by Prof. Savitri Goonesekere

The recent appointment of well known entrepreneur and businessman  Dhammika Perera to a seat in Parliament on the resignation of former minister Basil Rajapakse was challenged in several petitions in the Supreme Court. These petitions mainly  alleged a violation of the fundamental right to equality, nondiscrimination, and non arbitrary decision making in the filling of a vacancy created in regard to a seat in Parliament occupied (not through election,) but APPORTIONMENT  of seats, based on  the votes cast at a General election. This concept of apportionment of 29 of the total number of  seats in the electoral  system of proportional representation was introduced into the Constitution’s provisions governing elections and the Peoples’ franchise, by the 14th Amendment to the Constitution in 1988.

The appointment of Mr. Perera to Parliament on an apportioned seat, in the midst of an unprecedented and grave political and economic crisis generated public controversy. Some considered his appointment a welcome effort to bring entrepreneurial experience  into government at this time. Others viewed the appointment negatively and challenged its validity in these petitions in the Supreme Court. Mr. Basil Rajapaksa’s appointment had not been challenged in this manner. Field Marshal Sarath Fonseka had also held an apportioned seat, which had been challenged unsuccessfully in Centre for Policy Alternatives (CPA) v. Kabir Hashim in SC Appl. 54/2016. The possibility of bringing experts into Parliament through the apportioned seat process on the national list has been discussed even recently as a useful response to the current crisis.

The current petitions are of public concern, as they raised an important issue on the People’s right to franchise, and the meaning of  Constitutional and legal regulations applicable to apportionment of seats in Parliament, on the basis of the Peoples’ exercise of their voting rights. The case was an opportunity to clarify  the law and practice  on this important topic relating to the franchise, as well as the eligibility of  persons to occupy 29 apportioned seats in Parliament.

The petitions in the Dhammika Perera case were dismissed by the Supreme Court, at the preliminary procedural  stage of granting leave to proceed with the litigation. No reasons were given for the decision, though the court heard arguments of Counsel  in support of and in opposition to the petition. However the Court clarified that the refusal of leave to proceed was a split decision, with one dissent in a bench of three judges. Since no reasons were given, the approach of the majority and the dissenting judge   to the legal issues raised by Counsel  in regard to appointments to apportioned seats in Parliament, remains unknown to the public.

The decision of the court not to write a judgment and give reasons for refusing leave  after hearing Counsel in the Dhammika Perera case at this preliminary procedural stage, follows the practice of the Court in  exercising the discretion given in Article 126 (2) of the Constitution. The right to obtain relief for  violation of a fundamental right is a  right guaranteed by Article 17 and Articles 126 (2) and  (4). The Supreme Court has been given a discretion by Article 126 (2) to decide whether it will grant leave to proceed with the application for relief and remedy for alleged violations of fundamental rights. This follows a tradition in Common law jurisdictions to ensure that courts are not overburdened in litigation, also reflecting a policy approach on  avoiding  unnecessary costs of litigation. Yet there is also jurisprudence in the Supreme Court indicating a different approach to the granting of leave to proceed.

In the Shirani Bandaranyake Appointment to the Supreme Court Case (1997 1 SLR 92 ) the Chief Justice decided that the case raised an important issue of “general and  public importance” and referred the applications to a bench of seven judges. Justice Mark Fernando speaking for the court said that “having regard to the complexity and gravity of the questions involved, Counsel for both the petitioners and respondents were heard in support of and opposition to the petitions.” (p 93). Justice  Fernando and Justice Perera wrote separate judgments, in a unanimous decision of the Court to refuse leave to proceed, creating important jurisprudence on this subject.

If this approach articulated by Justice Mark Fernando guides the Supreme  Court, and is clarified in Rules of the Supreme Court, petitioners and the public will know the basis on which the Supreme  Court refuses leave to proceed with a Fundamental Rights Application, relating to an important issue of public concern. The issue of apportionment of seats in Parliament is an issue of public concern to voters, just  as appointments to high public office, as  in the Shirani Bandaranayaka case also raised issues of public concern. Giving reasons can only enhance the stature of the court as an indispensable institution in the administration of justice in a Constitution that perceives the courts as exercising the “judicial power of the People” [Article 4 (c)]. This was also referred to in the judgment of the Supreme Court in the Dissolution of Parliament case (2018.) Citing an American case, Baker v Car (1962), His Lordship HNJ Perera CJ said “the court’s authority possessed of neither purse nor sword ultimately rests on sustained public confidence.”(Sampanthan v AG (2018) p 69).

The unresolved constitutional issue of   appointments to Parliament on apportionment, and the National List.

