The Centre for Policy Alternatives‘ (CPA) foreign-funded ‘Public Interest Litigation’ and advocacy programme in jeapordy

The CPA has suppressed the communiqué its Legal Department has drafted regarding Field Marshall Sarath Fonseka’s recent appointment to parliament as a ‘National List MP’.

Colombo Telegraph learns that CPA’s Legal Department had drafted a communiqué in line with its long-standing position against appointing persons “not included in the National List published under Article 99A of the Constitution”. However, this has since been suppressed, Colombo Telegraph learns.

In 2004 the CPA challenged the right of Ratnasiri Wickremanayake and Wijeyadasa Rajapakshe to occupy National List Seats of the UPFA as Members of the 13th Parliament, due to the fact that neither of the two were 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. Neither had their names been included in the Nomination Papers of the UPFA.

“In addition to Article 99A of the Constitution, the Parliamentary Elections Act No. 1 of 1981 also contains certain statutory obligations that must be followed in replacing vacated parliamentary seats. In particular, CPA wished to draw the Commissioner’s attention to Section 64 (5) of the said Act, which seems to suggest that upon vacation of a national list seat, the secretary of a political party or the leader of an independent group may nominate any member of such party or group to replace the vacancy,” the CPA said at that time.

The CPA also wrote to the Elections Commissioner based on media reports to the effect the two would enter Parliament through the UPFA’s National List.

On Wednesday 7th April 2004, the CPA wrote to the Commissioner of Elections expressing “deep concern at certain newspaper reports that various persons whose names do not appear in the nomination lists or lists under Article 99A of the Constitution (i.e., National List) as submitted to the Commissioner during the nomination period, are to be nevertheless nominated to Parliament as National List members”.

The CPA has being spending millions in donor funds for its “Public Interest Litigation and Advocacy Programme”

On the national list cases alone the CPA has spent over one million rupees including the lawyers’ fees.

The CPA had earlier won a case against appointing Samarawera Weerawanni as a Provincial Council member in 2002. In 2004, surprisingly, even after the Appeal Court had ruled that it does have the power to proceed to consider the legality of the appointment of Wickramanayake, Wijeyadasa and any others appointed as Members of Parliament, the CPA withdrew the case.

It was then alleged and widely believed that the reason behind the move was that CPA’s executive director Dr. Paikiayasothy Saravanamuttu was earmarked to be appointed as the Minister of Foreign Affairs by Ranil Wickremesinghe in the event he won the 2005 presidential elections, for which of course Saravanamuttu would have had to be shepherded into Parliament via the UNP’s National List. Had a ruling been obtained against Wickramanayake, Wijeyadasa and others, Saravanamuttu’s parliamentary and ministerial ambitions would have been buried.

We publish below all the relevant press releases issued by the CPA re this issue;

APPEAL COURT RULES THAT IT HAS THE POWER TO CONSIDER LEGALITY OF THE APPOINTMENT OF TWO MPS

7th July 2004

The Court of Appeal today (7th July 2004) ruled that it does have the
power to proceed to consider the legality of the appointment of
RATNASIRI WICKRAMANAYAKE and any others appointed as Members of
Parliament through the UPFA National List, although their names
were not included in the National List published under Article 99A
of the Constitution or in the Nomination Papers of the UPFA.

Justice Saleem Marsoof, PC, President of the Court of Appeal and Justice
K. Sripavan, made order overruling the preliminary objections to
the Appeal Court hearing two cases filed by the Centre for Policy
Alternatives (CPA) and Rohan Edrisinha, Senior Lecturer of the Colombo
Law Faculty in that regard, which were raised by the lawyers for
the UPFA General Secretary, Ratnasiri Wickramanayake and other respondents.

The Court took the view that some of the issues raised as preliminary
objections were premature while one did not arise.

The Court of Appeal will now proceed to consider the legality of such
appointments, with these two cases due to be next taken up on 29th
July 2004.

M.A. Sumanthiran and Viran Corea appeared for the Centre for Policy
Alternatives (CPA) and Rohan Edrisinha, respectively. Dr. Jayampathy
 Wickramaratne, PC appeared for the UPFA General Secretary. D.P.
Kumarasinghe, PC appeared for Ratnasiri Wickramanayake. Anil Obeyesekere,
 PC appeared for Anuruddha Ratwatte (who was also tipped to be appointed
in this way through the National List) and Ikram Mohommed, PC appeared
for the SLMC General Secretary.

---

Press Release Re: National List Nominations, Constitutional and Statutory Obligations, and Representative Democracy – 7th April 2004

On Wednesday 7th April 2004, the Centre for Policy Alternatives (CPA)
 wrote to the Commissioner of Elections expressing deep concern at
certain newspaper reports that various persons whose names do not
appear in the nomination lists or lists under Article 99A of the
Constitution (i.e., National List) as submitted to the Commissioner
during the nomination period, are to be nevertheless nominated to 
Parliament as National List members.

