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A hopeless jumble of the law and crossovers for gain
View(s):It is a devastating indictment on Sri Lanka’s political culture that the right of a parliamentarian to cross the floor of the House on a ‘matter of conscience’ (meant to be resorted to only exceptionally) has evolved into a convenient device exercised for precisely the opposite objective.
Utterly unprincipled behavior
The utterly unprincipled nature of parliamentary crossovers has now become part of a fierce national debate. Some crossovers are absurd to the point of being incredulous. This was the case with former Jathika Hela Urumaya’s Udaya Gammanpila who left the Government along with his party leaders and then, almost in the twinkling of an astonished eye, turned back and rejoined government ranks.
At least where crossovers from the government to the opposition are concerned, former Ministers and MPs incur considerable political and personal risk. This is however assuredly not the case when the opposite occurs.
Confusion abounds as to how this phenomenon has assumed virtual epidemic proportions. Typically, the blame is shrugged off from one quarter to another. In an age where it has become fashionable to point accusingly to the 1978 Constitution, some blame Article 99(13) for allowing expelled parliamentarians to seek a judicial finding that the expulsion was invalid, which then secures the parliamentary seat of that member notwithstanding the expulsion.
Tying a legal Gordian knot
Others blame the proportional representation electoral system which has snapped the political umbilical cord that once joined a parliamentarian to local voters and substituted instead, an amorphous electorate. Yet others with good reason blame the Supreme Court for its interpretation of the Constitution so as to place an insuperably high burden on party leaders to justify an expulsion, thereby tying their hands in a veritable Gordian knot.
Amongst this hopeless jumble of conflicting opinions, basic clarifications are opportune, subject however to the limitations of space of a newspaper column. Three essential principles are involved, namely the primacy of the Constitution, the primacy of the constitution of a political party and the freedom of conscience of a parliamentarian. The proper judicial function should have been to maintain an equitable balance between these three principles so that damage is not caused to the political system. However, Sri Lanka’s experience has been quite to the contrary.
The relatively innocuous proviso to Article 99(13) states that upon an expulsion, an MP can appeal to the Supreme Court within defined time limits. The Court must then determine whether such an expulsion is invalid and if found to be the case, then, by virtue of that constitutional provision, the seat does not become vacant.
Early judicial opinion gave primacy to the party
Not unnaturally, Sri Lanka’s jurisprudence is studded with appeals by expelled parliamentarians. In the early days, the Court stressed very properly that expulsions from a political party were subject to the rules of natural justice, including the right to be heard. However there may be exceptional circumstances which justify the relaxation of this rule (Dissanayake v Kaleel, reported 1993).
In this case, even though a previous judicial view that a party MP was a mere cog in the wheel of the party machine was departed from, the Court (Fernando, Kulatunga and Wadugodapitiya JJ) agreed that the party constitution had primacy over an individual Member. It was unequivocally opined that ‘the position of the individual Member vis-a-vis his party is undeniably weaker in Sri Lanka than in the United Kingdom, thus, the MP does not enjoy the same freedom to resign from the party and to cross the floor of the House, and to continue as a Member’ (per MDH Fernando J) .
But while agreeing that the party ‘is pre-eminent and carries the mandate of the electors, Kulatunga J indulged in a dictum that an expulsion will be deemed valid only if there are ‘overwhelming reasons.’ He opined in the same breath that the Court would decide in this manner ‘only in the most exceptional circumstances permitted by law and in furtherance of the public good, the need for which should be beyond doubt.’
Forsaking an equitable balance
In later years, Justice Kulatunga’s dictum has been carried forward by the Sri Lankan judiciary in such a manner as to completely tilt the ratio of the Dissanayake case in the opposite direction. An earlier judicial balance between the freedom of conscience of a member and the party while giving primacy to the party Constitution has been abandoned.
Consequently expulsions were ruled routinely as invalid, thus allowing an MP to remain in Parliament even after leaving his or her party. In Amunugama and others v UNP and others, (reported 2000, per ARB Amerasinghe J), the need for ‘extraordinary, urgent circumstances’ to apply for an expulsion to be invalid was stressed. In Ameer Ali and others v SLMC and others (reported 2006), the requirement of ‘public good’ was approved wholeheartedly by the Sarath Silva Court.
Indeed, in Rambukwelle v UNP and others (reported 2007, per Sarath Silva CJ), the ‘standard of review’ of an expulsion was (extraordinarily and unacceptably) ruled to be on par with the same standard applicable to the review of acts of a public authority.
Consequences of judicial orders
There is no way that the Supreme Court can shy away from the consequences of these decisions. And in moving in this judicial direction, certain questions are paramount. Has the Court considered the sentiments of the voters who traditionally cast their vote for the party as well as for the candidate? Should the Court not sanction party members who cross over to the government for ministerial perks and privileges disregarding the mandate of the voters? Is this not a question that should come within judicial purview?
These are fit questions to ponder as we express honest bewilderment at this unholy spectacle which puts to shame the very principle of representational democracy. In the ultimate assessment, changing the law, the Constitution or the disciplinary rules of a political party cannot change an abysmal political culture. This is now a singularly distasteful burden that the Sri Lankan voting public is doomed to bear.