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Muslims living scattered all over the island, with special concentration in the east but often in small pockets in the predominantly Sinhalese areas, fear that their representations in the parliament will be reduced considerably under the proposed 20th amendment to the constitution on electoral reforms.

Thus they oppose the draft amendment in its present form gazetted on June 12.One should not forget that it was repeated constitutional changes depriving the minorities of their legitimate rights contributed a great deal to the subsequent ethnic war which turned the country into one of the worst killings fields in Asia. Thus constitutional changes need to be studied carefully and should ensure that all communities are provided equal representation.This is the reason many question why rush this amendment if the next parliamentary election is to be held under the existing system.

Speaking out on behalf of minority communities even Ven Sobitha Thero had said that “details of mechanism in the 20A  is not very clear yet, but from the number game it is very clear the minority representation in the parliament is going to be decreased substantially. This is not healthy for minority community in the country and also other small political parties like JVP who make the difference and raise the voice in the parliament against any social injustice.

Muslim Hakeem Anura TamilYou may call Sri Lanka in whatever name you want (multi ethnic, multi religious). But the fact that you need to accept is Sri Lanka is a country where majority are Buddhists. By saying so minority community shall not be offended. But rights of the minority shall be secured and safeguarded. So there shall be fair representation from minority community in the parliament, at least to the percentage of each ethnic population in the country.We shall not make our remarks on 20A by looking at present behavior of our Muslim parities and Muslim politicians. Whether they are performing their duties up to the expectation may be questionable. But that is a different topic to talk about. Here we shall work for future interest of the community. Thus concluded Ven Sobitha Thero.

A commentator wrote in the Sunday Observer on 21 June 2015 that although the Bill is a significant milestone to eliminate election-related corruption and frauds, they oppose it in its current form because the minorities’ chances of getting elected to Parliament, Provincial Councils and other local government bodies will be reduced considerably.Columnist Asoka Obeysekera stating that small parties are not protected in the new bill which failed to adhere to international best practice suggested that solution in the way of a dual vote mixed electoral system which preserves the essence of PR whilst guaranteeing constituency representation.

In fact Muslim fear emanates from the way the community was treated since independence, by successive United National Party and the Sri Lanka Freedom Party governments. These governments with their eyes firmly fixed on the elections, not the interest of the country, continued to woo the majority as the most effective vote caching strategy seldom realizing how they alienated the minorities.It appears that this trend continues unabated even today under the existing complicated and complex political scenario.For example from early 20th century, especially since independence, governments sought to strip the minorities of their existing rights and privileges.

They passed the Citizenship Act No 18 of 1948, Indian and Pakistani Residents (Citizenship) Act No 03 of 1949 followed by the Parliamentary Elections (Amendments) Act.Within two years this deprived large number of Indian Tamil residents in Sri Lanka of their citizenship rights and franchise. The irony is that it was Tamil and Muslim votes that deprived the estate Tamils of their citizenship. According to some, the Citizenship Acts were partly aimed at Indian Muslims who had come to dominate many local businesses.What is surprising is that these Citizenship Acts were passed under the auspices of the then Prime Minister, DS Senanayake and his United National Party [UNP], a party that had committed itself to national unity but opened floodgates of discrimination against Tamils and Muslims to the delight of chauvinists from the majority community.

The overnight disenfranchisement of the Indian Tamil population changed the ethnic structure of the electoral balance providing a clear advantage to the UNP in the general elections of 1952. These Acts made Muslims too voiceless second class citizens – a servile community. What could the Muslims living scattered all over the island do?In 1972 late Prime Minister Mrs. Srimavo Bandaranaike’s government introduced the new Republican Constitution .This abolished the Senate, paved the way for a more authoritarian government, subjected the judiciary to political control and declared Buddhism as the state religion while other religions were given the freedom of worship.

The new constitution removed Section 29 of the Soulbury Constitution safeguarding the rights of minorities and replaced it with a clause on Fundamental Rights. It also removed the right of minority community members to appeal against any injustice perpetrated against them and put the government in a position to use the state machinery and the administration to harass and intimidate political opponents.The 1972 Constitution also empowered the government to acquire land, movable and immovable property in pursuance of its stated objective of socialist development. This included the take-over of factories, shops and all sorts of buildings as well as vehicles under the guise of their being required for public purposes.

