Elections Commission and law that endangers the franchise and people’s sovereignty



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by C.A.Chandraprema


The Supreme Court recently rejected the petition filed by the Sri Lanka Podujana Peramuna challenging the rejection of its nomination list for the Maharagama Urban Council without taking it up for hearing. The same thing happened to the petition filed by the SLFP against the rejection of their nomination list for the Padiyatalawa Pradeshiya Sabha. Thereafter, the SC also rejected the petitions filed by the SLPP against the rejection of its nomination lists for the Panadura UC, and the Agalawatte, Mahiyanganaya and Thirippane LG institutions as well. The SC was apparently rendered helpless in all these cases by Section 31(1) of the Local Government Elections Ordinance which lays down the reasons for which Returning Officers can reject nomination papers and ends with the sentence "The decision of the returning officer to reject such nomination paper shall be final and conclusive". The lawyers for the petitioners had apparently argued that the rejection of the nomination papers had taken place for reasons other than those specifically mentioned in the above mentioned Section 31(1), but that last sentence seems to have carried the day.  


What this means is that if a Returning Officer rejects a nomination paper, there will be no recourse in law against any arbitrary action taken by Elections Commission bureaucrats. Giving such unbridled power to petty bureaucrats is the biggest danger that this country’s democratic system faces today. A good example of what can happen in such circumstances is the rejection of the nominations list to the Nivithigala Pradeshiya Sabha of the United Left Front led by Lal Wijenaike. The nomination papers of the ULF for this local body were delivered to the Returning Officer on December 13, 2017 - the day before nominations closed. There were two nomination papers – the first nomination paper contained the names of candidates to be elected for the 14 Wards in the Nivithigala Pradeshiya Sabha. The second nomination paper contained 15 names of candidates to be elected on the proportional representation quota of that Pradeshiya Sabha.


After the ULF handed over the two nomination papers to the Assistant Returning Officer, the latter counted the affidavits (containing the oath against separatism) which were also handed over with the nomination papers and stated that there were 29 affidavits whereas the requirement is only 26. It was then that the ULF representative realized that there were 15 names in the second nomination paper whereas the requirement was only 12 names. Thereupon the ULF representative requested the Assistant Returning Officer for an opportunity to delete the names of three candidates in the second nomination paper. The nomination papers had been handed over at about 2.55 p.m. and that there was ample time for them to effect the correction. The Assistant Returning Officer however stated that the nomination papers have already been submitted to her and she cannot give them an opportunity for any corrections.


The ULF representative had thereupon informed the party General Secretary of what had transpired. The latter had stated that he will request the Returning Officer in writing to delete the names of three candidates in the second nomination paper. Accordingly, the ULF representative had gone to the District Secretariat on December 14, 2017 which was the last day for submitting nomination papers with the letter to the Returning Officer requesting that three names be struck off from the second nominations list. Acceptance of nomination papers was to close at 12.00 noon on that day.  Attached to this letter was a letter from the three candidates to be struck off, consenting to the removal of their names from the second nomination paper. 


 The ULF representative with two others had arrived at the District Secretariat Ratnapura at approximately 10.30 a.m. on the morning of December 14, 2017. At the main gate however, they had been stopped and were asked the purpose of their visit by two election officers who had been identified as employees of the Department of Explosive substances and the Vocational Training Institute. The ULF representative had explained the purpose of their visit to the said two officers but they refused to permit them to enter stating that they can be permitted to enter only after 12.00 noon.  The ULF representatives had stated that they had to deliver the letters to the Returning Officer before 12 noon, but they were not permitted entry. Thereupon they had gone to the Elections Office which is about 100 meters away from the District Secretariat. The time was about 10.50 – 11.00 a.m. and only a clerk was in the office at the time. The clerk refused to accept the letter stating that she had no authority to accept letters addressed to the Returning Officer.


 Thereafter, ULF group had returned to the main gate at the District Secretariat and stayed there until they were permitted to enter at 12.00 noon. At 12.00 noon they were permitted to enter and went directly to the Returning Officer to hand over the letters stating that three names from the second nomination paper were being withdrawn. The Returning Officer however refused to accept the letter stating that it was now time for objections to the nomination papers and announced that the nomination papers of the United Left Front are rejected on the ground that the second nomination paper contained three extra candidates! If this is not a case of petty bureaucrats standing in the way of the franchise and the people’s sovereignty, what is? This is also a good reason why Mr Lal Wijenaike - since he obviously has the ear of the political authorities that be - should probably stop fiddling around with the Constitution and concentrate instead on introducing reason and commonsense to our elections laws.


