Centre for Policy Alternatives on 25 May, 2009

Press Release Re: National List Nominations, Constitutional and Statutory Obligations, and Representative Democracy – 7th April 2004

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On
Wednesday 7th April 2004, the Centre for Policy Alternatives (CPA)
wrote to the Commissioner of Elections expressing deep concern at
certain newspaper reports that various persons whose names do not
appear in the nomination lists or lists under Article 99A of the
Constitution (i.e., National List) as submitted to the Commissioner
during the nomination period, are to be nevertheless nominated to
Parliament as National List members.

The
letter sought to bring to the Commissioner’s attention that
if a political party or independent group adopts a course as indicated
above, they would be acting in contravention of Article 99A of the
Constitution as amended. That provision seeks to introduce the principle
of nominated Members of Parliament, and in doing so imposes certain
safeguards so as to prevent abuse. Significant in this regard is
the constitutional duty placed upon the Commissioner requiring him
to give notice to the public of persons nominated by parties as
National List candidates, so that voters have access to that additional
information prior to casting their votes.

In
addition to Article 99A of the Constitution, the Parliamentary Elections
Act No. 1 of 1981 also contains certain statutory obligations that
must be followed in replacing vacated parliamentary seats. In particular,
CPA wished to draw the Commissioner’s attention to Section
64 (5) of the said Act, which seems to suggest that upon vacation
of a national list seat, the secretary of a political party or the
leader of an independent group may nominate any member of such party or group to replace the vacancy.

CPA
urged the Commissioner to reject such an interpretation of the Act
which would serve to defeat the will of the people, in that candidates
whose merits the public had not considered in the exercise of the
franchise, would nevertheless be represented in Parliament.

CPA
reminded the Commissioner of the view taken by the Supreme Court
in the recent case of Centre for Policy Alternatives, Saravanamuttu
and Edrisinha v. Dissanayake and Weerawanni
(2002) SC 26/27/2002,
where the Court stated:

“When
constitutional or statutory provisions have to be interpreted, and
it is found that there are two possible interpretations, a Court
is not justified in adopting that interpretation which has undemocratic
consequences in preference to an alternative more consistent with
democratic principles, simply because there are other provisions,
whether in the Constitution or another statute, which appear to
be undemocratic.”

In
this context, CPA asked the Commissioner to firmly resist any attempt
made by any political party or group to nominate persons whose names
are not in the district nomination papers or national lists submitted
to him during the nomination period.

Dr.
P. Saravanamuttu
Executive Director
Rohan
Edrisinha
Director – Legal