By November 8, 20170 CommentsReport

Even new amendments to LG Polls Law are flawed – EC member Prof.Hoole

Election Commission’s Member Prof. S. Ratnajeevan H. Hoole, in an interview with the Daily Mirror, shares his thoughts on the Commission and the upcoming local authorities’ elections  

 

  • They will make us violate some law somewhere
  • Those who voted for the PC Elections Act do not know what they voted for
  • Our laws are full of mistakes
  • We are always in violation of something
  • It came to a matter of choosing which laws we would violate  

Q How is the Election Commission getting ready for the local government elections in the wake of  Government announcing they would be conducted in January?  
Your question shows how wrong the general assessment is on this matter. It is not the business of Government to announce the date. Yet, various ministers have given different dates as if they are in charge. Let’s look at the Local Government Elections Act. No: 25.  

“Every general election of members of a local authority shall be held within a period of six months preceding the date on which the term of office of the members who are to be elected is due.”  

Some Tamil local authorities have been dead from 2011. Others have elections blocked by court order, and most are neglected by us authorities. Act No:27 says that we the Commission appoint a public officer as the Returning Officer (RO) and he shall publish, by Act No: 26, a notice of his intention to hold this election. Since we appoint ROs, we set the date for uniformity, although an RO, usually the GA, has the authority to set the date independently. The Government, however, seems to think they can set the date and that we will obey.  

The fact is that we are prepared as well as we can be for the elections. But we do not know all the applicable laws. For example, the Government is amending the Local Authorities Act further. The Provincial Council Elections Act had not been translated into English or Tamil for over a month since its passage to me to act on it. It was passed in such a great hurry, I am reliably told even those who voted for it do not know what they voted for. Last week a document came up for us to appoint a replacement for someone in the Northern Provincial Council who had resigned and we had to invoke the Provincial Councils Election Act. Without knowing if the relevant clause had not been amended, I asked for the appointment to be put on hold until we got a copy. Now I have been given a copy.  

Q What are the arrangements being considered to ensure transparency and credibility in counting votes at polling stations themselves?  
In recent years I think that is an aspect we have done very well in. With the full participation of observers and party-candidate representatives, this will run well. We have a good credible system;but I am aware that some minority groups think there is a conspiracy to keep them out. For example, a dispossessed leader and candidate, Seeniaar Gunasingam, complained to me that the ballots were put in three piles for counting so he could observe only one pile and did not know what went on with the counting of the other two. The relevant assistant commissioner, when queried, said they can count all ballots as one lot but it would take the whole night and the next day to complete [ the count]. We must take steps to ensure  confidence especially among minorities. It is then that the result will be credible.  

Q How do you regulate canvassing and propaganda this time under the new system?  
The same as always in most things .However, No: 82(c)(2) of the Local Government Elections Act which came into force in 2012 makes a difference. The nomination notice is set to be issued in the period 27-30 Nov. and the nominations in three- and- a -half days in Dec. 11-17. According to this change, hate speech becomes punishable “from the first day of the nomination period […] and ending on the day following the date of the poll.”   

However, even from 2002, No: 82B has forbidden in bad grammar what it calls “treating” before, during or after an election. The new budget to be finalized by the end of November just ahead of the election must bear this in mind.   

Given these points, it is important we have well-informed officials who will fearlessly brief the Commission on such important matters rather than simply take orders.  

We should have invoked our constitutional object and announced elections. Until a new law is in place, the old law is the law. Until a new delimitation is in place, the old one is valid. Going ahead with existing laws and boundaries had a lot of untidiness because of the mistakes in the Local Government Elections Act. However, through this courtesy to Government by waiting for it to do the right thing, we sucked-up too much and gave Government a terrible weapon to rob people of their franchise

Q The Election Commission was taken to task over the delay in conducting polls. How do you respond to these critiques?  
This is an absurd charge but not entirely without merit. The Government deliberately, I believe introduced delimitation and dragged it for well-nigh two years. Members of the Delimitation Committee say the minister asked them to go slow. When I asked the minister, he said it was with the good health of committee members in mind. His credibility was already poor because the mistakes in the Local Government Law had been pointed out. We were being courteous in not openly challenging him, even though the Constitution, in No: 103(2), specifies;

“The object of the Commission shall be to conduct free and fair elections and referenda” which we failed to assert. In time, however, we invoked No:33(1)(d) which lists among the President’s duties, acting “on the advice of the Election Commission, [to] ensure the creation of proper conditions for the conduct of free and fair elections and referenda.” We advised the President and to spare him embarrassment kept under wraps the contents of our letter signed by all three of us. To no avail!  

