“The Sri Lankan Supreme Court decision not to interfere with the electoral process, based on the charge that the Government had not disarmed all para-militaries operating in the district was only to be expected under the circumstances. The world over, democratic governance involving a legal/constitutional entity entrusted with the task of conducting periodic elections has promised such entity with non-interference by other arms of the State, until the poll processes are complete”. (Daily News Garphic)__________________________________________
by N Sathiya Moorthy
(March 10, Chennai, Sri Lanka Guardian) It is easy to dismiss the upcoming 10 March local government elections in Batticaloa district as farcical, intended on imposing a twisted and truncated political will of the Colombo Government on the Eastern population, particularly the Tamils and the Tail-speaking Muslims. By extension, the argument can be made that these polls, as also the promised provincial elections in the East subsequently, are not aimed at re-instilling the confidence of the larger Tamil community, or re-installing the representative character of political administration at the grassroots-level, that too in a 'unitary State' as Sri Lanka. The fact would still remain that some government is better than no government, and that some local government too is better than none.
The Sri Lankan Supreme Court decision not to interfere with the electoral process, based on the charge that the Government had not disarmed all para-militaries operating in the district was only to be expected under the circumstances. The world over, democratic governance involving a legal/constitutional entity entrusted with the task of conducting periodic elections has promised such entity with non-interference by other arms of the State, until the poll processes are complete.
The logic of non-interference is based on a simple reasoning. Periodic instructions from the Government, and possible intervention by such arms of the State as the judiciary could prolong the poll process endlessly, and at the same time throw it open to charges of partisanship.It is thus that in most such countries and cases, courts and other institutions are authorized to adjudicate on the election process and results only after the declaration of the results.
In nations like India, where the democratic experience, as different from the power-devolution experiment, has proved more successful than in some other countries, the constitutionally-mandated Election Commission has since acquired greater powers than originally intended, and have used them for the greater good of the people, polity, and hence the nation. It is thus that the Election Commission in India has assumed powers to initiate direct disciplinary action against erring Government officials and school teachers, seconded to poll-related work, for commissions and omissions pertaining to such assignments and periods.
These assertions on the part of institutions such as the Election Commission and Vigilance Commission, not to leave out the higher judiciary are all part of a democratic political dynamic. They go beyond the Indian devolution experiment, which too has since become an evolving experience. It is the combination of both that has made the post-Independence experience of the sub-continent the 'Indian model' worthy of consideration by such other similarly-placed nations.
In dismissing the petition seeking the postponement of the local government polls in Batticaloa district, the Sri Lankan Supreme Court however enjoined on both the Defence Secretary and the Inspector-General of Police, the duty to disarm all unlawful groups, and ensure free and fair elections. Any irregularities in the conduct of polls should be brought to the attention of the Election Commissioner's Department, the court observed further.
Though on the face of it, such directions may seem to lack teeth, the latter is hidden in the political propriety of the constitutional scheme. Clearly, the Supreme Court does not want to be seen as interfering with the legitimate responsibilities of other arms of the State and the Government, particularly when the poll process is already in motion. This is not to mention the trying politico-military circumstances, and not just in the East – of which however the court needs to take at least an oblique note in the context of the continuing 'emergency', which Parliament has voted for, month after every passing month.
At the same time, as the watch-dog of the Constitution and as the saviour of the last resort for the people, the higher judiciary has the right, duty and responsibility to make all other arms of the Government work in ways they are intended to work. This may particularly be so in the case of the police and security forces.
With the Election Commissioner's Department not having any policing powers or equipment of whatever kind for ensuring free and fair polls in the context of the and order situation, whatever the shape and size, the present court order would indicate that the police and defence forces should ensure as much, for and at the instance of the Election Commissioner's Department.
That the police and the security forces in the country have anyway been charged with ensuring – and have also ensured -- free and fair polls in the past need not be over-stressed. By implication, the court order would also mean that the Supreme Court was free to revisit the poll situation in the post-poll scenario, particularly in the context of the arguments preferred in the dismissed petition.
