Centre for Policy Alternatives on 11 October, 2007


Categories: CritiqueDiscussion paperReports

SC 26/27/2002

The Supreme Court in a judgment which has far reaching implications
for the franchise and the protection of the sovereignty of the
People overturned a decision of the Court of Appeal and issued
a writ of certiorari quashing the election of the former Chief
Minister of the Uva Province, Samaraweera Weerawanni as a member
of the Provincial Council. The judgment was delivered by Justice
Mark Fernando with Justices D.P.S. Gunasekera and C.V. Wigneswaran

two petitions filed by the Centre for Policy Alternatives and
its Executive
Director, Dr. Paikiasothy Saravanamuttu, and
Rohan Edrisinha challenged the interpretation given by the Commissioner
of Elections, Dayananda Dissanayake, to Section 65 of the Provincial
Councils Election Act. Section 65 provides that when a vacancy
occurs in a Provincial Council, the Secretary of the party to which
the ex member belonged is entitled to nominate ?a person
eligible for election? to fill the vacancy. If the Secretary
fails to do so then the Commissioner will declare that the candidate
who received the next highest number of preference votes is elected.

The crucial question for interpretation that arose in the case
was whether the Secretary could nominate ANY person to fill a vacancy
or whether the Secretary could nominate only persons who contested
the election and therefore had their names on the nomination list.
The petitioners argued that permitting a Secretary of the party
to nominate ANY person, even a non-candidate, ahead of candidates
who went through the nominations process, campaigned, were subject
to the scrutiny of the voters, and obtained preference votes, was
absurd, and contrary to basic principles of representative democracy
and the exercise of the franchise, undermined the checks and balances
of the Elections Act, and the concept of devolution of power.

the case was first filed in the Court of Appeal over four years
ago, the
petitioners highlighted the bizarre consequences
of the Commissioner?s literal and technical interpretation.
Several Members of Parliament had been requested by their respective
parties to contest Provincial Council elections and project themselves
as Chief Ministerial candidates. Many were reluctant to resign
their seats in Parliament, in order to contest, as there was no
guarantee that their respective parties would win sufficient seats
to form provincial governments. They therefore nominated ?dummy
candidates? for purposes of fulfilling the legal requirements
with respect to nominations and campaigning etc. The Members of
Parliament, despite not being candidates, campaigned as their parties? nominees
as Chief Ministers!! After the election, when it was evident that
their parties would be in power within the relevant province, they ?ordered? the ?dummy
candidates? who were elected to resign from the Provincial
Council, they themselves, then, resigned their parliamentary seats,
and thereupon, were nominated by the Secretary of the party to
fill the Provincial Council vacancy. A non-candidate, someone who
was not necessarily subject to the scrutiny of the voters of the
province thus was parachuted in ahead of other candidates who received
preferential votes from the voters of the Province.

The Court of Appeal judgment did not focus on the consequences
that the petitioners argued were contrary to constitutional first
principles, but relied more on the literal rule of interpretation.
Since the Section 65 (2) allowed the Secretary of the party to
fill a vacancy by nominating ?a person? such person
could be ANY person. The Supreme Court by looking at Section
65 read as a whole held that there was an ambiguity and that
in the event of an ambiguity the court can adopt the interpretation
that is consistent with democratic values.

?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?.

significant feature of the judgment was that it challenged the
widely held
myth that under the Sri Lankan Constitution and
the system of proportional representation, the party is supreme
and that this even trumps the will of the People. The Centre for
Policy Alternatives and Rohan Edrisinha have in recent years highlighted
the dangers of the notion of ?party democracy? and
its negative impact on representative democracy, the quality of
deliberation and debate in Parliament and the freedom of conscience
of members of legislatures. They have argued consistently in a
number of cases they have initiated or supported that ultimately
Members of parliament or provincial Councils are representatives
of the PEOPLE not ambassadors of parties. In the Centre for Policy
Alternatives, Saravanamuttu and Edrisinha v Dissanayake and Weerawanni
, the Supreme Court refers to the ability to nominate an outsider
as an anomaly. The Court then observes:

?Can such an anomaly be justified on the basis of the ?supremacy
of the party?(or its secretary)over members and candidates?
In my view it cannot, for this is not a domestic question pertaining
to the party, party discipline, and/or party officials, members
and candidates. What is involved is the right of the electorate
to be represented by persons who have faced the voters and obtained
their support, and that in my view, is the general scheme of the
Act. That is wholly inconsistent with Article 25 of the International
Covenant on Economic, Social and Cultural Rights, which recognizes
that every citizen shall have the right and the opportunity to
take part in the conduct of public affairs, directly or through
freely chosen representatives.?

significance of the judgment is that it reaffirms the supremacy
of the People
even against political parties and their functionaries.
It attaches meaning to the choice of the people which is after
all the rationale for the much maligned principle of preferential
voting. The People decide, not the party leadership. The party
leadership may have some discretion, but the discretion is circumscribed
by the will of the People. Only persons approved by the People
can fill vacancies in Provincial Councils, not complete outsiders
who may be lackeys of the party leader or secretary but have no
nexus with the people of the province. It is now a matter of considerable
interest to see how parties which have hitherto displayed cavalier
indifference to basic principles of representative democracy in
the name of the spurious ?party democracy,? respond
to the welcome reaffirmation of universal democratic and constitutional
first principles by the Supreme Court in this week?s landmark