Article 99A introduced by the 14th Amendment is very clear on the persons eligible to occupy apportioned seats after a general election. The meaning of this Article, in the context of the statute law also regulating elections i.e. the Parliamentary Election Act  No.  1 of 1981 was the crux of the case argued by Counsel for the petitioners in the Dhammika Perera case. Geoffrey Alagaratnam  PC former President of the Bar Association and other eminent lawyers  who supported the petitions drew attention to  the need to  clarify the law on this important issue of public concern, because of a seeming conflict between the Constitutional provision (Article 99A) and Section 64 (5) of the Parliamentary Elections  Act (1981).

Article 99A of the Constitution clearly states that persons allocated apportioned seats in Parliament based on the votes cast at a general election must be persons eligible to be MPs,  whose name appears on a list submitted within the period of nominations, to the Commissioner of Elections. This list is now popularly known as the “National List,” from which  a person may be nominated  to hold  a seat on the basis of apportionment and votes cast at the general elections. Article 99A also includes another category of persons who can hold such a seat. This is a person whose name is on an electoral list. Article 99A does not indicate that there is any other requirement of eligibility. It is therefore clear from Article 99A of the Constitution that both defeated candidates and persons on the National List are eligible to occupy apportioned seats.

The issue of defeated candidates occupying these seats is therefore an ethical rather than a legal or Constitutional issue. Consequently Mr. Ranil Wickremesinghe is lawfully occupying the seat apportioned to the UNP, though he was defeated at the General  Elections (2019) and also publicly stated that candidates defeated at a General election should not occupy seats apportioned to the party. However Article 99A as argued by Counsel in the Dhammika Perera case does  not permit persons who are NOT on the National list submitted at the time of nominations, to be allocated apportioned seats in Parliament. The procedure set out in Article 99A is for the Commissioner of Elections to request a Secretary of a party to nominate persons to fill an apportioned seat. The language of 99A does not enable persons outside these categories to be considered eligible to hold these apportioned seats.

The popular idea that a party in Parliament, particularly at this time of a national crisis, can bring to Parliament professionals and others with special expertise, does not conform to the eligibility criterion set out in Article 99A. Therefore, persons who occupied these apportioned seats, whether Basil Rajapaksa or Sarath Fonseka also did not satisfy the Constitutional provision on eligibility to fill an apportioned seat. Article 99A seems to have been ignored in discussions on appointments to Parliament on the national list.

It is also clear that this Article 99A in the Constitution casts a duty and responsibility upon the Commissioner of Elections and the Secretary of a Political Party who nominates a person to an apportioned seat to abide by Article 99A. The Commissioner is a public servant, and he can be sued in a fundamental rights violation case relevant to wrongful allocation of an apportioned seat. The Secretary of a Political party is a Non-State actor but becomes liable for a wrong decision since our courts connect him to the inaction of the State or government agency in ensuring conformity to the Constitution. (Faiz  v. AG (1995 1 SL 372).

The PROVISIONS in the Parliamentary Elections Act 1 of 1981 on VACANCIES to one of the 29 APPORTIONED seats in Parliament

The Parliamentary Elections Act (1981) Section 64 was amended consequent to the 14th Amendment in 1988. This provision in the principal enactment of 1981 dealt with filling of vacancies in seats in Parliament. When the 14th Amendment provided in Article 99A for a National list, and apportionment of seats,  a new provision Section 64 (5) was introduced  into  the principal legislation, the   Parliamentary Elections Act, to cover the procedure for filling  vacancies to these apportioned  seats.    Section 64 (5) enacted by an amendment of 1988, i.e. the same year as the 14th Amendment, uses the words “Notwithstanding anything in the previous provisions” (ie on vacancies in regard to ordinary seats in the principle enactment of 1981), and sets out a PROCEDURE  for filling vacancies in the special APPORTIONED seats created by Article 99A of the 14th Amendment. This 1988 provision Section 64 (5) added to  the Parliamentary Elections Act indicates that in the case of persons occupying these apportioned  seats, a vacancy is filled by “the Secretary General of Parliament informing the Commissioner of Elections who then requires the Secretary of the Party or leader of the relevant  independent group apportioned a seat to nominate a member of such party ” to fill the vacancy. It is this language on PROCEDURE in filling vacancies to apportioned seats,  that  is now being used to argue that the Secretary of a party or leader of an independent group has complete discretion to appoint a person of his/ her choice to fill a vacancy.

Our Constitution has  a controversial Article 16 (1)  that has been consistently criticized, which  does not permit judicial review of legislation once it is enacted by Parliament. Even in jurisdictions like  India,  South Africa and Canada, that permit judicial review of legislation for non-conformity with the Constitution, there is a legal concept of “Presumption of Constitutionality of legislation” and “reading down” legislation in order to follow a “purposive” interpretation that seeks to harmonize the basic law of the land, a country’s Constitution and legislation enacted by Parliament.

