Fonseka’s return to Parliament
Speculation rife about the legality of his
appointment to the UNP’s National List:
Although certain legal experts had deemed the nomination of
Democratic Party (DP) Leader, Field Marshal Sarath Fonseka, to
Parliament from the UNP National List to fill the vacancy created by the
demise of Minister of Lands, M. K. A. D. S. Gunawardena, a violation of
the Constitution, government legislators last week endorsed the
appointment as fully consistent with the Constitution, and claimed the
appointment has not breached any constitutional provisions. They added
that Fonseka has been duly appointed and sworn in as a Member of
The United National Party (UNP) working committee, which met on
February 08, unanimously approved the appointment of Field Marshal
Fonseka for the parliamentary seat left vacant by the demise of Minister
Gunawardena. This followed Fonseka signing a MoU with the UNP led United
National Front (UNF) on February 03.
After the gazette extraordinary was issued to appoint Field Marshal
Fonseka as a UNP’s national list MP, he took oaths as a Member of
Parliament before Speaker Karu Jayasuriya on February 09.
The endorsement notwithstanding, Fonseka’s nomination from the UNP
national list has become a topic of hot conversation in media circles,
with many views and interpretations on its legality. Speculations turned
into serious questions, when media quoted Justice Minister Dr.
Wijeyadasa Rajapakshe as having told Prime Minister Ranil Wickremesinghe
that it would be illegal to appoint Fonseka as a National List MP.
According to reports, Rajapakshe had said a UNP National List slot could
not be given to a person who had lost at a General Election after
contesting on another party and symbol.
Rajapakshe, when questioned about this by the Sunday Observer,
refused to make a comment, saying he had clearly explained his position
to the Cabinet and that he did not want to go beyond that.
Two major queries have been raised in the media about Fonseka’s
nomination- firstly his appointment as a National List MP of the UNP and
secondly his eligibility to be appointed as a Member of Parliament while
being the Field Marshal.
It has been pointed out Fonseka’s appointment as MP through the
National List, while being the Field Marshal, is a violation of the
In addition, the media quoting a judgment delivered in 2001 by
Justice Mark Fernando in the Samaraweera Weerawanni case stated that
“unless an individual’s name is in the national list, he or she cannot
Some legal experts have raised concerns about the provisions of
Article 91 of the Constitution, which clearly stipulates that a member
of the Armed Forces cannot be appointed to Parliament.
Article 91 (1)(xi) of the Constitution stipulates that no person
shall be qualified to be elected as a Member of Parliament or be
eligible to sit and vote in Parliament if he is a member of the Regular
Force of the Army, Navy or Air Force. A Field Marshal is considered to
be of five-star rank in the Armed Forces in many countries.
Legal experts point out that as Fonseka is in the active armed forces
service, he cannot be appointed to Parliament.
Consolidating their arguments, they explain the Field Marshal draws a
salary and perks for his service and is technically a member of the
force. Therefore, they claim, he cannot serve in the forces and also get
appointed to Parliament and hold a ministerial portfolio as it is a
violation of the Constitution and as such it can be challenged in the
However, UNP National List MP, Dr. Jayampathy Wickramaratne,
maintaining that Field Marshal is not a position in the Army recognised
by the Army Act, told the Sunday Observer there is no legal implications
in appointing Fonseka as a national list MP.
He said there an amendment to the Elections Act No. 35 of 1988 also
specifies that when there is a vacancy in the National List, any member
can be nominated and that it was not necessary to nominate the very
person who was in the original National List.
“There is a very clear amendment to the Elections Act, but most
probably the people are unaware of it,” he said.
When questioned, a senior official of the Election Commission said
the Commission was not in a position to comment on the appointment of
any Member of Parliament. “We will only gazette the name of any Member
of Parliament after it is approved by the Election Commissioner.
At the moment, there is no Election Commissioner,” he said,
explaining that the Election Commission has been set up under the 19th
Amendment to the Constitution he said the Commission, which met on
February 8 at the Election Secretariat had accepted Fonseka’s nomination
sent by the UNP General Secretary and issued the relevant gazette
notification. After the nomination is accepted and gazetted, we cannot
make any further comment on it, he said.
Deputy Speaker Thilanga Sumathipala told the Sunday Observer, as far
as the Parliament is concerned, Fonseka is duly appointed and sworn in
as a Member of Parliament.
“Now Fonseka is a Member of Parliament and he was appointed from the
UNP’s National List.
I don’t see any valid reason behind the queries raised by certain
sections over Fonseka’s parliamentary membership,” he said, adding that
if the Justice Minister feels Fonseka’s appointment is illegal, he
should substantiate his claim.
“I am surprised as to why a UNP Minister is opposing the appointment
of Fonseka, because their Central Committee unanimously decided to
nominate him and also signed a MoU with Fonseka’s party recognising it
as a constituent partner of the UNP led coalition,” he said.
Sumathipala pointed out that Fonseka had been earlier removed while
he was in Parliament and said, “We should also raise concern as to
whether that removal is fair? Because Fonseka was not allowed to
continue as a Member of Parliament and that is also questionable.”
He said, at that time too various views were expressed by various
quarters for and against his removal from Parliament. At the end of the
day, he was remanded and he couldn’t attend Parliament so that he
deprived his parliamentary seat, Sumathipala pointed out.
Meanwhile, Field Marshal Fonseka who lost the last Parliamentary
Election, which he contested from the Colombo District, has maintained
there is nothing wrong in the procedure being adopted to nominate him
from the UNP’s National List.
He pointed out that some of the UPFA candidates lost the last General
Election because the Mahinda Rajapaksa faction campaigned against them
and sabotaged their chances of winning the election.
“That is why President Maithripala Sirisena appointed them to
Parliament from the UPFA’s National List,” he said.