Incompetency of Parliament invites lawlessness

By S. Ratnajeevan H. Hoole
Member, Election Commission-November 6, 2017, 12:00 pm 

Bad Laws Make for Lawlessness

The purpose of this article is to show that incompetent MPs are making laws so full of mistakes that we are forced to break the laws.

It is reported that 94 MPs out of 225 have not passed their GCE Ordinary Level examination while only 25 are graduates. I believe that even the 25 graduate MPs do not read the laws they pass. Their attitude as I show is, "Ignore the mistakes. Do what you need to do." This underlies why we are such a lawless country.

The Election Commission (19th Amendment)

We are far from independent as touted. The Constitutional Council (CC) of 10 that appointed us has seven politicians, all of whom were somehow with the government. The remaining three I think wanted the changes of 2015.

We are financially dependent on the government, and how we work is controlled that way. Many things the Commission wants to do, cannot be done because of financial constraints.

The 19th amendment was rushed. So we have a quorum of three on a membership of three. Therefore some of our decisions can be questioned. We have (or are supposed to have) a Commissioner General of Elections (CGE) who is the Executive implementing Commission decisions. The Chairman was to Chair meetings and tell the CGE to implement our decisions.

However, Parliament forgot to say how the CGE is to be removed if he does not obey the Commission. We have alerted the CC and they have told us to function without the quorum and without the CGE. We alerted the cabinet on the need to change the constitution. They asked us to proceed as indicated by the CC and agreed to make the changes with the new Constitution. In a democracy even the Cabinet cannot say it is all right to violate the constitution.

As things are, our Chairman works as the Executive. He is generally a democrat so it works. But if the next one is a tyrant with the precedents we have set in operating outside the law? The intention of the 19th Amendment is really defeated when the Chairman is forced to be the Executive above the other two members, particularly when he is the former executive whom everyone asked for permission to do anything.

Parliament has aggravated matters by making people think there is still an Election Commissioner by referring to the Commission as Commissioner in new enactments. The 19th Amendment, having to change every reference in the Constitution to "Election Commissioner" to "Election Commission’, simply laid out an explicit "Transitional Provision":

§49(3)(d) […] there shall be substituted for the expressions "Commissioner of Elections" and "Department of the Commissioner Elections" wherever those expressions occur […] the expression "Election Commission".

The term "transitional provision" makes clear that the substitution of Commission for Commissioner is temporary for things already in the books. But our learned legislators even in new enactments use this provision to continue to say Commissioner, thereby undermining the Commission. If the cause of this error is our customary laziness, our MPs should know that the word Commission involves typing too fewer letters!

Taking the cue from Parliament, newspapers have added to the damage by calling the Chairman a Commissioner when that post has been replaced by the Commission. Worse, a recent interview refers to the Commission being under the Chairman when in fact the Chairman is under the Commission insofar as he has to abide by Commission decisions.

Adding to the Commission’s devaluation is also the nomenclature. Earlier we had the Election Commissioner, the Czar, and under him Additional-, Deputy-, and Assistant- Commissioners. Now the Election Commissioner has been abolished and we have the Chairman and two Members. However, the reality is that the Additional-, Deputy-, and Assistant- Commissioners are still around and see the Chairman continuing as their boss as before.

The term Commissioner for the Chairman and "Other Commissioners" for the two members has been proposed and given some currency. That permanently diminishes the two members. The Additional Commissioner is seen as next to the Commissioner while the "Other Members" would be lumped with the Deputy- and Assistant- Commissioners.

The New Local Authorities Act No. 16 of 2017

Like all our enactments, it reeks of the incompetency that permeates our parliament. Take the women’s quota introduced in §7. It says not less than 25% of the members of a local authority shall be women. Then it goes on to say the Commissioner of Elections [who does not exist] shall by gazette notification specify the number of women candidates to be nominated for each local authority. If they meant our Commission, it means we now have the right to specify 25% to 100% to be women. This meets the minimum 25% demand. Surely they did not mean, as they have, to give such immense authority to the Commission. What they intended saying, probably that we should publish the minimum number (rather than the number), is irrelevant. As the law reads, we can make our local councils 100% women!

§25 amending §65AA(2) in English and Tamil exempts small parties with less than 20% of the vote and less [sic.] than 3 seats from being forced to appoint women. But the Sinhalese version says with 3 seats, so if they get 1 or 2, they have to appoint women! We do as we like, I suppose.

Foreign Nationals as Representatives

The 19th Amendment does not allow an MP to be a dual citizen. The Local government Act from pre-independence days did not permit someone owing allegiance to a foreign power or state to be an LG representative. Our law-makers are so lackadaisical that the modern Sinhalese version of the Local Government Act allows Commonwealth Citizens to be LG Reps while the English version, does not allow any foreign national to be an LG representative. The Sinhalese translation, even when wrong, has precedence.

