Focus on Rights

Slaps over the wrist for undemocratic nominations by political parties
A recent judgement by the Court of Appeal reminding political parties of basic electoral norms to be followed while exercising the duty to make nominations upon vacancies arising within elected bodies, serves as a useful warning for the forthcoming local government polls.

The Court of Appeal applied an earlier precedent of the Supreme Court on a similar matter involving Provincial Council elections (SC(FR) 26/2001, SCM 27/05/2003) where the judges (per Justice MDH Fernando) upheld the principle that the power of a secretary of a political party to nominate, upon a vacancy arising, is confined to candidates whose names have appeared in the original nomination paper and who have secured some preferences at the elections.

Indeed, case precedent on this principle illustrates the casual manner in which politicians of both the two main parties, the Sri Lanka Freedom Party (SLFP) and the United National Party (UNP) (disregarding at this point, the various colourful coalitions in which they subsume themselves from time to time) bypass the basic trust that voters place in them to act within the spirit as well as the letter of the law.

It also illustrates the cronyism and family dynasties that prevail to a large extent within the provincial and the local government system in Sri Lanka.
Take the context within which the decision by the Supreme Court was delivered. In this case, a senior SLFP politician Samaraweera Weerawanni was a Member of Parliament at the time of holding Provincial Council elections on 6th April 1999. After the elections, persons whose names had appeared on the nomination lists of the Peoples Alliance were declared duly elected to fill the seats accorded to that party in the Council of the Uva province.

Two candidates, namely Samaraweera Weerawanni's wife, Nalani Weerawanni and K.M. Sirisena were among the candidates elected to the said Council from the Peoples Alliance. Nalini Weerawanni was thereafter declared as Chief Minister of the Uva Province.

However, during the next month following the elections, Samaweera Weerawanni resigned his seat in Parliament. His resignation was followed by the resignation of the elected Provincial Councillor, K.M. Sirisena. Acting under Section 65(2) of the Provincial Councils Act No 2 of 1988, the Commissioner of Elections called upon the secretary of the Peoples Alliance to nominate "a person eligible under this Act for election as member of that Provincial Council" to fill the said vacancy.

The secretary then commenced to nominate Weerawanni to fill the said vacancy. Worse was to follow. Raising all the most credible horrors of 'women proxy candidates" (who perform a specific political task for the benefit of their males and not through any genuine democratic spirit), his wife, Nalini Weerawanni resigned from the post of Chief Minister, allowing Weerawanni to be sworn in as the Chief Minister of the Uva Province. Coming against this election to the judicial forum, several voter petitioners made it a test case as to key principles relating to representative democracy.

In the Court of Appeal and in the Supreme Court, it was argued that, if a vacancy arose in a Council upon a person's resignation, among other things, a person could be elected under Section 65(2) of the Act only if his or her name was on the party's nomination lists and if that person was eligible to be nominated for election to that Provincial Council.
Agreeing with this submission, the Supreme Court held that the Court of Appeal had erred in law in holding that a person whose name did not appear on the nomination list submitted by the relevant political party at a Provincial Council election could thereafter be nominated by the secretary of the relevant political party to fill a vacancy that arises in the said Council.

It was further held that the Court of Appeal had failed to consider the implications of Section 65(3) of the Act of 1988 for the interpretation of Section 65(2).

Using this precedent in the context of similar provisions in the local authorities law, a Court of Appeal Bench, (per Justice S. Sriskandarajah with Justice SI Imam agreeing), recently quashed the decision of the Assistant Elections Commissioner Kegalle to declare as elected to the Mawanella Pradeshiya Sabha, an individual from outside the nomination list of the United National Party upon a vacancy arising in that Pradeshiya Sabha in 2003.

The decision (see Masahir vs Assistant Commissioner of Elections, CA No 1294/04, CA Minutes, 17/09/2005), has therefore particular relevance to the pending elections to local authorities. In this particular instance, the UNP General Secretary had issued a letter to the 1st Respondent Assistant Commissioner of Elections, nominating an outsider to fill a vacancy created in the Sabha by a member resigning from his post consequent to which the election had been made by the Assistant Commissioner.

Thereafter an appeal was filed by a contestant who had come seventeenth on the list of the UNP candidates, according to the preferences given by the voters and immediately below the last candidate who had been elected who had come sixteenth on the list. He argued that, when the vacancy arose, even though he was a long standing party member of the UNP and was a former member of that same Pradeshiya Sabha, he had been bypassed in the nomination of an outsider who was not even an active political or social worker to fill the vacancy. Instead, the outsider was a relative of the elected councillor who had resigned.

The bypassed contestant appealed to the Court of Appeal on a writ application, stating that the nomination and election of an outsider to fill the vacancy was contrary to judicial precedent and was against all norms of electoral fairness.

He argued that the Assistant Commissioner of Elections was obliged in law to reject the said nomination of the outsider by the General Secretary of the United National Party by virtue of Section 65A of the Local Authorities Elections Ordinance No 53 of 1946, as amended by Local Authorities Elections (Amendment) Act No 24 of 1987, as judicially interpreted. The Court of Appeal upheld his argument and issued the writs of certiorari and mandamus prayed for.

Some points are startlingly obvious in both cases, one similarity interestingly being the extent to which family preferences override legitimate party nominations based on actual social work. Even more importantly, it is notable that SLFP processes of party nominations had been put in issue in the Supreme Court while similarly, UNP processes of nominations were in issue in the Court of Appeal. Both parties were given distinct judicial slaps over the wrist in that regard.

If similarly undemocratic actions are contemplated by any political party in the forthcoming local government polls and its aftermath, it will be well if these judicial reprimands are kept in mind.

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