How far should you go to ensure election of ‘good MPs’?

The genesis of the slogan demanding 225 clean and virtuous Members in Parliament has a long political history. In the 4th century B.C. Aristotle in “The Politics”, argued that

if it is inevitable that not all the citizens in a sound state are good, it is impossible for all to have to the virtues of the good man, to be fit enough to rule others. In fact, Aristotle went to the extent of distinguishing between the “good man” and the “good citizen” and said that the virtue of ‘a person being ruled’ is the “correct opinion”. Now, there is also a clamour for financial experts to be brought into Parliament to pull us out of the economic crisis.  

On one hand taking part in the governance of a country is a fundamental human right. The Universal Declaration of Human Rights (UDHR) of 1948 declares that everyone has the right to take part in the government of his country, directly or through freely chosen representatives (Article 21(1)). The International Convention on Civil and Political Rights (ICCPR) of 1966 recognises that every citizen shall have the right and the opportunity without any discrimination and without unreasonable restrictions to take part in the conduct of public affairs, directly or through chosen representatives (Article 25). The cumulative effect of Articles 88 and 12 of the 1978 Constitution is also that (unless disqualified as provided for in the Constitution) a person has a fundamental right to take part in governance of the country directly or indirectly by electing representatives.   

But, on the other hand, it is equally important that the conduct of public affairs and governance, which include law making, exercise of constitutional and statutory powers, spending and monitoring of expenditure of public funds and the use of natural resources, is entrusted with persons who can be reasonably expected to be capable of doing so, in trust for the public. In fact, the Supreme Court on several occasions has held that the constitutional and statutory powers, natural resources and public funds are held by the organs of the State and members of State organs, in trust for the public (e.g. The Eppawala Case)   

"On one hand taking part in the governance of a country is a fundamental human right"

The Constitution of Sri Lanka (1978) has provisions, in particular in Articles 89 and 91, which aim to strike a balance between the competing individual right to take part in governance and the need to entrust the conduct of public affairs and governance in the hands of persons who would do so in the interest of the public. It appears that the genesis of these provisions in 1978 Constitution is in Article 13 of the Independence Constitution (Ceylon (Constitution) Order in Council of 1946), which mandates a higher threshold than our own ‘homegrown’ Constitutions.   
Article 91 of the Constitution contains the disqualifications for election as a Member of Parliament or to sit and vote in Parliament. Article 91(1) (a) of the Constitution, reads as follows:  
91(1) No person shall be qualified to be elected as a Member of Parliament or to sit and vote in Parliament –  

(a)If he is or become subject to any of the disqualifications specified in Article 89;  
Article 89 of the Constitution contains the disqualifications which prevents a person being an ‘elector” at the election of the President and of the Members of Parliament or to vote at any referendum. If a person is disqualified as an ‘elector’ under Article 89 of the Constitution, then such person is not qualified to be ‘elected’ as a Member of Parliament or to sit and vote in Parliament.   

Therefore, before being elected as a Member of Parliament, a person must qualify as an “elector” within the meaning of the Constitution, by not being subject to any of the disqualifications in Article 89 of the Constitution. Further, if whilst being elected as a Member of Parliament, he or she is subject to any disqualification specified in Articles 91 or 89 of the Constitution, then his/her seat in Parliament shall become vacant in terms of Article 66(d) of the Constitution and therefore, such member cannot continue to be a Member of Parliament or sit and vote in Parliament.   

"If a person is disqualified as an ‘elector’ under Article 89 of the Constitution, then such person is not qualified to be ‘elected’ as a Member of Parliament or to sit and vote in Parliament"

With the peoples’ choices and preferences under the proportional preferential electoral system in the last four decades becoming bizarre, the disqualification in Article 89(d) of the Constitution which relates to the criminal conduct/history of a person has also become increasingly relevant and given rise to judicial pronouncements. Article 89(d) of the Constitution reads as follows:  
89. No person shall be qualified to be an elector at an election of the President, or of the Members of Parliament or to vote to at any referendum, if he is subject to any of the following disqualifications, namely,-  

(d) If he is serving or has during period of seven years immediately preceding completed serving for sentence of imprisonment (by whatever name called) for a term not less than six months imposed after conviction by any Court for an offence punishable with imprisonment for a term not less than two years or is under sentence of death or is serving or has during the period of seven years immediately preceding completed the serving of a sentence of imprisonment for term not less than six months awarded in lieu of execution of such sentence:  
Provided that if any person disqualified under this paragraph is granted a free pardon such disqualification shall cease from the date on which the pardon is granted.   

