The recent appointment of the United National Party (UNP) leader Ranil Wickremesinghe as a Member of Parliament under the UNP National List, and the prospective appointment of the Sri Lanka Podujana Peramuna (SLPP) big wig Basil Rajapaksa as an MP under the SLPP’s National List, are being questioned on legal grounds.
However, no one has approached the courts till now, though the matter is being hotly debated in the media and in political circles.
As regards Ranil Wickremesinghe it is said that his name for appointment under the UNP National List was not sent to the Commissioner of Elections within seven says of the official announcement of the results of the last General Elections as per Art 99 (A) of the Sri Lankan constitution. 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.
In the case of Basil Rajapaksa it is pointed out that his name had neither been in any of the SLPP’s District Electoral Lists at the time of the parliamentary elections, nor was it in the party’s National List of 29 names. He is therefore doubly disqualified for nomination under the National List of the SLPP.
However, Sri Lankan political parties have all along been using 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 in parliament.
What Does Art 99 (A) say?
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.”
In the case of Ranil Wickremesinghe, his name was put up by the UNP only very recently, and not within the one week period after the declaration of results of the 196 seats in mid-2020.
In the case of Basil Rajapaksa his name did not figure in any District Electoral List nor was his name among the 29 who could be considered for appointment under the SLPP National List.
Widespread Opposition to Basil Rajapaksa
While only some voices were raised against the appointment of Ranil Wickremesinghe, there is widespread opposition to the prospective appointment of Basil Rajapaksa. This is for two reasons: Firstly, Basil Rajapaksa is a sibling of Prime Minister Mahinda Rajapaksa and President Gotabaya Rajapaksa and is tipped to be appointed either as Minister of Finance or Economic Development or both. The fear among liberal democrats is that his coming to parliament and becoming a key minister will increase the power of the Rajapaksa family exponentially. Some oppose him for the disdain he shows for the SLPP’s smaller alliance partners.
However, in defense of Basil Rajapaksa it pointed out that “by convention” the rules quoted above apply only to “first time” MPs. Basil Rajapaksa had been an MP and Economic Development Minister before when Mahinda Rajapaksa was President. And Ranil Wickremesinghe had been MP and Prime Minister several times before.
Failure of Past Attempts
In 2004, 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 allocated to the United Peoples’ Freedom Alliance (UPFA) in the 13th Parliament. Neither of the two was 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.
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 be 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.
CPA’s Plea
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.