The letter sought to bring to the Commissioner’s attention that
if a political party or independent group adopts a course as indicated
above, they would be acting in contravention of Article 99A of the
Constitution as amended. That provision seeks to introduce the principle
of nominated Members of Parliament, and in doing so imposes certain
 safeguards so as to prevent abuse. Significant in this regard is
the constitutional duty placed upon the Commissioner requiring him
to give notice to the public of persons nominated by parties as
 National List candidates, so that voters have access to that additional
information prior to casting their votes.

In addition to Article 99A of the Constitution, the Parliamentary Elections
 Act No. 1 of 1981 also contains certain statutory obligations that
must be followed in replacing vacated parliamentary seats. In particular,
CPA wished to draw the Commissioner’s attention to Section
64 (5) of the said Act, which seems to suggest that upon vacation
of a national list seat, the secretary of a political party or the
leader of an independent group may nominate any member of such party or group to replace the vacancy.

CPA urged the Commissioner to reject such an interpretation of the Act
which would serve to defeat the will of the people, in that candidates
whose merits the public had not considered in the exercise of the
franchise, would nevertheless be represented in Parliament.

CPA
reminded the Commissioner of the view taken by the Supreme Court
in the recent case of Centre for Policy Alternatives, Saravanamuttu and Edrisinha v. Dissanayake and Weerawanni (2002) SC 26/27/2002,
where the Court stated: “When constitutional or statutory provisions have to be interpreted, and it is found that there are two possible interpretations, a Court is not justified in adopting that interpretation which has undemocratic consequences in preference to an alternative more consistent with democratic principles, simply because there are other provisions, whether in the Constitution or another statute, which appear to be undemocratic.”

In
this context, CPA asked the Commissioner to firmly resist any attempt
made by any political party or group to nominate persons whose names
are not in the district nomination papers or national lists submitted
to him during the nomination period.

---

Appeal Court issues Notice in case challenging rights of Ratnasiri Wickremanayake and Wijedasa Rajapakshe to sit as MPs – 5th July 2004

5th July 2004

A Writ Application filed by Sunanda Deshapriya, a Co-Convenor of the Centre
for Monitoring Election Violence (CMEV) was supported in the Court
of Appeal on 5th July 2004 before Justice Saleem Marsoof PC, President
of the Court of Appeal, and Justice K. Sripavan by Attorneys at
Law M. A. Sumanthiran and Viran Corea.

The application challenges the right of Ratnasiri Wickramanayake and
 Wijeyadasa Rajapakshe to occupy National List Seats of the UPFA
as Members of the 13th Parliament, due to the fact that neither
 of the two were 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. Neither were their names included in the
Nomination Papers of the UPFA.

The Petitioner complains that the practice adopted by the UPFA General
 Secretary, Susil Premjayanth is unconstitutional, undemocratic and
weakens the credibility of the electoral system, in that the voters
of the country have 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 to Court, 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
are filled out of those whose names were made known to the public
through the published National List or Nomination Papers published 
prior to elections.

Therefore, the Petitioner seeks an Order declaring that Ratnasiri Wickramanayake
 and Wijayadasa Rajapakshe have no right to sit and act as Members 
of Parliament, as well as an Order against the Elections Commissioner
preventing him from accepting any nominations to fill vacancies
in respect of the National List in future, unless the names so nominated
are contained in the relevant National List published under Article
99A or the Nomination Papers.

The
 Appeal Court considered these submissions of Counsel and issued
notice on the Elections Commissioner, the UPFA General Secretary
(Susil Premjayanth), Ratnasiri Wickramanayake & Wijayadasa Rajapakshe.
The case will next be taken up on 2nd August 2004, on which date
the Respondents may ask for time to file any objections they may
have to the granting of the relief prayed for through the case.

Court
also requested the Attorney General to appear as ‘amicus curiae’
to assist the Court should such a need arise.

---

CENTRE FOR POLICY ALTERNATIVES and DR. PAIKIASOTHY SARAVANAMUTTU,
AND ROHAN EDRISINHA
VS.
DAYANANDA DISSANAYAKE AND SAMARAWEERA WEERAWANNI 
SC 26/27/2002

The Supreme Court in a judgment which has far reaching implications
 for the franchise and the protection of the sovereignty of the
People overturned a decision of the Court of Appeal and issued 
a writ of certiorari quashing the election of the former Chief 
Minister of the Uva Province, Samaraweera Weerawanni as a member
of the Provincial Council. The judgment was delivered by Justice
 Mark Fernando with Justices D.P.S. Gunasekera and C.V. Wigneswaran 
agreeing.

The two petitions filed by the Centre for Policy Alternatives and its Executive Director, Dr. Paikiasothy Saravanamuttu, and
 Rohan Edrisinha challenged the interpretation given by the Commissioner
of Elections, Dayananda Dissanayake, to Section 65 of the Provincial
 Councils Election Act. Section 65 provides that when a vacancy 
occurs in a Provincial Council, the Secretary of the party to which
the ex member belonged is entitled to nominate ?a person 
eligible for election? to fill the vacancy. If the Secretary
fails to do so then the Commissioner will declare that the candidate
who received the next highest number of preference votes is elected.

