It’s the Supreme Law stupid!

Thursday 23rd June, 2022

Tuesday’s Supreme Court decision in favour of Dhammika Perera anent a petition against his appointment as a National List (NL) MP of the SLPP, reminds us of a serious discrepancy between a section of the Parliamentary Election Act No 1 of 1981 and some provisions of the Constitution, governing the NL appointments. Strangely, this incongruity has gone unaddressed all these years, and outsiders continue to be catapulted to Parliament via the NL, some notable cases being the appointments of Sarath Fonseka (2016), Saman Rathnapriya (2020) and Basil Rajapaksa (2021).

Article 99A of the Constitution says the Commissioner of Elections shall by a notice, require the secretary of a recognised political party or an independent group that secures NL slots at a general election ‘to nominate persons 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’. (Emphasis added.) But Section 64 (5) of the Parliament Elections Act No 1 of 1981 authorises secretaries of political parties to appoint ‘any member’ to fill an NL vacancy; this violates the people’s franchise, for the party leaders can engineer NL vacancies and bring into Parliament persons other than those who are presented to the public as their NL candidates at a general election.

Basil Rajapaksa’s NL appointment became even more controversial because he was disqualified from contesting elections due to his dual citizenship when the SLPP won the 2020 parliamentary polls and secured its NL slots. But Basil had the last laugh, and the entire nation is now in tears because he accelerated the ruination of the economy after entering Parliament via the NL and becoming the Finance Minister.

Given the despicable manner in which political party leaders abuse the aforesaid section of the Parliament Elections Act, it is not difficult to imagine how bad the situation will be if their efforts to abolish the preferential vote mechanism or manape, which they make out to be the mother of all battles among their candidates, reach fruition. There is nothing intrinsically wrong with the preferential vote, and it should not be deep-sixed simply because political dregs fight over it. If it is done away with, party leaders will be able to manipulate nomination lists to enable their favourites to enter Parliament at the expense of the popular candidates.

The preferential vote system was introduced to prevent party leaders from undermining people’s preferences, and enable the public to vote for the candidates of their choice. The preferential vote battles erupt because political leaders are too impotent to enforce discipline in their parties, and usually nominate political offscourings to contest elections. The JVP has demonstrated that party discipline is the best antidote to preferential vote battles; it is free from Manape clashes. If other political parties do likewise, there will be no need to scrap the preferential vote system.

It has now been revealed that the original Parliament Elections (Amendment) Bill ratified by the House in 1988 did not contain provision for the appointment of ‘any member’ of a political party to fill an NL vacancy; this undemocratic section was smuggled into the Bill after its ratification. This fact came to light during a constitutional argy-bargy over some NL appointments following the conclusion of the 2015 general election, but no action has been so far taken to rectify it.

Will any of the MPs campaigning for democracy and good governance call upon Parliament to examine the above-mentioned incongruity and take steps to rectify it by bringing the controversial section of the Parliament Elections Act in line with Article 99A of the Constitution? There is a pressing need to close this hole, as it were, which has rendered the Constitution, which is considered the country’s supreme law, hollow. Likewise, a constitutional provision must be introduced to enable post-enactment judicial review of legislation so that bad laws hurriedly passed by Parliament could be challenged in the Supreme Court. At present, laws are faits accomplis; there is absolutely nothing that can be done about them, and hence governments are in the habit of steamrollering Bills through the House.