The Provincial Council Elections Act of 1987 in §3, in saying who is disqualified, simply referred to the disqualifications in §91(1) of the 1987 constitution for being an MP. These disqualifications had nothing about dual citizenship or allegiance to foreign powers. However, the 19th amendment of 2015 to the Constitution added holding the citizenship of another country as a new disqualification for being an MP in §91(1). However, amendments subsequent to the 1987 PC Elections Act do not retroactively apply to PC Members. For example, I name my child after a woman, who subsequently changes her name. That act of hers does not change my child’s name. My child needs formally to change her name if she still wants to go by that woman’s name. Likewise, the PC Bill needs to be amended if foreign citizens are debarred.

Parliament’s Pretentious Nationalism

In explanation of these numerous mistakes, recall Colvin R de Silva, who drafted the 1972 Constitution in English. The Professor of Sinhalese at Peradeniya would go every weekend to Colvin’s home in Colombo and translate. Then Colvin put in a clause to the effect that the Constitution was drafted in Sinhalese and in case of a conflict, the Sinhalese version would prevail.

Thus, reading the English version of the Local Authorities Elections Act No, 16 of 2017, one will be surprised by many sentences like this: in such and such a section replace the words "polling district" by the words "polling district." Why replace a phrase with itself? It is because the original draft of the Act being amended was in English and there is no correction. The mistakes are in the Sinhalese translation. So the amendment bill in English will not match that in Sinhalese which substitutes the correct set of words for the wrong set! That mismatch in the amendment bill’s versions surely is also problematic because they are not translations of each other.

The Attorney General and Legal Representation

The AG is the Chief Government Lawyer. Before our Commission-days, we were a Government Department and had to use the AG’s legal services. But now, despite being an independent Commission, this expectation remains and we are forced to be represented by an arm of the government. So how are we independent?

When the Provincial Council Elections Act, No. 17 of 2017 went as a bill to the Committee stage, Parliament Standing Order §56 became operative;

Any amendment may be made to a clause, or clauses may be deleted or new clauses may be added, provided the same be relevant to the subject matter of the Bill [emphasis mine] and be otherwise in conformity with the Standing Orders.

However, the amendments were very different and not "relevant to the subject matter of the Bill." The AG, representing the government, advised the Speaker giving the impression that the Speaker may proceed, without giving any advice at all in reality, being rather focused on giving the green light while saving his skin. Wrote he, correctly,

"an amendment to a Bill could be introduced at the Committee Stage and the authority that can determine its admissibility is the Hon. Speaker. […] I have to advise the aforesaid Bill, after having incorporated the committee stage amendments, have [sic.] to be passed by a special majority […]"

The crux of the issue was the committee stage amendments, and he left it to the Speaker without telling him that he is bound by the Standing Orders. He could have asked the Speaker to invoke Standing Orders §135 through a motion to suspend standing orders to make it all legal, but he failed to do so. Instead, like a good bad lawyer,the AG skirted around the question of committee stage amendments by the phrase "after [my emphasis] having incorporated the committee stage amendments." He escaped answering "What of those amendments? Are they legal?" A truly good lawyer, especially a PC and the Lawyer-in-Chief for the State, we expect to have a good grasp of grammar to enable interpreting the subtleties and nuances of the law without being lost in the phrase "the Bill have to be passed."

Following the AG’s failure, a spate of cases has now been filed in the Supreme Court challenging the Bill. All three of us on the Commission are Respondents as is the AG himself. The one by G.L. Peiris and some of the others are in refreshingly excellent English with convincing logic, unlike our enactments which have behind them a phalanx of legal experts and professionals at the office of the Legal Draughtsman.

While it is my view that the AG was at fault for having misadvised the Speaker, it is natural for the AG to defend his actions. Would he, however, while defending his actions at the Supreme Court, also say as my attorney that in my view he was at fault? He has a conflict of interest and should not represent me. Hence my refusal to sign over my proxy to him. My two colleagues on the Commission think if we took this line, he will refuse to represent us ever again and that would be "too expensive."If the Supreme Court grants leave to proceed and the Commission has no money to pay for my private lawyer, I will neither pay a private lawyer for business that is really the state’s, nor allow the AG to speak for me. The court can decide what it wants.

The present system where different parties with their conflicting interests must be represented by the office of the AG is obnoxious, especially when recent AGs have shamelessly stooged for Supreme Court appointments. Further, a Jaffna lecturer accused of sexually harassing his students was on suspension without pay. So he moved a fundamental rights plaint. The AG’s attorney representing the university without informing the university of the Supreme Court date, made his appearance and informed the university that the bench wanted the man to be placed on half-pay which the university promptly implemented. A suspicious Council member checked the court proceedings and found no such record of the request in the docket.

Thankfully, we still have a few shining lights like Elmore Perera, who lets clients pay what they choose. He was victimized by the judiciary with no Justice taking a stand for him. May Perera’s breed flourish in our midst!

Conclusion

Prime Minister Ranil Wickremesinghe, Leader of the House Lakshman Kiriella and subject Minister Faiszer Musthapha are all lawyers. Either they are so lazy as to not read the laws they are midwives to or they are victims of our universities.

MPs must stop going for public functions to make speeches and on foreign junkets. Instead, they must read; they must work.