Crossover Season has begun

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By 2017-12-13

By Faizer Shaheid

The Sri Lankan political arena has plunged into utter disarray, and there has been no form of discipline even in the party ranks. Political parties have become mere taxi rides for politicians to travel to their intended destinations. If one party does not work, then another should suffice as long as it carries him or her on their political journey. The flaw in the system has given way for many a turncoat to prevail.

In the last few days, Sriyani Wijewickrama, a Parliamentarian belonging to the Pivithuru Hela Urumaya (PHU) who sat with the Joint Opposition crossed over and pledged her support to President Maithripala Sirisena. Not long afterwards, three prominent members of the Jathika Nidahas Peramuna (JNP) including Deputy Leader, Weerakumara Dissanayake, National Organizer, Piyasiri Wijenayake, and North Central Provincial Councillor, P.B. Kumara joined President Sirisena. Even the former General Secretary of the Sri Lanka Muslim Congress (SLMC), Hasan Ali, had decided to cross over to the newly formed United People's Alliance (UPA) led by Rishad Bathiudeen.
This trend of crossing over at the time of elections has prevailed for many long years, and the issue has more often been considered almost insignificant in law. Of course, legal provisions exist in the Constitution permitting political parties to expel the membership of persons from parties, thereby expelling them from Parliament itself. However, over the years this provision has been rendered redundant.
It was fairly commonplace prior to the 1978 Constitution to cross over at opportune moments. For example, when D.S. Senanayake crossed over from the Ceylon National Congress (CNC) to form the United National Party (UNP), and when S.W.R.D. Bandaranaike crossed over to form the Sri Lanka Freedom Party (SLFP), they were monumental crossovers that changed the course of political history each time. However, the 1978 Constitution decided to lock the legs of those who wished to cross over.

The Constitution on expulsions
The Constitution expressly recognizes that where a Member of Parliament belonging to a political party ceases to be a member of that party, that person shall cease to function as a Member of Parliament. This is expressly stated in Article 99 (13) which reads:
'Where a Member of Parliament ceases, by resignation, expulsion or otherwise, to be a member of a recognized political party or independent group on whose nomination paper, his name appeared at the time of his becoming such Member of Parliament, his seat shall become vacant upon the expiration of a period of one month from the date of his ceasing to be a member.' An exception is provided in a proviso to Article 99 (13) where if that Parliamentarian challenged the expulsion in the Supreme Court within a month of being expelled, then the expulsion will only be valid if the Supreme Court rules that the expulsion is valid.

Case law

When the issue of crossovers was rare and only just commenced following the enactment of the 1978 Constitution, the power of a party to take disciplinary action against a party member was duly recognized. Therefore, enormous weight was laid on Article 99 (13). This was seen in the case of Gamini Dissanayake vs. M.C.M. Kaleel and others, where eight dissident Parliamentarians of the UNP including Gamini Dissanayake and Lalith Athulathmudali filed individual action challenging their expulsion from the party.

Justice Kulatunga, hearing all eight petitions jointly in the Supreme Court, stated, "the right of a member of Parliament under Article 99(13)(a) is a legal right and forms part of his constitutional rights as a Member of Parliament. If his complaint is that he has been expelled from the membership of his party in breach of the rules of natural justice he will be ordinarily entitled to relief and this Court may not determine such expulsion to be valid unless there are overwhelming reasons warranting such a decision." The aforesaid case remains the first and only time that an expulsion was upheld by a Court of Law under Article 99 (13).

However, the rules established in Gamini Dissanayake vs. M.C.M. Kaleel were expounded and expanded, which gave enormous weight to the exception to the rule of expulsion. The rules were broadened enormously. For example, in the case of Thilak Karunaratne vs. Bandaranaike Courts considered whether the party had understood the consequences of a decision to expel a certain member. In Galappaththi vs. Bulegoda, the Courts considered the rule of Audi Alteram Partem or whether the party had given adequate opportunities for the party expelled to show cause. The issue of procedural impropriety began playing an important role in determining the decision of the Courts. This was strongly emphasized in the case of Sarath Amunugama vs. Karu Jayasuriya in the year 2000. Procedural impropriety became the ground that every case of expulsion was pleaded on, and those who petitioned the Court were victorious each time.

