Whither the republic?

Exercising the people’s sovereign-legislative power

Over the last two weeks or so, in the immediate aftermath of my singular statement on the National List issue, I opted for a self-imposed “media silence”, politely refraining from commenting on many matters to our colleagues in the Press; I express my sincere gratitude to all of you for that kind courtesy and understanding extended, for allowing me that little window of space. 

I was silent, primarily, as I did not wish to be misunderstood (or misquoted), that my stand which was taken on principle was motivated by a personal or vested interest; I can assure you that it was not! However now that the august assembly representing our Sovereign Legislative power have ceremoniously assumed their public duties, permit me to return to the independence of my pre-election status as a student of the ever-dynamic science of politics and the law and safely comment on several important issues from a “public perspective”; in sincere faith they would be considered objectively, forgetting the momentary (rather unfortunate) marketing of my name before the electorate at this last referendum of the 17th. 

As always my point of focus is the very powerful wording of Article 3 of our 2nd Republican (1978) Constitution; that sovereignty (which includes the power of franchise) of this golden soil reposes in us its citizens; absolutely, inalienably and forever. From there it flows to be “separated” in its exercise at Article 4, in terms of 4(b) permitting a temporary conveyance of our Legislative (law making) power, in “Public Trust” (that our absolute interest in that power as its sole repositories will always be ensured); to a Parliament represented by 225 citizens elected from amongst us in terms of (the replaced – 14th Amendment of 1988) Article 99. 

 

17th election and the process

We must congratulate the UNP-led “extended 100-day government” for ensuring a relatively clean and fair election, not just on the day but with the events leading up to it. The rapid response to posters, cutouts and other incidents even involving its own candidates led by the now famous “MAKO” (commissioner), ably assisted by the Police and other such duty-conscious public officers contributed to a substantially changed culture of electioneering that had hitherto been denied to us; as was acclaimed across the board by all monitors. 

Of course far beyond such “pavement politics” and at a much higher level of influence, it is no secret that President Sirisena’s rather overt tilting towards the UNF coalition led, thankfully, to ensuring the non-return of a tyrannical Rajapaksa regime again. We must also compliment the unprecedented campaigns of both the print & electronic media, whether on their own or carrying the message of Civil Society and professionals to “clean-up” the Diyawanna. 

Whilst these positives are to be appreciated no doubt, we must also question the process itself, as expected upon democratic principles; what of the citizen’s absolute sovereign franchise? Has it been reflected as expected in the gathering before us; some queries have immediately surfaced. 

 

A ‘National Government’ – is it? 

The draft copy of the further-edited 19th Constitutional Amendment that was presented to us by Hon. the Attorney General during its deliberations in the Supreme Court in March this year contained a provision, at the amended Article 46(3), for the “… recognised political party obtaining the highest … and the party obtaining the second highest number of seats …“ to form what was referred to as a “government of national unity”. We have subsequently become aware from the actual gazette that the wording has undergone even further amendment, for the amended Article 46(4) & (5) to now mean a “national government” by “the party with highest number of seats … with other recognised parties or groups …”. 

Leaving aside the obvious rhetoric as to whether we should really amend constitutions of a country in this manner, to suit such individual whimsical ad-hoc arrangements preconceived only with political expediency in mind, let us visit a few more “advanced” issues that have now arisen in the assembly – 

1. So the political party with the highest number of seats, the UNF has admittedly entered an agreement with the SLFP – it would not have been recognisable under the previous amendment (as the SLFP is not “the party with the 2nd highest seats”) but with the present wording, one can’t blame the Hon. Speaker’s ruling that it is a “recognised party”; 

2. There is still a question though, whether the SLFP is a “recognised party” within the 8th Parliament – have they contested as such and so registered with our now infamous MAKO? 

3. Furthermore the wording of the present amendment is in the plural (parties), not in the singular, and the law assumes that drafting of constitutions are not done absurdly, that there is meaning afforded to every word and its connotation – therefore where are “the other parties” of this so called “national government”? 

 

Opposition – its leadership and Chief Whip

Thankfully our elected representatives have seen beyond petty racism or more the ethnocentric sentiment advocated by a few collaterally motivated individuals to name the leader of the party with 16 seats, Mr. Sampanthan, MP of the TNA as the Opposition Leader; well done and may this brotherhood thus cultivated live long, for us to finally see a true ‘Sri Lankan’ nationalistic identity one day soon; transcending all differences of class, cast, creed or race! A further congratulations to the appointment of comrade Anura Dissanayake, MP as the Chief Opposition Whip – we are all well aware of his uncanny ability to fearlessly roar in the House; so who better? 

This was no doubt necessitated, as indeed it appears to be the only “lawful option” as one can’t have the cake and eat it too. If the SLFP proclaims to act on behalf of the PA and thus seek “recognition” in the House as a “National Government”, then some others of that same “party or group” (within the larger meaning) cannot also insist on sitting as the Opposition; this would lead to an obnoxious interpretation to democratic rule itself, where a Government and the Opposition are both the same! 

