The United National Party withdrew the petition they had filed before the Supreme Court against the Presidential election. What the statement issued by Mr. Gamini Atukorale, (the deputy leader of the party) shows is the extent of dissatisfaction in the main opposition party about the manner in which things happen in the Supreme Court.
According to Mr. Atukorale’s statement, permission had not been granted to lead evidence with regard to some of the accusations in the petition. Of the 87 divisions where, according to the petition, acts of corruption had taken place, evidence was permitted to be led in the case of 7 divisions only. In order to substantiate what was said in the petition it would have been necessary to prove that his candidate would have got 1,230,258 votes or 29.23% more if not for corrupt practices.
It is difficult to understand why the Supreme Court decided that evidence should be led with regard to the accusations which were difficult to prove and refrained from inquiring into the accusations that could have been proved easily. This may lead to a situation in the country where illegal use of government media at an election, carrying on propaganda activities in the 72 hours prior to the election, the use of government resources for propaganda activities and providing employment for the purpose of getting votes, may no longer be considered serious offences.
It is not clear why a request was made to prove that if not for the electoral malpractices, the UNP candidate would have got 1,230,258 or 29.32%, votes more, in order to substantiate the petition. The number of votes that Ms. Kumaratunga received was 4,312,157.
The amount of votes that the UNP candidate received was 3,602,748.
Although it was presumed that the number of votes that Ms. Kumaratunga received would remain unchanged even when the number of votes that the UNP got would have increased if not for the corrupt practices, (such presumption cannot be correct), the number of votes that the UNP candidate required for victory over Ms. Kumaratunga was 7,090,80 and not 1,230,258.
The meaning of electoral malpractice cannot merely mean, illegally depriving a person of the votes he might have got. Illegal appropriation of votes too would be an electoral offence. When representatives of the opposition are chased away from a polling booth and intimidating members of the opposition from outside are allowed, the number of votes that the opposition parties would get are not only limited, the government party also gets the opportunity for illegal use of the vote. Consequently the number of votes that one candidate gets is reduced while the number of votes that the other candidate gets is artificially increased. However, this two-fold factor inherent in electoral practices does not appear to have been taken into consideration by the Supreme Court. For instance if the number of votes that Ms. Kumaratunga received was brought down by 354,705 and that number was added to the UNP candidate’s number, the result would have been entirely different.
On the other hand, for victory at the first count, it is essential that the winner gets more than half the number of votes polled. Otherwise a second count becomes necessary.
The total number of valid votes at the presidential election was 8,635,290. Half of it would be 4,317,645. The number of votes that Ms. Kumaratunga had received above the minimum required for victory at the first count was 5489. This shows that if there had been a difference of 5490 votes that would have led to a second count.
Election petitions are meant to prevent elections through malpractices. If the Judiciary feels obliged to protect the winner even when the winner is elected through malpractice, the contest for election would inevitably take a violent form. Although the Wayamba elections were utterly corrupt those elections were not declared illegal. This kind of happening destroys the people’s confidence in the law.
There may be occasions when the appointment of a wrong person is identified at an inquiry into an election petition. There may also be occasions when it becomes impossible to find who the winner could have been. Even if the gap between the winner and the loser is very wide, it would be the responsibility of the judiciary to annul the result of the election if electoral malpractices have been substantiated and to make provision to prevent such malpractices at the next election, and to take action to assure clean elections in the future.
For example if an athlete wins a race through the use of banned stimulants, it will not be correct to justify his victory on the grounds that even when the additional speed he gained from the banned stimulant is removed from the difference between his speed and that of the second competitor. What the judiciary should have looked into is not who would have won if not for the malpractices but whether the malpractices that had occurred were serious enough to warrant an annulment of the result and the holding of a new election.
The main accusation that had been made about the Presidential election was that bogus ballot papers similar to the official ones printed at the Government Press had been used in the most organized manner in many areas. If that is true it may be considered the most serious of all accusations.
The ballot papers used at the presidential election cannot be destroyed. If there are among them ballot papers that had not been printed at the Government Press, they can be easily identified. If bogus ballot papers had been used, their numbers as well as for whom they have been cast can be found out.
Even the Elections Commissioner had not rejected the accusation about the use of bogus ballot papers. It was because the accusation was not phony that the Elections Commissioner had to take special steps to prevent the use of bogus ballot papers at the last parliamentary election.
As the judicial scrutiny relating to the Presidential election has come to an end with the withdrawal of the election petition, now the ball is in the Election Commissioner’s court. The Alliance for Democracy requests the Elections Commissioner to hold an impartial and an open inquiry into whether there had been a use of bogus ballot papers at the last presidential election.
The Elections Commissioner has no right to ignore the request. What is most important is to dispel doubts in the minds of the people on this matter. It is only through a just and open inquiry that it will be possible to prevent a repetition, if there had been an malpractice and the doubts in the minds of the people can be dispelled if no malpractice has occurred.
However, if at an inquiry it is found that bogus ballot papers have in fact been used and the number of bogus ballot papers used is substantial, the legitimacy of the entire Presidential Election will inevitably be affected.