Musings on the Rule of Law and Ethics

for Election Commissions

May 26, 2017,

9:52 pm

A Keynote Address delivered by S.

Ratnajeevan H. Hoole at the Fourteenth International Electoral
Affairs Symposium under the auspices of the International Centre
for Parliamentary Studies at the Jetwing Blue Hotel, Negombo (25-
26, May 2017).

While my subject is the design of electromagnetic devices, I am

also asked often to teach ethics for engineers which we must
include in our treatment for degree accreditation. Last week
Chairman Mahinda Deshapriya gave a fine interview with the
Daily Mirror. He challenged the government for delaying local
government elections. I think he set a fine example for all election
administrators in leadership. It is therefore natural for me to muse
on the Rule of Law and Ethics for Election Professionals.
Ethics for Election Professionals

It is my intention to explore the limits of ethical behavior for a

member of an Election Commission. The usual model is for us to
be faceless civil servants. This, I question. In this exploration,
rather than ask if something is ethical, I will describe the state of
politics in Sri Lanka and let you,the listener, ask yourself whether
it is ethical for me to say what I will now say. I hope you will affirm
my duty to say what I say.

It is conventional wisdom, as I have noted, that we election

administrators keep away from politics. I have been told that I
have no political rights as a Member of the Election Commission.
In Sri Lanka we make much of our nominations for office by our
Constitutional Council of ten persons as if to suggest that we have
no politics behind us.

Rubbish, I say! These ten persons of the Constitutional Council

include 7 politicians who, with the exception of the JVP nominee,
belong to the government and I count the Tamil National
Alliance, the TNA, here among the six government MPs. Most
worked against the outgoing regime in January 2015 or at least
were sympathetic to regime change. We cannot, by any stretch of
the imagination, be claimed to have been appointed by a neutral
body.

I had been writing a weekly newspaper column and had to flee,

after I reported the rigging of local government elections in Kayts
in July 2011. A Minister of the then government moved the
magistrate to issue an open warrant for my arrest. I returned in
August 2015, and was tapped for the Election Commission while
out on bail. The police had stalled for two years for time to
investigate the former governments charges. Two months ago
the new magistrate threw out all charges saying he did not
believe the police had any investigation going on. With that
experience, I am not neutral. Indeed, I am partial. I believe with
my all, that justice must be fiercely upheld. There can be no free
elections without justice.

As for keeping away from politics, yes, party politics is not

permissible for us because we are the arbiters in electoral dispute
resolution. On the other hand, when a party engages in hate
speech for example and we put a stop to it, it is expressing
political views without engaging in party politics. A football
referee who calls a foul is not being partial. His neutrality
demands that he blow the whistle against a foul.

Moreover, in all matters of rights and ethics, there is a hierarchy.

For example, the right to life of the UNs CPR must, when in
completion, trump the right to vacations with pay in the
Convention on ESCR. Likewise, when policies of government
threaten the life of a nation or a section of its people, the right to
life must trump any need for, or the ethics of, political neutrality
by Election Commissions.

So let me please express myself today. Let me say that as a

member of the Election Commission, I will always uphold the
mandate of the people. However, it does not mean that we make
no moral judgements. As thinking persons, as moral persons, we
act strictly on ethics considerations.

January 2015
The Winds of Change from January 2015 were a watershed in Sri
Lankas political history. Before that Tamils had been, according to
UN reports, slaughtered in several tens of thousands. Muslims
were attacked and Churches burnt. White vans plied our streets,
disappearing opponents of the ruling regime. There were calls to
eject us from the Commonwealth because of our violations of
human rights; Canada boycotted the Commonwealth Heads of
Government Meeting in 2013. We were under the UNHRCs
microscope for human rights violations and genocide. Corruption
was visible everywhere. There were 97 ministers out of 173
government MPs in a parliament of 225 MPs. It was a sign of our
corruption as MPs in opposition were induced to join the
government through a ministerial seat on the cabinet. Our GSP-
Plus status for easy exports to Europe was revoked. The UN
Human Rights Council was readying to charge Sri Lanka.