 

Plethora of ministers

So here we go again; it’s to be 93 to start with, is it? The 19th Amendment holds “a cap”, at the amended Article 46(1) that (a) the total number of Ministers will be 30 and (b) non-cabinet and deputies will not exceed 40. However that draft I previously referred to which provided for a “unity government” situation increased this ceiling, at the amended Sub Article 46(3) to 45 and 55 respectively. Even then I remember posing the question as to why? How will portfolios or functions increase just because the word “unity” was added to “government”; this was also obviously motivated with the same preconceived notions, to “bribe” a few from another party at the tax payer’s expens6e to somehow form a government. 

With the present status quo what was sublime has fallen to the ridiculous; the further amended Sub Article 46(4) removes that ceiling altogether, permitting Parliament itself to decide the total number! So here is what could very well happen – 

1. Most of these Members (from both the main parties) will call themselves a “National Government” (the MS fraction of the PA and the UNF) and decide on whatever number of ministries, funded by the already indebted tax payer; 

2. This will give this “majority group” massive voting power in the House, outnumbering the 16 TNA seats and the six JVP (not counting the other two solitary seats due to numerical insignificance) plus whomever “brave” enough to sit with former President (present MP) Mahinda Rajapaksa and hold out against an Executive President and present Party Chairman; 

3. Pray tell me – how does this differ much from the previous 2/3rd majority enjoyed by the despotic and nepotistic MR regime which overtly “bought over” MPs to dance as they pleased? The only difference (from a purely biased personal perspective) is that it will include more “gentlemen” in college ties that I quickly recognise, more (unfortunately) from our rival camp on Reid Avenue and thankfully at least a handful from Mount Lavinia!

 

The now infamous ‘National Lists’

These essays would be incomplete if I at least don’t make a passing remark on this topic, leaving aside my momentary (rather unfortunate) personal flirtation with it; an immediate question that requires discussion from a general sense is the purpose and ambit of a “National List” and whether the citizen’s choice has been ultimately reflected in its operation in this Parliament. 

Sadly the amended Article 99A has hitherto not been “tested” by our sovereign Judicial Power, which we have vested in Courts holding the scales of justice on our behalf, in terms of Article 4(c) “in trust”. At least for the sake of future clarification, I am very glad that several former MP’s have decided to take this matter up and I am certain that the sovereign Sri Lankan citizen will look forward to a pronouncement on this very important aspect of their franchise from their lordships of the Supreme Court. I am led to believe that two primary questions will require a judicial response: 

(a) The expression of absolute sovereignty/franchise in Article 3 vis-à-vis Article 99A - 

The expression of a citizen’s choice for a party/three preferences on ballot paper is the law through which, periodically, his/her sovereign legislative power is temporarily conveyed to be exercised. Whilst that “ticking the box” is the “positive component” of that choice, the “negative component” of that choice is also expressed; that citizen categorically proclaims which party or candidate he/she does not wish to be elected. In the face of such an express choice by the voter, is it then open for a secretary of a Party to override such sovereign power of a citizen and elect a candidate that has been expressly rejected. 

Some will argue that the answer lies in the amended Article 99A itself, in the wording “… in any nomination paper … for any electorate …”. However a careful reading of the preceding wording of that same article which states “… every political party … shall submit a list of qualified persons … from which it may nominate …”, considered with the intentions of (the amended) Sub Articles (2), (3) & (6) of 99, if purposively interpreted within the reflections of their lordships of the Supreme Court led by Mark Fernando J in the case of the CPA Vs Commissioner of Elections (that tested a similar “bonus provision” at the Provincial Council elections), where the Supreme Court insists upon the need to observe democratic principles of franchise in any interpretation, may reflect that this latter reference to “… any list …” is either a mistake and/or is obnoxious to the rest of the wording or intentions of that law, particularly the overriding and entrenched right of sovereignty and franchise in Article 3; 

(b) The Legitimate Expectation/principle of Estoppel in the listing of candidates – 

The other angle of this argument is the principle of ‘Legitimate Expectation’ found in Public Law, which can rather arbitrarily be equated to an ‘Estoppel’ in Private Law; being that where one proclaims or gives an assurance to another of a certain status quo being observed, and the other acts based upon such assurance; such party is thereafter precluded in law from behaving otherwise. Take the situation of this List, which is not made out in any alphabetical order but “marketed” to the franchise holder in some numbered priority; never appraising the voter (prior to the election) that these would not be necessarily the ones who will ultimately be nominated, nor would this order of priority be followed to allocate the number of seats received. 

The question for Court would be, how would the voter have reacted (as indeed the unassuming candidate) if this had been clearly spelt out prior to this election? Would there have been any difference? If indeed, on a balance of probability, there is even a singular chance that at least one sovereign citizen who holds the absolute power of franchise of this Republic may have been motivated to vote otherwise, then how will these legal principles operate? 

This would indeed be an “interesting judgment” to await, at least from a purely academic sense. 

Ithin hadamu den wath aluth ratak!!!