National List: convenient for political parties, gravy for those appointed

Business tycoon Dhammika Perera’s swearing last week as a National List MP of the Sri Lanka Podujana Peramuna (SLPP) evoked a great deal of interest for a number of self-evident reasons. Among these was that fact that he has publicly claimed to be the country’s biggest taxpayer. This has been seen on youtube by hundreds of thousands of viewers. Whether Perera claimed this in his personal capacity or whether it included the companies he controls – and there are a great many of them both listed and unlisted – has not been clarified. Apart from that claim, it is very well known that he is a major shareholder in a clutch of listed companies including the Hayleys conglomerate, the thriving ceramics sector (Royal Ceramics, Lanka Tiles, Lanka Walltiles etc), his own Vallibel Group together with LB Finance, one of the country’s biggest finance companies. He also owns significant stakes in the banking sector. On top of that are his interests in the gambling industry in which the foundation of his fortune lies.

The SLPP’s decision to nominate Perera to fill the vacancy created by the resignation of ruling clan sibling, Basil Rajapaksa, was challenged in the Supreme Court by the Center for Policy Alternatives and some other petitioners. They included a former Chairman of the Ceylon Chamber of Commerce, Mr. Chandra Jayaratne, who has post-retirement been a vigorous public interest activist. As many as five fundamental rights actions challenging Perera’s appointment were filed after his appointment was gazetted by the Elections Commission. Last Monday he undertook before a three-judge bench of the Supreme Court that he would not take his oaths as a Member of Parliament until the court had reached a determination on the actions before it. The court ruled in Perera’s favour by a divided decision. He is now an MP and likely to take a cabinet seat in a new Ministry of Technology and Investment Promotion created for him. Many subjects, previously covered by the President, have been assigned to this ministry.

Perera has not been sworn a minister at the time this commentary is being written. He has been quoted in the media saying that he expects a “suitable ministry” saying that he headed by Board of Investment during civil war – he was also Secretary Transport under the Mahinda Rajapaksa presidency – and that he was confident of providing solutions during the current crisis as well. The NewsWire website quoted him saying “at a time when people are losing jobs, I have entered Parliament to create job opportunities.” Whether an appeal is possible against the determination of the Supreme Court, generally considered as final, is still an open question. It has been speculated whether the petitioners will seek a hearing by a fuller bench in the light of their success in convincing one of three judges may be pursued. For this to be possible, the order made in Perera’s favour must be studied. The word on Friday was that this had not yet been done and requires further examination once the court order, dictated on the bench, is available.

However that be, questions now arise on the value of the 30 MPs appointed to Parliament on the National Lists of the various parties running for election. During the early post-Independence years, then Ceylon had six Appointed MPs to represent “unrepresented interests” in the 101-Member Legislature. Under this arrangement, MPs were appointed from communities like the so-called ‘estate Tamils’ disenfranchised by the first Parliament, Burghers, Malays and even British interests of that time. Older readers may remember that Mrs. Bandaranaike appointed the well known paediatrician, Dr. L.O. Abeyratne to Parliament to represent the country’s children. Previously, Mr. SWRD Bandaranaike appointed Mr. Asoka Karunaratne on a caste basis. All that, of course, is now water under the bridge. Today we have as many as 30 National List MPs and it would be difficult, with the exception of Mr. Lakshman Kadirgamar, to find anybody who had adorned parliamentary benches in a National List capacity. The existence of these positions have almost exclusively served narrow interests of political parties and their leaders.

The primary ground of the challenge on Dhammika Perera’ s appointment lies in article 99A of the Constitution. This says that the Commissioner of Elections shall by notice requite the secretary of a recognized political party or an independent group that secures National List places at a general election to nominate persons to be appointed (being persons whose names are included in the list submitted to the Commissioner of Elections under this Article or any other 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). Dhammika Perera does not belong to either such category. The Island editorially commented last Thursday (June 23) that there is a serious discrepancy between a section of the Parliamentary Election Act No. 1 of 1981 and some provisions of the Constitution governing National List appointments. These have been permitted to long continue.

Field Marshal Sarath Fonseka entered Parliament on the UNP National List having run for election under the banner of another party. Mr. Ratnasiri Wickremanayake, who subsequently served as prime minister, entered Parliament on a UPFA National List slot without his name being on that party’s National or any other nomination paper, filling a vacancy created by a resignation. This was challenged (also by the CPA) but not taken up by the Sarath Silva Supreme Court for three years and was eventually withdrawn. There is no escaping the conclusion that the National List serves as an instrument of convenience for political parties and a source of gravy for those appointed under it. Should it continue?