by A Special Correspondent
Galle district parliamentarian Geetha Kumarasinghe was recently declared to be disqualified from being a member of parliament by the Court of Appeal on the basis of a provision introduced to the Constitution via the 19th Amendment, disqualifying dual citizens from becoming MPs. This provision was tagged on to Article 91, which lists the disqualifications to be elected or to sit in Parliament. Article 66 of the Constitution says that an MP’s seat will become vacant if among other things, he becomes subject to a disqualification under Article 91.
Section 115 of the Parliamentary Elections Act (No. 1 of 1981) states that disqualification under any written law for election or for sitting and voting as a Member, whether before or after the election of the Member, of any person or persons nominated by a recognised political party or independent group for election at that election, shall not invalidate or in any way affect the nomination paper of that party or group, and, accordingly, the candidature or election of any other person nominated by the party or group on that nomination paper shall not be invalidated by reason only of the fact of the death, withdrawal or disqualification of such person or persons.
The government appears to be relying on the above provisions in the law to restrict the disqualification of Kumarasinghe just to her, leading to her surgical removal from Parliament to be replaced by Piyasena Gamage. Following the verdict of the Court of Appeal, the Secretary General of Parliament has already written to the Elections Commission, that her seat has fallen vacant. The matter is now before the Supreme Court.
Dr.Pratiba Mahanamahewa, Senior Lecturer in law, and former Human Rights Commissioner has a different take on the matter. Article 99(13) of the Constitution provides for the filling of vacancies in Parliament by nominating the candidate who received the next highest number of preferential votes on the relevant list, for vacancies created in the event of Members resigning from their parties or being expelled therefrom or any vacancies occurring in terms of Article 66.
Article 66 of the Constitution provides for the ways in which a parliamentary seat may fall vacant. However, 66(g) – instances where the election of a sitting MP is declared void in terms of a law in force – is expressly exempted from the application of Article 99(13) of the Constitution.
On this basis, Dr Mahanamahewa argues that what should happen in the event of Kumarasinghe being declared unqualified is the entire list of the UPFA being rejected. Neither the Constitution nor the Parliamentary elections Law says what should be done in instances falling under Article 66(g) – where the election of a sitting MP is declared void in terms of a law. Depending on the interpretation that the Supreme Court gives on this matter, things could be much messier than the government anticipates. Mahanamahewa points out that under the present Constitution, the ‘constituency’ or the ‘electorate’ that elects MPs to Parliament is the District, and there are no individual electorates as under the first past the post system. As such Kumarasinghe is not the MP for Bentara-Elpitiya, but for the Galle District. She was elected not as an individual nominated for that district but as one member of a list submitted by her party. The party secretary signs the entire nomination paper and not just the nomination paper of Kumarasinghe. If Geetha is disqualified from contesting elections to parliament at the time she signed the nomination paper, the entire nomination list should be deemed to have failed.
Readers will recall that some years ago, the entire UNP nomination list for the Colombo Municipality was rejected because one of the candidates on the list was not qualified to contest elections and, therefore, the nomination paper had not fulfilled the requirement that it should have the proper number of candidates. Since Geeta’s nomination has been rejected on the grounds that she was not qualified to contest elections at the time she signed the nominations, the same rule would apply in this instance as well. Given the suspicion that there are many dual citizens among the MPs in Parliament and the election of all of them would now be open to challenge, things are likely to spiral out of control. The most important thing to watch would be how the SC interprets Article 99(13) of the Constitution and the exemption of 66(g) from the application of that Article.