At the ground-level, most complaints, preferred either to or by the Government, on the poll situation in Batticaloa have confined themselves to charges and intimidation, mostly against the erstwhile 'Karuna faction' of the LTTE. Having contested the election under the name and title of 'Tamil Makkal Viduthalai Pulikal' (TMVP), the militant faction has to prove its innocence as also its democratic credentials, if it has to be taken seriously as a democratic political entity.
Arguments that the TMVP cadres were carrying weapons only as a source of strength and protection against possible LTTE attacks on them, as reported during the run-up to the polls, would not hold water. For one thing, it flies on the face of the TMVP's claims to democratic credentials.
More importantly, it also contests the Government's claims that the LTTE was not any more a force to reckon with in the East. It's such claims that are behind the Government's justification for ordering early polls, against the reservations to the contrary, expressed by various sections of the political Opposition and civil society representatives.
It is no justification that even in normal circumstances, elections, be in a dictatorship or a democracy, could not be, or would not be as free and fair as they ought to have been. Ballot-stuffing, booth-capturing, intellectual, if not physical intimidation, are all a part of the process. People's enthusiastic participation coupled with the existing political process has often acted as a check and dampener, against extensive and exhaustive abuse of the system. It is what made the difference to the recent polls in Pakistan, when compared to the past.Yet, the fact remains if the TMVP does not take the blame for allegations of intimidating the voters during the run-up to the local government elections, it would have been the LTTE that would have been at the receiving-end. Only that in such a scenario as prevailing before the Sri Lankan Army (SLA) forced the LTTE to vacate the East, no election could have been dreamt of. The choice thus would be between no election and a not-so-free election, even if the latter is the case.
To the extent that the ruling SLFP with President Mahinda Rajapakse as the party chief is an election ally of the TMVP, and to the extent that the Government of President Rajapakse is now sworn to ensuring the peaceful conduct of the local government elections and the successful implementation of the Thirteenth Amendment, it is they who are also on test. The 10 March polls would show their commitment and sincerity – or, the lack of it.
If at the end of the day the Sri Lankan State and its institutions are able to democratize and mainstream the likes of TMVP, it could provide a ray of hope and inspiration to the people in the North. Alternatively, the TMVP, unwilling to give up its old ways, could end up disproving the Government's hopes, or proving that the Government never had any hope of the kind to begin with. It would shatter the limited hopes of the limited sections of the Eastern population, as well.
In the interim, the local government elections would be a test as to who is in charge of whom between the Sri Lankan State and the TMVP – and of the Eastern Province, more importantly. If the Government wins the first round, it would then be a test of its sincerity in the implementation of the Thirteenth Amendment on the one hand, and setting off the processes for finding a positive conclusion to the devolution discourse.
If not, not only the methodology adopted by the Government but its motive and sincerity would also come under a cloud – all over again.
For their part, the LTTE and the Tamil community should remember that institutionalization of the local government in the East, in whatever truncated form as may be, could have another unpalatable dimension to it. If not taken to its logical conclusion of institutionalizing the Provincial Councils through the promised polls, and empowering them as mandated in the Thirteenth Amendment as originally passed by Parliament, it could well lead to a situation in which district-centric devolution may just get frozen at the ground-level, like the de-merger of the North and the East, before it.
That was when the LTTE was busy taunting the armed forces and provoking the Government into war and violence. Pro-LTTE sections of the Tamil polity and public opinion were enraged by the Supreme Court's order on de-merger, and were seeking re-merger at the time, without looking at the broader picture, where they all could have re-negotiated a 'political package' through the 'Geneva process' that the LTTE aborted.
The LTTE's military position has not been strengthened in recent months. Nor is the international community exactly expected to follow upon the 'Kosovo example', for addressing the seeming aspirations of a section of the Sri Lankan Tamils, the Diaspora in particular. In turn, all this could well mean that the residual Tamil community, staying back in Sri Lanka, could well have lost their political card as well in negotiating a province-centric power-devolution, on terms that they think are favourable to them!
