Social media has become a factory of sorts, where fake news is churned out continuously. Not that the mainstream media outfits do not manufacture news, but they are at least bound by certain laws and regulations and therefore have to be mindful of the consequences of their actions, and, above all, their credibility, or what remains of it. Social media platforms are without such restrictions, inhibitions, or ethical concerns, as such; the sky’s the limit for them, and some people let their imagination run riot via social media; the recent, widely-circulated claim that President Gotabaya Rajapaksa was contemplating resignation is a case in point. The President’s Office promptly denied the report as baseless.
The social media post in question, however, has reminded us of a very serious flaw in the Constitution, and the need for remedial action. This constitutional defect has made a mockery of people’s sovereignty by allowing defeated candidates, or party leaders’ favorites to be appointed to the parliament as National List MPs. It has been the result of the subjugation by the J. R. Jayewardene government of the country’s supreme law to political expediency. This constitutional flaw has so far affected only the legislature, but there is the possibility of a person who has not contested even a local government election being able to secure the executive presidency by means of political machinations in case of the office of President becoming vacant prematurely. How so?
The Constitution specifies the course of action to be followed in case of the office of President becoming vacant:
If the office of President shall become vacant prior to the expiration of his term of office, Parliament shall elect as President one of its Members who is qualified to be elected to the office of President. Any person so succeeding to the office of President shall hold office only for the unexpired period of the term of office of the President vacating office.
Such election shall be held as soon as possible after, and in no case later than one month from, the date of, occurrence of the vacancy. Such election shall be by secret ballot and by an absolute majority of the votes cast in accordance with such procedure as Parliament may by law provide:
Provided that if such vacancy occurs after the dissolution of Parliament, the President shall be elected by the new Parliament within one month of its first meeting.
During the period between the occurrence of such vacancy and the assumption of office by the new President, the Prime Minister shall act in the office of President and shall appoint one of the other Ministers of the Cabinet to act in the office of Prime Minister:
Provided that if the office of Prime Minister be then vacant or the Prime Minister is unable to act, the Speaker shall act in the office of President.
We saw this constitutional provision take effect in May 1993, when President Ranasinghe Premadasa was assassinated by the LTTE; the then Prime Minister D. B. Wijetunga took over as the President immediately, and appointed Ranil Wickremesinghe Prime Minister. The parliament elected Wijetunge President shortly afterwards for the unexpired period of the term of office of the President. (Wijetunga endeared himself to the people by exuding political maturity and acting fairly. He managed the political crisis extremely well and presided over a peaceful regime change in 1994.)
This looks a democratically acceptable process in that the Prime Minister takes over as the President, in case of the incumbent President’s resignation, removal or death, and the parliament elects him or her or any other MP as the President. But it could be deceptive.
The National List mechanism allows even those who do not face parliamentary polls or whose names are not submitted to the people prior to elections as would-be appointed MPs, to enter the parliament. The UNP appointed trade union leader, Saman Rathnapriya, a National List MP during the last government, and the SLPP has brought in Basil Rajapaksa as a National List MP. Besides, the yahapalana government had in its Cabinet several members who had failed to get elected at the 2015 parliamentary polls but were brought in as National List MPs. Their elevation to the Cabinet was a severe blow to democracy and people’s will; the people had deemed them unfit to represent them as even MPs. Needless to say, such action violates people’s sovereignty, but it has become constitutionally acceptable! In other words, the people cannot prevent a misfit from entering Parliament by defeating him at a general election if that person is in the good books of the leader of his or her party, which secures National List seat/s.
If a person appointed to the parliament via the National List could win over the ruling party with a working majority in the House, and he or she could even have himself or herself appointed President in case of the office of President becoming vacant, far-fetched as it may sound. It is this possibility that has given rise to the aforesaid rumor.
Constitution vs Parliamentary Elections Act
A country’s Constitution takes precedence over all other laws, and hence it is called the supreme law. But the situation is different here. According to the Constitution of the Democratic Social Republic of Sri Lanka, only the persons qualified to be elected as Members of Parliament (being persons whose names are included in the list submitted to the Commissioner of Elections or in any nomination paper submitted in respect of any electoral district by such party or group at that election) can be elected as National List MPs, but political parties can bring in persons of their choice as National List MPs by making use of Section 64 (5) of the Parliament Elections Act No 1 of 1981, which provides for the appointment of ‘any member’ of a political party to fill a National List vacancy. This section of Parliament Elections Act violates Article 99A of the Constitution. But nothing could be done about it because the Constitution does not provide for the post-enactment judicial review of legislation. It has therefore become a fait accompli.
It has been claimed in some quarters that the amendment Bill, which the Speaker signed into law in 1988, enabling ‘any member’ to be appointed to a vacant National List slot, was different from the one the parliament passed. That is the Bill was allegedly tampered with after its ratification. This came to light only in 2015, when the then President Maithripala Sirisena appointed as MPs seven defeated UPFA candidates at the expense of his party’s National List nominees.
It is a clear violation of franchise, which is an integral part of people’s sovereignty, to make National List appointments in this deplorable manner on the pretext of filling vacancies. But the Parliament Elections Act of 1981 not only provides for such action, as was said previously, but also allows itself to be made use of by anyone who is qualified to be an MP to become President by manipulating the ruling party in case of the office of President becoming vacant. No government has cared to abolish this particular legal provision detrimental to people’s sovereignty. Instead, all governments have used it to further their interests. The need for rectifying this constitutional flaw cannot be overstated. The sooner, the better!
