Focus on Rights

The right to vote and its fragile safeguards
Rising tensions in the North-East with factionalism within the LTTE and its predictably casual decimation of opposing candidates, does not obviously bode well for the many thousands of ordinary citizens in those areas when it comes to voting rights in April.

Hemmed in by the LTTE on the one hand, these voters have to additionally cope with the uncertainties of what the military authorities in the South, (governed by political dictates), will precipitate on them during the forthcoming elections. All in all, we are poised to see, once again, a facade of a democratic poll with only fragile safeguards protecting the right to vote of these innocents.

In this again, we have to rely on the strength of a single individual, the Elections Commissioner. He can however, lay claim to some important judicial pronouncements in recent times to buttress his lonely position, (unfortunate as the case may be), as the one bulwark between the voters and those entities preoccupied with capturing power, whether by terror tactics or the authority of the State.

Singular principles laid down by the Supreme Court in May last year when some fifty five thousand Batticaloa and Vanni voters were deprived of their right to vote due to arbitrary action by the Commander of the Army, (purportedly acting on orders of his Commander-in-Chief, the Executive President), are of general application. The overall framework of the 17th Amendment is also authoritative in this regard.

The first mandatory principle in this context is that, whatever decision taken by the military or the police regarding the voting rights of citizens in any part of Sri Lanka, has to be arrived at in consultation with the Commissioner. The obvious logic of this caution has been defeated time and time again in the past when authorities have acted at the whim and fancy of politicians.

This was most heinously seen in December 2001 when entry points (check points) to the cleared areas where polling booths had been set up, were suddenly closed at the eleventh hour on orders of the Army Commander, without any notification to the Elections Commissioner. At least 40,000 voters, (out of a total of about 280,000 in the Batticaloa electoral district), and 15,000 voters (out of a total of about 210,000 in the Vanni electoral district), travelling from the uncleared areas to the designated polling booths in the cleared areas, had to turn back and go home. The closure order was supposedly on the basis of reports that the LTTE was attempting to infiltrate the cleared areas.

However, responding to pleas by some of those voters who went before the Supreme Court, claiming that their right to vote, right to equality before the law and right to freedom of movement had been violated, the Court found for the voters, discovering in the process that the closure had been motivated by extraneous considerations without any nexus to actual security concerns.

The decision to close the entry points was held to be neither bona fide nor merely mistaken. On the contrary, it was arbitrary, and intended to prevent voters from exercising their franchise probably for political reasons. Other voters, similarly circumstanced, living in "uncleared" areas in the Trincomalee district had not been subjected to similar restrictions.

After an exhaustive survey of the documents furnished to Court by the Commander, it was found that "orders, messages and directives" pertaining to the decision of the Commander to close the check-points, as well as correspondence between the Commander and the then officials of the Ministry of Defence had been deliberately withheld from judicial scrutiny.

In its decision (see Thavaneethan vs Disssanayake, SCM 25.3.2003, per Fernando J. with Ismail J. and Wigneswaran J. agreeing), grave suspicions were held to arise as to the bona fides of the decision taken by the Commander. The Commissioner of Elections was not informed of the decision to close checkpoints and was thus prevented from making alternative arrangements that would have enabled those affected to cast their vote, with consequent serious consequences.

This judgment emphasizes the second connected principle that should form the basis of any action taken by any authority during election times. Decisions taken, either by the Commissioner himself or the military/police authorities should be taken in the due exercise and discharge of public powers and functions and have to be as accountable as far as possible to public scrutiny. Indeed, as the Court commented, "there was no need for secrecy. ....the need, (in fact), was for publicity. It was therefore important that the decision should have been, and should also have been perceived as being, both lawful and fair."

Thirdly, if for whatever reason, voters in any part of the country are deprived of the right to vote by arbitrary action of the authorities, the Commissioner is duty bound to annul the poll in those areas and order a re-poll. Where voters are deprived outright of the opportunity to cast their vote due to ostensible national security concerns, the Commissioner is enjoined to explore the feasibility of making alternative arrangements under the applicable law, (in this case, Parliamentary Elections Act, No 1 of 1981, hereafter the Act), to enable them to cast their vote.

In this context, the relevancy of Section 24 of the Act, which empowers the Commissioner of Elections - where it is necessary due to an emergency - to alter the location of a polling station and/or to postpone the poll in any electoral district and Section 33 of the Act which empowers him to stipulate different hours of polling, was stressed.

In the immediate instance, the decision of the Commissioner not to order a re-poll, despite the sudden prevention of voters travelling to the polling booths through the manipulation of State machinery was severely critiqued. Moreover, the lackadaisical manner in which the voting rights of these thousands of citizens had been disregarded was in contrast to the prompt manner, (itself not in accordance with Section 129 of the Act), in which arrangements were made for six persons, including the Executive President, then Prime Minister Ratnasiri Wickremenayake, former Speaker Anura Bandaranaike and then Ministers Anuruddha Ratwatte and Mangala Samaraweera to vote from the safety of their homes.

Appropriately, these infringements taking place at a time when there was a serious erosion of public confidence in the integrity of the electoral process, were stated to amount to a 'national disaster." Equally so, the reminder that citizens living in the "uncleared" areas, need reassurance,(if peace and national reconciliation were to become realities), that elections would be truly democratic, that fundamental rights would be respected and protected, and that judicial remedies would be available for wrongdoing. These are warnings that carry even greater force now when, if at all, the electoral processes have become even more devoid of public accountability.

Back to Columns