Then the dark stormy clouds over us lifted in January 2015. A new
government was in place promising change. And change there
was. White vans are no longer heard of. Tamil and Muslim parties
became part of the ruling coalition. Tamil areas saw
demilitarization. People no longer lived in fear. A constitutional
change clipped the wings of the president limiting terms to two.
Independent Commissions were created under the Nineteenth
Amendment. These included our Election Commission. The size of
the cabinet was limited to 30. A Tamil Chaired the Delimitation
Commission. Tamils were suddenly proud to be Sri Lankan.

The two major parties of the Sinhalese people for the first time
joined hands in effecting these changes. After a long time a major
Tamil party, the TNA, was in partnership with the government.
However, the TNA chose to sit in opposition despite the
partnership. The reason was caution. Previous deals between the
Sinhalese ruling party and the Tamils were reneged as the other
major Sinhalese party claimed a sell-out. This time both parties
were in power together as a national government. Neither party
would, neither could, claim a sell-out by the other. So there was
hope.

The Sputtering Engine

However, even when the government was new, there were

indications of an intention to cheat. The Nineteenth Amendment
limiting cabinet to 30 had an escape clause for forming national
governments with the permission of parliament a trivial
requirement for any government with a majority. There were 47
cabinet ministers now.

Two years later, the engine is sputtering. The mandate to clean up

has not been fulfilled. Private Tamil lands taken over by the army
and promised to be returned, are very slow in being returned.
Refugees away from home can never participate fully as
candidates or electors. The President and the Prime Minister insist
that Buddhism will continue in the new constitution as the
foremost religion with state sponsorship. Generals who murdered
Tamil civilians have been declared national heroes who will never
be prosecuted. It is a free pass for anyone wishing to massacre
Tamils.When a minoritys right to life is so challenged by policies
of government as is happening in Sri Lanka now, for us to remain
silent is suicide. For, people living in fear can never participate in
elections.

Local Government Elections, overdue in some Tamil areas from at

least 2013, are yet to be held.
The Tamil leader, Rajavarothayam Sampanthan, says in
frustration that he is at the end of his tether. Generally,
accusations that the government has no intention to fulfill
promises of reconciliation and justice for victims of war crimes,
are widely accepted by Tamils. Mr. Sampanthan himself I think I
assess correctly is being widely blamed by Tamils for being
taken for a ride again. God forbid! Tamils who voted
overwhelmingly for this government, I doubt will be so trusting
again. That forebodes ill for a united Sri Lanka.

What went wrong? I believe it is the fact that there is no rule of

law despite the appearance of all being well. There can be no fair
elections without it. As Rajan Hoole of the University Teachers for
Human Rights said, everything is puluda (meaning bluff).

In the two years the government did little, it made the people
skeptical of its intentions. To effect the constitutional changes
necessary for reconciliation, the government needs a two-thirds
majority. This means accommodating as ministers the very crooks
the people kicked out using their vote. This goes to the heart of
the rule of law and democracy. Should the government, while
claiming the rule of law, selectively prosecute well-known crooks
from the outgoing government while exempting those who join it
from accountability? Are the means of accommodating crooks in
government, justified by the end of possessing a two-thirds
majority to effect the noble changes promised?

The government has lost the enthusiastic support of many who

voted for it. Tamils, by and large, believe that the governments
promises contained in UNHRCs Resolution34/1 on promoting
reconciliation, accountability, and human rights will never be
kept.

The Eviscerated Rule of Law

Democracy is upheld by the law. The law in turn is upheld by the

judiciary. Our judges at the highest level are politically corrupt as
brought out by the saga of our Chief Justice Shirani
Banadaranayakebeing sacked and put back.

Our tainted judiciary is best exposed by former Chief Justice

Sarath Silva in the Helping Hambantota case. Quoting from
Colombo Page of 18.10.2014, "Mr. Silva confessed to BBC Sinhala
Service that he had delivered a judgment favorable to then PM
Mahinda Rajapaksa." Mahinda Rajapaksa was accused of
misappropriating tsunami funds.

In the rape and murder of Krishanthi Kumaraswamy, the 17-year-

old Tamil school-girl and the 25 Sinhalese school-children of
Embilipitiya forcibly disappeared in 1989 by soldiers, the ICJ says
"junior officers were convicted while their superiors were left
untouched, despite evidence that responsibility for these grave
crimes lay higher in the chain of command."

