by Rohan Samaragiva.
An unnecessary fuss is being made about the National List. Hopefully, the evidence presented below will reduce the temperature a little.
Article 99A of the Constitution clearly permits what all three parties have done: appoint defeated candidates who were included in the nomination papers for districts but were not included in the National List nominations.
When the fuss started, some objected to appointments outside the list even without bothering to read the relevant Constitutional provision. When Article 99A was brought to their attention, they said it’s unethical and should not be done.
Where were these protests when the UPFA, then headed by Chandrika Kumaratunga appointed Mervyn de Silva, a defeated candidate, through the National List in 2004? The CPA was unsuccessful when it went to court to challenge the appointment of Ratnasiri Wickramanayake, who was neither a defeated candidate nor a member of the National List that was submitted on nomination day. I can’t recall this kind of fuss being made over that patently unlawful act.
On the specific issue of appointing defeated candidates through the National List mechanism, it is clear that the Constitution permits it and that there is precedent. Those who protest overmuch appear to ignore the simple fact that the National List and district 15-1nominations all came from the same source on the same day. Sri Lankan political parties lack inner-party democracy, so they are equally legitimate or equally illegitimate.
There seems to be a strong belief among the critics that parties and party leaders should have no role whatsoever in deciding who gets to sit in Parliament. This has little basis in the actual practice of democracy in the real world.
From 1960 to 1965 Sri Lanka’s Prime Minister was Sirimavo Bandaranaike, who did not face the hustings until 1970. She appointed herself to the Senate and along with several other members of that appointed body (Sam P.C. Fernando, A.P. Jayasuriya, M.P. de Z. Siriwardene) ruled the country. Dr Manmohan Singh who was India’s Prime Minister from 2004 to 2014 had never been elected by the people. He was a member of the appointed Rajya Sabha.
More recently, Arun Jaitley was the BJP’s candidate for Amritsar. He was defeated in the 2014 Lok Sabha election. But Prime Minister Modi considered him a key member of his governing team. He was appointed to the Rajya Sabha. As a Rajya Sabha member he was appointed as Minister of Finance (and as Minister of Defence at the outset).
Perhaps the critics want examples from the West. The entire Cabinet of the United States government is unelected. The UK has an unelected House of Lords from which Cabinet members can be drawn. In addition, there are constituencies in the UK that are so loyal to specific political parties that being given the nomination from such an electorate is the same as being elected to Parliament (Colombo West and Attanagalle were equivalents in Sri Lanka when we had first-past-the-post elections).
In all these cases, the political party decides who gets into Parliament outside the direct electoral process. Indirectly, the appointments derive their legitimacy from each party’s electoral mandate.
If all who serve in Parliament are appointed by political parties, there would be a problem. The 1978 Constitution in its original form gave too much power to political parties. The individuals they placed at the top of the district lists were guaranteed to enter Parliament.
That was remedied by the introduction of the now discredited preferential voting system. But to have every single person in Parliament elected takes away too much power from political parties. That was probably why the 14th Amendment also introduced the national list, Sri Lanka’s equivalent of the House of Lords or the Rajya Sabha that would allow the ruling party to assemble the right kind of Cabinet and the opposition to assemble the appropriate front bench.
Governing is about compromise. It is about balance. The shrill and uninformed opposition to the UPFA, UNF and JVP appointing some candidates who had not, like Arun Jaitley, succeeded in winning through the hustings is unfair and irrational. It is time the critics let those with the electoral mandates get on with the business of governing.
FT