South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

By A.H.G. Ameen

Today people have lost faith in Sri Lanka’s election process due to the disruption and criminalization of the election process which is marred by threat, intimidation, use of illegal arms, black money and corruption combined with massive rigging of votes. The main motive of the political parties is to gain power by any means, fair or foul.

People must be free to exercise their franchise and choose their representatives. It is a violation of fundamental rights to prevent them from such an exercise. Most of the republics enshrine in their constitutions that people are sovereign and the so-called leaders or representatives are their servants, but in real practice the voters are pawns in the hands of musclemen and terrorists.

Therefore good honest and educated people keep off the portals of our politics. This is the scenario in most South Asian countries. Bangladesh was no exception but with the introduction of the non-party caretaker government, corruption, intimidation and violence during elections have been minimized.

The Report of the Commissioner of Elections on the Parliamentary General Elections held on February 15 1989 refers to throwing of hand bombs at polling stations, incidents of shootings near polling stations and the failure of the police to take action, use of state vehicles and SLCTB buses in illicit transport of voters, etc. As a result there had been annulment of polls and cancellation of ballot papers.

Now the tendency, as we witnessed at the past general elections is not the failure of the police to take action but the police working with the government in power and engaging itself in election work. The entire machinery of the government in power is engaged in election work for the candidates of the government. This is a death knell to democracy and elections become a farce.

In the past men of integrity with education and wealth contested elections and returned to Parliament and these statesmen dedicated themselves in serving the people and spent their wealth for the people. Today uneducated persons from the street enter Parliament and have enriched themselves, sacrificing the people who elected them.

Report of the Commissioner of Elections for the year 1999

The Commissioner says in his report that Senior Presiding Officers reported that disturbance occurred during polling in 22 polling stations in the District of Kandy, 3 stations in the District of Matale, 3 stations in the District of Nuwara Eliya, 1 station in the District of Ampara, 1 in Puttalam, 6 in Anuradhapura and 8 in Badulla.

There had been more incidents which were not reported. The Commissioner declared elections null and void in a number of polling stations. The Elections Commissioner does not publish a report after every general election or periodically. I had a discussion with the new Elections Commissioner Mahinda Deshapriya regarding this report and he admitted that the last report was in 1999. Perhaps the reason may be that so much of corruption and violence take place at every election and publishing a report will place on record all the evils.

Non-party caretaker government

To ensure peaceful and fair elections and give an opportunity to the people to elect good educated men and women of integrity and dedication the concept of an Independent Caretaker Government should be introduced to Sri Lanka. An improved form of caretaker government that is implemented in Bangladesh is imperative to Sri Lanka.

In Bangladesh the elections conduced under the Caretaker Government in 1991 are said to have been unprecedentedly free and peaceful.

Amendment to the Constitution

– Act No : 1 of 1996

The concept of Caretaker Government was introduced in Bangladesh in 1996 by an amendment to the Constitution: Act No. 1 of 1996. Provisions made in the Constitution under chapter 11A: There shall be a Non-Party Caretaker Government during the period from the date on which the Chief Adviser of such government enters office after Parliament is dissolved or stands dissolved by reason of expiration of its terms till the date on which a new Prime Minister enters office after the constitution of parliament.

The Non-Party Caretaker Government shall consist of the Chief Adviser as its head and not more than ten other Advisers all of whom shall be appointed by the President, and the Chief Adviser is appointed by the President from the retired Chief Justice of Bangladesh retired last and who is qualified to be appointed as an Adviser.

If such retired Chief Justice is not available or not willing to hold office of Chief Adviser, the President shall appoint the person who retired next before the last. In the event the President is unable to appoint a retired Chief Justice he may appoint a person from the Appellate Division in the manner described above.

Should the President fail to appoint a Chief Adviser in the manner stated above he shall after consultations as far as practicable, with the major political parties appoint the Chief Adviser from among citizens of Bangladesh qualified to be appointed as adviser.

Should the President fail in all these attempts, the President shall be entitled to assume the functions of the Chief Adviser of the Non-Party Caretaker Government in addition to his own functions under the Constitution.

The Chief Adviser and the other Advisers shall be appointed within fifteen days after the dissolution of parliament. However, the Prime Minister and his cabinet shall continue to hold office until such time the Non-Party Caretaker Government is formed. Thereafter the Prime Minister and his cabinet become functus.

The qualification of the Advisers shall be :

(a) Qualified for election as Members of Parliament.

(b) Not member of any political party or of any organization associated with or affiliated to any political party.
(c) Agreed in writing not to be a candidate for the ensuing election of Members of Parliament.
(d) Not over 72 years of age.

The Non-Party Caretaker Government shall stand dissolved after the constitution of the new Parliament.

The functions of the Non-Party Caretaker Government shall be to act as an interim government and carry on the routine functions of such government with the aid and assistance of persons in the service of the Republic. It shall give the Elections Commissioner all possible aid and assistance that may be required for holding the general elections of members of parliament peacefully, fairly and impartially.

In my view with the increasing violence, intimidation and the type of candidates who enter the political arena there should be a control by an independent educated body so that democratic principles may be preserved. A Non-Party Caretaker government should be introduced to Sri Lanka at the earliest opportunity. For this, an amendment to the Constitution of Sri Lanka has to be made. Perhaps the next general election may be held under a Non – Party Caretaker government.

The 14th Parliamentary Election was held in April this year amid several allegations of malpractices and violence. When we look back especially after the 1978 Constitution, that introduced the Proportional Representation electoral system, bitter experience comes to mind, of violence not only between contesting parties but within the parties and independent groups.

In post independence Sri Lanka the electoral system was the First Past the Post system. This method identified the representative and he was held accountable. Multi-member electorates were set up to return representatives of minorities. The 1978 Constitution introduced the PR system. This Constitution introduced the Executive Presidential system and he is not accountable to any institution and the Parliament nor has the Court any control over him. Absolute power is vested in him as a former President said, he has no power only to make a man a woman or vice versa.

The best electoral system is the mixture of both , FPP and the PR systems where candidates elected under the FPP and on the votes polled under PR. This system may be not in the best interest of the minorities which could be eliminated by the multi-member electorates and carving of electorates by a Delimitation Commission.

We have lessons to learn from Bangaladesh on electoral malpractices and how to ensure free and fair elections in any form of electoral system. It is the Non-Party Caretaker Government that can ensure such free and fair election.

The writer is a lecturer at Sri Lanka Law College

Source: The Sunday Times – 31.07.2011