Does Sri Lanka need an Anti-Defection Law?

The Supreme Court’s decision earlier this month in Environment Minister Nazeer Ahamed’s case (October 6, 2023) upholding his expulsion from his party must surely cause serious concern to other Members of Parliament who crisscross the floor of the House with gay abandon.

Depending on which way the political winds blow, they are compared to long-legged ‘frogs’ usually, though not always, jumping from the Opposition benches to the Government side in search of power and place.

Mr. Ahmed went against his party whip in voting for the Appropriation Bill (2022) and was expelled.

To be clear, the question in that case was not the competence of the expelling authority which was the basis on which a different Bench of the Court decided a week later (October 13, 2023) that the expulsion of MP Athuraliye Rathana was invalid.

The two cases are, therefore, different from one another. In relation to Ahamed’s expulsion, there was little quarrel that he had ‘clearly accepted the authority’ (in the Court’s words) of the high command of the Sri Lanka Muslim Congress (SLMC) to suspend or expel him from the party membership.

The matter here went beyond that. Was his expulsion arbitrary, discriminatory or tainted with mala fide? And did the absence of a formal inquiry make the expulsion invalid?

Both questions were answered by the Court in the negative. The importance of Ahamed’s case is that the Court approvingly recognised the position, stated with force in a well-known ‘expulsion case’ (Dissanayake v Kaleel, 1993) where the Court asked, ‘How can any Government or Opposition function without disruption if the conduct of MPs as a group cannot be regulated including in the matter of voting in the House and each MP is free to do whatever he pleases?’.

Our courts have taken completely differing views on similar questions as the string of ‘expulsion cases’ during the past few decades indicates. Overwhelmingly, expulsions were held to be invalid on various grounds.

In that background, perhaps Sri Lanka should consider enacting an Anti-Defection Law which neighbouring India did in 1985, further amending it to tighten the restrictions in 2003. The rationale for its enactment is that Indian democracy is undermined by defectors who violate the will of their political party.

This law has not entirely prevented en masse defections but has imposed significant curbs. Such a law for Sri Lanka must consider the obligation of an MP to obey the ‘dictatorship’ of the party whip, fairly balancing the right to conscience.

In the 1960s, MP Gamani Jayasuriya was given permission by his leader Dudley Senanayake to cast a ‘conscience vote’ against the party decision on the schools takeover bill. In the 1980s, the same MP resigned his portfolio and his seat when he disagreed with his party hierarchy on the Indo-Lanka Pact.

The reality has been that defections are rarely based on conscience and largely engineered in today’s political context by crude monetary gains or political agendas. That must be stopped forthwith. But how?

A Government always has an advantage in that it has plums to dangle to bait opposition MPs. The traffic in defections is usually one-way. Will it be left to Courts to decide, or is a law required is the question.