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Monday, July 22, 2024

What Mahinda Deshapriya should learn from the Indian Elections Commission

By C. A. Chandraprema.

The rejection of the nomination lists of several political parties and independent groups made headlines during the nominations period for the local government elections to be held on 10 February. The rejection of the nominations lists of the Sri Lanka Podujana Peramuna gained more publicity than the other rejections because of the greater public focus on the performance of the SLPP at this election. The rejection of nomination lists is a matter that should be taken up for public debate because this is a matter involving the people’s franchise. From the information available to this writer, the rejection of SL Podujana Peramuna nominations lists had taken place for the following reasons.

Maharagama UC – the required number of female candidates had been included in the nomination paper, but in the column indicating the gender of the candidate, the gender of one female candidate had inadvertently been entered as ‘male’.

Weligama UC – The authorized person had gone to hand in four nomination papers with a lawyer. The authorised person had handed in the first nomination paper and had then been distracted for a moment by another official and during that short period, the lawyer had handed in the second paper. The authorised person had then handed in the remaining two papers. The three papers handed in by the authorised person had been accepted while the paper that was handed in by the lawyer was rejected on the grounds that it had not been handed in by the correct person.

Panadura UC – While the signature of the party general secretary has to be attested by a Justice of the Peace, the latter had failed to write the date on which the endorsement was made, below his signature.

Agalawatte PS – The date on the nomination paper had inadvertently been written as 17 December 2017 instead of 14 December 2017.

Mahiyanganaya PS – This nomination paper had all other requisites as well as the correct number of male and female candidates but the column indicating the gender of the candidates had been left blank.

Tirappane PS – The box on which the date of handing in of nominations should have been written as 22 December 2017, had been left blank.

The above is the situation with regard to the SLPP nominations lists that were rejected. There is no doubt that the rejection of the nomination papers of other parties too would have taken place on similar grounds. Do any of the instances mentioned above strike an ordinary voter of sound mind as reasonable grounds on which an entire nomination paper should be rejected? Can bureaucratic nitpicking of this order be allowed to obstruct the exercise of the people’s sovereignty? In this respect, there is much that the Sri Lankan Elections Commission can learn from the Indian Elections Commission. The Indian Elections Commission has published a Handbook for their Returning Officers, which has an entire chapter on the scrutiny and rejection of nomination papers. What follows below are some verbatim extracts from pages 92 to 102 of that handbook where the Indian Election Elections Commission has educated their Returning Officers how to deal with nomination papers in a manner conducive to upholding and not stymieing the sovereignty of the people:

1. Scrutiny of nomination papers is an important quasi- judicial function. You must not allow any personal or political predilections to interfere with the procedure that you follow or the decision you take in any case. Law expects you to be fair, impartial, and treat all candidates equally.

2. Even if no objection has been raised with regard to a nomination paper, you have to satisfy yourself that it is valid in law. If any objection is raised, you will have to hold a summary inquiry to decide the same and to treat the nomination paper to be either valid or invalid.

3. There is a presumption that every nomination paper is valid unless the contrary is prima facie obvious or has been made out. In case of a reasonable doubt as to the validity of a nomination paper, the benefit of such doubt must go to the candidate concerned and the nomination paper should be held to be valid.

4. Remember that whenever a candidate’s nomination paper is rejected without proper reason and he is prevented thereby from contesting the election, there is a legal presumption that the result of the election has been materially affected by such improper rejection and the election will, therefore, be set aside. There is no such legal presumption necessarily in the converse case where a candidate’s nomination has been wrongfully accepted. It is always safer, therefore, to adopt a comparatively liberal approach in dealing with minor technical or clerical errors.

5. Do not reject any nomination paper on the ground of any defect, which is not of a substantial character. Any mistake or error of a technical of clerical nature should, therefore, be ignored by you. You may also note that Rule 4 of the Conduct of Elections Rules, 1961, lays down that failure to complete, or defect in completing a declaration regarding symbols in the nomination paper is not a defect of a substantial character. A nomination paper should be accepted or rejected on merits, taking all the available material into account.

6. In the past, there were instances where nomination papers were rejected on flimsy grounds, e.g. mistakes made in the nomination paper regarding; (a) the year of election, or (b) the exact name of the House of the Legislature or any minor error in the name of the constituency, (c) the description of an electoral roll number, or (d) the choice of symbols, or (e) some discrepancy between the age, name, or other particulars of the candidate or his proposer as given in the nomination paper and in the electoral roll and so on.

7. Such unjustifiable and improper orders of rejection on technical grounds had led to a large number of election petitions and the eventual setting aside of several elections with consequent waste of time, money and labour for all concerned, with adverse and damaging observation of courts all of which could have been avoided. Similar instances of improper rejections should not occur again and it is up to you to interpret the provisions of the law intelligently and with commonsense.

8. Do not, therefore, reject any nomination paper for such technical or clerical errors or discrepancies. Most of them can and should be directed by you to be set right at the time of the presentation of the nomination paper. It would, therefore, be very undesirable if you fail at the proper stage to help a candidate by exercising your powers and discretion under the proviso to Section 33(4) of the said Act and later at the time of scrutiny you reject his nomination paper on the ground of those very defects which could have been set right under that section.

9. If a candidate to whose nomination paper an objection has been taken applies for time to rebut such objection, you should adjourn the hearing of the objection till the next day or the day after that, but not beyond 11.00 a.m. on that day. The scrutiny of all other nomination papers must, of course, be completed on the day of scrutiny, notwithstanding such adjournment in respect of one or more nomination papers. If the day next is a holiday, the hearing should be completed before 11 a.m. on the day fixed for withdrawal of candidatures.

Readers will note that going by what has been stated in the Handbook for Returning Officers of the Elections Commission of India, none of the afore mentioned SLPP nomination papers would have been rejected in India. All the rejections mentioned above clearly fall within the rubric of ‘flimsy reasons’ mentioned in the Indian Elections Commission handbook. It should also be noted that the Indian Elections Commission has stressed the need for returning officers to use their commonsense and also the need to give time for candidates to rectify any errors in the nominations paper even if a couple of days is taken for the purpose.

This article was first published in The Island.


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