In Sri Lanka in the in the cases AG v Sampath SC Appeal 17/2013 and SC Ref 3/2008 the Supreme Court refused to follow a provision in the amended Penal Code of 1995 that provided for minimum sentences on the ground that the legislation could not be interpreted as restricting the judicial discretion of the Courts. Both these judgments  held that the power of interpretation of law is embedded in the judicial power recognized in Art 4 (c) of the Constitution. This could not be restricted by ordinary law (in this case the amended Penal Code) since the Constitution is the Supreme Law. While this decision may be critiqued as in conflict with the restricted power of post enactment judicial review of legislation  in our Constitution, the decisions indicate that there is a rationale for interpretations that seek to give predominance to the Constitution as the basic law of the land.

As Mr. Alagaratnam PC and other Counsel for the petitioners argued in the Dhammika Perera case, interpreting section 64 (5) of the Elections Act as giving an absolute discretion to the Secretary of a Party or the leader of an independent group apportioned a seat, to fill a vacancy in  that seat, means that he/she  can ignore completely the criterion on eligibility  for apportioned seats, so clearly set out in the 14th  Amendment, when it introduced a concept of apportioning 29  seats. This is surely a situation where an interpretation must be adopted that recognizes rather  than undermines the  significance of  basic  Constitutional provisions on eligibility to occupy a seat in the legislature.

In CPA vs Kabir Hashim,  Sripavan CJ  delivered a short judgment, when  refusing leave to proceed in a petition challenging the nomination  of  Sarath Fonseka to a vacancy in an apportioned seat. His Lordship held that the issue of filling vacancies was not considered in Article 99A of the Constitution (on apportioned seats). This was regulated by the procedures detailed in Section 64 (5) of the Parliamentary Elections Act which, His Lordship said, gave a discretion to the secretary of the party or the leader of an independent group to nominate the person to fill a vacancy in an apportioned seat. His Lordship did not, with respect, address the substantive requirements for  eligibility to occupy an apportioned seat, that were set out in Article 99A, when the 14th Amendment to the Constitution created this new category of seats in our Parliament. His Lordship’s opinion also takes a different approach to ordinary law vis- a-vis the Constitution as the “supreme law of the land,” in the cases referred to earlier.

It is with respect difficult to consider the decision in CPA v. Kabir Hashim as a judicial precedent that binds the Supreme Court, and prevents the matter being considered again in light of the specific language in Article 99A of the Constitution on eligibility to occupy an apportioned seat in Parliament. The Supreme Court has not followed a strict approach to the concept of “stare decisis” or binding precedent in a context where the structure of our courts has changed through  both  statutes   and post independence Constitutions. The capacity of a superior court to contribute to development of the law without being fettered by previous decisions is reflected in important decisions of judges like Basnayaka CJ in Bandahamy v. Senanayake (1960) 62 NLR 313 and Wanasundere J in Walker Sons v Gunathilleke (1978- 19801 SLR 231.

Conclusion

It is in the public interest that the meaning of Article 99A and the policy on apportioning 29 seats in Parliament is clarified and addressed in any further amendments to the Constitution. Giving a complete discretion to a non-State official like a Party Secretary to choose persons entitled to fill vacancies in apportioned seats based on electoral votes, undermines voting rights. There is also the public interest in having persons qualified to occupy these apportioned seats being nominated initially,  or in  filling vacancies that are created later. More specific criterion of eligibility to take apportioned seats will also address the public interest in bringing a diverse range of experience to the legislature of the country through the National list. Such an amendment should also clearly make defeated candidates not eligible to occupy such seats.

The Dhammika Perera case raises once again an issue of public concern in regard to filling vacancies in the 29 apportioned seats in Parliament, either through the national or electoral list. Clarifying the law can be done without delay through the contemplated current Constitutional reforms. If this is not done, it seems important for the Chief Justice to appoint at least a Divisional Bench to provide a clear interpretation of Article 99A of the Constitution or point to the important need for clarity on this matter through a Constitutional amendment.

Litigation in the courts and ground realities indicate that there are many important unresolved issues that require constitutional reform. Even within the current Presidential system, the cumbersome procedure for impeachment of a President and also judges of the Supreme Court, and appointments on the National List, clearly require significant review and reform. And yet, ad hoc constitutional reform efforts like the 19th Amendment, 20th Amendment and the proposed 21st Amendment, seem to ignore public concern for reforms in these important areas. There should be public advocacy to ensure that all these areas are addressed immediately in the current constitutional reform process.