Premalal Jayasekara 

Broadly, the persons who may become disqualified under Article 89(d) of the Constitution can be classified into two categories based on the severity of the punishment/sentence. First are the persons convicted of an offence punishable with imprisonment for a term not less than two years. The second are the persons convicted of an offence punishable with death.   
For the disqualification under Article 89(d) to trigger in case of a conviction for an offence punishable with not less than two years imprisonment, the following must be satisfied:  

1.The person must be serving or has during the period of seven years immediately preceding completed serving of a sentence of imprisonment;  
2.Such term of imprisonment must be for a term not less than six months;  
3.The sentence must be imposed after conviction by a Court;  

The disqualification under Article 89(d) in case of a conviction for an offence punishable with death triggers when the following is satisfied:  

1.The person must be under sentence of death or is serving or has during the period of seven years immediately preceding completed the serving of a sentence of imprisonment for a term not less than six months awarded in lieu of the execution of the death sentence.   
2.The sentence must be imposed after conviction by a Court;  

For Provincial Council Members the same disqualifications stipulated in Article 91(1) of the Constitution (and thereby disqualifications in Article 89(d)) are brought into application by Section 3(a) of the Provincial Councils Act (No. 42 of 1987). Accordingly, Section 5 of the Provincial Councils Act provides that if a member becomes subject to any of the disqualifications in Section 3(a), his seat in the Provincial Council shall become vacant. The Local Authorities Elections Ordinance (No. 53 of 1946 as amended) in Section 9(1)(i) stipulates the same disqualifications in Article 89(d) of the Constitution, in case of Members of Local Government bodies (Municipal Councils, Urban Councils and Pradeshiya Sabhas).   
Two recent cases in relation to disqualification under Article 89(d) revealed the limitations in Article 89(d).  
Premalal Jayasekera Case (C.A. Minutes 07.09.2020)  

" The Constitution of Sri Lanka (1978) has provisions, in particular in Articles 89 and 91, which aim to strike a balance between the competing individual right to take part in governance and the need to entrust the conduct of public affairs and governance in the hands of persons who would do so in the interest of the public"

On 31st July 2020, Premalal Jayasekera was convicted of the offence of murder and sentenced to death by the High Court of Ratnapura. By then he had already tendered nomination (which had been accepted by the Returning Officer) for the Parliamentary election held on 5th August, 2020, at which he was elected to Parliament from Ratnapura District. After the conviction, but prior to the election, on 4th August, 2020, Jayasekera had filed a Petition of Appeal, to the Court of Appeal against the said conviction and sentence. Thereafter, the Commissioner General of Prisons issued a letter on the instructions of Hon. Attorney-General stating that Premalal Jayasekera is not permitted to attend Parliament. Thus he could not attend Parliament to take oaths as a Member of Parliament. He challenged the ‘decision’ of the Commissioner General of Prisons in the Court of Appeal by way of an application for a Writ of Certiorari.   

His petition of appeal against the conviction and the death sentence brought into operation the provisions in Section 333(4) of the Code of Criminal Procedure Act (No. 15 of 1978 as amended), according to which where an accused is sentenced to death, the execution shall be stayed once the Petition of Appeal is accepted. Further, Section 20(3) of the Bail Act, (No. 30 of 1997) provides that where the accused is sentenced to death, he shall be kept on remand in prison pending the determination of the appeal. Therefore, it was contended on behalf of Jayasekera that he was only a Remand Prisoner, and that he cannot be considered as a person “under the sentence of death” and as such the disqualification in Article 89(d) of the Constitution did not trigger preventing him from being a Member of Parliament. By the Order dated 07.09.2020 the Court of Appeal issued notice and granted interim relief enabling him to attend Parliament on the premise that there is an arguable case for the Petitioner. Subsequently, Jayasekera was acquitted by the Court of Appeal of the criminal charges, upon the hearing of his appeal.   

Ranjan Ramanayake Case (C.A. Minutes of 05.04.2021)  Ranjan Ramanayake was also elected as a Member of Parliament at the same August 2020 Parliamentary election. Whilst being a Member of Parliament, on 12th January 2021 he was convicted for contempt of court and sentenced to a term of four years rigorous imprisonment by the Supreme Court. He sought a Writ of Prohibition from the Court of Appeal to prevent the Commissioner General of Parliament from taking steps to inform the Election Commission that he has vacated his seat in Parliament.   
As the Supreme Court is the apex court, Ramanayake had no right of appeal to a higher court. Thus, the argument in the Premalal Jayasekera case based on the right of appeal was not available to Ramanayake.   

