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The National List and the House of duds

13 Jun 2022

BY Ruwan Laknath Jayakody From the noblesse oblige of public eminence, professional integrity, apartisan plurality, and social diversity, to a roll call of duds and dullards, some of whom bear the taint of venality and nefariousness – this is what the national lists of Sri Lanka’s parliaments have amounted to.  Nowhere has the abuse of the National List become more evident than when ruling Sri Lanka Podujana Peramuna (SLPP) Founder and Leader, Government-imported dual citizen, Basil Rajapaksa, subsequent to thr SLPP bulldozing the Constitutional cul-de-sac (the bar against dual citizens being elected) and tarring it with a Parliamentary supermajority, entering Parliament, and then accepting the key to the booty (i.e. billions in foreign exchange reserves) when the party appointed him the Minister of Finance, a position from which he exercised Svengali-esque power and some say, in the process, became the de facto leader of the country – the leader of the de jure leader (President Gotabaya Rajapaksa). And the rest, as they now say, is misery, of the kind that is historic too.    In a recent column titled “The National List: A national disgrace”, Singapore Management University’s Yong Pung How School of Law Associate Professor Austin I. Pulle traces the antecedents of the National List system in Sri Lanka to the Soulbury Constitution. Section 11(2) of the Ceylon (Constitution) Order in Council of 1946 provided for six Members of the House of Representatives, which was the Parliament at the time, to be nominated and appointed by the Governor-General who was the then-Monarch’s Representative, following a General Election, “to represent”, “in his opinion”, “any important interest in the island which is not represented or is inadequately represented”. Article 99A of the Constitution, which deals with the election of MPs on the basis of the total number of votes polled at a General Election, notes that, upon the election of 196 MPs returned by the electoral districts and their apportionment among such electoral districts, the Commissioner of Elections shall then apportion the balance 29 seats among the recognised political parties and independent groups contesting the said General Election in the same proportion as the proportion which the number of votes polled by each such party or group bears to the total number of votes polled.  Towards this end, every recognised political party or independent group contesting the said General Election should submit to the Commissioner of Elections, within the nomination period specified for such election, a list of persons qualified to be elected as MPs (this is what is referred to as the National List, and no, Basil Rajapaksa’s name was not in the SLPP’s said list for the last General Election), from which it may nominate persons to fill the seats, if any, which such party or group will be entitled to, on such apportionment.  Thence, the Commissioner of Elections shall determine whether the number of members belonging to any community, ethnic or otherwise, elected to the Parliament under Article 98 of the Constitution (deals with the number of members to be returned by the electoral districts and their apportionment among such electoral districts) is commensurate with the national population ratio, and then request the secretary of such recognised political party or the group leader of such independent group, to ensure, as far as practically possible, in so nominating persons to be elected as MPs, that the representation of all communities is commensurate with the national population ratio.  Thereafter, where a recognised political party or independent group is entitled to a seat under such apportionment, the Commissioner of Elections shall, by a notice, require the secretary of such recognised political party or the group leader of such independent group to nominate, within one week of such notice, persons who are qualified to be elected as MPs, from among the names included in the said list submitted to the Commissioner of Elections or in any nomination paper submitted in respect of any electoral district by such party (Basil Rajapaksa’s name was not in such an electoral district-based nomination paper for the last General Election either) or group at the General Election, to fill such seat.  However, Article 101 of the Constitution allows for the Parliament to make provisions in respect of elections, including per Article 101(h) of the Constitution, concerning the form and manner in which vacancies should be filled when all the candidates whose names appear in the nomination paper of a recognised political party or independent group have been exhausted due to election or otherwise or where a recognised political party or independent group has been proscribed.  Enter the Parliamentary Elections Act, No. 1 of 1981 as amended (in particular the amendments introduced to the Act in 1988 as No. 15 of 1988). Section 64 of the Parliamentary Elections Act deals with the filling of vacancies, and Section 64(5) of the said Act holds that where the seat of a MP declared elected under Article 99A of the Constitution becomes vacant, the Secretary-General of the Parliament shall inform the Commissioner of Elections, who shall then require the secretary of the recognised political party or the group leader of the independent group to which the MP whose seat is vacated belonged, to, in turn, nominate a member of such party or group to fill the vacancy. It is this statutory loophole “to nominate a party/group member” provided by Section 64(5) of the Parliamentary Elections Act that has been exploited, time and again, by purpose-driven orchestration, to sully the Legislature. So much for the people’s sovereignty being entrenched in the franchise a la Article 3 of the Constitution.   