DEW expects those formulating new Constitution to address NL issue

…reiterates 99A didn’t pass Committee Stage

By Shamindra Ferdinando

Former General Secretary of the Communist Party D. E. W. Gunasekara says the nine-member committee of experts formulating the new Constitution should take remedial action in respect of the National List introduced in terms of the 14th Amendment with unauthorised sections inserted thereinto.

Gunasekera told The Island that the then Speaker E.L. Senanayake had inserted a section that hadn’t been approved by the House, at the Committee Stage. Obviously, the Speaker had done so at the behest of then UNP leader and President J.R. Jayewardene, Gunasekara said.

The veteran Communist, who once represented the Opposition in the Parliamentary Select Committee on Franchise and Elections, stressed that what the Speaker had ratified was certainly not the 14th Amendment endorsed by the Parliament. He said that no less a person than the late Prime Minister Ranasinghe Premadasa, who chaired the PSC, in response to query raised by Anil Moonesinghe, had assured Parliament that only those whose names appeared on the National Lists handed over to the Election Commissioner before a general election would be able to become appointed MPs.

The Island 

sought clarification from Gunasekera after a President’s Counsel, responding to our news report headlined Nagananda: Ranil’s re-entry inconsistent with Constitution with strap line ‘SC to be moved against allegedly unauthorized changes in 14-A’ said that when enacting legislation it didn’t matter whether it is in accordance with PSC (in this case PSC on Franchise and Elections) recommendations or not. The PC said: “The question is whether an amendment was moved at the committee stage and whether it was approved. If the constitutional provision is different from the Bill provision then the question is whether the amendment was moved. PSC recommendation is not relevant to the issue at hand.” 

According to Gunasekera, two of those who represented the PSC on Franchise and Elections are still members of parliament––MEP leader Dinesh Gunawardena and UNP leader Ranil Wickremesinghe, who re-entered parliament through the National List. They could easily reveal that Section 99A in the present Constitution hadn’t been passed at Committee Stage, he added.

Gunasekera said that attorney-at-law and civil society activist Nagananda Kodituwakku had moved the Supreme Court on his behalf in 2015 when the then President Maithripala Sirisena accommodated defeated candidates Vijith Vijithamuni Zoysa, S.B. Dissanayake, Mahinda Samarasinghe, Lakshman Yapa Abeywardena, Thilanga Sumathipala, Angajan Ramanathan and M.L.A.M. Hisbullah through the National List at the expense of those who were on the UPFA NL. Former CP General Secretary said that he had sought the SC intervention as he had been deprived of a NL slot.

However, almost all SC judges recused themselves from hearing the case and finally the then Chief Justice K. Sripavan dismissed the case.

Gunasekera said that the committee headed by Romesh de Silva, PC could easily check with Speaker’s Office whether Section 99A now in Constitution had been approved at the Committee Stage. Declaring that it was not a Herculean task, Gunasekera urged the five-member Election Commission, too, to verify that matter.

 Both Gunasekera and lawyer Nagananda Koditiwakku said that certified sections at issue could be obtained from the Office of the Speaker. The following is the relevant section approved by the Parliament: “Where a recognized political party or independent group is entitled to any seat under such apportionment, the Commissioner shall require the Secretary of such political party or group leader of such independent group to nominate persons, qualified to be elected as Members of Parliament, to fill such seats and shall declare elected as Members of Parliament, the persons so nominated. However, at the behest of the then President, Speaker included within brackets the following section which hadn’t passed the Committee Stage: “(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.)”

Gunasekera said that the other significant change introduced by the Speaker at the President’s behest was the provision for political parties to name their NL members within a week after being informed in writing by the Election Commissioner the number of seats secured.

 Gunasekera said that he was really sorry he had not taken it up before 2015 general election. The veteran politician said that all political parties including CP could not absolve themselves of the responsibility for their failure to take remedial measures. Responding to another query, Gunasekera pointed out that Wickremesinghe’s swearing in as an MP was questionable as the party hadn’t named him within the stipulated week though he qualified  by being on the UNP Colombo District list.

Lawyer Koditiwakku said that he had recently written to Chairman of the Election Commission Nimal Punchihewa following the latter’s recent declaration (in response to a query raised by The Island) that there was no constitutional impediment to Basil Rajapaksa  entering parliament through the SLPP National List. Kodituwakku said that the former Minister hadn’t been in the SLPP National List or any district list therefore couldn’t enter parliament. Punchihewa said that the law (99A) was silent on appointments made after a NL member quit and there were previous instances of accommodating those not on the NL or  those who unsuccessfully contested the general election.