- Will Mohamed Nasheed push for a parliamentary system in Sri Lanka too?
- The legal lacuna in Ranil’s appointment on the national list
Weeks of struggle and strife have not brought any relief to the people whose frayed nerves are pushing them on to the streets. Last week hundreds of them spilled over from gas queues onto the road. There were road blocks reported from Galle, Negombo, Homagama, Nawala, Narahenpita, Baseline Road and other places. People who had been waiting for fuel for five days chased away police officers who had come for refuelling to a station and in Mahawa people hooted at the police who had come to get petrol. The health sector is on a life machine. Ravi Kumudesh of the Health Professionals Organisation warned of the risk of ICUs and High Dependency Units in hospitals having to close down.
Parallelly last week, ministers who were back in parliament were feeling sorry for themselves and the people had to listen to their pathos. They watched a lot of chest -beating as government MPs mourned the loss of their property. Among them was actress turned politician Geetha Kumarasinghe, who is among some 70 ministers who had their houses burnt and property damaged during last week’s state sponsored violence. Kumarasinghe wailed that she lost all the trophies and awards she had received during her acting career when her home was attacked and how terrified she was at the time because she had been a lone woman at home.
Attorney General Sanjay Rajaratnam gave a list of 22 names of ex- ministers and others who were allegedly involved in the violence to the police for them to be arrested. Those who have been arrested so far such as ex-state minister Sanath Nishantha, former provincial councillor Amal Silva, a Moratuwa Urban Council member and Dan Priyasad are ‘small fry’ in the government’s inner circle. Others such as ex- minister Johnston Fernando, whose recent and infamous threat that killing a crow and hanging out one of its feathers would pass a message to the people to stop protesting, are still at large and remain fugitives from justice. There is public acknowledgement that former Prime Minister Mahinda Rajapaksa is vicariously responsible for inciting his supporters and releasing them onto the streets to unleash violence but calls for his arrest have gone unheeded. After a few days of hiding from the heat and cooling off on the navy managed Sober Island in Trincomalee, Mahinda Rajapkse slunked into parliament last week.
Ranil Wickremesinghe’s entry as prime minister is at a time when the country is at its lowest politically and economically. Many see Wickremesinghe as a traitor who betrayed the peoples struggle by propping up a weak president who was days away from caving in. So far, Wickremesinghe has failed to deliver on the expectations of the economic miracle it was believed he could bring about. Soon after he took over, Wickremesinghe had talks with representatives of the World Bank and Asian Development Bank and what has materialized from these discussions so far is 116 million USD from the World Bank to buy medicine, some of which Wickremesinghe said he would renegotiate to purchase fuel. A pledge by the Asian Development Bank to give USD 116 million will not be forthcoming because Sri Lanka had defaulted on a USD three billion payment to it. Meanwhile other support which has been pledged so far is USD 1. 5 million which Japan said it will give through the World Food Program to provide food and assistance to children and families who are in need. Yesterday, Sri Lanka received more than two billion rupees worth of humanitarian assistance from the people of India. It consisted of over 9,000 MT of rice, 50 MT of milk powder and more than 25 MT of drugs and other medical supplies to be distributed to vulnerable and needy populations in the north, east, central and western provinces by the coming days. A statement which was issued by the Indian High Commission said that this is also the first consignment under a larger USD 16 million commitment of 40,000 MT of rice, 500 MT of milk powder and medicines by the Government of Tamil Nadu. This is expected to be followed up with more humanitarian consignments from economic assistance worth around USD 3.5 billion, supply of vaccines, testing kits, close to 1000 MT of liquid oxygen to combat COVID-19 and an immediate response by the Indian navy and Coast Guard to mitigate marine disasters.
Wickremesinghe accepted the offer of former President of the Maldives Mohamed Nasheed to be an international coordinator. Nasheed has been a champion of parliamentary democracy and it could be a long shot to believe his appointment may be symbolic. Tweeting about it, Wickremesinghe said he has accepted former Maldivian President Mohamed Nasheed’s generous offer to assist in the relief efforts in Sri Lanka’s economic recovery by coordinating the efforts to secure foreign assistance.
Nasheed’s ties with Sri Lanka run deep. Western educated Nasheed has also studied in Sri Lanka which has given refuge to him and his family during their bouts of political distress. Nasheed who has a political history chequered with activism against the presidential system of Maldivian ex-President Maumoon Abdul Gayoom as well as corruption and climate change, is the Maldives first democratically elected leader. He is currently the Speaker of the Maldivian parliament.
India Narrative, which analysed the appointment with Colombo based author and foreign advisor Dr Srimal Fernando said it was a smart move by the Prime Minister. ‘Nasheed has a vast network, particularly with western nations and is an influential figure who is backed by European nations. He has lived in many foreign countries and is strongly pro -India’.
Dhananjay Tripathi, Associate Professor in the Department of International Relations, South Asian University told India Narrative that though surprising, Nasheed’s appointment will serve Sri Lanka well. ‘Sri Lanka has sent a clear political signal to China by appointing Nasheed as the coordinator for Sri Lanka’s economic recovery’. Fernando and Tripathi share the same sentiment about Nasheed’s good political reputation and his ability to help Sri Lanka move close to its traditional western allies. ‘We should remember that from the very early days Sri Lanka was guided by the western notions of liberalism and capitalism, much before India came into that space’, says Tripathi echoing the model that will resonate with Wickremesinghe. ‘Sri Lanka’s tilt to China took place during the reign of the Rajapaksa family. With Nasheed’s appointment Colombo has sent a signal that it is ready to embrace the West once again’.