As we were readying to announce the Provincial Council Elections on October 2, it was a ghastly shock to see the PC Elections Bill being rushed to prevent our holding elections. When the Supreme Court ruled that the Bill violates our fundamental rights by postponing elections, we wrote a spate of letters to the Speaker and Prime Minister among others decrying the vitiation of democracy and took a decision to release those letters – which did not become necessary after the Chairman got calls from the Speaker and PM saying they wanted to hold the elections. We were promised that the matter would be put to the Cabinet and the gazette released. On November 1, the Speaker called to say the necessary gazette had been signed. So we set a date for elections in late January.  

We did our bit. Looking back however, waiting for the Government to finish its dilatory tactics on delimitation and legal corrections was a big mistake. We said to ourselves we cannot violate the law. But we were already in violation by not declaring elections in the last six months of many a local body. We violate the Constitution as it pertains to our quorum and having a Commissioner General of Elections. Because our laws are full of mistakes, we are always in violation of something. It came to a matter of choosing which laws we would violate.   

We should have invoked our constitutional object and announced elections. Until a new law is in place, the old law is the law. Until a new delimitation is in place, the old one is valid. Going ahead with existing laws and boundaries had a lot of untidiness because of the mistakes in the Local Government Elections Act. However, through this courtesy to Government by waiting for it to do the right thing, we sucked-up too much and gave Government a terrible weapon to rob people of their franchise.  

If we had so proceeded, someone probably would have invoked court over the said untidiness and stopped the elections. We thought that would reflect incompetence on our part. But doing that would have absolved us of any responsibility for the delay, asserted our independence and proved costly for the reputation and electoral standing of whoever derailed the elections.  

Act No:27 says that we the Commission appoint a public officer as the Returning Office and he shall publish, by Act No: 26, a notice of his intention to hold this election. Since we appoint ROs, we set the date for uniformity, although an RO, usually the GA, has the authority to set the date independently

Q How do you look at the content of the present Local Government Election Law that provides for a new electoral system?”  
It is certainly positive as far as the compulsory enhancement of female representation is concerned. It has righted many wrongs in the existing law which made holding elections problematic – said to have had about 60 typing errors and 8 substantive errors. It is disappointing that youth representation is urged but not made compulsory.   

However, even the new amendments have mistakes which will make us violate some law somewhere, as I pointed out in a recent op-ed.  

Q There was a major uproar about a foreign national being an office bearer of a political party. How lawful is it?  
The law on recognizing political parties let the then Election Commissioner (and now the Commission) give recognition according to statutory rules. That incident occurred years ago before our Commission was formed. Even at the time, the law did not (and even now does not) require the office bearer of a political party to be a citizen. We simply tick through the legal requirements and if all are met, award recognition.   

The law does not allow an MP to be a dual citizen. There is a question over whether Commonwealth citizens may be local government officials  

Now that the citizenship of party officials has been made an issue, it seems natural for the Government to think the matter through and decide on the laws. In the meantime, to be ready for any eventuality. The Commission has begun asking for the nationalities of party officials

Now that the citizenship of party officials has been made an issue, it seems natural for the Government to think the matter through and decide on the laws. In the meantime, to be ready for any eventuality, the Commission has begun asking for the nationalities of party officials although we have no power to debar such non-nationals from party office.  

Q What are the latest efforts being contemplated for the introduction of electronic voting?  
It is only under discussion. Last we talked, we were against it because the ballot is very complicated with a vote for the party and then preference votes. This would make the machine more expensive. India for example has successfully gone for electronic voting because they can tailor-make voting machines to suit their simple direct vote for candidates. We need to revisit this after our law-makers have finished their piecemeal legislation, hurrying through amendments with mistakes and then making further amendments.  

I see the future in internet voting. The US and Canada have it for sections of their electorate. Estonia has it for all. There have been no complaints. If we can trust our money to Internet banking, why not our ballot? We are an excitable people and easily believe conspiracy theories. Until we mature in this regard, I think electronic voting has to wait to preserve the sanctity of and public confidence in electoral verdicts. But our future is there.  

The relevant assistant commissioner, when queried, said they can count all ballots as one lot but it would take the whole night and the next day to complete [ the count]. We must take steps to ensure  confidence especially among minorities. It is then that the result will be credible

Q Any last thoughts?  
We must not rush through our legislation. We should not make changes at the last minute on an ad hoc basis. This is why our laws are so full of mistakes as I point out in the op-ed I referred to. Our MPs need to devote more time to their legislative work and read what they pass.  

For new election laws to come into force it is important to give a 2- year- period as is the international practice. Not doing that smacks of manipulation for party ends.  

 

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