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The commissioner, Dayananda Dishanayake, while announcing the results to the nation in a televised message on Wednesday, stated in strong terms that he was subjected to severe pressure and humiliation, which he was unable to bear. All commentaries on the election commissioner’s speech interpreted it to indicate that he was not satisfied with the conditions under which he had to carry out his duties in conducting the election.

Clearly, the question whether Sri Lanka is capable of conducting a free and fair election has been raised. Both the voting process and the process of receiving, preserving and counting the ballots at the commissioner’s office have been challenged.

Besides this, the enormous abuse of state resources by the government for its electoral purposes, particularly the blatant abuse of the state media for direct propaganda to request people not to vote for the opposition candidate, in defiance of the commissioner’s direct interventions, has given the overwhelming impression that the election was not free and fair.

The problems and difficulties in ensuring free and fair elections were recognized previously. In 2001, the amendment to the Sri Lankan Constitution of 1978 was passed by Parliament with rare unanimity, which, among other things, created a Constitutional Council to ensure proper appointments to several important public institutions with the view to preserve professionalism in the government service.

This was the result of a widely held realization that political interference had crept into public services since the introduction of the executive presidential system in 1978, contributing to the deterioration of standards in all public services. This was referred to as “politicization,” and meant that direct interference by the executive president and his agents in the running of public services made it impossible for them to function professionally.

Among the institutions “polluted by politicization” was the department of the commissioner of elections. Under Article 3 of the Constitution, an amendment was introduced to legislate that “There shall be an election commission consisting of five members appointed by the president on the recommendation of the Constitutional Council, from among persons who have distinguished themselves in any profession or in the field of administration or education. The president shall, on the recommendation of the Constitutional Council, appoint one member as its chair.”

Since 2001, governments have refused to comply with this constitutional provision. Dishanayake, who was appointed commissioner of elections before the amendment was passed, reached retirement age in 2002. However, as no election commission was appointed according to the new provision, he had to continue in office due to the absence of a substitute.

On several occasions Dishanayake publically requested permission to retire. As there was no satisfactory response from the government, he even went to court for permission to retire. The court refused his request on the basis that until a substitute was appointed under the constitutional provisions he had to remain in his post. But the court did not intervene to ensure that the government complied with the constitutional provision to appoint an Election Commission.

The government’s failure to appoint an Election Commission consisting of five members nominated by the Constitutional Council is perceived by all observers as a ploy to prevent the conduct of free and fair elections without political interference. This situation led to the final outburst of the commissioner when he voiced his frustrations to the entire nation while announcing the election result.

Dishanayake’s comments are reproduced here due to their importance to any future discussion on this issue.

“Under the empowerment of the Elections Commissioner as indicated in the 17th Amendment to the Constitution, I issued specific guidelines to the state media that were duly ignored. I then installed a Competent Authority for the state media who was completely disregarded. I then met the heads of state media but to no avail. I realized that this was a hopeless cause and so I had the Competent Authority removed.”

“I was able to note that during the election, many state institutions operated in a manner not befitting state organizations.”

“Some blamed me saying that my task was to ensure that the ballot boxes were safe and to ensure that the counting was done right. But under the circumstances I faced today, I could not even ensure the safety of even one ballot box. I did my duties during this time under great duress and mental agony.”

“I hereby state that the situation has reached a dangerous level that is beyond me. I am also advanced in years and have served in this capacity for eight long years so I only ask that I be released from this thankless duty.”

“It is impossible for me to work in peace under the circumstances – I am constantly under stress and find that I may fall sick and have to face consequences of such an illness.”

“Regional leaders harassed my team and I in several areas such as Puttalam, Anuradhapura, Matala Districts, they even bothered the counting centers. This is not a good trend. In fact, it reached an uncontrollable level of verbal abuse directed at Presiding Officers and Asst Elections Commissioners.”

“I have been accused of favoring one party in the process of carrying out my duties. I regret that it is no longer possible for me to suffer such indignity and insult – I am not able to do so physically or psychologically.”

Quite clearly, until the electorate is assured that the process of elections is not abused by violence, by the use of state resources that favor the party in power or by the abuse of state media and that there is no tampering with the process of receiving, preserving and counting the ballots, the public can have no confidence that the elections are free and fair. However, this cannot be done until a Commission of Elections is appointed in compliance with the 17th Amendment to the Constitution.

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(Comments by Election Commissioner Dayananda Dishanayake translated from Sinhala by Roshan Fernando; quoted from the Lanka Guardian.)

(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia. His blog can be read at http://srilanka-lawlessness.com.)