By P.K.Balachandran/Counterpoint
Colombo, June 22: An inconsistent set of laws is one of the reasons for continued controversies in the appointment of persons to the Sri Lankan parliament under the National List (comprising MPs who are not elected but appointed).
The constitutional provision governing the appointment of MPs clashes with the parliamentary election law of 1981. The clash enables a political party to appoint anyone of its choice to a seat in the National List even if it violates the constitutional provision governing such an appointment.
The legal inconsistency cannot be corrected by the Supreme Court because the Sri Lankan constitution has no provision for judicial review of laws already passed. It can give its determination before a law is passed but not after. Therefore, if anomalies are not corrected by parliament by an amendment, they tend to remain and are misused.
The Supreme court’s rejection on Tuesday of the petition filed by the Centre of Policy Alternatives (CPA) against the appointment of businessman Dhammika Perera to the National List seat vacated by Basil Rajapaksa is the latest case in this controversy.
The CPA cited Art 99 (A) of the constitution to get the appointment nullified. But Art 99 (A) clashed with Section 64 (5) of the Parliament Elections Act No 1 of 1981.
Art 99 (A) says: “Every recognized political party or independent group contesting a General Election shall submit to the Commissioner of Elections within the nomination period specified for such election, a list of persons qualified to be elected as Members of Parliament, from which it may nominate persons to fill the seats, if any, which such party or group will be entitled to, on such apportionment. The Commissioner of Elections shall cause every list submitted to him under this Article to be published forthwith in the Gazette and in one Sinhala, Tamil and English newspaper upon the expiry of the nomination period.”
“Where a recognized political party or independent group is entitled to a seat under the apportionment referred to above, the Commissioner of Elections shall by a notice, require the secretary of such recognized political party or group leader of such independent group to nominate within one week of such notice, persons qualified to be elected as Members of Parliament (being persons whose names are included in the list submitted to the Commissioner of Elections under this Article or in any nomination paper submitted in respect of any electoral district by such party or group at that election) to fill such seats and shall declare elected as Members of Parliament, the persons so nominated.”
For the current purpose, the relevant part in Art 99 (A) is that the parties should nominate only “persons whose names are included in the list submitted to the Commissioner of Elections under this Article or in any nomination paper submitted in respect of any electoral district by such party or group at that election.”
Dhammika Perera’s name was not in any electoral list of the Sri Lanka Podujana Peramuna (SLPP), the party which had wanted him to take the National List seat of Basil Rajapaksa. Perera’ name was neither in any District Electoral List nor the National List of the SLPP. Therefore, Perera’s appointment would be unconstitutional.
However, as the CPA itself points out in its notes on the issue, Section 64 (5) of the Parliament Elections Act No 1 of 1981 authorizes parties to appoint “any member” to a vacancy though this violates the “clear and unambiguous provisions of the Constitution, particularly Article 99A and Article 101(H).”
Although clearly unconstitutional, Section 64 (5) of the Parliament Elections Act No 1 of 1981 “remains valid because the Sri Lankan Constitution does not allow the Supreme Court to review the constitutionality of legislation once it is passed by Parliament,” the CPA points out.
Franchise Violated
The CPA says that the practice of appointing “any member” of a political party, who was not nominated at the relevant election, violates the franchise of the people which is part of the sovereignty of the people (Article 3 of the Constitution).
“If as the constitution suggests the people are indeed the sovereign of the Republic, then the people should know before an election who the political party intends to appoint to Parliament,” CPA argues.
“Allowing political parties to appoint whomever they wish to fill vacancies which are engineered for that purpose, undermines the value of the franchise of the people and unnecessarily and arbitrarily inflates the power of the leadership of political parties,” it states.
Amend Parliament Elections Act
Going further the Colombo-based think tank calls upon the SLPP and all other political parties to respect the provisions of the Constitution and the franchise of the people and take steps to amend Section 64 (5) of the Parliament Elections Act, in order to bring it in line with Article 99A and Article 101(H) of the Constitution.
As in the case of Dhammika Perera, Basil Rajapaksa’s name was also not on any SLPP district electoral list or in the National List in the August 2020 parliamentary elections, when he was appointed MP under the National List later.
Earlier, the CPA had filed a case challenging the National List appointment of Field Marshal Sarath Fonseka by the United National Party (UNP) in 2016. In that case the Supreme Court refused to grant leave to proceed, but no substantive order was issued. In January 2020. The CPA criticized the appointment of Mr. Saman Rathnapriya in a similar manner.
All Parties Culpable
The CPA notes that the UNP, United People’s Freedom Alliance / People’s Alliance have on previous occasions made similar illegal appointments to parliament. It points out that in 2004, a Writ Application was filed by Sunanda Deshapriya, a Co-Convenor of the Centre for Monitoring Election Violence (CMEV) challenging the right of Ratnasiri Wickramanayake and Wijeyadasa Rajapakshe to occupy National List allocated to the United Peoples’ Freedom Alliance (UPFA) in the 13th Parliament. Neither of the two was included in the National List published in the Government Gazette prior to the General Election of 2nd April 2004, under Article 99A of the Constitution. Nor were their names included in the Nomination Papers of the UPFA for any Electoral District
Wickremesinghe’s Appointment
Ranil Wickremesinghe’s recent appointment under the UNP’s National List was also questioned because his name had not been put up to the Election Commission within a week but much later. But he was a UNP candidate in the 2020 general elections.
Only First Time MPs
There is another loophole which parties use, the CPA points out: “By convention” the rule regarding the time limit (one week for informing the Election Commission about a nomination) applies only to “first time” MPs. Therefore, Basil Rajapaksa and Ranil Wickremesinghe could be excused. Basil Rajapaksa had been an MP and Economic Development Minister before when Mahinda Rajapaksa was President. And Ranil Wickremesinghe had been MP and Prime Minister several times before, the CPA points out. But Dhammika Perera’s case is different. He is a first time MP.
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