Fonseka’s return to Parliament

Speculation rife about the legality of his appointment to the UNP’s National List:

by Uditha Kumarasinghe

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 Parliament.

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.

Fonseka’s eligibility

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 country’s Constitution.

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 be appointed.”

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 Supreme Court.

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.

Elections Act

“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.

Nothing wrong

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.