Focus on Rights

Bringing the 'spirit of the franchise' to the local government poll
The normal spate of applications in courts by political parties in response to decisions of returning officers to reject their nomination lists is now on in full sway as is to be expected in this pre-election period.

While my intention is not to remark on the substantive aspects of these applications presently before court, it may be useful to recall that the discretion of returning officers in rejecting or accepting nomination papers in these kinds of situations is not rigidly cast in stone. Neither do these officers have unlimited and unfettered powers that can be exercised without a fundamental duty to disclose reasons for their actions.

This is very clearly seen in one recent instance where the Peoples Alliance list for the Hali Ella Pradeshiya Sabha in previous local authorities elections was in issue. In this case, the returning officer had rejected the nomination paper on the basis that a certified copy of the birth certificate of one youth candidate had not been attached to the nomination paper.
Section 31 (1)(b) (as amended) of the Local Authorities Ordinance provides that,

"The Returning Officer shall, immediately after the expiry of the nomination period examine the nomination paper received by him and reject any nomination paper......" (for any of the reasons set out in paragraph (a),(b),(bb),(bbb),(c),(d) (1d) and (e)

In turn, Section 31(1)(bbb) provides that certified copies of the birth certificates of the said candidates should be attached to the nomination paper containing the list of names of youth candidates (namely candidates under the age of forty years).

In this instance, a photostat copy and not a certified copy had been attached to the nominations list of the Peoples Alliance contesting the HaliElla Pradeshiya Sabha. No objections had been raised to the authenticity of the copy of the birth certificate by any of the rival contestants. However, the list was rejected by the returning officer.

The Court of Appeal ruled against this rejection after citation and discussion of precedent establishing that what was required was 'substantial compliance" with Section 31(1)(bbb) of the Local Authorities Elections Ordinance (as amended) enabling the participation of youth candidates rather than their rejection on technicalities. (see DM Jayaratne vs Vaas Gunewardene & Others (CA/325/2002, CA Minutes of 28.02.2002)(Unreported), judgement of then Court of Appeal judge Shiranee Tillekewardene).

Interestingly, Section 9 of the Evidence (Special Provisions) Act, No 14 of 1995 which presumptively places a photostat copy of a document on par with a certified copy was used for that purpose. One significant principle emanating from this decision was that in as much as the power to reject a nomination paper affects not only a particular candidate but also the right to vote of the franchised population as well as the rights of other candidates, it cannot be regarded as a ministerial function or power which cannot be challenged. In this context, the court pointed out that even where a returning officer performs a 'check list' function in relation to a nomination list, "the propensity to err was intrinsic and any error would put into jeopardy the rights of affected parties."

Thus, mandatory language in the section were treated as directory and the court stated that returning officers under this section were permitted to accept photocopy extracts where the authenticity of such extracts were not in issue without acting as if they had no discretion in the matter. To hold otherwise, it was decided, would be to defeat the purpose of the legislative amendment bringing in a youth quota into local government elections and would result in the franchised population of that Pradeshiya Sabha being deprived of their right to vote for those candidates.

Following the direction by the Court that the nomination paper be accepted, the PA contested and won seats to the Hali Ella Pradeshiya Sabha.

The decision itself thereafter came to be accepted as virtually imposing a judicial rider on Section 31(1)(bbb) wherein the returning officer was required not to rigidly accept only certified copies of birth certificates of youth candidates but also originals of such certificates as well as photocopies the authenticity of which is not challenged or in regard to which the returning officer has no doubts as to its genuineness. The warning that administrative convenience must give way to situations where rights of persons are affected in resolving the balance of competing interests is relevant in that regard.

This doctrine of 'substantial compliance' has particular importance when applied to election matters. There is a particular rationale in this. It has been judicially affirmed in this country that the most effective way in which a voter may give expression to his views is by silently marking his ballot paper in the secrecy of the polling booth. (see Karunatilleka and Another v. Dayananda Dissanayake, Commissioner of Elections and Others [1999 Sri.L.R. 157]

These principles apply with equal force to local government elections as they do in regard to parliamentary, presidential or provincial polls, notwithstanding the fact that local government polls are not specifically under the aegis of constitutional protection. (see the Egodawela Case, SCM, 3/4/2001).

Practically, rights of both the voter and the candidate who comes forward to solicit that voter's franchise (once the party or political group he or she represents has put forward his or her name), are equally balanced and cannot be perfunctorily regarded (or disregarded). In sum, this means that neither the Commissioner of Elections nor the returning officers can act like petty dictators in the performance of their statutory duties.

In local government elections as indeed, in all other elections, what is in issue is a genuine choice between rival contenders. As the Supreme Court stated in one notable case (see the Egodawela judgement), a poll must be free (devoid of any improper influence or pressure), must be equal (where all those entitled to vote, and no others, are allowed to express their choice as between parties and candidates who compete on equal terms) and must be secret, (where the secrecy of the ballot is respected). A mere semblance of a poll is not enough.

These are reminders that are very pertinent at this point of time to all the contenders as well as the Commissioner of Elections and his returning officers.

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