The International Independent Group of Eminent Persons was

nominated by donor countries and our government to observe the
Commission of Inquiry into alleged human rights abuses. Its
history completes the story of our judiciary. They withdrew
because our Commissions were biased and did not go by
international standards.

War crimes culpability goes very high up the Sri Lankan chain of
command. General Sarath Fonseka, a minister in the present
government, has stated in an interview with Frederica Jansz that
then Defense Secretary Gothabaya Rajapaksa the former
Presidents brother -- had spoken with Brigadier Shavendra Silva,
Commander of the Armys 58th Division, giving orders not to
accommodate any LTTE leaders attempting surrender and that
they must all be killed. Fonseka, by his own admission, heard the
defense secretary order murders. Yet, he did nothing. In law, this
may be construed as a war crime. How is he a minister in our
government?

Our government claims that our war crimes can be professionally

handled by our tainted judiciary without the foreign participation
called for by the UN HRC. At the same time, our President says
the accused killers are heroes whom he will never allow to be
charged. When Tamils have no right to life, can they be fearlessly
free to vote and stand for elections?

A Partial Judiciarys Effect on Elections

The earliest judicial electoral meddling in Sri Lanka was when hill-
country Tamils who had been voting at independence and who, it
was presumed would continue to vote, were rendered stateless
and voteless. The judiciary failed them. I think the Election
Commission, as part of voter education, must comment before we
boast of our democracy.
Then the demise of Article 29 of our 1947 Constitution. It required
advantages and disadvantages from legislation to affect all
communities equally. In the 1972 Constitution it was completely
removed and Buddhism was awarded foremost place with state
fostering. As election professionals we know that offering arrack
in exchange for votes is wrong. Is offering to foster the religion of
one community for votes very different?

As a Commission, we discourage parties having words like Tamil,

Sinhala, and Buddhist in their name. Consistency then demands,
a fortiori, that we also decry this partiality to Buddhism.

Cross-overs

Moreover, from our early years, MPs elected from one party
moving to another has been justified on grounds of conscience.
Article 99(13) of our 1978 Constitution provides thatMPs expelled
from their party lose their seat. Yet, when such expulsion is
challenged, our Supreme Court typically allows an MP to remain in
parliament even after leaving his party. This seriously challenges
the sovereignty of the people and demeans respect for their
franchise. So bad had been the practice that in the 2010
parliament, after getting 144 seats, the government induced 29
cross-overs to get 163 seats.

Tissa Attanayake, then UNP General Secretary, addressed a

meeting on 27.07.2013 where he said the government is buying
opposition MPs through cross-overs for millions of rupees to win
the election. So powerful must have been the inducements that
even Tissa Attanayake crossed over just before the 2015 elections
claiming to show a signed secret deal between Maithripala
Sirisena and Ranil Wickremesinghe. The signatures were allegedly
forged, and he was arrested. In our murky state of politics,
Attanayake has now been invited by the UNP to come back to its
fold. It would appear that the charges will be withdrawn if he
comes back. Should the Election Commission not comment? We
need to take on issues of real substance, rather than putting all
our focus on things we all agree on like voter registration.

Our much touted voter education on registering to vote becomes

an empty boast when the peoples mandate is thwarted like this
and elections are postponed

Depressing Experience

There are errors in the law which need correction before the long
overdue local government elections can be held. Mr. Deshapriya
had asked for these changes from over two years ago before the
time of our Commission. Minister Faiszer Musthapha said last
week that the changes to the law had been approved and would
now go to parliament.

I was elated.

It was a good moment for me to address the women interested in

politics and political party representatives in Vavuniyain the
North, fortuitously scheduledfor 19 May.

However, the daybecame one of mixed feelings. After promising

to commemorate May 18 as "Day of Remembrance" for all who
died in the war, news came that the government made it a War
Heroes day.The government seemed only interested in Sinhalese
votes. Those upholding the integrity of elections and appointed by
such a government the police, judges, and even the Election
Commission become suspect.

On my way to Vavuniya, around 7:00 AM on the 19th, we passed

Muhamalai just before Pallai where several soldiers and policemen
were on the road. Web-newssaid that someone had shot at a
soldier and missed.