This deterred political opponents from working against the government. Not only Muslim businessmen and others who supported the UNP but also those who antagonized the SLFP politicians and roused their anger and jealousy, suffered a great deal. Every Muslim lived in fear of his property, business or land being taken over by the government on one pretext or another.This constitution united the Tamil community as Tamil political parties, Federal Party and Tamil Congress, formed the Tamil National Alliance and what happened subsequently is known to everyone

July 1977 JR Jayewardene led United National government, exploiting its huge majority in the parliament, introduced yet another new constitution in 1978 blending some of the functional aspects of the previous constitutions including some features of the French Gaullist and American Presidential systems. This constitution which repealed the previous 1972 constitution and brought in the presidential system of government also made the judiciary subservient to it and provided absolute powers to the President with no accountability besides declaring Buddhism as the state religion.

In short this constitution reduced the island’s minority communities to the position of nonentities. Power was concentrated in the President of the Republic to such an extent that President Jayewardene proudly declared that he had the power to do anything under the sun except making a man a woman and vice versa.The new constitution provided for the election, once in six years, of a president who for all practical purposes functioned as the democratically elected dictator-something unheard of in any Third World country. Thus began the process of devaluation of democratic institutions and values resulting in the erosion of democracy-a trend which continued unabated leading to current chaotic state of affairs.

Discussing the plight of Muslims under the 1978 Constitution, late District Judge MAM Hussain who was also a member of the then delimitation commission had this to say: “The Jayewardene Constitution of 1978 is at one with its predecessors in regard to the abolition of safeguards to minorities and it too refrained from re-enacting the provisions of Section 29 of the Soulbury Constitution, reinstating the principle of appointment and resurrecting the Senate. More damaging are its provisions with regard to demarcation of electoral districts. There was no provision instructing the Delimitation Commission to pay attention to the existence of minorities in the country while demarcating electoral districts.

“The provisions of the Soulbury Constitution with regard to minority representation that have been reiterated in slightly different language in the 1972 Republican constitution are conspicuous by their absence in the Jayewardene Constitution. As the future general elections will be held in terms of the electoral districts carved out by the Delimitation Commission appointed under the Jayewardene Constitution, it is imperative that the Muslim community, being a minority in this country, did understand the implications of omitting the provisions in question.

“The Delimitation Commission appointed under the Jayewardene Constitution was constrained by law that brought into being to disregard all considerations of minority representation in the divisions of provisions into electoral districts. This law seems to be directed at the Muslim community rather than at any other in this country as it has become clear now. The concept of proportional representation presupposes the existence of party system in the politics in the country and in this respect the Proportional Representation introduced by the Jayewardene Constitution into the machinery of elections in the country has caught the Muslim community napping and sealed their political fate .”

It was in these contexts comes the unusual rush to pass the 20th amendment to the constitution to introduce new electoral reforms.

Now the question is why rushing this amendment? Why not discuss this further and ensure adequate representations to minorities?

In fact none of our modern Constitutions emanated from the hearts of the People, who in terms of Article 3 of the Constitution are the acknowledged Sovereigns of this Country.The major proposal in the 20th Amendment will be in the electoral system and the creation of a hybrid system with first past the post and proportionate representation characteristics.This proposal would give rise to great complexity to the electoral process, and its merits, if any, have to be weighed against the unnecessary complications and delays it could give rise to. The hybrid system appears to be a compromise, and is symptomatic of an inability to choose what is best for the country.

Such major changes should be carefully considered in consultation with the main stakeholder – The Sovereign Voter. Has this been done? There is no doubt that if this bill is rushed through, it will not only not be in the best interests of the Country but also will go against the principle of the Sovereignty of the People.Another change proposed in the 20th Amendment is the replacement of the cut out point of one-twentieth (5 per cent) of the total votes polled as specified in Art 99(6) of the existing Constitution as amended by the Fifteenth Amendment with a lower cut out point of three per cent. (Draft Section 99B(2). How will this work in the context of the first past the post system, where its significance can be negligible? It will only have a bearing in regard to the balance.

By : Latheef Farook

Source:https://www.colombotelegraph.com/index.php/the-20a-why minorities-especially-muslims-oppose/

Amendment 20 sought to introduce a mixed member method of electing parliamentarians. Few people seem to be aware that we already have a mixed member electoral system in place for local government.

