Reflecting on proposed amendment to the Local Government Ordinance

By Kishali Pinto Jayawardena

The recent draft amendment to the Local Government Ordinance put forward by the Sri Lanka Muslim Congress (SLMC) and which reportedly, is due to be sent this week for Cabinet approval and certification as an urgent bill, is typical of the current pattern of legislative amendment.

Primarily these amendments amount to ad hoc attempts to offset some political party or the other being discommoded in terms of their political strategies rather than forming part of a holistic reform of that specific law in order to advance norms of representative electoral democracy. To add proverbial insult to injury moreover, these amendments are put forward as urgent bills which means that the public is deprived of even that obscenely limited extent of one week’s public scrutiny that a normal bill is constitutionally subjected to after being gazetted.

Instead, the bills are referred to the Supreme Court immediately after certification of an urgent bill and the Court then communicates its determination to the President as to the constitutionality of the draft law. The possibility of any member of the public being allowed to intervene in this process becomes very marginal despite the fact that these bills may directly affect the rights of citizens.

The current amendment that has been suggested by the SLMC will reportedly enable the nomination of outsiders from the nomination list of a political party once the list is exhausted without resorting to an election. However, such suggested amendments need to be in line with general legal principles applying to these situations. The initiation of a comprehensive reform process of this Ordinance without resorting to piecemeal amendment is, of course, a different but nonetheless equally important concern.

Two recent decisions (respectively by the Supreme Court and by the Court of Appeal) have emphasised the limitation of the party secretary to nominate from outside the nomination list upon a vacancy occurring in that particular elected body, in no uncertain terms.

In Mohamed Hanifa Mohamed Masahir v Returning Officer, Kegalla District and Others(2005 (2) Appellate Law Recorder, at p. 37, per Justice S. Sriskandarajah with Justice SI Imam agreeing), the Court 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 Court directed the assistant commissioner to take steps according to law to fill the vacancy.

The background to this case was that the General Secretary of the United National Party, had issued a letter to the assistant commissioner of elections, nominating an outsider to fill a vacancy created in the Sabha by a member resigning from his post. The outsider (who was not even an active political or social worker) was elected to the vacancy over the head of a contestant on the UNP nomination list who had received a considerable number of preferences. This bypassed candidate’s prayer for writ to be issued was upheld.

The Court of Appeal, in this instance, followed a previous decision of the Supreme Court (Centre for Policy Alternatives (Guarantee Ltd) and others v Dissanayake, 2003(1) SLR, 277 per judgement of Justice MDH Fernando with Justices Gunesekera and Wigneswaran agreeing). This judgement of the Court had tremendous impact in regard to safeguarding the democratic nature of Sri Lanka’s electoral process.

Factually, what was in issue here was a similar provision of the Provincial Councils law whereby Samaraweera Weeranwanni who was a member of parliament at the time when the 1999 Provincial Council elections were held, resigned from his parliamentary seat after the provincial council elections were won by his party with his wife capturing the Chief Minister of the Uva Province. Weeranwani then got himself nominated to a vacancy to that Provincial Council following the resignation of one of his party supporters and was thereafter sworn in as Chief Minister with his wife resigning her post.

This crude ‘musical chairs’ mockery of the electoral process was extremely well highlighted in the public interest petition brought by some voters to the Supreme Court. Writing for the Court, 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. Nominations of outsiders who ‘were not in the contemplation of the voters’ at the time that the elections were held, were not entertained.

Proceeding from these preeminently cautionary principles, what is actually needed is the amendment of the Local Authorities Ordinance (and indeed, for that matter, the Provincial Councils law) in order that a primary duty is imposed on political parties and election officials to all political parties to nominate, upon a vacancy arising, only candidates whose names have appeared in the original nomination paper and who have secured some preferences at the elections.

Insofar as the fiasco that the United National Party faced at the recent Municipal Council elections is concerned, when their entire nomination list was thrown out before the election due to the inclusion (by malice or by default) of non-qualified candidates, what is needed is a simple amendment that the entire list ought not be rejected for the want of a single candidate. Accordingly, secretaries of parties ought to be given an opportunity to remedy such defects in the nomination papers (once this is brought to their attention) within a limited period of time. It must not be forgotten that the same mistake that so spectacularly vitiated the UNP’s Colombo CMC list also visited the PA’s Gampaha list as well as the lists of many other political parties as well.

Essentially, the Local Government Ordinance needs amendment in many other manifold respects, including most importantly, the incorporation of a gender quota in nominations similar to the youth quota which had been promised by successive governments ad nauseam.

In this context, (and at the minimum) the country needs to see the proposed SLMC amendment to the Local Government Ordinance brought before it in the ordinary course of legislative process and its provisions made available for public scrutiny rather than resorting to the rushed process of an urgent bill.