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Defeated members creep into House amidst strong protests
An unprecedented number of defeated electoral candidates, predominantly from the Maithripala Sirisena-led United People’s Freedom Alliance (UPFA), have leapfrogged into Parliament through the National List. Out of 12 UPFA National List MPs, seven had failed to garner sufficient support at the August 17 general election to enter Parliament. They were edged out by candidates from the same alliance that had polled more votes, but they will now gain a place in the Assembly via a mechanism that many feel was intended for a different purpose—even if the Constitution does not expressly say so.
A protest against the National List at Torrington Square. Pic by Indika Handuwala
The United National Party (UNP) has granted one of its 13 National List slots to M.H.M. Navavi. The Janatha Vimukthi Peramuna (JVP) has taken in Sunil Handunetti as one of its two appointed MPs. Both were unsuccessful contestants at the election. The Illankai Tamil Arasi Kachchu (ITAK) is yet to fill its two slots.
The development caused unhappiness in certain circles. Those with access to the internet vented their anger. On Twitter, the new hashtag “NoNL4Defeated” (“no National List for defeated candidates”) which was coined on Friday generated scores of tweets. A small group of social media users even held a protest at Colombo 7’s Independence Square on Saturday afternoon.
Others circulated e-mails or expressed disgust over Facebook. A television station interviewed members of the public, all of whom maintained that politicians who could not win through the ballot should not seek “back door entry”. At the same time, some rights groups waged a campaign urging the UNP to allocate one of its National List slots to Rosy Senanayake. The former State Minister for Child Development secured 65,320 votes but lost her seat. Her supporters claimed she had done good work during the past seven months and that it was crucial to grant women adequate representation in the Assembly. The current Parliament has one of the lowest male to female ratios of all time—even less than the last one.
Still more were distressed over Mr. Handunnetti’s defeat and encouraged his party to facilitate his entry into Parliament. The debate on the subject of the National List was, therefore, diverse. Those who were against defeated candidates being gifted these slots did not have a legal basis to their argument. They appeared to view it from an ethical and moral perspective, although it was not always clear whether they were making the necessary distinctions.
Provision to appoint 29 unelected members to Parliament was introduced in May 1988 by the 14th Amendment to the Constitution. The relevant section is 99A. When a recognized political party or independent group is entitled to National List seats—based on the number of votes polled—its leader must notify the Elections Commissioner of his or her nominee within a given timeframe.
The appointed member must either come from a prior list submitted to the Commissioner or from “any nomination paper submitted in respect of any electoral district by such party or group at that election”. This clause makes it patently clear that defeated candidates are entitled to National List seats.
However, it has long being held—and even published in books and newspapers—that these appointments must be reserved for persons of stature who are unable or unwilling to contest the election. Where did this notion first come from?
From the Soulbury Constitution, says Asanga Welikala, who published a paper in 2008 on ‘The Principle of Nominated Legislative Membership and the National List: Developing Issues’. Dr. Welikala now teaches public law at the Edinburgh Law School and is Associate Director of the Edinburgh Centre for Constitutional Law.
The report of the Soulbury Commission provides the justification for appointed legislators in what was meant to be a representative democracy, Dr. Welikala writes. It argued that minority representation could be strengthened through appointed members. It was assumed that appointed members would be persons of eminence in the community and distinction in the professionals who could “make a valuable contribution to the political education of the general public”.
The Commission held: “These eminent individuals of high intellectual attainment and wide experience of affairs might be averse from entering political life through the hurly-burly of a parliamentary election; but party or communal ties might be expected to rest less heavily on them and they would be able to express their views freely and frankly without feeling themselves constrained to consider the possible repercussions upon their electoral prospects.”
It reasoned that, “those who, rightly or wrongly, feel themselves menaced by majority action, may regard a Second Chamber not merely as an instrument for impeding precipitate legislation, but as a means of handling inflammatory issues in a cooler atmosphere”.
“Thus the appointed Senators were expected to enhance the ventilation or deliberative function of the second chamber in the legislative process, to add a voice of authority and reason to public debate even when such views were unpopular, to allow minorities without a sufficient electoral base representation, and finally, to reinforce the Senate’s function as a counter-majoritarian mechanism,” Dr. Welikala writes.
Under the Constitutions of 1972 and 1978, however, there was no provision for the appointment of legislators. It was the 14th Amendment (in turn amended by the 15th Amendment) that made allowance for parties and groups to nominate certain number of unelected members to Parliament.
Rohan Edrisinha, who teaches constitutional law in the Faculty of Law at the University of Colombo, echoed Dr. Welikala. He said the primary rationale for the National List was to facilitate having in Parliament—which is supposed to be a deliberative assembly—persons of distinction or professionals, skilled and competent in various fields. He, too, traced this rationale back to the Soulbury Commission report.
“The 15th Amendment to the Constitution highlighted a second important rationale for the National List, namely inclusion,” Mr Edrisinha said. “The Commissioner of Elections should request the parties entitled to nominate National List MPs to consider nominating persons from communities that are under-represented in Parliament. This is purely directory.”
“Article 99 A, however, in a sense, undermines the primary rationale for National List MPs by providing that persons nominated may be from the National List or from the district lists i.e. defeated candidates,” he continued. “The parties seem to have undermined both the rationales for the National List to varying degrees in nominating their members, as they have done over the years.”
In fact, by argument of the 15th Amendment, Rosy Senanayake could easily have been accommodated on the National List. Women are now one of the most underrepresented groups in Sri Lanka’s august Assembly.
National List a contentious issue
There were several reasons for why the National List issue proved so emotive this time. In the run-up to the election, there were widespread calls for the public to elect “suitable” candidates to Parliament. The criteria for determining suitability ranged from educational qualifications to sound moral, ethical and professional background. It also became the rallying cry of some political parties, including the Janatha Vimukthi Peramuna. This created strong opinions about the types of persons who could be deemed acceptable.
Defeated candidates are, therefore, being viewed in some quarters as outcasts. This isn’t necessarily accurate. Many of them received a large number of votes. Some of the elected candidates, meanwhile, can hardly be described as “suitable” but there is no outcry over their presence in Parliament.
One of the main reasons for an explosion in the number of defeated candidates entering Parliament is the battle within the United People’s Freedom Alliance (UPFA) and Sri Lanka Freedom Party (SLFP) with factions divided between Maithripala Sirisena and Mahinda Rajapaksa.
In the final week of the election campaign, as well as before and after results were announced, President Sirisena moved swiftly to take control of the Sri Lanka Freedom Party and the Alliance with one motive—to wield control over the National List appointments. The coveted slots became a tool by which the leader of a political party consolidated his position or power. This could be why some activists are now opposing the entry of defeated candidates into Parliament. And why they don’t seem to raise objections about the calibre of some of the representatives who have been elected and will sit in the House.
The manner in which National List appointments are made has evolved and changed hugely since the provision was introduced in 1988. Given the vigour of the ongoing debate, it is something architects of future constitutional amendments will have to take seriously into account.