An Act to amend the local government elections using a mixed member method was passed in 2012, largely away from the eyes of media and civil society. The January 2016 election may give Sri Lankans their first taste of a mixed member election, since, as we just found out, the upcoming Parliamentary election is to be held under the present PR system with preferential voting.It is just as well, because if the present 20th Amendment was approved in a hurry, it is very likely we would have ended up with more MPs than we need.

225-to-237-to-255 and beyond – the numbers game

During a public meeting held on March 2nd to discuss various options in electoral reform, we learned that the original 140+70+15=225 formula with a limit of 225 seats proposed in 200t interim report of the Parliamentary Select Committee (PSC) on electoral reforms would be difficult to implement in the short time frame envisaged at that time. As reverend Sobitha Thero very eloquently put, we had to cook the reform roti while the 100-day pan was hot.

Sri_Lanka_Elections-2013However, once the seat limits were relaxed, it became this floating number with no limit. The Cabinet may have compromised at 237, but, the behind the scene negotiations to implement 20A at any cost seem to be heading towards 255 or beyond.

Can we really afford to have more MPs? What is the minimum need and what for?

How many MPs for what?

Candidate Maithripala Sirisena has promised a member for every electorate, but, let’s face it, what do people really want from MPs? What people really mean by an MP is a job-agent who will create more government jobs or interfere with hiring processes in government in order to bring government jobs to them. As somebody mentioned, a second important function is to hijack loved-ones from police custody and a third is to serve as conduits of wasteful handouts from government. All these impose additional costs on tax payers and compromise the governing process. The true role of a parliamentarian is to pass legislation and approve and exercise oversight over the budget, foreign treaties and the functions of the executive and the state departments and agencies.

A local government based solution

As somebody who has been working with local government for the last seven years, I have watched with dismay the centrist attitude of most policy analysts and policy makers. If we apply the subsidiarity principle to the Sri Lankan context, only what cannot be done by local government and the provincial councils should be delegated to the higher levels. By implication, the type and the size of the layers of government should be determined from the bottom up.

If the voters really want a representative to call their own, the new mixed member system for local government has increased the number of local council members from 5000 to 7000 for 345 local government authorities, at a rate of one council member for little over 2000 voters, and one chairman for 43,000 voters. In addition, the 450 or so provincial councillors lead to one provincial representative for 30,000 voters.

It is irresponsible to play numbers games with the size of the Parliament without considering the true functions of a parliamentarian and representation at the other levels of government.So it is just as well that 20A gets delayed because the delay allows us to correct for the hitherto centrist approach to constitutional amendment and discuss the optimum ratio of Parliamentarians to Provincial Councilors and Local Council Chairman within a power pyramid with a wide base of 7000 local councilors. A starting point for a discussion could be a long term goal of 350 local chairpersons to 250 provincial councilors to 150 parliamentarians, for example.

Beyond the parliamentary election

At this point when the same old Manape pore is shaping up for the upcoming election to be held on August 17th, the first priority for civil society is to ensure that the Pore is minimized and upcoming election is as civilized as possible. The March 12th movement is a good start but other modalities need to be worked out.However, if you are interested in electoral reforms, you need to keep an eye on the local election to follow and play a role in shaping the form and the implementation of the relevant Act and Section 22 therein in particular.

By  : Dr. Sujata Gamage

Source: https://www.colombotelegraph.com/index.php/20a-shall-be-rejuvenated-through-local-government-elections/ 

We learn with utter dismay that the forthcoming election is to be held with the Preferential Voting (PV) system still in place. This is absolutely shocking given the ‘100 day program’ of the Goverment including the much-publicised amendments to the electoral system.

