By Vishvanath
An argument is being peddled in some quarters that the general secretaries of political parties have discretionary powers to appoint anyone of their choice to the parliament through the National List (NL) although the Election Commission (EC) has categorically stated that only the NL nominees and unsuccessful candidates can be appointed to Parliament as NL MPs.
Some newspapers and news websites have given much prominence to the above-mentioned claim, attributing it to some unnamed legal experts who are said to have argued that the EC cannot refuse to appoint as NL MPs those named by the general secretaries of political parties, and it is up to the judiciary to determine whether those appointments are legally valid. Someone seems to have sent a trial balloon.
Only the SJB and the UNP-led NDF have not been able to complete the NL appointments, and therefore it can be surmised that those who have reportedly challenged the EC’s position areeither from the SJB or from the NDF.
The SJB is entitled to five NL slots, but it has been able to appoint only its General Secretary Ranjith Madduma Bandara to the parliament. A large number of defeated candidates and NL nominees are vying for the remaining four NL slots.
Ravi Karunanayake, an NL nominee of the NDF, has had himself appointed to Parliament much to the resentment of the constituents of the NDF alliance, which obtained two NL seats. Many ambitious politicians are staking claims to the other NL slot.
The EC is right in having pointed out that only those who have been named as NL candidates and/or those whose names appear on the nomination lists submitted by political parties for a general election can be appointed to the parliament initially. The Constitution specifically says so in Article 99(A), introduced by the 14th Amendment in 1988.
Article 99A reads inter alia:
“ … 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 …”
The EC has to abide by the Constitution in carrying out its duties and functions and therefore it will be guided by Article 99A, which is unambiguous. As for NL appointments, the General Secretaries of political parties may make requests that are violative of Article 99A, but the EC can always turn them down. The only way they can circumvent Article 99A is to create NL vacancies, and make use of Section 64 (5) of the Parliamentary Elections Act, as amended in 1988, to appoint anyone of their choice to the parliament, provided that he or she meets the eligibility criteria the Constitution has prescribed for the members of Parliament. This is how all controversial NL appointments have been made over the years; Basil Rajapaksa, a dual citizen, entered the parliament through the NL as an SLPP MP after the 2020 general election. The SLPP did away with the 10th Amendment, which debarred dual citizens from becoming MPs and created an NL vacancy to clear the path for him. In 2016, the UNP appointed Sarath Fonseka as an NL MP following the demise of its NL MP M. K. D. S. Gunawardena. Fonseka unsuccessfully contested the 2015 general election as a Democratic Party candidate from the Kurunegala District.
Section 64 (5) of the Parliamentary Elections Act reads inter alia:
“ … where the seat of a member of Parliament declared elected under Article 99A of the Constitution becomes vacant, Secretary-General of Parliament shall inform the Commissioner who shall require the Secretary of the recognised political party or the group leader of the independent group to which the member who vacated the seat belonged, to nominate a member of such party or group to fill the vacancy.”
All political parties have violated the spirit of the NL by undermining its purpose, which is to facilitate the entry of eminent persons into the parliament without making them face the hustings, which put off many people who can be of tremendous use to the legislature where their experience and expertise are concerned. Ideally, NL appointments including those in respect of NL vacancies should be limited to those who are presented by political parties as their NL nominees. The argument that when the people vote for political parties or independent groups, they endorse their NL nominees as wellholds water. The appointment of defeated candidates and total outsiders to the parliament through the NL can be considered violative of the people’s franchise. Ranil Wickremesinghe, who lost his seat in the 2020 general election, appointed himself to the parliament via the NL and went on to become the Prime Minister and the President in quick succession, in 2022, making a mockery of the people’s will.
Sri Lankan political parties and their leaders never learn from experience, which is said to be the best teacher. They are a bunch of bad learners who repeat their mistakes. They have apparently forgotten what it is like to test the people’s patience and face a tsunami of anti-politics. They have not learnt from Aragalaya (2022).
Unless political parties act responsibly and end the deplorable practice of misusing the NL to appoint defeated candidates and those who are neither NL nominees nor unsuccessful candidates as MPs, the day may not be far off when the people take to the streets calling for the abolition of the NL.
Sadly, even the NPP, which emphasizes the need to uphold democratic best practices, has appointed unsuccessful candidates as NL MPs; there are two such NPP MPs in the current parliament as well. They had better remember that during the 2022 uprising protesters asked the President and all 225 MPs to go home as they had lost faith in the legislature and the executive. It is their anti-establishment sentiments that the NPP effectively tapped to power its election campaigns and capture power. The latest regime change may have helped release the pressure build-up in the polity, but public resentment is bound to set in unless politicians and their parties mend their ways and ensure that people’s expectations are met. Political analysts and legal experts have called for amending Article 99A of the Constitution and Section 64(5) of the Parliamentary Elections Act to prevent the misuse, if not abuse, of the NL. Their call should be heeded.
