By Sanuj Hathurusinghe
Sri Lanka’s lack of an advance voting system will deprive over 20,000 remanded prisoners from voting in the next Presidential Election – a right that even Taliban prisoners enjoy in Afghanistan, prisoners’ rights activists and election monitors said. This was acknowledged by the Election Commission (EC) as well.
Sudesh Nandimal was remanded on the allegation of ‘rioting’ against the Government in 2008 and remained in remand prison as a suspect until he was released in 2013. He was deprived of voting in at least three consecutive elections held during that time including the 2010 General Election and Presidential Elections.
“Myself and a few other remanded suspects requested from the prison superintendents and the Prisons Department in 2010 to secure our right to vote. We were told that they had no authority to let us vote. Once we were released, we reached out to the then-Election Commissioner to discuss securing prisoners’ voting rights. We also requested him, in writing, to secure the voting rights of all the remanded prisoners and those serving a jail term of less than three years. While the Commissioner agreed to our requests, he also told us that the Commission didn’t have the authority to take action to make our requests happen. He said the eligible prisoners could have been given voting rights if the Commission had the authority to organise polling booths within the prison,” Nandimal said.
Nandimal, the Chairman of the Director Board of the Committee for Protecting Prisoners’ Rights (CPPR), also said the numbers in remand prison – those who will not be able to vote despite being eligible may increase by few more hundreds with ongoing operations like Yukthiya.
Every vote matters
With Nandimal stand nearly 20,000 prisoners eligible to vote, put behind bars on suspicion of various offences and the number, according to Prisons Department statistics may vary between 15,000 to 20,000.
As per Prisons Department data as of May 2024, there are 19,867 remand prisoners / pre-trial detainees, accounting for 64.7% of the total prison population. They, in addition to other prisoners eligible to vote, are deprived of the right due to the unavailability of a proper system. According to the latest statistics, the number of unconvicted prisoners in Sri Lanka in 2021 was 62,426.
According to election monitors, approximately 22,000 eligible voters in prison could not cast their vote in the 2020 General Election.
Improbable as it may seem, a single vote can decide who the winners and who the losers are. A practical example of this is the 2011 Local Government Election of Kolonne Pradeshiya Sabha, Ratnapura District where the UPFA received 10,075 votes while the UNP received one less, 10,074. With an advantage of the smallest possible margin – a single solitary vote – UPFA won Kolonne seat. Conversely, in the last election to be held in the country, the August 2020 General Election, the number of registered votes that weren’t cast was 3,920,576, revealed Executive Director, Institute for Democratic Reforms and Electoral Studies (IRES) Manjula Gajanayake during a recent panel discussion on electoral integrity and transparency by Centre for Investigative Reporting (CIR).
It is in this context that the need to protect the right of each eligible vote is emphasised.
Prisoners with voting rights are prevented from voting due to the obvious difficulty in accessibility. If a person is remanded or in prison when an election is being held, under usual circumstances, he or she will not be able to vote, even if the person is eligible to vote. However, the need for securing the voting rights of prisoners has been emphasised on numerous occasions, not just by civil society organisations but by the EC as well.
Executive Director of the Committee for Protecting the Rights of Prisoners, Senaka Perera, revealed, the reason why the political parties aren’t keen on providing voting rights for prisoners is because prisoners are still a marginalised community in Sri Lanka –despite the popular slogan, ‘Prisoners are human beings too’ – which makes association with such a group disadvantageous for political parties.
How can prisoner’s voting rights be secured?
First and foremost, a policy decision has to be taken enabling the EC to take necessary action to facilitate prisoners who are eligible to vote. Once the legal barrier is overcome, it is just a matter of establishing advance voting facilities in 18 remand prisons, 10 work camps, 2 open prison camps, the training school, two correctional centres and the 23 lockups; depending on the need. Once the eligible prisoners are sorted, the voting can be carried out on a day before the election with the advance voting facility, and the names of the prisoners who have voted will then be removed from the electoral voter lists to avoid repetition; opined Commissioner General of Elections, Saman Sri Ratnayake.
Advance voting
According to Ratnayake, securing eligible prisoners’ voting rights can be secured via the introduction of an ‘advance voting system.’ The Sri Lankan electoral system provides for a restricted form of advance voting, essentially allowing polling officials and public servants engaged in election duties or emergency services on Election Day to cast early votes via postal voting. However, the groups who would be disenfranchised due to accessibility issues on Election Day are much broader than the aforementioned groups who are eligible to cast postal votes. In 2019 Presidential Election, the number of postal votes applications received by the EC was 720,135 while 8.49% of the applications (61,106) were rejected, states the Election Observation Report prepared by Centre for Monitoring Election Violence.
By establishing an advance voting system, the voting rights of all the otherwise disenfranchised groups, can be secured. However, determining which groups should be eligible to cast advance votes should be determined after much consideration since opening up postal votes facilities rather limitlessly might lead to fraud and unlawful acts; warns the Chairman of Association of Election Professionals of Ceylon and former EC Chairman Mahinda Deshapriya in a letter of recommendations on amending election laws to the EC.
The advance voting system can broaden the existing postal votes system to include more groups of voters as well as allow the selected voters to vote at a convenient election centre before Election Day. In the cases of prisoners with voting rights and those who are hospitalised on Election Day, special polling booths should be established in prisons and hospitals to ensure their franchise. However, experts, including the likes of Ratnayake and Deshapriya, warn that advance voting on a different poll should be allowed on Election Day itself, the day before or on a much closer day to avoid fraudulent and unlawful activities.