Abolish PV system
The clamour to abolish the PV system has prolonged for the past several years coupled with the outcry for reducing presidential powers. The entire country without exception is longing for this much awaited change. It is a simple amendment which confers the following lavish benefits to the people and the country as a whole:
1) It allows decent, genuine individuals who have not much means, but have country at heart to enter the political arena.
2) It cuts off the huge, unwarranted wastage of money, time and effort spent on personal propaganda.
3) It prevents dubious persons with ill-gotten money from entering politics.
4) It saves the environment from littering roads with polythene and sticking posters at all nooks and corners. It adds insult to injury when the tax payer has to pay to clear the mess.
5) It prevents inter and intra- party rivalry among politicians and their supporters with some even resorting to thuggery and intimidation leading to loss of limb and life.
6) It prevents sound pollution created by incremental meetings by rivals.
7) It assists the Police in maintaining law and order during pre-election period leading to a peaceful atmosphere for the people.
8) It prevents post-election violence.
9) It helps the Elections Dept. immensely in the vote counting process as the counting of preference votes does not arise.
10) It allows the election results to be announced much earlier than it is now.
11) It saves much cost, time and effort for Elections Dept. as the entire process is simplified.
12) It relieves the voter from marking a preference on the ballot paper for unfamiliar persons.
Given the aforesaid multiple benefits and advantages, we are at a loss to understand why the implementation of such an extremely beneficial decision is delayed. Besides, the effect of this change primarily doesn’t go beyond relisting, the usual nomination list of contesting parties in merit order. The JVP doesn’t go even to that extent.
We all know that the PV system even at present is optional and technically if the electorate decides not to mark the preference vote what can the authorities do? Thus, anyone can realise that removing this option is not going to change the big picture as far as the voter is concerned. In fact, it would make things appear more rational as the onus will rest solely on the political parties to nominate the best team who in their view can implement the party manifesto which incidentally must be made a legally enforceable document.
We are confident that the outcome would be a Parliament dominated by professionals consisting of lawyers, accountants and economists. We need not have qualms about decisions taken in such an assembly.

Seal all ‘cross-overs’
Secondly, we as sovereign voters do not wish to witness any further ‘cross-overs’ taking place after the forthcoming elections, as it has already made a mockery of the election process which has since become meaningless.
Now the time is ripe and critical for the authorities and the politicians to restore the dignity of the election process and the sovereign voter. A suitable clause must be entrenched in to the Constitution to seal all types off ‘cross-overs’ in the Parliament. It should be applied to the provincial councils and local govt. bodies too, through necessary amendments to the relevant Acts.

A People’s Govt. through Cabinet representation
Thirdly, suitable amendments should be made to form a ‘People’s Govt.’, through the formation of a Cabinet limited to a specified number with all contesting parties being proportionately represented. The methodology was detailed in a previous article of mine to the press.

Pass 19th Amendment
It is assumed that appropriate decisions will be taken to limit presidential powers and introduce independent commissions through the proposed 19th Amendment. We are of the view that although the aforesaid electoral reforms may not be concurrent with the passing of the 19th Amendment, they should certainly be passed before holding the next election. It surely is not a tall order as exceeding the ‘100 days’ by a couple of weeks is not a mortal sin.
We appeal to all public-spirited citizens, politicians and civil society loyalists to join this outcry to bring about these much-needed changes to our constitution to finally usher in an era of ‘consensual politics’ instead of ‘confrontational politics’!

By Bernard Fernando

Source: http://www.ft.lk/2015/04/09/prerequisites-for-next-general-election/

“If one wants to change the nature of a particular democracy, the electoral system is likely to be the most suitable and effective instrument of doing so.” –  Arend Lijphart

Any electoral reform that intends to substantially alter the proportional representation (PR) in Sri Lanka will go against people’ sovereignty. Therefore, any attempt to do so should be opposed. This does not mean that the introduction of ‘first past the post (FPP) constituencies,’ within the existing or a new PR system is undemocratic. In fact those constituencies are necessary to enhance the elector-elector links for better democracy and representative accountability.

Among the so far discussed or disclosed proposals, the ‘best loser’ method associated with the Dinesh Gunawardena (DG) recommendations on mixing (not linking) FPP and PR is the most undemocratic.

There are two main countries which employ the ‘best loser’ (BL) method at present: Mauritius and Japan. It is possible that DG or his advisers picked the method from Japan than Mauritius because the system in Mauritius has been more controversial than in Japan and it is in the process of abandoning at present. Italy also employed the ‘best loser’ method during 1993 and 2005 but abandoned it for whatever the reason.