(The writer is Director, Chennai Chapter of the Observer Research Foundation (ORF-Chennai), the Indian think-tank, headquartered in New Delhi. The views expressed here are those of the writer's, and not of the Foundation. The article originally published in Daily Mirror in Colombo. Sri Lanka Guardian republishes this article with author’s permission.)
by N Sathiya Moorthy
(March 10, Chennai, Sri Lanka Guardian) It is easy to dismiss the upcoming 10 March local government elections in Batticaloa district as farcical, intended on imposing a twisted and truncated political will of the Colombo Government on the Eastern population, particularly the Tamils and the Tail-speaking Muslims. By extension, the argument can be made that these polls, as also the promised provincial elections in the East subsequently, are not aimed at re-instilling the confidence of the larger Tamil community, or re-installing the representative character of political administration at the grassroots-level, that too in a 'unitary State' as Sri Lanka. The fact would still remain that some government is better than no government, and that some local government too is better than none.
The Sri Lankan Supreme Court decision not to interfere with the electoral process, based on the charge that the Government had not disarmed all para-militaries operating in the district was only to be expected under the circumstances. The world over, democratic governance involving a legal/constitutional entity entrusted with the task of conducting periodic elections has promised such entity with non-interference by other arms of the State, until the poll processes are complete.
The logic of non-interference is based on a simple reasoning. Periodic instructions from the Government, and possible intervention by such arms of the State as the judiciary could prolong the poll process endlessly, and at the same time throw it open to charges of partisanship.It is thus that in most such countries and cases, courts and other institutions are authorized to adjudicate on the election process and results only after the declaration of the results.
In nations like India, where the democratic experience, as different from the power-devolution experiment, has proved more successful than in some other countries, the constitutionally-mandated Election Commission has since acquired greater powers than originally intended, and have used them for the greater good of the people, polity, and hence the nation. It is thus that the Election Commission in India has assumed powers to initiate direct disciplinary action against erring Government officials and school teachers, seconded to poll-related work, for commissions and omissions pertaining to such assignments and periods.
These assertions on the part of institutions such as the Election Commission and Vigilance Commission, not to leave out the higher judiciary are all part of a democratic political dynamic. They go beyond the Indian devolution experiment, which too has since become an evolving experience. It is the combination of both that has made the post-Independence experience of the sub-continent the 'Indian model' worthy of consideration by such other similarly-placed nations.
In dismissing the petition seeking the postponement of the local government polls in Batticaloa district, the Sri Lankan Supreme Court however enjoined on both the Defence Secretary and the Inspector-General of Police, the duty to disarm all unlawful groups, and ensure free and fair elections. Any irregularities in the conduct of polls should be brought to the attention of the Election Commissioner's Department, the court observed further.
Though on the face of it, such directions may seem to lack teeth, the latter is hidden in the political propriety of the constitutional scheme. Clearly, the Supreme Court does not want to be seen as interfering with the legitimate responsibilities of other arms of the State and the Government, particularly when the poll process is already in motion. This is not to mention the trying politico-military circumstances, and not just in the East – of which however the court needs to take at least an oblique note in the context of the continuing 'emergency', which Parliament has voted for, month after every passing month.
At the same time, as the watch-dog of the Constitution and as the saviour of the last resort for the people, the higher judiciary has the right, duty and responsibility to make all other arms of the Government work in ways they are intended to work. This may particularly be so in the case of the police and security forces.
With the Election Commissioner's Department not having any policing powers or equipment of whatever kind for ensuring free and fair polls in the context of the and order situation, whatever the shape and size, the present court order would indicate that the police and defence forces should ensure as much, for and at the instance of the Election Commissioner's Department.
That the police and the security forces in the country have anyway been charged with ensuring – and have also ensured -- free and fair polls in the past need not be over-stressed. By implication, the court order would also mean that the Supreme Court was free to revisit the poll situation in the post-poll scenario, particularly in the context of the arguments preferred in the dismissed petition.
At the ground-level, most complaints, preferred either to or by the Government, on the poll situation in Batticaloa have confined themselves to charges and intimidation, mostly against the erstwhile 'Karuna faction' of the LTTE. Having contested the election under the name and title of 'Tamil Makkal Viduthalai Pulikal' (TMVP), the militant faction has to prove its innocence as also its democratic credentials, if it has to be taken seriously as a democratic political entity.
