LETTER SENT TO COMMISSIONER OF ELECTIONS
DAYANANDA DISSANAYAKA

5th December 2001

Mr. Dayananda Dissanayake Esq.,
Commissioner of Elections

Dear Sir,

CALLING FOR A RE-POLL IN AFFECTED POLLING STATIONS

According to reports we have received from our network of polls monitors as at 4 p.m. on December 5, 2001, we are convinced that today's election has been severely marred by widespread incidents of violence, rigging and other electoral malpractices.

In several areas, citizens have been denied access to polling stations and there has been a breakdown of the basic machinery of law and order. Furthermore, voters in the uncleared areas in the North and east have been denied access to the clustered polling centres by the armed forces. In several parts of the country, the Presidential Security Division (PSD) and the Police have actually contributed to the breakdown of law and order.

As Commissioner of Elections, you are empowered to declare the poll in a polling station void if the poll at that station has not continued during the hours of the poll uninterrupted and in a free and fair manner. Section 48 A of the Parliamentary Elections Act of 1981, as amended, makes this clear.

We also wish to draw your attention to the landmark decision of the Supreme Court in the case, Egodawala and others v Dayananda Dissanayake and others, S.C. 412/99 (the Central Province/Kandy Provincial Council Election case), delivered on 3 April 2001, which held unequivocally that the Commissioner of Elections, indeed, has the duty to annul a poll and order a re-poll in polling stations where the vote has not been free, equal and secret.

The Supreme Court declared that:

..A poll is a process of voting that enables a genuine choice between rival contenders: necessarily one that is free of any improper influence or pressure; equal, where all those entitled to vote (and no others) are allowed to express their choice as between parties and candidates who compete on level terms; and where the secrecy of the ballot is respected….A mere semblance of a poll is not enough. The elaborate provisions of the Act, and especially Part III, compel the conclusion that Parliament had in mind a genuine poll, and not a mere charade. Such a poll must "continue": i.e. voting must take place not sporadically, but without interruption, from beginning to end.

I, therefore, conclude that Section 48A(1) (b) requires a genuine poll, continuing uninterrupted from beginning to end, and compels the Commissioner to make a qualitative assessment as to whether the poll was free, equal and secret.

The Supreme Court referred to ballot stuffing, the chasing away of polling agents, violence, the threat of violence and intimidation that has the effect of deterring citizens from going to their respective polling stations and exercising their franchise, large scale impersonation and the seizure of poll cards as factors that could undermine a free, equal and secret poll, justifying annulment by the Commissioner of Elections and a decision by him to order a re-poll.

The statutory powers and duties of the 1st Respondent (Commissioner of Elections) are intended to ensure a free, equal and secret poll. Accordingly, I am confident that at all future elections the 1st Respondent will insist that adequate security be provided at all polling stations, and that whenever there is no genuine, free, equal and secret poll at any polling station he will duly exercise his powers to annul an invalid poll and to order a re-poll. Those who seek to prevent a proper poll today must be made to understand that the 1st Respondent will ensure a proper poll tomorrow.

As indicated by the Supreme Court, the most effective deterrent to the flagrant violations of election laws that have taken place on polling day and in the run up to the poll, is to ensure that those violations will have no practical effect and that the perpetrators of such incidents and their sponsors will derive no benefit from such conduct. It is significant that the Supreme Court decision cited above was made before the adoption of the 17th Amendment to the Constitution, which gives the Election Commissioner additional powers and also provides that his overriding duty and responsibility is to ensure free and fair elections and "to secure the enforcement of all laws relating to the election of Members of Parliament."

The only way to ensure that the Parliamentary elections of 5th December are not a Wayamba style fiasco, given the breakdown of the electoral legal regime, is for you as the Commissioner of Elections to annul the poll in polling stations where there was no free and fair poll and order a re-poll in those areas. Among the Polling Divisions that we are concerned about are: Patha Dumbara, Gampola, Galagedera, Kundasale, Minuwangoda, Katana, Attanagalla, Hiriella, Wariyapola, Anamaduwa, Nattandiya, Aranayake, Rambukkana, Nivitigala and Kayts as well as the clustered polling centres in the districts of Vanni and Batticaloa. We shall be forwarding a list of polling stations where we believe, serious violations took place, shortly. We sincerely hope that you will delay announcement of the results in the relevant electoral districts until these matters have been investigated.

We, therefore, call upon you as the Commissioner of Elections to

a) in terms of the powers vested in you by virtue of Section 48 A (1) (b), and 48A (2) of the Parliamentary Elections Act declare the poll at the polling stations where there have been serious violations, void;

b) thereafter, in terms of Section 48A (6), and (7), forthwith take steps to ensure a fresh poll at the relevant polling stations;

c) immediately exercise your powers under Article 104 B and C of the Constitution (17th Amendment) to ensure that steps are taken to enable the fresh poll to be free, equal and secret.

Please note that in the public interest we are also releasing this letter to the press.

CMEV was formed in 1997 by the Centre for Policy Alternatives (CPA), the Free Media Movement (FMM) and the Coalition Against Political Violence as an independent and non-partisan organization to monitor the incidence of election related violence.

Dr. P. Saravanamuttu Co-Convenor	Sunila Abeysekera Co-Convenor	Sundanda Deshapriya Co-Convenor