UNP's 'resign and enter' tactic unjust and undemocratic - Rohan Edirisinghe

The UNP's move to get Independent Group members to resign cannot be justified in their attempt to grab power in the Colombo Municipal Council (CMC). It really makes a mockery of the democratic process, Senior Lecturer of the University of Colombo Rohan Edirisinghe claimed in an interview with Sunday Observer staffer Jayantha Sri Nissanka.

Excerpts of the interview are as follows:

Q: How do you view the present scenario after the Local Government election with regard to the Colombo Municipal Council?

A: The Present crisis highlights the number of deficiencies with regard to election laws in Sri Lanka. It is unfortunate that the UNP is trying to strike a deal with an independent group to get their members to resign and enter. I personally oppose the UNP's move. But you can't view this situation in isolation. You got to look at the whole process.

Firstly, I think the problem started with the nomination process. I think our laws with regard to nomination are technical and legalistic. They actually don't help parties to contest elections. But they are found fault and penalised. Many will agree that the UNP made a mistake perhaps their lawyers should have been more careful. It was a technical issue.

There were number of candidates and the problem was only with a just one candidate. As a result of this minor error, the entire list was rejected.

Q: Why was this law not amended after the introduction, the Proportional Representation system (PR)?

A: This law was drafted when we had the First Past the Post (FPP) system. Only one candidate suffered under FPP for any error. But now we have the PR system. Under the PR system there is a long list of candidates.

Is it fair to enforce the same law with regard to nomination so strictly? If the UNP had made a mistake in their nomination list, the Election Commissioner's staff should have asked to submit a fresh list rectifying the error.

This is the practice worldwide. If you look at new election laws drafted by the European Union (EU) and United Nations, guidelines in countries like Bosnia as an example, there is a clause that if a party make an error it will have a second chance to submit another nomination list.

We got to understand the right to contest an election is a fundamental right and also the voters have a right to elect members. Therefore, we should encourage many parties and independent groups to contest. It is very unfortunate that the UNP and the UPFA both had their nomination lists rejected in Colombo and Gampaha on technical issues.

When major parties are denied the opportunity of contesting, voters lose their franchise of choice.

Q: But can the UNP justify their stand to creep into the independent list?

A: Not at all. Because it really makes a mockery of the democratic process. If the UPFA won on the Liberal Party in Gampaha, they could have tried the same. I object to such moves.

The Centre for Policy Alternative (CPA) filed a case couple of years ago when two MPs were asked by their parties to resign from Parliament and contest Provincial Council election. But Samaraweera Weerawanni and Berty Permalal Dissanayake did not resign as they did not want to be opposition members in case of a defeat.

Therefore, they nominated the wife and the private secretary to contest. After wining, they got them to resign and instead of nominating the members who were in the list, Party Secretary appointed both of them. They parachuted as Chief Ministers.

There were candidates who went before people and received votes. But they were overlooked and two outside members parachuted. We went to the Court of Appeal on the issue of principles. Under the PR system, voters decide whom to be elected and not the leader of any party.

Voters elect candidates. It is undermined if outsiders are appointed. We lost the Court of Appeal case but we won in the Supreme Court. Thereafter, this principle was cited in other cases like Mawanella.

I am sensitive to arguments of people as they voted for Sirisena Cooray. I think the principle is also important. If we allow that to happen, one day anyone can buy a seat in Parliament. It can subvert the democratic process. When you examine the issue in the wider scope, our objections to the UNP move are justifiable.

Q: Independent Group (IG) 3 in Colombo, IG 6 in Kattankudi and Jathika Sanwardane Peramuna in Elpitiya who were backed by UNP and UPFA got massive votes from their supporters. What is the merit in your argument that party members should not be nominated?

A: Let me cite some reasons in the Weerawanni and Dissanayake case. In that incident, Weerawanni and Dissanayake were not shut out from contesting but they took a decision not to contest and put the wife and the private secretary.

Here, as you pointed out, some sort of sympathy is involved for UNP and UPFA candidates who were rejected on technical grounds. But I do believe that the principle is important. I agree with you that this issue is a little bit more complicated and there is an argument. But remember the UNP also made a mistake and they have to suffer for their inefficiency and incompetency. We are looking in the interests at large. If we allow this move, it could continue to be abused in the future.

Q: Will you institute legal action if the UNP attempts to grab power in the CMC?

A: We have not yet taken a final decision. But we will not take the lead in opposing it because of the reasons you mentioned that people in Colombo indicated their preferences to the UNP.

But if someone else is go to courts, then we might intervene just to ensure the 'principle' we won is maintained. Actually, we want to push the Select Committee on Electoral Reforms to finalise proposals.

We sent some submissions earlier on electoral reforms in favour of the German mixed system. But as a result of the present crisis in the CMC, we realized some of the laws with regard to nomination process should be amended. We want to submit a memorandum to the Select Committee to make it easier for parties to contest elections.

Our legal system, lawyers and officials at the Election Department should not make matters difficult for parties to contest. If they have look at elections with focus on fundamental rights and human rights, they would not have rejected the nomination papers in Colombo and Gampaha. They must be told to help parties. We must change their attitude.

Q: Provincial Councils Act and Local Government Ordinance are two different statutes. Can you apply Weerawanni's case if the UNP try to creep into the CMC from the Independent group (3) list?

A: That is a good question. We have done some study on Parliamentary elections and Provincial Council elections. There is a slight differences in the law in this regard. I am sure, UNP lawyers could argue that the Local Government law is different.

There could be a slight difference in the wordings. But I believe the principle is the same. If a vacancy in the list has to be filled, it should be done within the list first. If all candidates resign, vacancies cannot be filled from the members of other parties. Only from the independent group.