Experience in Mauritius

When Mauritius received independence in 1967, it adapted this method from the colonial practice of ‘communal representation.’ It was an appendage to the Westminster FPP system to allow certain minorities to give representation on the basis of their assertion. For this purpose all candidates were compelled to ‘declare their ethnicity/religion’ which was fundamentally undemocratic. At the beginning it worked well and even considered a necessary ingredient in a multi-ethnic/religious society. It had nothing much to do with proportional representation.

Mauritius is divided into 21 multimember constituencies and elects 62 members through the FPP system. As mentioned before, the constitution compels all contestants to declare his/her ethnicity and certain minorities (Muslims, Christians, Chinese or Creoles) qualify for the ‘best loser’ accommodation for 8 seats in a 70 member assembly. All may be losers, but only the best are accommodated under the scheme. Therefore, as a method this is similar to what is proposed in Sri Lanka.

There is or was some validity in the concept when it is/was applied in the case of representation of small ethnic/religious minorities. Similarly, if this is applied for representation of women, still there can be some validity.

Yet, the practice was challenged before the UN Human Rights Committee (HRC) as a violation of certain principles in the International Covenant on Civil and Political Rights (ICCPR) and a determination was given in August 2012. That is one reason why Mauritius is now considering its abolition and devising a better method of representation including adopting a PR system.

Among the two main contentions transpired during the HRC determination, the inadvisability of the stereotyped communal representation and the deviation from the principle of ‘one vote one value,’ the latter has much relevance in discarding the ‘best loser’ method in any country.

Sekihairitsu (best losers) in Japan

Unlike in Mauritius, Japan uses the best loser method as a part of proportional representation. This was introduced in 1996. In a 480 member parliament, 300 members are elected through FPP method in single member constituencies and 180 in a PR tier. The PR tier is a list system. This is also a mixed member system, however allocation of seats in one tier does not dependent on the other. In other words, the constituency system is not linked to an overall PR system like in Germany or New Zealand.

As Leonard Schoppa has stated “in a mixed member system, the devil is often in the details,” whether in Japan, Germany, New Zealand, Sri Lanka or Russia. Russia is another country which has an unlinked mixed member system however without a ‘best loser’ method.

The two main principles in the Japanese system are (1) the double candidacy (choufuku rikkouho), which is common to many mixed systems, and (2) the ‘best loser’ (sekihairitsu) provisions. The second provision means that the candidates in the PR list also be nominated in a single member district or vice versa. Japan usually ranks the candidates in the PR list together and not on a preferential order. Then the candidates who win their single member constituencies are deleted from the PR list. Thereafter, the remaining candidates are then ranked according to how close they came to winning their single member constituencies.

The ‘philosophical’ argument goes that perhaps the candidate B lost to A by one vote! Therefore, the best loser concept is democratic. In Japan, the calculation employed is not the calculation proposed in Sri Lanka. Japanese ratio equals, in the above example, the votes received by A divided by the votes received by B.

The following however is the ‘devil’ according to Leonard Schoppa (The Evolution of Japan’s Party System, 2011).

“The PR component of the new electoral system has given a few seats to small parties, but the major parties have used it to solve nomination problems in the single-member districts that are at the heart of the system.”(My emphasis).

Where the Devil in Sri Lanka?

We have still not seen the devil in Sri Lanka! Of course we have seen many devils in the political arena, but what I mean is behind the electoral reform proposals to introduce the ‘best loser’ method. The final report of the Gunawardena (PSC) Committee is not available for public scrutiny. This is even after the acceptance of ‘right to information’ in principle as a constitutional right. The Interim PSC Report does not have much meat. It is only of six pages. What it says in total about the national electoral system is the following.

“The majority view favours reforms to the present system leading towards a Mixed System of a combination of First-past-the-post and Proportional Representation Systems. Concerns were raised in respect of a proposed change of the present system by minority parties and communities of interests who urged the committee to ensure equitable representation in the system that is finally proposed.”

“Your Committee is of the view that a mixed system be adopted which includes elements of First-past-the-post and Proportional Representation systems. The modalities and particulars of the system to be adopted would be further considered by the Committee at its future sittings and would be presented to Parliament in due course.”

“The Committee is in agreement that the present number of Members of Parliament should not be increased.”

Of course it calls for a mixed system. It talks about a combination of FPP and PR. The Interim Report focuses on other things like national identity cards, postal voting and even electronic voting which are not altogether unnecessary. It is possible that there was a final report subsequently. However, I have heard even the Election Commissioner saying he has not seen or it was not submitted to him.

