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Executive Summary
The 2008 Provincial Council Elections in the Eastern Province of
Trincomallee, Batticalloa, and Ampara were conducted peacefully
and in an orderly manner. Every participant in the process
fulfilled his respective duty with competence and becoming
alacrity. As a result, polling station operations were conducted
smoothly and without untoward incident.
Noteworthy
was the presence of polling agents in the polling stations.
Their active participation in the process clearly acted as an
effective form of check-and-balance. Also worth noting was the
presence of police officers in the immediate vicinity of, as
well as inside, the polling stations. Their visibility ?
especially considering the bombing incident in Ampara on the eve
of elections ?was considerably reassuring.
As for the administration of elections, the competence of all
involved was very clear. The Commissioner of Elections was
even-handed and fair throughout, and his staff showed an obvious
mastery of the laws and regulations on elections. The polling
staff in the various polling stations showed the same mastery
and competence. On the whole, the professionalism demonstrated
by the election administrators contributed greatly to the
credibility of the results.
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Recommendation
While observing that the elections were free and fair, and the
processes of polling and counting were conducted professionally,
the AAEA Mission believes that the following recommendations would
enhance the conduct of future elections
-
A comprehensive voter education
programme, carried out by the Department of Elections, in
partnership with civil society organizations including other
stakeholders, would improve the quality of voter
participation in the process;
-
The use of the National Identity card for
voter identification should be made compulsory in future
elections. However, a list of acceptable substitutes should
also be prepared and disseminated to the voting public prior
to the elections;
-
While authorized by law to enter
polling stations, a prohibition against candidates
interacting with voters inside the polling stations should
be considered; and
-
The use and accessibility of the public
media for candidates, political parties, and contesting
independent groups should be more equal.
Members of the 2008 AAEA Observation Mission
|
List
of AAEA Observers and respective areas of assignment |
|
Area of Assignment |
Observers |
Designation |
|
Ampara |
Ms. Ming-Hwa Tsai |
Commissioner, Central Election Commission of Taiwan |
|
Ms. Usha Nepal |
Commissioner, Election Commission of Nepal |
|
Mr. Chogyal Dago Rigdzin |
Commissioner, Election Commission of Bhutan |
|
Mr. Ming-Hsien Yu
|
Deputy Secretary General,Central Election Commission of
Taiwan |
|
Mr. Tzung-Yu Lai |
AAEA Secretariat |
|
Mr. James Jimenez |
AAEA Secretariat |
|
Batticalloa |
Mr. Romeo A. Brawner |
Commissioner, Commission on Elections Philippines |
|
Ms. Teresita Dy-Liacco Flores |
AAEA Senior Consultant |
|
Mr. Mehboob Answer |
Joint Provincial Election Commissioner, Sindh, Pakistan |
|
Mr. Nurul I. Khan |
Joint Secretary, Bangladesh Election Commission
Secretariat |
|
Mr. Pao-Chien Wang |
Executive Officer, Central Election Commission of Taiwan |
|
Ms. Yu-Ching Hsu |
AAEA Consultant |
|
Trincomallee |
Mr. Ayub Assil |
Deputy Chairman, Independent Election Commission,
Afghanistan |
|
Ms. Sri Nuryanti |
Election Commissioner, Indonesian Election Commission (KPU) |
|
Ms. Ochirkhuree Tungalag |
Officer, General Election Commission of Mongolia |
|
Mr. Yokubjon Madumarov |
Senior Expert on Elections, Central Elections and
Referanda Commission, Tajikistan |
|
Mr. Hsin-Chian Hsu |
AAEA Consultant |
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Acknowledgement
The AAEA
Mission wishes to express its sincerest gratitude to the
following:
-
The Government of Sri Lanka, for the
cooperation extended to the AAEA Mission ;
-
The Department of Elections, for
its generous cooperation and complete openness;
-
The political parties and domestic
observer groups, for their willingness to meet with us and
share their thoughts, opinions, and ideas with us;
-
The entire Coordinating Staff,
headed by Mr. Siri Medawewa, who were virtual gold-mines of
information at every step of the electoral process, and
whose unstinting assistance was invaluable to the AAEA
Mission ;
-
The Police who provided exemplary
protection and support to all AAEA Mission Members; and
-
Last but not least, to the people
of Sri Lanka, particularly the people of the Eastern
Provinces of Trincomalee, Batticalloa, and Ampara, for their
warm hospitality and unfailing graciousness as they welcomed
us as observers into their communities as they participated
in the electoral process.