Q: The last member appointed to the CMC was T.M.Sangadasa. You did not challenge it at that time. Were you not interested in that issue?

A: The Centre for Policy Alternative is interested in a wide variety of issues. We do not file action for every single issue unless it is important. I am not very familiar of Sangadasa's appointment. We won the 'principle' in court and we are keen see the 'principle' is alive. We like to help establish 'principles' and leave it to political parties and other group to use it when ever they want to deal with a particular situation.

Q: In case all members resign, what does the law says on the procedure to fill vacancies. Should the Elections Commissioner call for an election on a directive of the Minister of Local Government?

A: The Law is only a little bit unclear on that situation. Because laws never contemplate a situation for everyone to resign. It has provisions only to fill vacancies in a case of a death of a member or his resignation. Getting the entire group to resign en masse is something new. We got to bear that in mind that there are two possible options.

The independent group leader has to appoint independent members. But sometimes UNP candidates could resign from the party and come as independent members. I think that is the best alternative. We should quickly amend the nomination process to allow a process to rectify mistakes.

There are lots of international practices on election laws drafted for a number of new democratic countries. For an example, Bosnian electoral process drafted by the EU is very much in keeping with international standards. If a situation happens similar to Colombo, in Bosnia, the UNP could have submitted their papers the next day. I prefer fresh elections for Gampaha and Colombo after amendments to the law to avoid repetition of this nature.

Q: Do you mean that there is no clear picture in the Local Government Ordinance to tackle a situation of resignations en masse?

A: I think the situation is ambiguous. You can argue that the independent group leader has the power to nominate a new set of members. But I feel that it is unfair to expect Parliament to anticipate extreme situations like this where the entire list may get exhausted. If it is a party, of course other members can be nominate but it is a bit complexed when dealing with independent groups.

Q: That is what the UNP is planning. Is that the reason the independent group leader withdrew names of Mayor and Deputy Mayor after handing it over to the Returning Officer?

A: I am sure the UNP is conscious of the Supreme Court decision and they are trying to work out a system in keeping with the Supreme Court judgement. I do feel that we should not look at this situation in isolation. If the electoral system is flawed, it needs immediate reforms.

Q: We have been talking about elected reforms over the past 10 years. Political parties have failed to reach consensus. How can we keep hopes for the future?

A: The problem in electoral reforms is that every party is looking how the new system going to affect them. Even at the 1994 to 2000 Select Committee on Constitutional Reforms, all parties agreed to change the present electoral system but they were reluctant to replace it because every political party was looking at self interest. As a result, the 2000 Constitution reforms contained the identical electoral system in the 1978 Constitution. All political parties must look at this question on principle without self interest.

The civil society has to play a bigger role. The electoral system is also ultimately a way to ensure voter rights. Everyone was critical of the "Manape" system because if we don't have the Manape system, voters will vote for the party and members will be selected by party leaders. All political parties are not practising internal democracy.

Leaders will select men of their choice. I think the preferential voting system is very positive. Parties are not interested in the preferential voting system. But voters and the civil society believes that it empowers the voter of his or hers right to choice. It should not be done away as it will weaken the right of the voter. The Civil Society has a greater role in the debate of the election reforms.

Q: Will it only be limited to a debate. Do you believe that our politicians will never get together on national issues?

A: You are perfectly right. According to our political culture, they never agree on matters of national importance. The Civil Society has to take the lead and work with political parties. We cannot work in isolation any more.

Our political parties are not like what they used to be 20 years ago. They are no longer a forum where alternative political ideas generate. The Civil Society is better as it generates new ideas and alternative proposals.

Q: Actually, how can the people and the Civil Society bring pressure on the Government and Opposition?

A: Well, I think in the area of electoral reforms, there is a need for debate and wide discussion. My experience is that everyone is aware of the weaknesses in the present system. Some want to go back to the previous PFP system. I think it's a mistake.

We should not forget weaknesses in that system. There could be a discrepancy in votes polled and seats received by a party. A party can get the two -third seats without getting even 50% votes. Therefore, we need a mixed system.

Q: Will it be easy to convince small parties, specially minority parties on reforms?

A: Small parties should come up with specific ideas. Up country Tamils have a very genuine concern about the German system. They actually try to work out a system within the broad principle of German system. Other small parties have not done it. I feel that in order to protect the interest of small parties, we got to agree on keeping the principle of PR system. But it must be a different kind of PR system because small parties also should benefit from that PR system.

Q: What are the problems you have identified in our electoral system?

A: We have some definite views about the electoral system. If we do away with the PR system then what is the alternative? We have not done a comprehensive study but it will be done as a matter of priority to reforms.

Q: How long will the Select Committee takes to formulate the final report?

A: It started a long time ago and came up with an interim report. I have been told they are having meetings. We are sending a letter raising all these issues requesting oral and written submissions.

Q: According to your point of view what is the ideal electoral system suitable for Sri Lanka?

A: I prefer a mixture of FPP and PR systems. Also the German mix system. But I am very conscious of the fact that small parties feel the German system will not meet their interests. Therefore, slight modifications to the German system is suitable.

I think that can be done if parties agree on principle. We need the assistance of technical experts.

Q: Will there be a National List under that system?

A: Yes

Q: Do you think it is suitable for Sri Lanka because on many occasions those lists have been abused by politicians?

A: Yes. But order of the National List should not change after the election. The National list helps to appoint members who are experts in different subjects and different ethnic groups.

These two streams enrich Parliament. I agree that those lists have been abused. We have instituted legal action in one such appointment and the judgement is pending. Though it has been abused, it does not mean the concept of the National List is bad. German electoral system has a National List but it prevents the appointment of outsiders.