placed in a similar position as Supreme Court judges regarding their conditions of employment and removal from office.

The importance accorded to these bodies was well seen when a scarce two years following the enacting of the Act, activist groups petitioned the Supreme Court of India, pointing out that the Central Government had not established district forums and state commissions throughout the length and breadth of India as contemplated.

These were then set up on direction of Court and remain excellent examples of the extent to which strong consumer rights bodies can address the grievances of the consumers.

In this respect, the corresponding provisions relating to the appointment, tenure of office and removal of members of bodies under the Sri Lankan Draft Consumer Protection Act calls for revision. In the alternative, we would be left with bodies as ineffective as the Fair Trading Commission set up under the 1987 law.

The Sri Lankan Draft Act manifests other problems. Clause 17 gives the Minister the power to specify an article as a prescribed article where the Minister is of the opinion that it is essential to the life of the community. No manufacturer or trader shall increase the retail or wholesale price of any such prescribed article except with the prior written permission of the Council, which is mandated to give its decision within thirty days. This clause has been objected to by business leaders on the basis that it would confer upon the Minister arbitrary powers leading to disguised price control. clause 18 enables the Director General to deal with unfair price increases but involves a long winded procedure of an investigation and report with an appeal to the Court of Appeal. It is argued that this clause, necessarily amended, would be sufficient for the purpose of controlling unfair price increases in the interests of the public.

Even more objectionable is the retention of clauses 50 and 81. While the former exempts government organisations and persons to whom the government has granted monopolies (for a period not exceeding three years) from those provisions of the Draft Act dealing with monopolies and mergers and appeal to the Consumer Protection Council, the latter preserves rights acquired under existing agreements in respect of monopolies and unfair trade practices.

The latter provision in particular does not even militate against renewal of such agreement as provided for in the agreement itself nor does it specify a time limit for the operation of such agreements.

These provisions are capable of rendering the proposed Draft Act virtually without any force in actual practice where powerful companies providing essential services are concerned. As presently reported, if the Draft Act is sought to be passed as an urgent bill with all the implications of parliamentary and legal steamrolling that this would involve, we would only be compounding our history of ineffective bills passed hastily and without any real consensus.

Right of reply

This refers to the article in The Sunday Times of 11 February, 2001 headlined "Censorship for whose benefit?"

This article raises a question "Censorship for whose benefit?" In answering this question to enlighten the writer I would like to state categorically that the Censorship is in force for the benefit of the Security Forces, the general public and the national interests at large.

The article is based on erroneous assumptions and is therefore not only misleading but also casts unwarranted aspersions on the Competent Authority responsible under the law to enforce the censorship.

The ongoing censorship is governed by Emergency Regulations now in force. Contrary to the claims made by the writer, publication of reports relating to procurements come well within the purview of those Regulations.

I have in fact had the occasion last week to warn three different weekly newspapers who published reports relating to military procurements. I have cautioned them against repetition.

I would ask you to kindly correct this position in the next issue of your newspaper giving it the same prominence the article in question received. As a responsible national newspaper, I hope you will convey to your readers your apologies to the Competent Authority for the aspersions cast on wrong assumptions.

Our Columnist Kishali Pinto Jayawardena says:
The Competent Authority's letter objecting to the column "Censorship- for whose benefit?" makes vague assertions that the analysis is based on erroneous assumptions and is misleading. The Competent Authority has not denied and cannot deny, that an expired 1988/89 Regulation has been invoked by him.

The main thrust of the column, was not that one newspaper had been treated in a discriminatory fashion, but that any newspaper should be given the freedom to report on corruption in procurements whether under the 1988/1989 Regulation or the 2000 Regulation.

The distinction lies in the right of the media to report on issues of corruption in the interests of ensuring public accountability as opposed to mere reporting on procurement of supplies. Far from this right being a "claim of the writer" as asserted by the Competent Authority this is a well established right in international law in the absence of which, censorship certainly cannot be justified as being for the benefit of the Security Forces, the general public and the national interests at large.

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