 


Our Elections Commissioners need


to visit India


 We now have a so-called independent Elections Commission and the commissioners should go on a study tour to India to find out how a real Elections Commission should function. In contrast to our law, the Indian elections law expressly prohibits Returning Officers from rejecting nomination papers on frivolous grounds and for mere clerical mistakes. Section 36(4) of the Indian Representation of the People Act of 1951 stipulates that the returning officer shall not reject any nomination paper ‘on the ground of any defect which is not of a substantial character’. This is conspicuously absent in our Sri Lankan elections law where complete freedom has been given to Returning Officers to do just as they please. In a previous article on the same subject titled "What Mahinda Deshapriya should learn from the Indian Elections Commission" in The Island of January 10, 2018, we pointed out that the Handbook for Returning Officers of the Indian Elections Commission had given specific instructions to Returning Officers on when a nomination paper should and should not be rejected.


The Indian Elections Commission (IEC) has given specific instructions that there is a presumption that every nomination paper is valid unless the contrary has been made out and further that if there is a doubt as to the validity of a nomination paper, the benefit of such doubt must go to the candidate concerned and the nomination paper should be held to be valid. The IEC has specifically instructed their Returning Officers that a nomination paper should not be rejected for a defect, which is not of a substantial character. Any mistake or error of a technical of clerical nature should, therefore, be ignored. Examples of which purely technical or clerical errors which the IEC has instructed their Returning Officers to ignore are mistakes made in the nomination paper regarding; (a) the year of election, or (b) any minor error in the name of the constituency, (c) the description of an electoral roll number, or (d) the choice of symbols, or (e) some discrepancy between the age, name, or other particulars of the candidate or his proposer as given in the nomination paper and in the electoral roll and so on. The IEC also expected their returning officers to ‘interpret the provisions of the law intelligently and with commonsense’.


The IEC has specifically stated that nomination papers should not be rejected for technical or clerical errors or discrepancies, and that they should be directed by the Returning Officers to be set right at the time of the presentation of the nomination paper. (That is exactly what the ULF asked for and was refused with regard to their Nivithigala nomination papers.) Furthermore, if a candidate to whose nomination paper an objection has been taken applies for time to rebut such objection, the hearing of the objection should be adjourned till the next day or the day after that. Such a commonsense approach is sorely missing in the Sri Lankan law and in our Elections Commission. The Indian Election Commission has also stated that "whenever a candidate’s nomination paper is rejected without proper reason and he is prevented thereby from contesting the election, there is a legal presumption that the result of the election has been materially affected by such improper rejection. There is no such legal presumption necessarily in the converse case where a candidate’s nomination has been wrongfully accepted. It is always safer, therefore, to adopt a comparatively liberal approach in dealing with minor technical or clerical errors."


The Indian Elections Commission’s Handbook for Candidates tells candidates on what grounds their nominations lists can be rejected and on what grounds they can object to the nomination list of a rival. The IEC Handbook for Candidates specifically states: "You should not raise any flimsy or technical objections in regard to any nomination paper. Similarly you should oppose any objection raised against your nomination on flimsy or technical ground. When any objection is raised against your nomination paper you should try to impress upon the Returning Officer that he should not reject the nomination paper on any flimsy or technical ground. If he is satisfied as to the identity of the candidate and of the proposer then he should not reject the nomination paper only on ground of any technical defect."


The IEC Handbook for Candidates informs candidates when their nomination paper can justifiably rejected by a Returning Officer such as – when a candidate is not qualified to be an elected representative of the people, when a candidate is disqualified by law to be such member; if the nomination paper has not been delivered in time; if the nomination paper has been delivered to the Returning Officer by a person other than the candidate or his authorized agent, if the nomination paper has not been delivered to the place specified in the public notice issued by the Returning Officer; if the nomination paper has been delivered to a person other than the Returning Officer or an authorized Assistant Returning Officer; if the nomination paper is not in the prescribed form; if the nomination paper has not been subscribed to by the required number of proposers or has not been signed either by the candidate, or the security deposit has not been made etcetera. Under the Indian elections law, if any objection has been raised against a nomination paper, and the candidate needs time to rebut that objection, the affected party can immediately apply to the Returning Officer for time and the latter can allow up to two days for the rebuttal of the objection.


Siritunga Jayasuriya’s Kotte MC nominations


When the United Socialist Party led by Siritunga Jayasuriya submitted nomination papers for the Sri Jayawardenapura-Kotte Municipal Council the first nomination paper contained the names of the candidates for the 21 wards in the Sri Jayawardenapura-Kotte Municipal Council. The second nomination paper contained 18 names. At 12.00 noon on December 21, the candidates and party representatives were present at the election office during the period assigned for objections to the nominations. There were no objections to the nomination papers of the United Socialist Party. However, the Returning Officer stated that the nomination paper of the United Socialist Party is rejected on the ground that the nomination paper does not contain the required total number of candidates.


