6th December 2001

Mr. Dayananda Dissanayake Esq.,
Commissioner of Elections

Dear Sir,

REQUEST TO CONSIDER THE INTERESTS OF THE VOTERS, NOT MERELY THE INTERESTS
OF POLITICAL PARTIES

We welcome your decision to consider whether to annul the poll in several polling stations which have been seriously affected by violence, intimidation and electoral malpractices. As pointed out in the letter sent to you by the Centre for Monitoring Election Violence yesterday, we believe that you should consider annulling the poll in several polling stations and also calling for a re-poll in situations where the result of the election for such electoral district will be affected.

We also welcome your decision to follow the decision of the Supreme Court in the case of Egodawala v Dissanayake S.C. 412/99 where the Supreme Court affirmed the vital role that you play in ensuring the integrity of the electoral process. As pointed out in the CMEV letter sent to you on 5 December 2001,

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."

In the course of your announcement this evening on your decision to consider annulment and re-polling, you stated that you will be meeting with secretaries and leaders of political parties tomorrow morning (7th) to discuss the matter. We wish to make some observations and suggestions with respect to this important matter.

1. The decision whether to annul and order a re-poll is a decision that has to be made by the Commissioner of Elections. He has to exercise his discretion/judgement on the matter. See Section 48 A (2) and (7). Though you are expected to consult with various people, the decision has to be made by you. This was made clear in the Supreme Court decision adverted to above at page 21 of the judgement:

"What the Commissioner has then to determine is whether the failure to count the votes at the polling station where the poll has been annulled "will affect" that result. That does not mean that the Commissioner has to be certain that there would be a different result; it is enough if it appears that a re-poll was likely to result in one or more other candidates being elected."

2. We appeal to you to take into consideration the interests of the voters and not be guided solely by the interests of the political parties and independent groups whose secretaries/leaders you will be consulting. Political parties and independent groups might respond to the issues of annulment and re-polling with their respective electoral interests as the paramount concern. These interests may not necessarily coincide with the interests of the voters. Since your office is provided for in the Constitution, and the Constitution is a repository of the will of the People, we, with respect, request you to consider the interests of the people- the voters as the paramount factor in determining your response to the issues of annulment and re-polling.

In this context we wish to remind you that the Supreme Court in the decision referred to has made it clear that "whether the result of the election for such administrative district will be affected" means not just the outcome in terms of the respective seats of the parties but also the election of specific candidates (See page 21 of the judgement). Therefore, if the result of preference vote count may be affected, it is submitted that you should order a re-poll of the relevant polling stations. The preference vote is a crucial means of empowering the voter and ensuring that the voter, rather than the party leadership, determines which individual candidates are elected to Parliament.

We urge you to uphold the interests of the voters in reaching your decision on the issues of annulment and re-polling and also to consider the long term implications of your decision on the sanctity of the democratic process.

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

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