The observers' meeting
on the observation over the provincial council election
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Objectives
The objective of the AAEA
Mission is to witness the conduct of
elections in the Eastern Provinces of Trincomallee, Batticalloa,
and Ampara and to report its observations fairly and accurately.
The small size of the AAEA Mission made comprehensive monitoring of
the elections impossible, and therefore this AAEA Mission Report
serves to recount events occurring only in those places that
were observed by the Mission, during the period from the 8th up
to the end of the counting process on the 11th of May 2008,
related to the Provincial Elections conducted in the Eastern
Province of Sri Lanka. No post-election observation was
conducted.
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Legal
Framework of the Election
The Tools of Devolution: The 13th Amendment and the Provincial
Councils Act
The Provincial Councils Act, No. 42 of 1987 was part of a policy
of devolution ?or the decentralization of political and
administrative decision-making authority from the central
government to elected bodies at lower levels ?that began as
early as 1955. Since then, there have been two distinct attempts
to actualize that policy:
After these attempts failed to achieve their
goals, the 13th Amendment to the Constitution was introduced and
eventually gave rise to the Provincial Councils Act. These two
pieces of legislation are now considered collective as the
instruments of devolution.
In brief, the 13th Amendment provides, among other things, for
the establishment of Provincial Councils; the appointment and
powers of the Governor of Provinces; and the grant of
legislative powers of the Provincial Councils.
The Provincial Councils Act, on the other hand, lays down the
Membership of the Provincial Councils, how the Provincial
Councils conduct business; the financial procedures in the
Provincial Councils; and the establishment of the Provincial
Public Service.
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The
Provincial Councils Elections Act
The Provincial Councils Elections Act, No. 2 of 1988 among other
things, outlines the procedures for conducting elections for
Provincial Councils, as well as setting down the qualifications
for contesting the elections, and the rules governing
nominations. This Act has been amended three times: first, by
the Provincial Councils Elections (Amendment) Act, No. 55 of
1988; second, by the Provincial Councils Elections (Amendment)
Act, No. 29 of 1990; and third, by the Provincial Councils
Elections (Amendment) Act, No. 05 of 2004.
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The 17th Amendment
The 17th Amendment to the Constitution of Sri Lanka was adopted
in 2001. It called for the establishment of, among others, an
independent Election Commission with broader powers than the
existing Department of Elections. Since then, however, no such
independent Commission has been established due to the inability
of the President and the Constitutional Council to agree upon
who would be named Chairman.
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The Commissioner of
Elections
The
Commissioner of Elections is the Head of the Department of
Elections. Although the Commissioner is appointed by the
President, this Department does not come under the authority of
any Ministry, and the salary of the Commissioner is determined
by Parliament.
The new Election Commission to be created under the 17th
Amendment is vested with broad powers, some of which may already
be exercised by the Commissioner of Elections. Thus, the
Commissioner is charged with the enforcement of election laws
and he may request state authorities to aid him in that regard.
He can therefore deploy police officers under his direction and
control during the election period, and recommend to the
President, the deployments of armed forces units for the purpose
of ensuring the orderly and secure conduct of elections.
The Commissioner of Elections likewise exercises considerable
control over the conduct of campaigns. He can prohibit a party
or candidate from using State or public property for partisan
political purposes and he can issue guidelines for the media to
follow, to ensure fair and balanced coverage of the campaigns.
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The Electoral System
Prior to the sweeping changes introduced by the 1978 Second
Republican Constitution, an independent candidates or candidates
nominated by political parties who garnered the highest number
of votes in their respective constituencies were declared
elected. With the adoption of the new Constitution, this
first-past-the-post (FPP) system was replaced with a system of
Proportional Representation.
The 14th Amendment to the Constitution subsequently introduced
more changes, making Sri Lanka’s present electoral system a
proportional, open list, system. Under this system, voters cast
a vote for the party of their choice and thereafter indicate
their preference for up to three candidates from the party for
which they voted. Parties are represented by symbols, e.g., a
betel leaf, an elephant, an airplane, and so on; individual
candidates are represented by numbers.
During counting, the votes for political parties are tallied
first. Parties that obtain less than 5% of the vote are
disqualified. The party with the most number of votes in the
district is awarded the first seat. The remaining seats are then
proportionally allocated to all qualified parties on the basis
of highest averages. Once the party count is completed,
preferences are tallied and the seats won by each party are
distributed among their candidates on the basis of preference
count.
After all the members of a Provincial Council have been declared
elected, the Commissioner of Elections then determines the
number of votes garnered by each recognized political party or
independent group. The one with the highest number of votes is
awarded two Bonus Seats.