 The notice to the public issued by the Election Commission, which specifies the number of candidates to be nominated for each Local Authority, the total number candidates to be nominated for the Sri Jayawardenapura-Kotte Municipal Council is 38, of which 21 to be in the First Nomination Paper and 17 to be in the Additional Nomination Paper. The first nomination paper submitted by the United Socialist Party contained 21 candidates while the second nomination paper contained 18 candidates. Thus the nomination papers of the USP were thrown out because the second list had one candidate more than was necessary. The United Socialist Party argues that section 31(1)(b) provides for the rejection of the nomination paper only where the nomination paper does not contain the total number of candidates required to be nominated and not when it contains the total number of candidates and more but to no avail.


 SLPP nominations for Panadura UC


 The Secretary of the Sri Lanka Podujana Peramuna, duly signed a nomination paper for the Panadura Urban Council on December 14, 2017 before 12.00 noon. The duly appointed authorized agent handed over the nomination paper on behalf of the Sri Lanka Podujana Peramuna party for the Panadura Urban Council. However, it was rejected on the basis of a clerical mistake of the non-insertion of a date and the place of attestation of the signature of the Secretary of the SLPP.


SLPP nominations for the Tirappane PS


The Secretary of the Sri Lanka Podujana Peramuna, duly signed a nomination paper for the Tirappane Pradeshiya Sabha on 21stof December 2017. However, it was rejected on the grounds that in the bottom part of the nomination wherein the Secretary of the recognized political party signs the nomination paper, the date has been inadvertently omitted.


SLPP nominations for the Mahiyangana PS


Though the total number of women representatives were met as required by law, inadvertently and/or by mistake the column outlining the gender of each candidate had not been completed. The SLPP petitioned the Supreme Court stating that the nomination paper ex-facie fulfilled and/or substantially fulfilled all requisites and the requirements but the list had been rejected due to the failure to specify the gender in front of each candidate.


SLPP nominations for the Agalawatte PS


The Secretary of the recognized political party namely Sri Lanka Podujana Peramuna, duly signed a nomination paper for the Agalawatta Pradeshiya Sabha on December 14, 2017 before 12.00 noon. In the bottom part of the nomination wherein the Secretary of the recognized political party signs the nomination paper the date has been erroneously entered as 17th of December instead of 14th of December 2017 and the nominations list was rejected for that reason.   


Maharagama UC


On 14 December 2017 the SLPP nomination paper for the Maharagama UC was delivered to the Returning Officer. After the expiry of the nomination period, three persons, whose names were not officially disclosed to the Petitioners but representing the various political parties made objections to the nomination paper delivered by the Sri Lanka Podujana Peramuna on the ground that such nomination paper did not contain the total number of women candidates as required to be nominated. The basis of such objection was that in the 8th column where the gender of each candidate to be stated, the gender of the candidate named under No.24, was inadvertently written as "male" instead of "female". The authorized agent appointed by the secretary of the Sri Lanka Podujana Peramuna had tendered a hand written submission giving reasons as to why their nomination paper should not be rejected; and stating that the said insertion was a mere clerical mistake made inadvertently. In any event the name of the said candidate had been included in a separate list of women candidates, which was also simultaneously submitted along with the nomination list.


What we see from the above is that it is not really the rivalry between political parties and independent groups that is a danger to democracy but the attitude of bureaucrats – which is a serious indictment indeed. In almost all the instances above, it was not political rivals but bureaucrats who had precipitated the rejection of the nomination lists. Even in the case of the Maharagama UC, the bureaucrats need not have accepted the objections of the political party representatives because the error was so unimportant. Under Indian law and the practice of the Indian Elections Commission, none of the above mentioned nominations lists would have been rejected.


It has to be admitted that the various clerical errors that led to the rejection of so many lists were due to carelessness. However, they were too trifling to justify the rejection of the entire nomination list. The fact that there is no remedy in law in this country to the nit picking of bureaucrats, is a matter for grave concern. A mere government clerk can in a whim deprive thousands of people of their sovereign right to vote for a candidate of his or her choice. If a bureaucrat sees a minor error in the nomination paper but chooses to ignore it, the people in that jurisdiction will be able to enjoy their rights. Thus the bureaucrat is invested with arbitrary power which cannot even be challenged in courts. Are our returning officers interpreting the provisions of the law ‘intelligently and with commonsense’ as the Indian Elections Commission exhorts their Returning Officers to do? I think not.


 


 
 
 
 
 
 
 
 
 
 
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