By S. Ratnajeevan H. Hoole –

Prof S. Ratnajeevan H. Hoole

The 1+225 in the title refers to the President and the 225 Members of Parliament who rule us. They are all corrupt in some way, at least by abusing their authority if not the finances of the country and their political powers. 

Due to our ignorance, the majority of the citizenry in Sri Lanka believe that our supremacy lies in the hands of the Executive President  This is absolutely wrong. We are merely another democracy and after independence most rights vested in the people as in other democracies and recognised by the world community, have been incorporated into the Supreme Law of the Country, namely the Constitution of the Republic of Sri Lanka. 

The concept of sovereignty vested in the people has been recognised in Article 3 of our Constitution, and the realisation of that sovereignty or implementation of that sovereignty in the people has been incorporated into Article 4 of the Constitution. Both these provisions have been recognised as entrenched provisions; that is, provisions that cannot be varied in any manner without obtaining a mandate from the sovereign people at a referendum [Articles 82 and 83].

Provisions as set out in Article 4 are recognised as separation of powers between the legislature, the executive and the judiciary and all three organs are required by law to respect and honour the sovereignty in the people and their fundamental rights (Article 4 (d)).

The 1978 Constitution which recognised sovereignty in the people states that only the elected representatives of the people are entitled to occupy office as members in the legislature [Article 4(1)]. 

Yet, 10 years after enacting that Constitution, a new provision (Article 99A of the 14^th amendment) has been enacted on 04 May 1988, permitting 29 members to be ‘elected’ as MPs by party secretaries – that is people not necessarily elected by the people. The then Prime Minister, Mr. Ranasinghe Premadasa proposed 14A which was the final report of the Select Committee on Franchise and Elections. That report was presented by him to the House. It clearly stated that 29 members proposed by 14A as National Members will only include those whose names are published in the gazette along with the nomination papers. The verbatim report of the PM’s speech addressing the house on 04 May 1988 states:  

‘… These 29 seats will be allocated to the different Parties contesting the election, in proportion to the votes received by each such party at the National level. Names of those Party nominees are known beforehand. In fact, their names are published in the Gazette immediately after closing of nominations. Therefore, the voters are aware of the identity of the candidates of different Parties who are to be elected as National Members…’ 

Such policy statements, even when not enacted, reveal the mind of Parliament in passing legislation, and therefore are used and of value in interpreting such legislation as is passed. The intention then was that every “National List” MP would have been from the list that voters would use to determine how they vote.

Some members in the house questioned the PM about a Bill circulated among the members which permitted even the defeated candidates to enter parliament through the National List and this is the answer given by the Prime Minister: 

‘… There has been a discussion of a fourteenth amendment, which I came to understand later, is different from the amendment of the Constitution which I speak of in this instance. The fourteenth amendment presented today is the result of deliberations of the Select Committee on Franchise and Elections. This Committee comprised all political parties represented in Parliament …

‘… Members are not to be appointed or nominated by the Party. When the people vote for the Party they will be aware that some candidates in the list are likely to be elected on the strength of such votes…’

Speakers false Certification of a Bill NOT passed by the Parliament 

This section reaffirms my position that 1+225 include many corrupt rulers. It also shows how the citizenry is laid back about our rights and by not objecting to brazen corruption show that we are comfortable with our corrupt rulers.

The 14^th Amendment of the Constitution finally received the Speaker’s certification on 24 May 1988. The Bill certified by him was not the Bill passed by Parliament on 04 May 1988 and it contained a provision interpolated within brackets in the 4^th paragraph of Article 99A that was never proposed or approved by Parliament at the Committee stage before it was passed on 04^th May 1988. The fraudulently interpolated clause in brackets certified by the Speaker states as follows:

(being persons whose names are included in the list submitted to the Commissioner of Elections under this Article or in any nomination paper submitted in respect of any electoral district by such party or group at the election)

By allowing any person on the list, the law permits defeated candidates also to be nominated; that is, even people who did not receive the mandate of the people.

The 14^th Amendment Bill was finally approved by Parliament with no amendment to Article 99A at Committee stage, and after the votes were counted the Speaker “confirmed” that the Bill had received a 2/3 majority. Yet, the 14^th Amendment that clearly violated Article 4 (a) of the Constitution which only permitted elected representatives of the people was never put to the people for their approval at a referendum. Hence it cannot be safely taken to have been passed as a valid law with only 2/3 majority and hence Article 99A of the Constitution as it stands today is clearly unconstitutional.

Role of the Judiciary 

A bill that requires an amendment of the Constitution must adhere to the procedure as set out in Article 82(5) of the Constitution. That is the rule of law and if this due process has not been followed the Supreme Court that is entrusted with the sole and exclusive authority and jurisdiction over the interpretation of the Constitution (Article 125), is required by law to declare that such a law enacted by illegal means shall not be deemed to amend, repeal or replace the Constitution or any part thereof [Article 82 (6)]. Yet, up until now this unlawfully enacted provision of law remains in the Constitution.

Amending the Constitution with an amendment to an ordinary Law  

It s unlawful to amend the Constitution with an amendment made to an ordinary piece of legislation. Yet, Article 99A of the Constitution has been further amended by an ordinary piece of legislation in 1988. To be precise, Act of Parliament No 35 of 1988, an amendment made to Parliamentary Election Act Section 64 (5), has made the following amendment to Article 99A of the Constitution by amending an ordinary piece of legislation:

‘… where the seat of a member of Parliament declared elected under Article 99A of the Constitution becomes vacant, the Secretary-General of Parliament shall inform the Commissioner who shall require the Secretary of the recognized political party or the group leader of the independent group to which the member who vacated the seat belonged, to nominate a member of such party or group to fill the vacancy. Upon receipt of such nomination, the Commissioner shall declare such person elected as a member of Parliament and cause the name of the member so declared to be published in the Gazette.

That is, a national list MP may now come from the party secretary rather than the “National List” that voters voted for. This provision of law that effectively permits political party secretaries to nominate any person disregarding the law as set out in Article 99A of the Constitution, is hence ab initio void. For, Article 82 (5) of the Constitution clearly spelt out how an amendment can be lawfully made to the Constitution. That procedure was not followed by our corrupt 1+225 who wanted to smuggle into parliament their friends and cronies who could not muster the votes necessary for coming into the successful top of the national list.

Remedial action available to the people under the Constitution 

As mentioned above, a Bill that requires an amendment of the Constitution must adhere to the procedure as set out in Article 82(5) of the Constitution and if this “due process” has not been followed to enact amendments to the Constitution, there exists a bounden duty devolved upon the Supreme Court to annul such amendments. The Supreme Court, thus far, has abjectly failed in that duty. We the People have been failed by the Court. 

The Court is entrusted with the sole and exclusive authority and jurisdiction over the interpretation of the Constitution (Article 125) and is required to declare that such a law enacted by illegal means shall not be deemed to amend, repeal or replace the Constitution or any part thereof [Article 82 (6)]. Yet, up until now this unlawfully enacted monstrous and unsightly provision of law demeaning our democracy remains an ugly part of our statute book and is being used to appoint party donors, drug dealers, and casino magnates as members of Parliament. 

Disclosure: The writer has filed SCFR 215 of 2022 asking for defeated candidates to be not allowed as MPs. Given the national importance of the case, a plea has been made by the writer for a fuller bench. The case is coming up at the Supreme Court on 20 June 2023. The writer thanks his Counsel Nagananda Kodituwakku for educating him on the laws relevant to this article.