Only the latest name among a laundered list of national ignominies (e.g. the Janatha Vimukthi Peramuna [JVP]-appointed, defeated candidate Sunil Handunneththi to Parliament via their National List [Handunneththi’s name was however on the list]; the defeated United National Party [UNP] appointing Party Leader-cum-defeated candidate Ranil Wickremesinghe to Parliament via their National List [Wickremesinghe’s name was not in the National List] where he has since gone on to be appointed as the incumbent Prime Minister; and the UNP’s appointment of Field Marshal Sarath Fonseka and trade unionist Saman Rathnapriya, both of whose names, though not ignominies, were not in the respective lists), Basil Rajapaksa – having achieved several personal and national milestones (acquittal from cases of fraud and corruption; contributing to his brother – former President Mahinda Rajapaksa’s ascension to the Premier post and subsequent downfall; vapourising the country’s forex reserves; negotiating foreign loans to purchase fuel flour, and fertiliser; deflecting blame on the delayed approach of the International Monetary Fund [IMF]; and placing the responsibility for the economic crisis squarely on all and sundry, specifically singling out [rightfully, one might add] the fourth estate and the 6.9 million SLPP voters) – resigned from his short-lived but long-lasting tryst as a MP and announced his perfectly engineered whydunit departure from affairs of nationally ill-fated governance, albeit “a day late and a dollar short” as an economist cum Opposition MP quipped, but not before cawing a pearl of platitudinous wisdom about the perils of giving the kind of power (here, he references the “6.9 million”-strong President Rajapaksa’s appointment of “253,000 votes” Wickremesinghe as the Premier) to a person unelected by Parliament in the absence of “a Constitution that is empowered by the people” granting such 6.9 million “power” to the “253,000”-worth elephant in the room.  By the same token, all that is left now for Basil Rajapaksa is to follow his own train of thought through to its logical inverse step – for which no Kierkegaardian backward leap of faith is required – which would lead to the trite knowledge that it is not just those unelected by Parliament, but those unelected by the people (i.e. per Article 99A of the Constitution, the Commissioner of Elections should, upon the expiry of the nomination period, publish every list submitted to them under this article in the gazette and in one Sinhala, Tamil, and English newspaper), who also pose a “problem”. Hence, with regard to the latter aspect of those not elected by the people (Article 4(a) of the Constitution vests the people’s legislative sovereignty with “elected representatives”), any party or group member not in the originally gazetted list should not be considered. However, it should be noted that a perusal of Devananda v. Dayananda Dissanayake (Commissioner of Elections) and Others (CA 314/99) (opinion by then-Court of Appeal Judge Justice [J] Hector S. Yapa with P.H.K. Kulatilake J agreeing) which considered the matter of filling vacancies when the nomination paper is exhausted and pondered the question of whether the nomination of members outside of the nomination list is permissible, indicates that a party or group member can be nominated from outside the nomination list upon the exhaustion of the nomination paper, which the court held, can take place not only by “Election or otherwise” but went onto interpret and expand the meaning of the word “otherwise” to mean, in this context, one that covers death, expulsion, the resignation of a party or group member whose name appears in the nomination paper or even the occasion where none of the candidates in the nomination paper have secured any preferences. Moreover, regarding his parliamentary successor, Basil Rajapaksa has requested his party – the SLPP, to give business tycoon Dhammika Perera an “opportunity to implement his good proposals for the economy” and also to consider donating two or three more National List parliamentary seats belonging to the party to “anyone suitable in the ‘aragalaya’ (struggle) at the ‘GotaGoGama’ in the Galle Face Green”. Potential conflicts of interest are a real concern regarding Perera, who has since filled Basil Rajapaksa’s vacant seat and has become the Minister of Technology and Investment Promotion (and no he was not a SLPP member until last week), despite him stepping down from the director boards of his companies. With regard to the suitability of “aragalaya” protestors, their self-proclaimed character certification (but who’s buying) of being “apartisan independents”, will face its litmus test when it comes to transforming their brand of sophomoric politics – which seem to combine piss-and-vinegar energy with fire-and-brimstone rhetoric and is yet found sorely wanting in terms of cognitive gumption and have come up short on political acumen – in order to be eligible players in affairs of the State and as national decision-makers in governance. In conclusion, it can therefore be noted that the “intended purpose” – to borrow from a recently “independent” Opposition MP who was speaking in a different context – has not been served with regard to the original intent and purpose of the National List, which is to accommodate within the hallowed chamber of the House, “any important interest in the island which is not represented or is inadequately represented” including, among others, academics, intellectuals, and professionals possessing expertise in all the scientific fields, who, while anything but apolitical, lack the financial means and social inclination to play at what they deem is a mug’s game, but are also unwilling to pay the penalty, which Greek philosopher Plato observes in his Republic, for declining to rule, is to be ruled by someone inferior.   In their song Scratch the Surface, the New York-based hardcore punk band, Sick of It All, exhorts the “simple sheep, herd to the creeps” to instead of wasting “time”, “scratch the surface” and “serve a purpose”. The National List should serve its original legislative purpose. It should qualify quality.  


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