Oddity of the National List – Twins in a Single Body: A Commentary

by Lokubanda Tillakaratne

Fforthcoming General Election allows us to revisit the state of the 29 individuals commonly known as the National List—apportion members under Article 99 of the Constitution—to join the 196 elected members in parliament as stipulated in Article 98(1). This List is akin to a shadow bicameral legislature with a moiety of members who have no accountability to the voting electors, the people, because they never had to promise anything to the voters and never received a vote explicitly intended for them.

After the September 21st awakening, citizens are yearning to vote again in the General Election to do something to repeal these unpopular, confusing, and least helpful parts in the Constitution that had soured the meaning of governing and supremacy of consent of the governed.

As stipulated in Article 93, voting for Members of Parliament (MPs) is a ‘free’ and ‘equal’ process with secret ballots of the people. In practice, that only applies to the 196 members of the 225-member body in parliament. The voters do not have any direct means to express their preference on the balance of 29 members. That preference is the unfettered prerogative of the party hierarchy, which proposes the names to be considered as potential MPs! The qualification to be nominated into the parliament under this List category is allegiance to and friendship with the party leaders. The Constitution had sidelined the consent of the people in this instance.

After the vote counts at the forthcoming General Election for the 196 representatives, the Commissioner of Elections will announce the 29 representatives selected as per Article 99A to complete the 225-members.

For the upcoming election, the Commissioner of Elections has already proposed and published nominees for this list from each party. However, the Constitution has not offered a mechanism for the electors to vote for the List members. Instead, it allows votes cast by the electors earlier in the day for the 196 to be dusted off and recycled by way of a calculation to apportion 29 names that will become the National List.

On the election night, meanwhile, potential members of this List will revel with the party leaders and bigwigs in Colombo watching the vote count, not for them but for electors who will earn the Just Powers from the masses for governing. They are partying and waiting for the cast votes to be re-used to make the List. The List hopefuls mingle in the cream of the party spending political equity hoping for a place in the 29 group. These individuals probably never left the boundary of their cozy homes to put up a poster on a street corner or hang a string of bunting across main street begging for votes for them. Such low-rung jobs are the burden of the commoners, the 196, not the ones chosen in party headquarters.

An elector can call this a second-tier group of names that gets the same powers as the 196 to govern. But the List members have diffused responsibilities, and some even get ministerial portfolios soon after taking the oath of office. So, without ever having promised anything to the people, this group gets a free ride to the Diyavanna Oya people’s house to benefit from the heavenly perks for five years without ever declaring their position on any issue affecting the lives of the electors. Sweet pensions await them at the end of the term.

Some members of this List have been MPs in parliament through this process since 1994, a full generation and more, without ever receiving a single vote, and some names have been nominated for consecutive terms by diverse parties. Some are past 90 years of age and still seek to gain entrance through the current list published a few weeks ago. This makes this hardly democracy, but a List for a form of old-fashioned gerontocracy.

The recent thundering response from the electorate yearning for youth opens the gates to look seriously at this unusual system of supposed ‘representation’ of people by a motley group of individuals.

Article 99A of the Constitution defining this 29-member List as ‘elected’ is a misnomer. This is only a group primarily known to the party leadership which does the nomination. From the composition and past and present conduct of the List members, it appears those who do the nomination lack discernment and concern for the people and the electoral process.

Recently concluded parliamentary nomination shows what’s wrong with this process. Apportion of 29 individuals as representatives cannot be considered even a Referendum as it is silent in Articles relating to the process of election of President and Representatives. Few individuals who failed badly in the recently held presidential election now appear in the proposed National List for the honour of governing as an MP. A group of men and women, some unknown to many, shall be rammed upon us through a different list as per the Constitution. This List receives legitimacy as MPs only after using votes we cast to elect the other group, the 196 MPs. The well-known secret is that the 29-member group, which could not convince electors to vote for it or would not be likely to win an election, gets the privilege now to govern the electors, We the People.

Article 99 is a vehicle for favouritism and nepotism. The List seems to carry strands of DNA showing connectivity to diverse lines of political ancestry going back to early 1900s. Some have failed or are tired of their other interests or think inclusion in the List might enhance their opportunities for new pursuits. The consensus among the electors is that this List has become a landing spot for spouses, sons, and daughters of sitting or former politicians, retirees, and financial backers of the party to govern without an electoral consent. Others are close followers of the political echelon, and some are in occupations with nothing to do with governing.

After every election cycle, the new List is headed for perks like free housing in Colombo, V8-class behemoths, or luxury sedans with windows with tinted glass, all at the expense of the people. While holding office, when they get out of the car, they walk with the ostentation of a peacock. When they lose, they hide the car in a friend’s garage and disappear like Hippos out of water. To evict them from the government issued house in Colombo, the only way is to smoke them out like we do with a bee-hive.

These perks are only dreams for a teacher with 20 years of service in the Wellaragama school of 180 students in Galenbindunuwewa Education Zone. He must beg for a loan to build his home. With the first installment cheque, before starting on the foundation, he must erect the electrified elephant fence around the house plot.

