By Faizer Shaheid –
Death is often not an instance of merriment for any, unless you are one who is aspiring for a parliamentary seat. In this country of dirty politics and sagacious politicos, it is quite easy to manipulate the law to fool the people. However, as Abraham Lincoln once said, “You can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time”.
In this particular instance, the death is of a veteran Politico, M. K. A. D. S. Gunawardana, who entered Parliament through the United National Front for Good Governance (UNFGG) National List. He who looks to make merry from his death is none other than Field Marshal Sarath Fonseka, who had contested under the flaming torch symbol in the last Parliamentary Election and lost.
Following the death of Gunawardana, speculation was rife that FM Fonseka would be appointed to his seat, even while Kabir Hashim, General Secretary of the United National Party (UNP), which is the main constituent party of the UNFGG, maintained suspense. However, now that the position of the UNP has been made clear, the legal position of his appointment is also mandatory.
Any person who is entitled to be an elector can be an MP, unless he is rendered ineligible as according to the grounds stipulated in Article 91 of the Constitution. Under Article 91 (1) a person is ineligible to become an MP if he is disqualified to be an elector. A person ordinarily serving a conviction, or has served a conviction in the last seven years would generally not be capable of being an elector, but FM Sarath Fonseka is no ordinary person. He is one who has received a presidential pardon, and such person who has received an absolute pardon from the President is exempt as according to Article 34.
However, Article 91 (1) (d) (xi) further disqualifies a person from becoming an MP if he is a Member of the regular force of the Army, Navy or Air Force. This ground of disqualification is the greatest threat to FM Fonseka’s bid to enter Parliament.
Member of a regular force
While many may argue that FM Sarath Fonseka is no more a Member of the regular force of the Army on the grounds that he had retired prior to contesting the Presidential Election in 2010, the issue arises from the fact that he was appointed as Field Marshal soon after the election of Maithripala Sirisena as President.
It must be understood that the title Field Marshal is the highest award for any Member of the Sri Lankan Army, and this title was conferred to him on 22 March, 2015. He is the first and only Sri Lankan to be conferred with such an award. The official website of the Ministry of Defence, www.defence.lk in hailing the recognition granted to FM Sarath Fonseka referred to the following: “This esteemed rank of ‘Field Marshal’ is a Five-Star rank which is equivalent to an ‘Admiral of the Fleet’ in the Navy and ‘Marshal of the Air Force’ in the Air Force. Field Marshal would remain in service in uniform for life and would bear the special baton in the left hand. He is entitling for a separate staff with security”.
The above paragraph clearly indicates that FM Sarath Fonseka ‘would remain in service in uniform for life’, and also that he is entitled to a separate staff with security. He also draws a salary and receives further perks as a Field Marshal. If we were to go by the statement made by the Ministry of Defence in their website, there is absolutely no doubt that FM Fonseka is still a member of the regular forces. As such, he shall be considered disqualified to be a Member of Parliament.
One may also argue that we have had General Anuruddha Ratwatte in the past holding a pivotal ministry under the Chandrika Bandaranaike Kumaratunge regime. However, what must be understood about him is that General Ratwatte had served in the Sri Lanka Army Volunteer Force, and not as a member of the regular force.
Ineligibility to fill the vacancy
For the purposes of understanding the complication in the Constitution, it must be realized that the Parliamentary seat of M. K. D. A. S. Gunawardana has become vacant as according to Article 66 of the Constitution, as he had died. To fill a vacancy under Article 66, the Constitution in Article 99 (13) (b) states that the candidate from the relevant political party who has polled the next highest number of votes shall be declared elected to fill the vacancy. This provision can be deemed very confusing on the ground that it could be taken to apply in the case of elected Parliamentarians.
To avoid this confusion, it is ideal that we understand how persons are picked to the National List as according to the Constitution. Article 99A of the Constitution specifies that every political party shall submit to the Commissioner of Elections, during the nomination period, a list of persons qualified to be elected as MPs in Parliament. From these lists submitted to the Commissioner, persons may be picked by the Secretary or Leader of the party to be the MP.
Therefore, it is mandatory that the name of the nominee to fill the vacancy in Parliament must be in the list submitted by the Secretary of the UNFGG. Questions may arise as to the standing of those who were not in the list of nominees for the National List seats of the party, such as S. B Dissanayake and Mahinda Samarasinghe, but were nonetheless elected. While the issue is contentious and being dealt with by the courts, it is reasonable to consider that their names were included in the lists submitted by the General Secretary of the Party, irrespective of whether they were in the National List or list of candidates.
In the case of FM Sarath Fonseka, he had not been a Member of the UNFGG at the time of the General Elections and contested under a different party altogether. He contested from the Democratic Party which failed to win a seat. His name was not included in the list submitted by the UNFGG to the Commissioner, and therefore is again not eligible to enter Parliament even through the National List of UNFGG.
While it baffles me as to how FM Sarath Fonseka had contested the previous election holding such disqualifications under his belt, my understanding is that the disqualifications would only apply if he had been elected to Parliament. His primary disqualification arises from the fact that he is a Member of the regular forces of Sri Lanka, and shall continue to be as long as he lives.
The secondary disqualification stems from his misfortune of not being a Member of the UNFGG, and not being listed as a nominee or candidate under the UNFGG during the same election. Either way, FM Sarath Fonseka is ineligible to enter Parliament through this vacancy created by M. K. D. A. S Gunawardana.