The crucial question for interpretation that arose in the case
was whether the Secretary could nominate ANY person to fill a vacancy
or whether the Secretary could nominate only persons who contested
the election and therefore had their names on the nomination list.
The petitioners argued that permitting a Secretary of the party
to nominate ANY person, even a non-candidate, ahead of candidates
who went through the nominations process, campaigned, were subject
to the scrutiny of the voters, and obtained preference votes, was
absurd, and contrary to basic principles of representative democracy
and the exercise of the franchise, undermined the checks and balances
of the Elections Act, and the concept of devolution of power.

When
the case was first filed in the Court of Appeal over four years 
ago, the 
petitioners highlighted the bizarre consequences
 of the Commissioner?s literal and technical interpretation.
 Several Members of Parliament had been requested by their respective
 parties to contest Provincial Council elections and project themselves
as Chief Ministerial candidates. Many were reluctant to resign
their seats in Parliament, in order to contest, as there was no
guarantee that their respective parties would win sufficient seats
to form provincial governments. They therefore nominated ?dummy
candidates? for purposes of fulfilling the legal requirements 
with respect to nominations and campaigning etc. The Members of
 Parliament, despite not being candidates, campaigned as their parties? nominees
as Chief Ministers!! After the election, when it was evident that
their parties would be in power within the relevant province, they ?ordered? the ?dummy
candidates? who were elected to resign from the Provincial 
Council, they themselves, then, resigned their parliamentary seats,
and thereupon, were nominated by the Secretary of the party to
fill the Provincial Council vacancy. A non-candidate, someone who
was not necessarily subject to the scrutiny of the voters of the
province thus was parachuted in ahead of other candidates who received
preferential votes from the voters of the Province.

The Court of Appeal judgment did not focus on the consequences
that the petitioners argued were contrary to constitutional first
 principles, but relied more on the literal rule of interpretation.
Since the Section 65 (2) allowed the Secretary of the party to
fill a vacancy by nominating ?a person? such person
could be ANY person. The Supreme Court by looking at Section
 65 read as a whole held that there was an ambiguity and that
in the event of an ambiguity the court can adopt the interpretation
that is consistent with democratic values.

When constitutional or statutory provisions have to be 
interpreted, and it is found that there are two possible interpretations,
a Court is not justified in adopting that interpretation which 
has undemocratic consequences in preference to an alternative more
 consistent with democratic principles, simply because there are
other provisions, whether in the Constitution or another statute,
which appear to be undemocratic.

Another
 significant feature of the judgment was that it challenged the
 widely held 
myth that under the Sri Lankan Constitution and
the system of proportional representation, the party is supreme
and that this even trumps the will of the People. The Centre for
 Policy Alternatives and Rohan Edrisinha have in recent years highlighted 
the dangers of the notion of ?party democracy? and 
its negative impact on representative democracy, the quality of
 deliberation and debate in Parliament and the freedom of conscience 
of members of legislatures. They have argued consistently in a
number of cases they have initiated or supported that ultimately
 Members of parliament or provincial Councils are representatives
of the PEOPLE not ambassadors of parties. In the Centre for Policy
Alternatives, Saravanamuttu and Edrisinha v Dissanayake and Weerawanni
, the Supreme Court refers to the ability to nominate an outsider
as an anomaly. The Court then observes:

Can such an anomaly be justified on the basis of the ?supremacy
of the party?(or its secretary)over members and candidates?
In my view it cannot, for this is not a domestic question pertaining
to the party, party discipline, and/or party officials, members 
and candidates. What is involved is the right of the electorate
to be represented by persons who have faced the voters and obtained
their support, and that in my view, is the general scheme of the 
Act. That is wholly inconsistent with Article 25 of the International
 Covenant on Economic, Social and Cultural Rights, which recognizes
that every citizen shall have the right and the opportunity to
take part in the conduct of public affairs, directly or through
freely chosen representatives.

The
 significance of the judgment is that it reaffirms the supremacy 
of the People
 even against political parties and their functionaries.
It attaches meaning to the choice of the people which is after
all the rationale for the much maligned principle of preferential
 voting. The People decide, not the party leadership. The party 
leadership may have some discretion, but the discretion is circumscribed
by the will of the People. Only persons approved by the People
can fill vacancies in Provincial Councils, not complete outsiders 
who may be lackeys of the party leader or secretary but have no
nexus with the people of the province. It is now a matter of considerable 
interest to see how parties which have hitherto displayed cavalier 
indifference to basic principles of representative democracy in
 the name of the spurious ?party democracy,? respond 
to the welcome reaffirmation of universal democratic and constitutional
 first principles by the Supreme Court in this week?s landmark
 judgment.