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Political Background of the
Provincial Council Elections
The
Provincial Councils were established by the 13th Amendment to
the Constitution of the Democratic Socialist Republic of Sri
Lanka, certified on the 14th of November 1987 and operative from
the 26th of January 1988. On the 29th of January 1988, the
Provincial Councils Act, No. 2 of 1988 was enacted providing,
among other things, the procedures for the election of the
members of Provincial Councils.
Under the Constitution, nine provinces should establish one
provincial council for each. The number of members for each
council would be
determined by the extent of the area, and the
population of each province. Each Provincial Council would then
consist of one Governor, one Chief Minister, and a Board of
Ministers.
Under Section 37(1)(b) of the Provincial Councils Act No. 42 of
1987, the President is empowered to amalgamate adjoining
provinces and declare them as one unit. On the 8th of September
1988, the President proclaimed the amalgamation of the Northern
and Eastern Provinces.
In 1988, members of the administrative districts of the
amalgamated North-East province were elected.
In
1990, however, the total membership of the Northern and Eastern
provinces was disqualified on the basis of Section 5(3) of the
Provincial Councils (Amendment) Act No. 27 which provided that
when a member has repudiated or manifestly disavowed obedience
to the Constitution, such member is disqualified.
Several subsequent attempts to conduct elections were postponed
due to various disturbances in civil administration and the
continuing conflicts with Tamil separatists.
In 2006, three individuals from the Ampara District in the
Eastern Province submitted three Fundamental Rights Applications
before the Supreme Court. The Applications claimed that
fundamental rights had been breached by the merging of the North
and East Provinces as one administrative unit, and by the
failure to conduct elections for the said council. The Supreme
Court allowed the Applications and granted the relief prayed
for, particularly the invalidation of the amalgamation of the
Northern and Eastern Provinces. As a consequence, the President
directed the Commission of elections to conduct elections in the
Eastern Province.
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Political Parties
There are a number of recognized political parties and
independent groups contesting the elections. However, most
political analysts agree that the provincial council elections
will be, for the most part, a contest between two main parties.
On one hand there is the ruling United People’s Freedom Alliance
(UPFA) which is supported primarily by the Pilleyan Group, the
Eelam People’s Democratic Party (EPDP), and the Jathika Hela
Urumaya (JHU) party. On the other side is the main opposition
party, the United National Party (UNP).
Administrative Set Up
Over-all
responsibility for the conduct of elections rests on the
shoulders of the Commissioner of Elections. The sitting
Commissioner is a well-respected man held in high regard by both
sides of the political divide, and by all stakeholders. He is
universally seen as a fair and principled administrator of
election laws. His consensual approach to decision making ?
involving political parties whenever possible ?is considered
one of the major reasons for the success of electoral exercises.
The Commissioner exercises his authority through a Returning
Officer (RO) and an Assistant Commissioner (AC) in each of the
22 Electoral Districts. A Senior Presiding Officer (SPO) is in
charge of each polling station, and Senior Counting Officer (SCO)
is in charge of each counting center.
Party Representatives called Polling Agents are normally present
at the polling station and the counting center and provide the
necessary check-and-balance.
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The Police
The Constitution vests the Commissioner of Elections with the
authority to deploy officers on Election Day. In previous
elections, the police had fielded as much as 64,000 officers
throughout the country. In the Eastern Provincial Council
elections, however, police deployment has been ramped up to
27,000. It is notable that the deployment of the security force
is significantly high in the election.
While it is widely publicized that the Eastern Provinces have
been pacified, intense apprehensions remain. There are still
occasional LTTE incursions into the territory, as well as
widespread reports of intimidation and violence directed both at
voters and political players. For this reason, twenty-seven
thousand police officers were deployed throughout the Eastern
Provinces of Trincomalee, Batticalloa, and Ampara. Military
units were also deployed but were tasked mainly with providing
over-all security to the district.
Voter Registration
The voters?register is updated annually in May. However,
because the updating process is extremely time-consuming, the
registers used in these elections were from the enumeration of
2006.
Candidates
Candidates are registered by their respective political parties
and independent candidate groups on a per district basis.
Nomination papers are submitted to the District Returning
Officer. Nominations for these elections proceeded regularly and
no issues have been raised on this account. It is generally
accepted that the procedures involved are fair, i.e., no
qualified individuals have been unduly prevented from standing
for election.
The Media
While the Commissioner of Elections is empowered to enforce
fairness in the use of media, this power is severely limited.
