By Basil Fernando - Sri Lanka’s presidential election, set for Jan. 26, will test the popular sovereignty enshrined in the Constitution and the possibility of a genuine election, as required by the International Covenant on Civil and Political Rights.
Article 25 of the convention states that citizens of a country have the right to vote and that elections should be genuine and periodic, with universal and equal suffrage, held by secret ballot guaranteeing the free expression of the will of the electors.
According to Article 3 of the Constitution of Sri Lanka, “In the Republic of Sri Lanka, sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.” So voting for the formation of a government must be genuine.
Genuine means people have complete freedom to exercise their franchise and express their political will without fear. The notion of popular sovereignty, which is the foundation of the constitutional framework of Sri Lanka, presupposes the capacity of the people to genuinely participate in exercising their right to vote.
In the Sri Lankan context, the question is whether the freedom to vote can be exercised genuinely. In a functioning democracy this is taken for granted. But where for decades there has been an attempt to limit the electoral process, the question of a genuine election cannot be taken for granted.
Ever since the 1978 Constitution was promulgated, the possibility of a genuine election has been put to the test. The architect of the Constitution, J.R. Jayewardene, also had the grand plan of restricting the electoral process. Therefore the sovereignty of the people and the scheme for restricting the electoral process have been in constant conflict.
Sri Lanka has already established a tradition of choosing its representatives by the ballot, and the people are deeply conscious of their right to vote. Thus, when Jayewardene contemplated the scheme of restricting the vote, he knew he could not simply legislate that the people could no longer elect their representatives. Since he could not achieve his scheme through legitimate means, he used his political shrewdness to find other means to achieve this.
Elections conducted during the rule of Jayewardene, with stout support from his Prime Minister Ranasinghe Premadasa, were enormous experiments in electoral violence and fraud, to create the façade of elections without genuine results.
This began with a scheme to deny civil rights to the best-known political opponent of the ruling party, the leader of the Sri Lanka Freedom Party, Sirimavo Bandaranaike, for which purpose litigation was launched against her and her closest associates.
Singapore has set a precedent by adopting schemes that make it impossible for opposition parties to function in a democratic manner. However, the same aim could not be achieved in Sri Lanka, where the habit of electing representatives has become a part of the culture.
Jayewardene and his colleague Premadasa introduced large-scale disappearances immediately preceding an election to intimidate voters. They also introduced a referendum to extend the life of the Parliament. However, by 1988 all such schemes were failing.
The reports of commissioners on forced disappearances clearly indicate that the highest numbers of disappearances occurred close to elections. Through political unrest and intense political propaganda, it was possible to create the impression that such disappearances were unrelated to the elections. However, closer scrutiny reveals a deep connection.
The conflict with the Liberation Tigers of Tamil Eelam provided a pretext for election violence. Political violence and fraud were little noticed because people were preoccupied with the problems of violence associated with the civil conflict.
The forthcoming election is the first outside a period of political violence. As the LTTE conflict ended in May 2009, the present election takes place in an atmosphere without a pretext for the massive use of electoral violence or easy attempts at electoral fraud.
Unexpectedly, the ruling regime is being seriously challenged in this election. Unexpectedly, large political contests have developed in the country, proving that the tradition of electing their representatives is deeply embedded in the political culture.
The contest so far has not been conducted in a peaceful atmosphere as required in a democracy. Four people have already been killed and the election monitors have reported large numbers of violent incidents related to election campaigns.
The election commissioner himself has complained openly that he has not been allowed to conduct his duties in a free and fair manner. The dissatisfaction expressed by the commissioner himself is now a well-established fact.
The failure to appoint an Election Commission related to the 17th Amendment to the Constitution is also a reflection of the attempt to deny a genuine election. In the overall scheme of things, the idea of restricting the vote still remains. Genuine constitutional provisions for a free and fair election do not operate even now.
The scheme behind the 1978 Constitution – giving absolute power to an executive president who can rule as long as he wishes by restricting the vote – still remains a problem for the people of Sri Lanka.
Today, there is a conflict between the deeply established tradition of the people in choosing their own representatives and the scheme to restrict the electoral process. The future of this contest will be seen in the days to come.
--
(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia. His blog can be read at http://srilanka-lawlessness.com.)
© UPI Asia
No comments:
Post a Comment