Arguments that the TMVP cadres were carrying weapons only as a source of strength and protection against possible LTTE attacks on them, as reported during the run-up to the polls, would not hold water. For one thing, it flies on the face of the TMVP's claims to democratic credentials.
More importantly, it also contests the Government's claims that the LTTE was not any more a force to reckon with in the East. It's such claims that are behind the Government's justification for ordering early polls, against the reservations to the contrary, expressed by various sections of the political Opposition and civil society representatives.
It is no justification that even in normal circumstances, elections, be in a dictatorship or a democracy, could not be, or would not be as free and fair as they ought to have been. Ballot-stuffing, booth-capturing, intellectual, if not physical intimidation, are all a part of the process. People's enthusiastic participation coupled with the existing political process has often acted as a check and dampener, against extensive and exhaustive abuse of the system. It is what made the difference to the recent polls in Pakistan, when compared to the past.Yet, the fact remains if the TMVP does not take the blame for allegations of intimidating the voters during the run-up to the local government elections, it would have been the LTTE that would have been at the receiving-end. Only that in such a scenario as prevailing before the Sri Lankan Army (SLA) forced the LTTE to vacate the East, no election could have been dreamt of. The choice thus would be between no election and a not-so-free election, even if the latter is the case.
To the extent that the ruling SLFP with President Mahinda Rajapakse as the party chief is an election ally of the TMVP, and to the extent that the Government of President Rajapakse is now sworn to ensuring the peaceful conduct of the local government elections and the successful implementation of the Thirteenth Amendment, it is they who are also on test. The 10 March polls would show their commitment and sincerity – or, the lack of it.
If at the end of the day the Sri Lankan State and its institutions are able to democratize and mainstream the likes of TMVP, it could provide a ray of hope and inspiration to the people in the North. Alternatively, the TMVP, unwilling to give up its old ways, could end up disproving the Government's hopes, or proving that the Government never had any hope of the kind to begin with. It would shatter the limited hopes of the limited sections of the Eastern population, as well.
In the interim, the local government elections would be a test as to who is in charge of whom between the Sri Lankan State and the TMVP – and of the Eastern Province, more importantly. If the Government wins the first round, it would then be a test of its sincerity in the implementation of the Thirteenth Amendment on the one hand, and setting off the processes for finding a positive conclusion to the devolution discourse.
If not, not only the methodology adopted by the Government but its motive and sincerity would also come under a cloud – all over again.
For their part, the LTTE and the Tamil community should remember that institutionalization of the local government in the East, in whatever truncated form as may be, could have another unpalatable dimension to it. If not taken to its logical conclusion of institutionalizing the Provincial Councils through the promised polls, and empowering them as mandated in the Thirteenth Amendment as originally passed by Parliament, it could well lead to a situation in which district-centric devolution may just get frozen at the ground-level, like the de-merger of the North and the East, before it.
That was when the LTTE was busy taunting the armed forces and provoking the Government into war and violence. Pro-LTTE sections of the Tamil polity and public opinion were enraged by the Supreme Court's order on de-merger, and were seeking re-merger at the time, without looking at the broader picture, where they all could have re-negotiated a 'political package' through the 'Geneva process' that the LTTE aborted.
The LTTE's military position has not been strengthened in recent months. Nor is the international community exactly expected to follow upon the 'Kosovo example', for addressing the seeming aspirations of a section of the Sri Lankan Tamils, the Diaspora in particular. In turn, all this could well mean that the residual Tamil community, staying back in Sri Lanka, could well have lost their political card as well in negotiating a province-centric power-devolution, on terms that they think are favourable to them!
(The writer is Director, Chennai Chapter of the Observer Research Foundation (ORF-Chennai), the Indian think-tank, headquartered in New Delhi. The views expressed here are those of the writer's, and not of the Foundation. The article originally published in Daily Mirror in Colombo. Sri Lanka Guardian republishes this article with author’s permission.)
- Sri Lanka Guardian
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