Moneragala HC Judgment a Victory for Democracy
By Methmalie Dissanayake
In a landmark judgment on 14 September, Moneragala High Court Judge Ranga Dissanayake ordered the membership of the candidate who was elected to the Maduruketiya Division of the Moneragala PS, on the SLPP ticket, be annulled forthwith and he be replaced by the candidate who had polled the next highest number of votes at the Local Government Polls 2018.
The case had been filed before the Moneragala High Court by the petitioner, the UNP contestant who ran for office at the LG Poll for the Maduruketiya Division of the Moneragala PS, W.M. Sunil Shantha and the Centre for Monitoring Election Violence (CMEV). He had named 95 persons as respondents in the case including the SLPP contestant Tharanga Dissanayake, who was elected.
Among others named as respondents had been the Election Commission (EC), its members, Returning Officer, Moneragala Returning Officer and the Moneragala Assistant Election Commissioner. The petitioner charged that the respondent SLPP contestant had derailed his path to victory offering goods and services to voters as bribes during the election period.
The High Court Judge stated that after the lapse of the period to submit an appeal against the verdict, it will be notified to the President and the Election Commission. The SLPP contestant had provided waterlines to the several households in the electorate during the election time.
It is not difficult to understand that this was a clear intimation of the voters. The people who are suffering from poverty and do not have enough money to pay for getting waterlines see these things as a life time opportunity and they vote for whoever provides these basic needs as a token of gratitude.
This is the sad reality in Sri Lanka as a whole, not only in Madurukuliya, Moneragala. In Sri Lanka, money has become a key factor to win an election more than principles and policies. Candidates who can throw money without a limit can attract more votes in Sri Lanka and this is reality. At every election time, it can be seen that the candidates spend excessive sums of money for advertising, giving donations to the people etc. These candidates hope that in return to their ‘donations’ the people will vote for them.
To find money for these, the candidates also accept sponsorships from several parties, including businesspersons. They obtain loans and sometimes sell their property to find the money. This reality in Sri Lanka causes several key issues in relation to democracy and the people’s right to vote. Problems arise as to how the candidates who spend colossal sums of money recover that amount after being elected.
Also, when the candidates accept money from other parties, there is a huge possibility for them to be intimidated by those parties as they naturally expect a benefit or some kind of personal gain in return for the money they donate to the politician. The politician, on the other hand, could engage in corruption, when he/she is elected, to recover the money. The landmark judgment given by the Moneragala High Court is timely in a backdrop like this.
Response from the Election Commission
Following the landmark judgment given by the Moneragala High Court, the Election Commission of Sri Lanka, on 17 September, noted that regulating election campaign finance is an urgent need, as the EC has always requested. In a statement, Chairman of the EC Nimal Punchihewa said that the verdict has clearly sent the message that giving bribes to the people is an election offence which could result in losing membership.
“We hope to take a suitable decision in this regard after the lapse of the period to submit an appeal against the verdict,” Punchihewa noted. “Laws should be formed for every candidate to present election expenditure reports.” Speaking to Ceylon Today, former EC Chairman Mahinda Deshapriya said that it is very important to socialise the fact that ‘buying’ votes is an offence.
“I do not wish to speak about annulling the membership of this particular LG member as it relates to politics. I do not want to speak against a particular politician as well. However, this High Court verdict sheds light on several important facts which need to be addressed immediately,” he said. Before 1977, the elections were held according to Firstpast-the-post (FPP) system.
This system was based on constituencies with individual candidates nominated by recognised political parties or independent candidates. The candidate obtaining the highest number of votes in respect of the constituency was declared elected. At that time, there was a limitation regarding money that a candidate can spend.
Also, every candidate was required to present an expenditure report. However, that was not required after introducing the Proportional Representation System. “Objections were raised regarding proportional system and a combination of both the above systems was proposed. There is a favourite opinion in our country that those who spend money heavily during election times could gain more votes.
For example, if someone who spends 300 million for a district, spent 150 million for one electorate, that person could easily win the election. To control this, there should be laws regarding regulating election campaign finance,” Deshapriya pointed out. Furthermore, the former EC Chairman said that new laws should be formed to set limits to election expenditure and obtain expenditure records. The law that if the expenditure report is not accurate, the membership will be annulled, was there before 1977.
That is why this HC verdict is so important in the present context, he pointed out. “It should be publicised that giving promises to the people by throwing money during the election times is an offence. Laws should be formulated against offences such as giving money, paying for water and electricity bills and misusing public property and using religious places to promote election campaigns during election times. If people come forward against these things and the laws are passed against such offences, then democracy will be strong in the country,” he said.
Importance of the verdict for the future
This historic ruling will serve as a deterrent to future candidates in bribing the voters. Even if they continue to bribe, their election will subsequently be liable to be challenged. In addition, the need for enacting laws to limit election expenses by candidates and provision of a level playing field for all candidates in an election has been re-emphasised, People’s Action for Free and Fair Elections (PAFFREL) said.
Speaking to Ceylon Today, Executive Director of the PAFFREL Rohana Hettiarachchi said that the High Court verdict gives an important message to all the politicians that if they can win elections by giving bribes, they cannot hold power for long. “There is a social contact between the candidates and the public.
The ultimate objective of spending money during elections is recover it after winning. To recover these monies, they engage in tender misuse and many other shady transactions during their tenures. As a result of bribing and giving donations to the people during campaign times, the social contact between the politicians and the public is damaged,” Hettiarachchi noted.
“According to this verdict, it is not difficult to prove if a politician has bribed the people to get votes, if there is enough proof and the Judge is satisfied with it”, he said. It is again proved that bringing election campaign finance laws is very important. It is very clear that even if the electorate is small, the election expenditure will not be limited and reduced.
To control this, passing campaign finance laws is necessary. “Let us say that a candidate allocated 10 million for 50,000 people in a large electoral territory. But with the new amendment, that candidate spends the same amount for a single electorate which has 1,000 voters. So the expenditure has not been reduced. The Parliamentary Select Committee is discussing to implement a vote-based mechanism for future elections.
This is very dangerous, without having campaign finance regulations.” Also, this verdict encourages the candidates to monitor how their fellow candidates are spending money for election campaigns. This would make them have a self-control over the spending, he pointed out. Hettiarachchi said that the PAFFREL has appealed to the Parliamentary Select Committee on Election Reforms to pay attention to this matter.
“We had discussions with the PSC and its Chairperson Dinesh Gunawardena regarding this. We hope that there will be a positive response,” he added. Also, it is important to note that the implementation of the Right to Information Act has paved the way for procuring the information required for this legal victory.
“What we did is, we filed a RTI request seeking information regarding households in the electorate that got waterlines during the election period and who paid for it. It took much time, but finally we were able to get the information after following the process of filing an RTI request,” Hettiarachchi said. We were compelled to pursue this case in the midst of many obstacles. The two lawyers who have given their utmost commitment in this case, while certain institutions that ought to have supported our endeavour had avoided their responsibility, deserve the respect and gratitude of all those who value democracy.
This achievement will certainly be a source of joy to the election officials who have supported it sincerely. Also we wish to thank all the civil society representatives and staff who have worked hard towards this achievement, the PAFFREL said.