Appointment of MPs to Parliament:

No Constitutional provisions when MPs’ list exhausted - Dr. Jayampathy Wickramaratne

by Indeewara Thilakarathne

“Article 99, sub-Article 13 (B) says that if a vacancy for an MP is created in Parliament, the next candidate who polled the highest number of preferential votes shall be appointed as the MP.

However, there are no Constitutional Provisions specifying what is to be done when the MPs’ list is exhausted “says Constitutional Expert Dr. Jayampathy Wickramaratne explaining the Constitutional position with regard to the appointment of MPs to Parliament.

Dr. Wickramaratne pointed out that Section 6 of the Elections Special Provisions Act No. 35 of 1988 stipulated that when a vacancy is created in the national list of MPs, the Commissioner of Elections shall ask the Secretary General of the Party to nominate a person to fill that vacancy.

He is of the view that similar legislation can be adopted with regard to filling of vacancies in the MPs list when the list is exhausted and that it is consistent with the Constitution.

The question arose following the death of five MPs representing Gampaha District.

Although the procedure for the appointment of MPs to the Parliament is clearly spelled out in the Constitution, no provisions have been made for an eventuality where the entire list of MPs has been vacant due to the death of MPs.

Since there are no by-elections under the Constitution of 1978, eventuality of exhausting MPs’ list would lead to a Constitutional impasse.

No other Constitution in Sri Lanka has been amended on numerous occasions than the Constitution of 1978 which, among other things, introduced the omnipotent Executive Presidency and proportional representation.

Though the proportional representation paved the way for the emergence of minority parties which would otherwise not even see the threshold of the Parliament, it bequeathed with a legacy of loose-knit coalitions.

Unlike in the first-past-the-post system where the principal political parties could secure an overwhelming victory over the rival parties, knocking out the minority political parties from the contest.

The possibility of securing an overall majority in Parliament for any political party is extremely remote under the proportional representation system.

One of the positive outcomes of the Constitution of 1978 is the adequate representation of minority political parties and ethnicities that they represent.

However, the hastily drafted hybrid Constitution is saddled with unforeseeable loopholes.

This is one of the reasons that the Constitution had undergone unprecedented number of amendments.

Constitution stand on the issue

99A After the one hundred and ninety six members referred to in Article 98 have been declared elected at a General Election of Members of Parliament, Elections Commission shall forthwith apportion the balance twenty nine seats among the recognized political parties and independent groups contesting such General Election in the same proportion as the proportion which the number of votes poled by each such party or group at such General Election bears to the total number of votes polled at such General Election and for the purposes of such apportionment, the provisions of paragraphs (4), (5), (6) and (7) of Article 98 shall, mutatis mutandis, apply. Every recognized political party or independent group contesting a General Election shall submit to the Elections Commission within the nomination period specified for such election a list of persons qualified to be elected as Members of Parliament, from which it may nominate persons to fill the seats, if any, which such party or group will be entitled to, on such apportionment.

The Elections Commission shall cause every list submitted to him under this Article to be published forthwith in the Gazette and in one Sinhala, Tamil and English newspaper upon the expiry of the nomination period.

Where a recognized political party or independent group is entitled to a seat under the apportionment referred to above, the Elections Commission shall by a notice, require the secretary of such recognized political party or group leader of such independent group to nominate within one week of such notice, persons qualified to be elected as Members of Parliament (being persons whose names are included in the list submitted to the Elections Commission under this Article or in any nomination paper submitted in respect of any electoral district by such party or group at that election) to fill such seats and shall declare elected as Members of Parliament, the persons so nominated.

The Elections Commission shall before issuing the aforesaid notice determine whether the number of members belonging to any community, ethnic or otherwise, elected to Parliament under Article 98 is commensurate with its national population ratio and request the secretary of such recognized political party or group leader of such independent group in so nominating persons to be elected as Members of Parliament to ensure as far as practicable that the representation of all communities is commensurate with its national population ratio.

For the purposes of this Article the number of votes polled at a General Election shall be deemed to be the number of votes actually counted and shall not include any votes rejected as void.