Applying Election Laws to the Letter



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by Jolly Somasundram


"If one enters the University as a Mr Black, one can’t leave it as a Mr White."
Sir Ivor Jennings


C. A. Chandraprema’s article on the above subject, which appeared in the Island newspaper of 22nd December, eunuched me. I had spent my entire employment lifetime a bureaucrat- a proud one-, in the nonce contributing peripherally to every election- Presidential, Parliamentary, local government- conducted between 1961-1995. (I even watched the 1947 election as a kid, taken by my father to a polling booth in Udugama, in which he served as an official. The ballot box then, was painted in different colours, the ‘symbol’ of the candidate.)


Chandraprema, within the local government election syntax, paints an exaggerated caricature, blasting bureaucrats as a railhead for all bad decisions on elections. They "are waiting to find some excuse, however flimsy, to reject nomination papers and thereby stymie that very sovereignty they they are supposed to uphold", they indulge in "bureaucratic nitpicking", "raise piddling issues which give rise to a culture, of opponents trying to use (bureaucratic) means to knock off the other side even before the contest begins", "run elections like fill- in- the blank contests". Like Monsieur Jourdain, in Moliere’s play The Bourgeois Gentleman, who discovered that he was "speaking prose all his lifewithout even knowing it", Chandraprema’s accusations, generated a feeling that I had led a life of dissimulation, being a bureaupathologist without knowing it. Chandraprema is an honourable man.


From 1931, when the Election Department (EC) was created to implement the revolutionary innovation of universal suffrage, to the current changes where the forthcoming local government elections will be run under a complex electoral arrangement- 60% elected using the first-past-the–post-electoral system, the balance through a closed proportional representative system- the EC had been in the forefront of innovative change. It is a boundary pushing, entrepreneurial organisation. But, Chandraprema asserts that the EC is a bureaucratic organisation, and, sure, Chandraprema is an honourable man.


A number of innovations had been introduced to the recent Election Law, one- much applauded by civil society- wasto ensure a minimum of 25%women representation on the electoral list of a contesting group. It was a great stride forward in the female drive for a countervailing movement for reaching equality.To implement it, the names of all candidates are written on one column of the list, their gender demarcated in another. The qualification of a minimum number of women to be elected, is determined solely by perusing the gender column, since the name column could carry names, common to both genders. (The alternative is to undertake a physical check, which is abhorrent).If aprescribed minimum of women is not in the gender column a nuclear option is applied, the whole list is rejected. It is similar tounseating a member of Parliament because he/she hasdual citizenship, though the person had been elected by an electorate exercising People’s sovereignty (Ref Geetha Kumarasinghe).The inclusion of the nuclear option was a stern reminder to political parties not to play with legal provisions. The female requirement is not a trifling one, but an organic component in the innovations brought about by Parliament to the Election Law, to deepen and widen democracy by embracing women within it.Democracy is not merely a numbers game.Lists, which gutted the 25% minimum, were unemotionallyprevented from contesting the forthcoming local government elections. An electoral contest is not a tea party.Vive les Femmes!


C. A. Chandraprema, a renowned journalist, civil society activist and a prolific commentator on political issues, demurs on the action taken by the Election Commission. In the columns of the The Island newspaper of 22nd December, under the title "Stymying people’s sovereignty through bureaucratic nitpicking," he explains why. He takes the particular example of the Maharagama list which was rejected. He says, "the list has the requisite number of women but the gender of one female candidate had been inadvertently entered as male in the list."There has, so far, only been one form of sex change, that of surgical intervention- the scalpel method. Chandraprema endorses a second method, to surreptitiously introduce the name to the alternative gender list- the smuggler method.In these LGBT days, of gender cross-dressing and gender preening, vision as an indicator of gender demarcation could be horribly misleading. The only sure method is documentary evidence was unprovided at Maharagama. But, Chandraprema is implacable. He says, "to reject a nomination paper on the grounds that the gender of one candidate has been inadvertently misstated in the gender column, can only be interpreted as bureaucratic nit picking. Therefore, if the person handing over a nomination paper states that a particular candidate is female, even though the gender column has mistakenly stated her as male, that would be sufficient for the Returning Officer to accept the nomination paper. It would not be necessary to go to courts to get such a minor error rectified."Chandraprema is trivialising legal electoral provisions.


Chandraprema also quotes another instance, that of Weligama, where the list was rejected but for a different reason. A nomination list has to be handed over by a pre-determined authorised person, to prevent impersonation. In Weligama, an authorised person had not handed over the list but by another. The nomination list was rejected. Chandraprema, in justifying these instances, seems quite at home playing ducks and drakes.


Chandraprema says that minor errors should not attract the nuclear option but be subject to fines. Who will impose these fines? In election law, there are no minor or major errors. There are only errors, as much as there are no minor or major pregnancies, only pregnancies. Any requirement, not in conformity with the law should be dealt with according to the law not journalist whims. The courts should decide whether actions of the Returning Officer were valid or not. Interpretation, on matters of Election Law, should be exercised only by the courts and not by public servants, who could be subject to bureaupathologies. This is the only method by which the people’s sovereignty could be safeguarded.


The organisation vested with responsibility for carrying out election responsibilities in Sri Lanka- the EC- is a living, heritage institution. It is accountable to Parliament, not to journalists or civil society. The EC has built for itself an enviable niche for excellence. After every election, Parliament, which is in the bestposition to judge whether people’s sovereignty has been safeguarded and fulfilled,had always given the EC its fullest endorsement for elections past:no better endorsement is required.


In this article, a journalist is exercising his privilege to be wrong. That is his right.


(Jolly Somasundram was a member of the Ceylon Civil Service (CCS))


 


 
 
 
 
 
 
 
 
 
 
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