By Kishali Pinto Jayawardene

Electoral priorities for the New Year

For this purpose, the coming into being of an Elections Commission, properly constituted, would hopefully shift some of the tensions away from an individual -and much tormented- Elections Commissioner, where crucial decisions concerning the conducting of elections are in issue. In addition however, further amendments to the 17th Amendment relating to the powers and duties laid upon an Elections Commission/Commissioner and corresponding statutory changes to the election laws are imperative if a new political and electoral culture is to be brought about in this country.

In the first instance, the specific exercise of discretion by elections officials when faced with polls that are so seriously violence ridden so as to clearly merit a re-poll, has to be more clearly defined in constitutional and statutory terms. Election officials should be mandated to act with the rights of the voters in mind and none other. The best possible instance where this principle was flouted was in December this year when, despite severe instances of violence, rigging and intimidation, including the denial of access of voters in the uncleared areas of the North and the East to the clustered polling centres, by the armed forces, the Elections Commissioner refrained from annulling the polls after consultations with the party secretaries. This was after the general secretaries of political parties decided that, despite the election results being seriously flawed in certain areas, they did not want the polls annulled. This decision of the Elections Commissioner was criticized by election monitors, including the CMEV and PAFFREL who had exhorted the Commissioner to safeguard the franchise of the voters prevented from exercising their right to vote in those areas.

The duties laid upon elections officials in these instances have been judicially expounded upon on many occasions, the most recent being in April this year when four registered voters of the Kandy District challenged the 1999 election of the Provincial Council. This was on the basis that their fundamental rights to equal treatment under the law and right to franchise had been violated by the failure of the Elections Commissioner to conduct a proper poll at 23 polling stations, to hold proper inquiries into the incidents of ballot stuffing and chasing away of polling agents and to declare void the poll and those polling stations and to order a re-poll. (Egodawela v Dissanayake)

In this instance, a bench presided over by Justice M.D.H. Fernando with Justices S.W.B. Wadugodapitiya and A. Ismail awarded the petitioners a declaration that their rights had been violated and ordered moreover that, even though the petitioners had not prayed for compensation, the State pay Rs 50,000/= as costs. The order for costs was made against the State as the Court expressed the view that it would not be just to order costs against the Elections Commissioner who had made an honest effort- though inadequate- to ensure a genuine elections but was not given the necessary support and resources.

The Supreme Court, in giving relief to the voters who had come before them, proceeded on reasoning which is peculiarly illustrative of the duty cast upon the Commissioner of Elections to annul the polls in all instances where there has not been a free, equal and secret ballot. Interpreting that section of the Provincial Councils Election Act No 2 of 1988 as amended, (Section 46A(2), which gives the Commissioner the discretion to annul the poll for non compliance with the manner in which the poll should be conducted as mandated by the Act, the Court pointed out that the power of the Commissioner is coupled with a duty which must be exercised with regard to organised violence calculated to influence the poll significantly by deterring one section of the electors. Earlier, the Court had also dismissed the "narrow and mechanical " contention raised on behalf of the State, that there was no need for the Commissioner to make a qualitative assessment of the democratic nature of the poll and annul the poll if, in his opinion, it was not free and fair. Instead, the Court concluded that after exercising his discretion, the Commissioner must order a repoll if he determines that a failure to count the votes at the polling station where the poll was annulled "will affect" that result and for this purpose, it would be enough if it appears that a repoll was likely to result in one or more other candidates being elected. Expressing the confidence that the Commissioner of Elections will, in the future, whenever there is no genuine, free, equal and secret poll at any polling station, he will duly exercise his powers to annul a poll and order a repoll, the Supreme Court, in extremely appropriate words, pointed out that "Those who seek to prevent a proper poll today must be made to understand that the 1st Respondent will ensure a proper poll tomorrow."

The December Parliamentary elections however, proved the confidence of the Supreme Court to be sadly misplaced in this regard. And it is in this sense that specific provision should be made constitutionally and statutorily, to ensure that election results in future Presidential, Parliamentary, Provincial Council or Local Government elections, are not declared in default of the rights of the voters. Proceeding to court after the event takes place and impugning the efficacy or the credibility of election officials is not necessarily the best precedent.