Further issues in respect of the Fourteenth Amendment to the Constitution, which was introduced in 1988, introducing the Preferential Voting System and the National List, became evident in the case of Basheer Segu Dawood vs. Ferial Ashraff. In this case, where a Member was picked to the National List from a coalition party, the Courts determined that the Member could not be expelled as he belonged to a party other than the coalition party.

However, the case that left the area of expulsion wide open was the case of Ameer Ali vs. SLMC in 2006. In this case, Chief Justice at the time, Sarath N. Silva quashed the expulsions and determined that an expulsion may not be valid unless overwhelming reasons warranted such a decision.

Post 2006

While many cases of expulsion have since emerged, not a single case has emerged successfully. Even in fairly open and shut cases such as the defection of Karu Jayasuriya and clan to the government in 2007, the expulsion was expunged.

The idea of expelling members of a political party reached a point of absurdity, especially when proving to Courts that proper procedure was followed in determining an expulsion. Even when Maithripala Sirisena crossed over to the Opposition to take on his own party member in the 2015 Presidential Election, the entire party knew that it would be completely redundant to expel him and other dissident Parliamentarians from the party. Being so, the members were merely suspended.

This is the reason why Sirisena was able to return to the SLFP and claim leadership after emerging victorious at the Presidential Election. He could not be sacked from the party no matter what.

In that political backdrop, crossover politics has become an increasingly common phenomenon. No person has much regard for party based politics anymore, unless in pursuit of political office. Only those that aspire to be the topmost leaders of the country such as a Prime Minister or President would usually aspire to align themselves with political parties. That mentality has changed too since Maithripala Sirisena emerged as President from a different party altogether.

Crossover politics today

When Sirisena crossed over in late 2014, the crossover game had just commenced. Each time a politician crossed over, they became a cog in the wheel for Sirisena and there was nothing their original party could do to stop them. In particular, if a candidate had emerged from a coalition party, then there is very little that the main constituent party could do to expel them as was seen in the case of Basheer Segu Dawood vs. Ferial Ashraff.

Therefore, when the United People's Freedom Alliance (UPFA) joined hands with the UNP to form a government, each of the Parliamentarians who openly decided to sit in the opposition could not be stopped. Despite backers of Maithripala Sirisena claiming that the dissident Parliamentarians were graciously given permission to sit in the opposition, the truth is that even the ruling party knows that little to nothing can be worked out to earn an expulsion for the disruptive Parliamentarians.

Although the dissident Parliamentarians had openly formed a new party and campaigned against President Maithripala Sirisena and sat in the Opposition, only empty threats could be made against them. The threat of disciplinary action was only meant as a form of political coercion, which the SLFP had eagerly employed effectively at the beginning, however, the Maithripala Sirisena led SLFP has lately run out of steam and nobody appears to be taking them seriously. The UNP appears to be side-tracking the SLFP, while the Joint Opposition seems to be ignoring them. Even the people have begun to believe that the SLFP has become a laughing stock. With almost all the trump cards pulled out, President Sirisena has only little to show if he is to earn some form of victory at the forthcoming Local Government Polls. Therefore, he has resorted to the traditional election time crossover politics to establish some form of momentum in his favour.

Conclusion

Although people do tend to be fooled from time to time, repetitive tactics tend to reveal the inner motives of those who have conned the people into electing them as leaders. Nonetheless, with lacklustre expulsion laws, crossover politics will always be a trending one to create hype and to capitalize on each person's gains be it politically or otherwise, and many will always fall for this democratic tomfoolery.

(The writer is a political analyst and an independent researcher of laws. He holds a Postgraduate Degree in the field of Human Rights and Democratization from the University of Colombo and an Undergraduate Degree in Law from the University of Northumbria, United Kingdom)
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