The contentions on behalf of Ramanayake were that: firstly, contempt of court is not an offence made punishable by law that triggers the disqualification in Article 89(d) and secondly that contempt of court is not an offence that carries “a minimum sentence of two years”. The Court of Appeal rejected both arguments based on the provisions in the Penal Code and the Code of Criminal Procedure Act. The Court of Appeal in its order points out that if contempt of court does not trigger Article 89(d) as it does not carry a minimum sentence of two years imprisonment, a person who is convicted of offences such as attempted murder, robbery, causing miscarriage and kidnapping would not disqualify under Article 89(d) as those offences too do not carry a minimum sentence of two years imprisonment.   

"Ranjan Ramanayake was also elected as a Member of Parliament at the same August 2020 Parliamentary election.  Whilst being a Member of Parliament, on 12th January 2021 he was convicted for contempt of court and sentenced to a term of four years rigorous imprisonment by the Supreme Court"

Thus, in effect, the disqualification in Article 89 (d) read with Article 91(1)(a) will take effect in case of an elected Member of Parliament, Provincial Council or a local government body, only upon the determination of the appeal from the conviction and sentence, if an appeal is lodged against the conviction and sentence. Perhaps, the framers of the Constitution did not foresee the ‘triggering in’ of the provisions in the Criminal Procedure Code and Bail Act, which emanate from the presumption of innocence which is also a fundamental right guaranteed in the Constitution (Article 13(5)).   

Implications of the Criminal Procedure Code do not seem to end there. Section 303(8) of the Criminal Procedure Code, which empowers courts exercising criminal jurisdiction to suspend a sentence of imprisonment also has a bearing on the disqualification under Article 89(d) of the Constitution. Section 303(8) of the Criminal Procedure Code reads as follows:  

A suspended sentence of imprisonment shall be taken as being a sentence of imprisonment for the purpose of any law, except any law providing for disqualification for or loss of office or for the forfeiture or suspension of pensions or other benefits.   

Article 89(d) of the Constitution, Section 3(a) of the Provincial Councils Act, and Section 9(1)(i) of the Local Authorities Elections Ordinance will readily fall within “the laws providing for disqualification” within the meaning of Section 303(8) of the Criminal Procedure Code. Thus, if a sentence of imprisonment is suspended such a sentence does not trigger the disqualification under Article 89(d) irrespective of the gravity of the offence.   

Above all, in terms of the Proviso to Article 89(d) of the Constitution, the President has the power to wipe out a disqualification under Article 89(d), by granting a free pardon to a person subject to disqualification.   

Position of Public Officers

The public officers though not elected, are involved in the conduct of public affairs including spending public funds and conceptually form part of the executive arm of the State. If a public officer is implicated in a criminal case, consequences on holding office are drastically different to that of elected Members of Parliament, Provincial Councils and Local Government bodies. In terms of Clause 27.9 of Chapter XLVIII of the Establishments Code, if a public officer is remanded, and pending legal proceedings is released on bail, he shall be reinstated in service only if the reinstatement will not adversely affect the interests of the public service. Further, in terms of Clause 27.10 thereof, if criminal proceedings are taken against a public officer for bribery or corruption, such officer shall be forthwith interdicted from service. If a Public Officer is found guilty of a criminal offence by a Court, the disciplinary authority may impose a disciplinary order without holding a formal disciplinary inquiry taking into consideration the findings of the Court (Clause 28.3 of Chapter XLVIII of the Establishments Code). Even if a Court of Law acquits a public officer from a criminal charge that does not prevent his disciplinary authority dealing with him on the same matter and imposing a punishment if it is warranted (Clause 28.6 of Chapter XLVIII of the Establishments Code).   

Obviously the law demands a higher level or threshold of virtuous conduct from public officers than from elected Members. Why are elected persons holding public offices placed on a much higher pedestal than appointed public officers of the State? Is it because they are elected by the people and the franchise is considered to be part of sovereignty? I think the concept of sovereignty cannot be stretched that far. If Members of Parliament want the people to have faith in them, Article 89(d) needs amendment to ensure that it serves its intended public purpose.