As I spoke to Tamils, the general view was that the incident was
staged to refuse to withdraw the army. "See," said a Tamil
government official, "By Sunday Colombo newspapers will report
that the LTTE is regrouping."And they did.

The peoples of Sri Lanka have their own different versions of

history. Even at the Election Commission, we could not agree on
the preamble on history for our Strategic Plan, and had to
droplarge sections of it. That we agreed to disagree without
quarrelling shows the Commission to be functional.

Pressure for Human Rights

It was the pressure of the international community that

encouraged us to civilized behaviour. The withdrawal of GSP-Plus
had its salutary effects. Then suddenly last week, it was restored
even though most of the conditions for its restoration remain
unfulfilled. I am happy indeed for those who can now sell their fish
and garments in Europe. However, the restoration raises
questions as to whether Europe wanted the restoration of our lost
human rights or merely a beneficial alliance reminiscent of our
colonial days. After the UN HRC gave time to Sri Lanka after our
limited progress in the last two years, there is little incentive for
the government to give Tamils justice. Justice, democracy, and
elections are so closely tied up, that the Election Commission
must look at these.

Back to Square 1?

By evening on the 19thon our return from Vavuniya, we saw

beautiful Vesak lanterns still lining the road. What was on my
mind, however, was not their beauty but that the state was
spending our common pool of money belonging to all to foster
Buddhism and remind Tamils that this is a Buddhist country. Newly
built Buddhist temples lined the road. During Vesak a week
earlier, I had seen Tamil children neighbouring Vanni army camps
attending Vesak ceremonies dressed in Sinhalese-attire. A local
said they had no choice in the forced assimilation fearing being
seen as anti-national if they refused. As soldiers offered free ice
cream, there were few takers because it was seen as an
imposition by the army.

On the way back on the 19th, we saw more soldiers on the road.
Vesak ice cream was still on offer but still with few takers. About
thirty soldiers in boots were sheltering from the sweltering heat in
a temple across the point on the A9 Road where the alleged
shooting occurred. To Hindus who do not use footwear in their
homes, it was sacrilegious for the soldiers to stand in the temple
with their boots on.This upset my companions. Are we going into
occupation again? Is the free exercise of our franchise possible
under occupation?
At home that evening, I got the Colombo newspapers. The Daily
Mirror reported that on Wednesday the President had chaired a
Progress Review Meeting of Independent Commissions. His office
had issued a statement that members of the Independent
Commissions including the Election Commission "attended the
meeting."

Untrue!So utterly untrue! I had not been invited, let alone told
about it. Previously when parliament went through the motions of
consultation, only the Chairman and officials were invited. The
President and the Parliament seem to be ignorant that they
created a three-member Commission meant to be diverse and
there is no longer a single Election Commissioner. So much for
minorities and collective decision-making. The puluda, the bluff,
continues. Does Election Commission Ethics involve my keeping
quiet as the country is misinformed by the President? I think not.
As a Tamil, I see a bleak future for myself and for democracy. To
cite ethics to remain silent would be to join the puluda and be
irresponsible.

As I write (22 May), Colombo Telegraph reported

"Muslims in the country were coming under increasing attacks

once again by the Bodu Bala Sena (BBS) with a mosque and
Muslim owned shops in several parts of the country being
attacked or torched Since mid-April this year, there [have] been
at least 15 such incidents in various parts of the country."

A very un-Buddhist monk is going about beating up Muslims and

literally pushing away the police that come to intervene. News
reports say the police have orders not to arrest the monk. The
Prime Minister assures us that the police can handle the matter.
What does it portend for democracy, especially for Muslims?
As I continue writing, May 23, a most terrifying sight to behold.
For the first time in my two years since I returned, six soldiers on
three motorbikes with big guns going by my home in Jaffna all
dressed in dark uniforms from headgear to boots, and their faces
covered showing only their eyes. Why did they not wish to be
identified?

It is dj vu. Terror rules again. Ethics is never an excuse for

silence the face of injustice and government puluda.

Ladies and gentlemen, I hope you agree that this was a

responsible and ethical speech. Thank you.
Posted by Thavam