Wickremesinghe’s position as prime minister was undermined further during last week’s cabinet appointments. After the debacle with the appointment of the deputy speaker in the week before, the appointment of a serial offender to the cabinet of ministers begs the question of the integrity of not only the prime minister who is the head of the government but also of the government itself. Among President Gotabaya Rajapaksa’s cabinet appointees last week is K. Nalin Ruwanjeewa Fernando who is the new Minister of Trade in Wickremesinghe’s cabinet of ministers. In April 2018 Fernando, a former head of Sathosa, was arrested by the Financial Crimes Investigation Division while attempting to leave Sri Lanka for embezzling 39 million rupees of state funds during the purchase of carrom and checkers boards in 2014. He was produced before the Fort Magistrate and released on bail. A travel ban which was imposed on him in October 2019 was lifted in December 2019. Before that in 2016, he was arrested by the Colombo Crimes Division for the alleged misuse of vehicles belonging to the state and produced before the Fort Magistrate.
In addition to questions of integrity, a crippling malaise in Sri Lanka’s governance and something which the peoples struggle seeks to address in their fight for system change, it also throws up questions of Wickremesinghe’s power or the lack of it in the new government.
More crucially is the legitimacy of Wickremesinghe’s current tenure in parliament. Wickremesinghe, who lost his seat in parliament during the general election of 2020, was returned to parliament on the UNP national list. It was the one and only representation in parliament that the UNP, which was completely wiped out at the poll that year, was entitled to. The party decision to nominate Wickremesinghe to parliament on the national list was a protracted and fractious one supported by a handful of his loyalists. It led to some party seniors quitting politics permanently.
In an article titled ‘Legal issues pertaining to national list appointments in Sri Lanka’ published in Counterpoint on 1 July 2021, the constitutionality of Wickremesinghe’s appointment was mooted. The conclusion was that there is provision to legally challenge the appointment of Wickremesinghe as a member of parliament on the UNP national list. Although no one has approached the courts so far, such a challenge is not time barred despite the lapse of time since his appointment.
The contention is that as per the requirement under Art 99 (A) of the Sri Lankan constitution Wickremesinghe’s name for appointment on the UNP national list was not sent to the Commissioner of Elections within the required seven says of the official announcement of the results of the last parliamentary election. His appointment is therefore considered by some as null and void.
Before the elections, each political party or independent group has to submit a list of names for an electoral district and a list of 29 names for the 29 national list seats. As per Art 99 (A) no one outside these lists can be nominated for the seats.
However, Sri Lankan political parties have been relying on section 64 (5) of the Parliament Elections Act No 1 of 1981 on the ground that it authorizes them to appoint “any member” of the political party to fill such a vacancy in parliament. It is a legal lacuna that political parties hide behind.
Art 99 (A) says: “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 article goes on to point out that in the case of Ranil Wickremesinghe, his name was not put forward by the UNP within the one week period after the declaration of results of the 196 seats in mid-2020.
The article flags a similar situation in 2004 where a writ application was filed by Sunanda Deshapriya, a Co-Convenor of the Centre for Monitoring Election Violence (CMEV) challenging the right of Ratnasiri Wickramanayake and Wijeyadasa Rajapakshe to occupy national list allocations to the United Peoples’ Freedom Alliance (UPFA) in the 13th Parliament. Neither of the two were included in the national list published in the government gazette prior to the general election of 2nd April 2004, under Article 99A of the Constitution. Nor were their names included in the nomination papers of the UPFA for any electoral district.
In that case the Petitioner complained that the practice adopted by the UPFA General Secretary, Susil Premjayanth, was unconstitutional, undemocratic and that it weakened the credibility of the electoral system, in as much as the voters of the country had a right to know who might be appointed by a given party even on the national list when deciding which party to vote for. It was submitted that the whole constitutional requirement that the national list is published before a general election was rendered meaningless and futile, unless all nominations to fill vacancies in respect of the national list seats of a party were filled out of those whose names were made known to the public through the published national list or nomination papers published prior to elections. The Appeal Court sent notices but there was no change in the situation.
The article further states that on 24th January 2020, the Centre for Policy Alternatives (CPA) said that it was concerned about media reports that the United National Party (UNP) intended to name Saman Rathnapriya to fill the national list seat which fell vacant by the resignation of Dr. Jayampathy Wickramaratne. CPA noted that Rathnapriya’s name was not included in the list of persons qualified to be elected as members of parliament, in terms of Article 99A of the Constitution (the “National List”) submitted by the UNP for the parliamentary election held on 17th August 2015.
The CPA’s position was that in terms of the constitution only a person whose name was included in one of the district nomination papers or National List submitted by the relevant political party, was entitled to be nominated to fill such a vacancy.
The CPA also noted that the UNP and United People’s Freedom Alliance / People’s Alliance had on previous occasions made similar appointments to parliament. “These political parties hide behind Section 64 (5) of the Parliament Elections Act No 1 of 1981, which authorizes them to appoint any member of the political party to fill such a vacancy,” it observed.
The CPA stated that the said provision of the Parliament Elections Act violated the franchise of the people which was part of the sovereignty of the people.
“ Allowing political parties to appoint whomever they wish to fill such vacancies that arise in parliament undermines the value of the franchise of the people and unnecessarily and arbitrarily inflates the power of the leadership of political parties,” the CPA said.