The second severe lacuna in the 17th Amendment itself, relates to the lack of enforcement powers of the Elections Commission and/or the Commissioner where the misuse of state resources are concerned. As pointed out in this column previously, one of the last drafts of the 17th Amendment included a clause which related not only to the Elections Commissioner's authority with regard to state resources but made any person who contravened or failed or neglected to comply with any direction or order issued by the Commissioner or indeed, any provision of the law relating to elections, guilty of an offence. The Commissioner was thus entitled to institute criminal proceedings in the appropriate court under his own hand. Where any particular offence was not punishable by any particular law, the Commission or the Attorney General was empowered to move the High Court in the matter and rigorous penalties could be imposed on a person found guilty of such offence, up to a fine not exceeding hundred thousand rupees or a sentence of seven years imprisonment or both. It may therefore be appropriate to consider vesting the present Elections Commissioner or the future Elections Commission some specific teeth in this regard in the 17th Amendment. The country looks to these election priorities to be fulfilled in the forthcoming year.

Bad news when madmen lead the blind

"'Tis the time's plague when madmen lead the blind."

Shakespeare's observation fits the current era, and not only with reference to Osama Bin Laden and the Al-Qaeda network. Few media outlets are willing to scrutinize the unhinged aspects of the adulated leadership in the White House.

Deep introspection for any society is difficult. Precious little danger of that, in the here and now. After more than 100 days of big-type rhetorical questions, the media answers are largely self-satisfied. "Why do they hate us?" Because we're great, though sometimes clumsy on the world stage. "How can the violence in the Middle East be stopped?" By continuing to back Israel, no matter what.

Since Sept. 11, many US journalists have commented that the United States is unaccustomed to the role of victim. Left unsaid is how accustomed Americans are to being victimizers while preening themselves as a nation of worldly do-gooders. The 3,000 human beings who lost their lives at the World Trade Center are casting an enormous shadow — as they should. But what about the uncounted people killed, one way or another, by US policies?

The list of countries that the Pentagon has attacked in recent decades is long. The list of governments using American-supplied weapons to repress and massacre is even longer.

And there's quieter slaughter, on a grand scale. During every hour, more than 1,000 children in the world die from preventable diseases. Basic nutrition, medical care and sanitation would save their lives. A fraction of the Pentagon budget would suffice.

But we Americans live in a society with the kind of priorities that Martin Luther King Jr. described a third of a century ago — spending "military funds with alacrity and generosity" but providing anti-poverty funds "with miserliness." If he were alive now, his voice would still cry out against "the glaring contrast of poverty and wealth."

King would have good reason to reiterate words from his speech on April 4, 1967, when he denounced "capitalists of the West investing huge sums of money in Asia, Africa and South America, only to take the profits out with no concern for the social betterment of the countries."

Today, advocates for humanitarian causes might see the United States as a place where "madmen lead the blind." But that's kind of a harsh way to describe the situation. The superpower's lack of vision is in the context of a media system that mostly keeps Americans in the dark.

In American media's echo chamber, much of the genuine anguish from Sept. 11 has segued into a lot of braying about national greatness. Like many other pundits now in their glory days on cable TV networks, Chris Matthews knows how to dodge difficult truths. "Patriotism is more important than politics," he proclaimed the other day. What "unites us" is "democracy, freedom, human rights, the right to pursue happiness."

And what about the "right to pursue happiness" for the kids dying from lack of food or clean water or medicine, while Matthews and thousands of other journalists fawn over the US military?

Anyone watching TV news since early October has seen lots of idolatry lavished on the latest Pentagon weapons. Uncle Sam's immense military power and Washington's role as the No. 1 arms dealer on the planet add up to a colossal drain of resources — and a powerful means of enforcing the bonds between the US government and scores of regimes that combine repression with oligarchy, amid rampant poverty.

Winners get to write history, and that starts with the news. While victory in Afghanistan gets presented as ample justification for going to war in the first place, the message that overwhelming might makes right is ever-present, even if no one quite says so out loud. And when human flesh goes up in flames and human bodies shatter — but not on US TV screens — did it ever really happen?

Several decades ago, peace activist A.J. Muste observed: "The problem after a war is with the victor. He thinks he has just proved that war and violence pay. Who will now teach him a lesson?"

-Arab News, Saudi Arabia