Discussed in Parliament
Commissioner General of Elections Ratnayake said on numerous occasions, the Commission has made suggestions to relevant Government commissions appointed to amend election laws. Among the suggestions submitted to the Select Committee of Parliament to Identify Appropriate Reforms of the Election Laws and the Electoral System in 2021, is the proposal to implement advance voting and special polling stations for the benefit of voters who are eligible to vote but don’t have postal voting and can’t go to voting centres on Election Day due to various reasons. Among these groups are prisoners eligible to vote.
The issue was discussed in Parliament as well, as the report of the special select committee was presented to Parliament in June 2022 by Prime Minister Dinesh Gunawardena. However, a special Gazette Notification or an amendment to an existing act about securing voting rights for prisoners is yet to be passed in Parliament. According to Ratnayake, the EC is more than capable of taking actions that secure the voting rights for all but the powers of the commission are limited and a decision of this nature has to come from the Legislature.
Groups benefiting from advance voting
In the letter of recommendations sent by the Association of Election Professionals of Ceylon to the Chairman of the EC to propose revisions to election laws, Deshapriya lists out several groups who should receive advance voting facilities other than eligible prisoners. Government servants who have official duties on election days but are not eligible for postal voting, healthcare workers, harbour, airport and highway workers, journalists, employees in the transport sector, private security officers, employees in trade zones, employees in the hospitality sector, and voters who, under special circumstances, can’t visit their registered polls or cast votes.
Legal framework
However, the topic of advance voting has been discussed by civil society organisations for over two decades.
The current legal provisions allow advance voting only for a few selected groups. According to Section 26 of the 1981 Parliamentary Elections Act and Section 23 of the 1981 Presidential Elections Act, Government staff engaged in election duties on Election Day, some Government workers who are in essential work, those serving in Security Forces and candidates contesting outside their registered constituency can vote in advance. However, in 2020 Parliamentary Elections, the EC adopted a special decision to include frontline healthcare workers as well.
The current electoral legal framework effectively disenfranchises a large number of eligible voters which amounts to a breach of international standards that guarantee voting rights.
According to Ratnayake, the Commission has already conceptualised the whole advance voting system and is poised to implement it once the green light is given, the only delay being at parliamentary level.
In other words, securing voting rights for prisoners is solely in the hands of political parties.
Political inertia
Meanwhile, when asked if the Ministry is planning to draft laws to bring advance voting into action – which can secure voting rights of not just prisoners but any other sectors of society – Justice Minister Wijeyadasa Rajapakshe said his Ministry has not received any written request regarding enabling advance voting. While acknowledging the matter has been spoken about in Parliament and suggestions have been submitted in writing by civil society organisations, he said no such written request has reached the Ministry while alleging that they must be stuck at the Presidential Secretariat.
When questioned about taking a policy decision to make advance voting happen, the Minister said the possibility of any election-related policy decision materialising before the next election is very low as he has instructed the Ministry to not take any such policy decisions at this juncture and wait until the next Parliament is formed following the elections.
As for bringing in the advance voting system to secure voting rights for many sections of society who are unable to vote under regular circumstances, Executive Director of People’s Action for Free and Fair Elections (PAFFREL) Rohana Hettiarachchi said activists, civil society organisations and election monitoring bodies have, for over 10 years, talked about bringing in advance voting systems. “PAFFREL has even researched the matter and handed the report to the EC, which was well-received. The EC is much-interested in bringing in advance voting systems and the suggestions have now reached the Cabinet level and legal drafting level,” Hettiarachchi said.
When asked how the Justice Minister was unaware of such election law suggestions reaching the Justice Ministry and how they perhaps are still stuck at the Presidential Secretariat, Hettiarachchi said it simply can’t be. “However, the suggestions were sent back to the Presidential Secretariat to make a few more amendments. Perhaps, what the Minister is talking about could be this delay,” Hettiarachchi further said.
“The suggestions we presented didn’t however explicitly talk about securing voting rights for prisoners but rather talked about bringing in an advance voting system to include almost all the voters who are unable to vote on Election Day due to various issues. If the suggestions can be made into a legally binding document and get Cabinet approval, based on that, securing voting rights for prisoners isn’t that big of a leap,” Hettiarachchi said.
In many other parts of the world, prisoners have their voting rights secured, even in Afghanistan. Even the Taliban prisoners are allowed to vote via a mobile voting system, he said.
In Thailand, even farmers can vote in advance if they are unable to visit the polling booth on Election Day. We need a system like that to allow people who can’t go to the polling booth on Election Day such as economic zone workers, expressway workers, members in healthcare sector, security personnel, and so on. That way, we can secure the voting rights of approximately a million voters who are unable to vote at present, Hettiarachchi added.
Speaking about the legal provisions for advance voting systems and assigning alternative polling centres to secure voting, Hettiarachchi said both old and new amendments to the Election Law include provisions to facilitate these under special circumstances. Thanks to these legal provisions, politicians were able to vote from their homes during the internal conflict and the Jaffna Tamils who had fled the North during war were able to vote from Colombo. Hettiarachchi said it is just a matter of extending the advance voting and voting at an alternative polling centre to the laypeople who are having genuine troubles to vote on Election Day.
“Establishing an advance voting system was much talked-about during the pandemic when the country was in a lockdown and many were in quarantine camps. However, that interest slowly faded. If an advance voting system is to be introduced, the upcoming Presidential Election is the most ideal to do so since the votes of the whole country is considered one division. It becomes a bit complicated in a General Election and much more complicated in a Provincial Election since there are multiple electoral divisions. However, it is not impossible,” Hettiarachchi said.
The Story was originally published on The Ceylon Today on 26 May 2024 under the Electoral Integrity Fellowship of Center for Investigative Reporting, Supported by the Netherlands Embassy.
