Constitutional wormhole that has rendered franchise hollow

UNP Leader Ranil Wickremesinghe, who failed to win the executive presidency twice (in 1999 and 2005) and chose to skip three presidential contests (in 2010, 2015 and 2019) has become the Executive President by virtue of being in the right political camp at the right time. His election by the parliament as the 8^th Executive President on 20 July brings to light some very serious flaws in the Constitution and the election laws, and the need to rectify them. These flaws constitute a constitutional wormhole, which has rendered Sri Lanka’s democracy and electoral system hollow and made a mockery of the popular will.

Needless to say, Sri Lanka’s Constitution is riddled with numerous flaws because it was hurriedly tailor-made for a highly ambitious, ageing political leader. He answered to the name of J. R. Jayewardene. The Constitution was amended thereafter to enhance his powers and those of his predecessors, save a few instances where constitutional amendments were brought in to dilute the executive presidential powers. Today, the flawed Constitution has benefited Jayewardene’s nephew, Ranil Wickremesinghe. Jayewardene would guffaw if knew what happened in Parliament on 20 July.

Excessive executive powers concentrated in the presidency at the expense of the other two branches of government—namely, the legislature and the judiciary—are not the only weakness in the Constitution although they dominate the current political debate on the basic law and the need to change it, and have led to some attempts to tame the presidency through the 17 and 19^th Amendments.

One of the very serious constitutional flaws, which have gone unaddressed, is the questionable National List (NL), which enables virtually anyone to enter the parliament, provided he or she is wealthy and/or close to the leader of the political parties that win NL slots, and go on to become the Prime Minister and even the President either contesting a general election unsuccessfully or not doing so at all. This is antithetical to the doctrine of people’s sovereignty, which includes the power of government, fundamental rights, and franchise, or the will of the people.

Wickremesinghe lost his parliament seat at the 2020 general election, and his party failed to have a single candidate returned. The UNP was left with a single NL slot, which remained vacant for many months. Thereafter Wickremesinghe shyly entered the parliament as an NL MP, and went on to become the PM and President in quick succession.

Creation of the wormhole

The NL mechanism was introduced to facilitate the entry of eminent Sri Lankans who detest political contest but are desirous of serving the country, which has benefited from the presence of people like Lakshman Kadirgamar in the parliament as NL MPs. But, overall, the NL has been abused by the unconscionable political party leaders to bring in their favorites as MPs much to the resentment of the voting public, who cannot get rid of undesirable candidates by defeating them.

The 14^th constitutional amendment certified on 24 May 1988 inserted Article 99A, enabling the election of 29 Members of Parliament from the NL on the basis of the total number of votes polled by each party and independent group at a general election. It says:

“After the one hundred and ninety-six members referred to in Article 98 have been declared elected at a General Election of Members of Parliament, the Commissioner of Elections shall forthwith apportion the balance twenty-nine seats among the recognized political parties and independent groups contesting such General Election in the same proportion as the proportion which the number of votes polled by each such party or group at such General Election bears to the total number of votes polled at such General Election and for the purposes of such apportionment, the provisions of paragraph (4), (5), (6) and (7) of Article 98 shall, mutatis mutandis, apply. 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 as Members of Parliament, the persons so nominated. (Emphasis added)

The operative words here are ‘being persons whose names are included in the list submitted to the Commissioner of Elections under this Article or in any nomination paper’. So, there is no ambiguity in respect of the appointment of the NL MPs, though ideally there should be no provision for the entry of candidates rejected by the people at a general election into the parliament with the help of the political party leaders. But this provision is circumvented by political party leaders by engineering NL vacancies to appoint persons of their choice to the parliament. They make use of Section 64 (5) of Parliamentary Elections Act of 1981, as amended in 1988, for this purpose. It allows ‘any member’ of a political party to be appointed an NL MP to fill a vacancy. This particular section in the parliamentary election law violates Article 99A and Article 101(H), but nothing can be done about it because the judiciary has upheld it and laws that are passed by the parliament are not subject to judicial review. The absence of the post-enactment review of legislation is also a very serious flaw in the Constitution and has to be rectified urgently.

Thus, the need for urgent constitutional amendments to make Section 64 (5) of the parliamentary election law consistent with the Constitution and change Article 99 of the Constitution to prevent defeated candidates from creeping into the parliament through the NL cannot be overemphasized. People’s sovereignty has to be upheld. Otherwise, it will be well-nigh impossible to restore public faith in the Constitution and the election laws.