The Commissioner only had jurisdiction over state electronic
media, i.e., radio and television; and even then, only to the
extent of appointing a Competent Authority to over management
when these broadcasting entities violate the Guidelines set for
them.
The Commissioner, on the other hand, has no control over private
electronic media, the public station ITN, and the state media
company Lake House. Consequently, those media are widely
perceived as not being equally accessible to all parties.
Because of the short duration of the AAEA Mission's stay in-country,
no significant medium to long term media monitoring was
possible. However, exposure to media reportage ?particularly
newspaper reportage ?did indicate that concerns about equal
access have to be seriously considered.
AAEA Observers for
Ampara District, Sri Lanka
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Pre-Election Observation
The AAEA
Mission created three groups of observers to cover the
districts of Trincomalee, Batticalloa, and Ampara. These teams
departed from Colombo on the 8th of May and stayed in their
respective areas of assignment until the 11th of May 2008.
All three groups reported nominal conditions in their respective
areas. The issuing of ballot papers, ballot boxes, and other
election paraphernalia were observed to have proceeded with no
significant incident. Polling station rehearsals were also
observed and found to
have been carried out with no significant
incident.
The only significant deviation from the norm observed by the
AAEAOM Groups was the detonation of a bomb in Ampara town on the
eve of Election Day. The explosion sparked off a flurry of
intensified police and military activity in the area but did not
derail preparations for the polls.
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Election Day
Observation
Each
group split into three smaller teams to ensure the widest
possible coverage of their respective areas. The Trincomallee
group conducted in-depth observations of the elections in 37
polling stations; the Batticalloa group observed 29 polling
stations; and the Ampara group observed 31 polling stations.
Less in-depth observations were conducted in other polling
stations. The ability to observe polling stations was limited by
both the small size of observer groups and the distances between
polling stations. The polling stations observed were chosen at
random.
With the groups covering approximately 10% of polling stations
in their respective areas, it is believed that the sampling was
of sufficient size.
While each team had varying experiences, all observers reported
that the elections were conducted systematically; the poll staff
performed their duties competently and with high levels of
professionalism; and that the elections over-all were peaceful,
organized, and transparent.
Voter turn-out was clearly not affected by the incident in
Ampara
town the night before as all observers noted that the voters
were clearly very eager to participate in the electoral process.
Observers particularly noted the high levels of participation of
women voters. This was considered a very good indication of the
gender balance in the political engagement of Sri Lankan
citizens.
The use of the National Identity Card also clearly facilitated
the polling. In those cases where the voter did not have a
National Identity Card, a photograph accompanied by a
certification
as to his identity was considered acceptable. In some polling
stations, when a voter failed to present either, he was asked to
acquire the necessary certification from the grama niladhari.
In at least one instance, however, the SPO was witnessed to
exercise sound discretion in allowing a disable voter to cast
his ballot even without an identity card once his identity had
been established using the list of voters, without protest from
the polling agents present.
The
exemplary conduct of the elections notwithstanding, individual
observers noted the following:
-
Some polling stations were situated in
very small structures, causing some crowding in the station;
-
Polling station assignments sometimes
resulted in stations handling very large numbers of voters
to be situated in close proximity to stations handling very
small numbers of voters;
-
Some voters did not appear to be fully
apprised of the larger issues at play in the elections;
-
Many voters did not appear to be fully
aware of how to correctly accomplish the ballot; and
-
Some candidates were observed to be
interacting with voters inside the polling station.
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Counting
In
all polling stations observed by members of the AAEA
Mission , the
polling was closed promptly at 4:00 p.m. Also in stations
observed by the AAEA Mission , closing procedures were complied with
completely and professionally, with the Senior Presiding Officer
and the polling agents cooperating fully. As a result, no
significant deviations from the norm were observed.
Ballot boxes arrived in the counting centers at various times
owing to the distances involved, however for the most part,
counting started promptly.
The AAEA
Mission observers were generally granted full access to the
counting centers and were able to witness the counting processes
for both postal and regular voting.
It is significant to note that in those cases where ballots were
invalidated, the apparent reason for the invalidation was voter
error in accomplishing the ballot. More specifically, in a
number of cases, it seemed that voters indicated preferences by
marking cages
corresponding to Independent Groups.
Independent Groups are differentiated by numbers, as opposed to
recognized political parties being designated by symbols.
Preferences are, like Independent Groups, designated by numbers.
Although the voting cages for preferences were printed below the
listing of political parties and independent groups, it appeared
that the voting cages for preferences were not sufficiently
identified as such.
Apart from this observation, post-election procedures were
carried out systematically, and ?with the active participation
of the agents of political parties ?transparently.
