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| Sunday, 30 March 2003 |
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FR case on 2001 election : Govt, Army, Polls Chief violated democratic rights - SC In a landmark Judgement the Supreme Court awarded Rs. 391,000 as compensation and cost to petitioners who pleaded that on the pretext of providing security to six VVIPs they had been denied their right to equality and equal protection and their fundamental rights infringed. SC also decided the fundamental rights of voters in Batticoloa and the Vanni were violated when they were prevented from travelling to vote during the last general election. Excerpts... Decision to close entry points There is no doubt whatsoever that on orders given by the 3rd Respondent Army Commander Lt. Gen. L.P. Balagalla or with his concurrence or approval, army personnel did suddenly close the entry points in the Batticaloa and Vanni districts, and that neither the 3rd Respondent nor other high officers of the army informed the 1st Respondent, leaving him to learn of the closure only at the eleventh hour through others. The fact that a complaint was made by TELO on 4.12 2001 shows that the decision had become known that day, and hence must have been made on 4.12.2001 or earlier. The failure to record, and to communicate, that decision in writing gives rise to grave suspicions as to its bona fides. That decision directly affected a significant number of citizens, and not just a handful; it related to the conduct of a general election of serious concern to all citizens (let alone election observers, local and foreign), particularly at a time when public confidence in the integrity of the electoral process was sinking fast. Furthermore, the decision was one that could only have been taken in the due exercise and discharge of public powers and functions, and must have been communicated to the civilian authorities. There was no need for secrecy. Indeed, the need was for publicity. In the circumstances, the 3rd Respondent's unexplained failure to inform the 1st Respondent makes it likely that his real intention was to prevent them voting either then or later, knowing that that would further the interests of parties or groups not hopeful of their support. Order under section 129 Section 129 of the Parliamentary Elections Act provides thus for the "removal of difficulties". "If any difficulty arises in first giving effect to any of the provisions of this Act, the Commissioner may, by Order published in the Gazette, issue all such directions as he may deem necessary with a view to providing for any special or unforeseen circumstances or to determining or adjusting any question or matter for the determination or adjustment of which no provision or effective provision is made by this Act." I have already referred to the letter dated 3rd December sent by the Secretary to the President to the 1st Respondent Elections Commissioner Dayananda Dissanayake to which was annexed a copy of the memorandum dated 4th December addressed by the ADG/DII to the 5th Respondent IGP B.L.V de S.Kodituwakky. These documents gave rise to several queries. How did the Secretary's letter of the 3rd refer to and annex a copy of a memorandum which was written only the next day? How did the Secretary conclude, and the 1st Respondent decide, first, that Minister Kadirgamar was under LTTE threat when the memorandum did not mention him? And second, that the security forces had advised the six specified VVIP and VIPP to avoid attending polling booths, when the memorandum only advised that precautions be taken when they visited polling booths? Had the six VVIP and VIPP requested special voting arrangements? If, as claimed in the memorandum, information had previously been received of a specific threat to the President and General Ratwatte, why did the ADG/DII delay until 4th December to inform the 5th Respondent? VVIP, VIPP avoid polling booths The material available to the 1st Respondent did not disclose any threat whatsoever to Minister Kadirgamar, nor did it disclose that the security forces had advised the six VVIP and VIPP to avoid visiting polling booths. In the written submissions filed on behalf of the Respondents it was alleged that two intelligence reports, from internal intelligence sources, produced by the 5th Respondent on 3.12.2001, contained information about this possible assassination attempt, and that the 1st Respondent was apprised of the seriousness of that threat. Those reports were not produced, and the 5th Respondent did not disclose their contents in an affidavit, nor explain how the 1st Respondent had been informed. It is clear beyond reasonable doubt that - whatever material the security forces may have had - the 1st Respondent himself did not have any material on which he could reasonably have concluded that there was a serious threat to the lives of the six VVIP and VIPP and that the security forces had advised them to avoid attending polling stations. He acted blindly upon the unsubstantiated representations of the Secretary and extended quite extraordinary privileges to six persons without even receiving a request from them. I must also note the otherwise commendable promptitude which the 1st Respondent displayed on that occasion. Having received the Secretary's letter at 1.00 pm on 4.12.2001, his Order was made and gazetted the very same day, after having ascertained on his own the electoral districts and residences of the six VVIP and VIPP, but without the precaution of seeking the views of the Attorney-General (to whom that letter had been copied). The Petitioner in the first Application was therefore justified in complaining that 55,000 voters (including himself) from Batticaloa and Vanni were treated very differently: that a few who had the privilege of extensive security provided by the State were given the additional facility of voting at home, while from those who had no security at all even the right to vote had been stealthily taken away. The 1st Respondent's Order was therefore arbitrary, unreasonable, and discriminatory, and in violation of Article 12 (1). Order I award the Petitioner(s) in each Application (a) a sum of Rs. 100,000 as compensation payable by the State (totalling Rs 300,000), and (b) a sum of Rs 30,000 as costs payable personally by the 3rd Respondent (totalling Rs. 90,000). I further award the Petitioner in the first Application a sum of Rs 1,000 as nominal compensation in respect of the 1st Respondent's Order under section 129, payable personally by the 1st Respondent. All these payments shall be made on or before 31.5.2003. |
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