Monday 16th October, 2023

Laws, passed by the Parliament of Sri Lanka during the past several years, contain flaws, which have even impeded the implementation of some of them, according to media reports. The defects have been attributed to lapses on the part of the public officials who drafted the laws at issue. There has been no official denial of the media reports in question, and supposing they are accurate, then drastic action has to be taken to straighten up the flawed laws. But this task has to be carried out in a very transparent manner, and no room must be left for the government to introduce ad hoc changes and thereby compass its political ends on the pretext of ridding laws of their flaws and facilitating their implementation.

An unauthorised change made to a crucial amendment Act, about 35 years ago has had a corrosive effect on the Constitution, especially the people’s franchise, which is a fundamental component of representative democracy. That abominable provision has enabled the political parties to circumvent the Constitution and appoint individuals of their choice to Parliament via the National List (NL).

As we have pointed out in a previous comment, Article 99A of the Constitution allows only the persons whose names are included in the lists submitted to the Commissioner of Elections or in any nomination paper submitted in respect of any electoral district by political parties or independent groups at elections to be appointed to Parliament via the NL. This provision led to the undemocratic practice of the candidates defeated at elections to be brought in as NL MPs. In 1988, the then UNP government did something even worse. It introduced Section 64 (5) of the Parliament Election Act, inter alia, as an urgent Bill, eroding the essence of the constitutional provisions pertaining to the NL and the people’s sovereignty.

The Parliament Election Act of No 1 of 1981, as amended in 1988, allows ‘any member’ of a political party to be appointed to fill an NL vacancy. After parliamentary elections, political parties appoint their NL members as prescribed by the Constitution, and thereafter engineer NL vacancies and appoint persons of their choice to Parliament. Attempts to have this highly undemocratic practice terminated by the judiciary have been in vain.

Worse, it has been revealed that the words, ‘any person’, were smuggled into the amendment to the Parliamentary Elections (Amendment) Act after its ratification by Parliament! Strangely, there has been no sustained campaign for the abolition of this legal provision, which allows virtually anyone to enter Parliament without contesting a general election or being nominated as an NL candidate, and even become the Prime Minister, who takes over as the Acting President in case of the popularly elected President’s death, removal or resignation.

The aforesaid legal provision has become a fait accompli because the present Constitution does not provide for the post-enactment judicial review of legislation. In a country like Sri Lanka, the need for the judiciary to be empowered to review laws after their ratification cannot be overstressed, given the deplorable methods that governments employ to subjugate even the Constitution to their political interests. It may be recalled that the UNP-led Yapahapalana government stuffed the Provincial Council Elections (Amendment) Bill with questionable sections at the committee stage before rushing it through Parliament, in 2017, to postpone the Provincial Council polls indefinitely.

Hence, care should be taken to ensure that no unauthorised changes are introduced to laws passed by Parliament. The Opposition has to remain vigilant to ensure that the government does not meddle with laws. If the SLFP, which was in the Opposition in 1988, had carried out its legislative duties properly and perused the Parliamentary Election (Amendment) Act, it would have been able to challenge the unauthorised insertion thereinto, then and there. The incumbent government, which has caused elections to disappear, so to speak, will not baulk at anything to safeguard its interests.