Giving the powers and privileges of 196 to the 29 moiety of membership too in the parliament is a half-cooked process. Only one group goes through the rigours of the competitive electoral process while the other group, the chosen ones, gets its pass to parliament on a silver platter without shedding a drop of sweat. They come to represent people as an all-Island team without any mandate, consent of the people, or electoral district boundary which is mandated for the 196. Theirs is a shore-to-shore boundary. Although the National List is constitutional, this manifestly odd practice on the fringes and below surface democracy has been a source of dissatisfaction and discussion among the people. It is a broken moment in Sri Lanka’s democratic process we hold dear.

While the elected 196 representatives have earned the honour by going from door to door in the district, the List members have never come before the people asking for votes. They never get off stage. After failing in previous elections, some had a minimal chance of succeeding at another election to be elevated to the real ranks of the elected. The electors will not get an opportunity to hear from the List collectively or individually to know what their policy proposals for a particular electoral district are. The List members sit in the august chamber anyway, with the blessings of genealogical magic and the know-how of the party hierarchy.

The right to govern is a privilege earned by the representatives through votes of the governed. While the 196 passes this test, from the way the 29 group was nominated, it shows it is exempted from that test. The former earns the honour after campaigning at a granular level, while the latter, the handpicked colleagues of the party stratosphere, are handed the keys to the parliament at the party office in Colombo.

Political leadership has learned ways to circumvent the original intent of Article 99A. The process of the 29 is sullied, often wiled, and wandered off from the universal democratic maxim best described in the classic document of democracy, the American Declaration of Independence – governments are instituted among men, deriving their just powers from the consent of the governed. For the 99A, consent of the party hierarchy is what matters.

With the mandate of this Article, acutely contrary to the Just Powers maxim, the framers of the Constitution have left us with a problem. The National List supposedly was intended to safeguard the underrepresented groups and to augment the experience and expertise capital in the legislative chamber of the elected members. It was an attempt to uphold fairness to the people and encourage pluralistic themes society needs. With a formula prescribed for the tumultuous times we experienced in the early 1980s behind us, I believe time has come to open the conversation about the pros and cons of the National List model.

The past 15 years have shown Sri Lanka has moved past those treacherous times of the 80s. The country enjoys a precious state of ethnic harmony, understanding, and respect for each other, a marked distinction from the encumbrances that plagued us in the past.

Although the intent of the drafters of the Constitution had been sincere and timely, every class of previous Lists sitting in the parliament consisted of few individuals with questionable competency or potential for ability to govern. What part of national and public interest they represent is muddied, to say the least.

Furthermore, the List took its own evolutionary path, not envisioned or expected by the framers, and now appears outdated and unnecessary.

Thus, the twin or binary confusion of the moieties in the parliament chamber begs the question: If experience and expertise were prerequisites for the job of being an MP in the National List category, why not seek the same from the elected, the 196, as well? Or, since such a prerequisite is not required from the elected 196, why not ask the 29 group to enter the electoral process as well, representing assigned districts, and join as conventional MPs?

On the other hand, if the National List of 29 is so indispensable for the interests of the country as much as 196, why bother to mortgage the country to hold the elections to bring in the latter? Instead, why not commission the party leadership to nominate all 225? A few typed sheets of names will do the job. Money saved by this change will allow the Treasury to buy the basic needs of the people. Remember the Panadol days?

In a peculiar way, this governing model reminds me of the allegory in the story of the extraordinary twins in Mark Twain’s Pudd’nhead Wilson (1894). The twins, Italian counts Angelo and Luigi, immigrated to Dawson’s Landing, a frontier town on the banks of Mississippi River. They are conjoined at neck down, have two talking heads, four arms, one body, and two legs. The two heads can think differently and talk things simultaneously; four arms can move whichever way a head prefers, but two legs make the twins walk as one. The two heads have mutually agreed that every Sunday at 12 midnight ownership of the legs changed from one twin to the other. When one gets sick, even if the other’s head is healthy, the whole system breaks down and both heads feel the pain. Then the citizens in Dawson’s Landing call the only practicing physician in town, Dr. Claypool, who is yet to pass the licensing exam.

It is reassuring that since our electoral process has 70 years of experience, voters in Sri Lanka will do without Dr. Claypool’s medical Rx consisting of ingredients like a grain of gold, a bone of the stag’s heart, shavings of ivory, dates, roses, and scores of other items prescribed to ailing twins to correct the conjoined twin syndrome the Constitution has overwhelmed us with. Instead, voters will get the opportunity to heal the 29-class disorder at this forthcoming election. They can vote to stop the backdoor culture of governing and do something to remove the National List misnomer from the Constitution.

This time around, voters must think of our shadow bicameral system of governing while waiting in line to vote. They are at the doorstep of correcting this oddity by voting in a two-thirds majority for a political party of their choice.

Twins’ Story Update

: After Luigi was elected for Dawson’s Landing City Council, he was not allowed to attend 6-member executive council meetings open only to elected members. Council member Luigi was not allowed to sit in the Council chamber because Angelo was not eligible to sit as he was not an elected member. Without Luigi in the council meetings, there was no quorum, law making came to a standstill, and the town was paralyzed. It tried every loophole to make it possible for the twins to sit at the table but found no legal way to do it.

So, they hanged Luigi.