There is much talk about the ‘best loser method’ or concept nevertheless. However, there can be several methods of applying even the ‘best loser’ method as we have seen above in the case of Mauritius and Japan.

In the President Maithripala Sirisena’s Election Manifesto he says the following.

“I guarantee the abolition of the preferential system and will ensure that every electorate will have a Member of Parliament of its own.  The new electoral system will be a combination of the first-past-the post system and the proportional representation of defeated candidates“

The first sentence is much more important than the second. It guarantees the abolition of the preferential system and the introduction of electorates (constituencies) with its own Members of Parliament. It does not say about abolishing the PR system. It is obvious that the formulation is not well thought out in the hurry perhaps. Although it says ‘the proportional representation of defeated candidates’ what is necessary is the proportional representation of all deserving parties for good governance in the country.

Like the bizarre terminology of the ‘best loser,’ the advocacy of a ‘system of defeated candidates’ proportional representation’ (DCPR!) smacks democratic principles and good governance. It is unfortunate that this has creeped into Mr. Sirisena’s Manifesto. By changing the terminology to ‘runner up’ from ‘best loser’ would not make a difference.

Best-Loser Mentality

Schoppa identified the intent to ‘solve nomination problems’ as the main motive behind the ‘best loser’ method in Japan. What could be the motives in Sri Lanka? I hardly think the concern in the Gunawardena report was for the minor or minority parties or democratic principles. It is important to figure the period in which this ‘secret’ report has finally carved out – 2007.

The political class in Sri Lanka has, by and large, become a parasitic tribe. Look at what they say about theBest Loser at the Presidential elections! The best loser should become the Prime Minister! This is the same mentality in proposing the ‘best loser’ method in the electoral system. Gunawardena is the main man behind both moves.

I have seen in recent times at least two key political figures, one in the government and one in the dubious opposition, lamenting that they might lose their assigned electorates under a FPP competition. One was also a key member of the Gunawardena Committee. So they can only get into parliament under the ‘best loser’ system.

This is not to say that there is anything particularly wrong in placing the same candidate in both tiers (FPP and PR), if the political party so desire and the person so deserve. This may be necessary particularly in the case of women candidates. However, accommodating the ‘best losers’ or ‘defeated candidates’ should not be the starting point or the decisive factor in the PR tier.

There is also a key difference between the constituency of the FPP winner and the PR winner. In the case of Sri Lanka, the first should be the constituency or the electorate and the second should be the overall district. Responsibility and accountability should be different. The losers should not be packed to the same ‘Kalawana’ seat. The proposed ‘best loser’ accommodation is arbitrary like the old ‘Kalawana’ double seating.

The ‘best loser’ (first loser) method can be a trick to redistribute PR seats among the loser candidates of major parties in any country. What about the second or the second best losers? The method will betray the purpose of proportional representation altogether. As some of the members of the HRC pointed out in the Mauritius case, the best loser system violates a basic principle of universal franchise, ‘one vote one value.’ What the proportional representation tries to achieve is not the equalisation of (obvious) unproportioned votes between winners and losers but to give due share of representation to proportionate votes that the parties and/or candidates receive from the people.

It is best that the ‘best loser’ concept is totally dropped in election vocabulary not only in Sri Lanka but everywhere altogether.

By Laksiri Fernando

Source: https://www.colombotelegraph.com/index.php/best-loser-dinesh-gunawardena-method-undemocratic/

Sri Lanka’s current debate on electoral reforms seems to be heading towards a politically inspired deadlock. Some powerful sections of the SLFP seems to be using the idea of electoral reforms either as a bargaining tool for some short-term political gains, or to checkmate the constitutional reform initiative aimed at changing the executive presidential system.

Besides the politics and politicking unfolding in relation to the theme of electoral reforms, there are some major shortcoming in the way in which the issue is approached by the political parties, the election commissioner, and civil society groups. This article aims at a critique of this dominant approach to electoral reforms and then to suggest some alternatives.

Normative Goals

First of all, it needs to be noted that the dominant approach to electoral reforms lacks a normative perspective. Normative goals of reform are necessary to foreground, because without them the entire exercise of electoral reforms can degenerate into a technical exercise, towards which it already appears to be heading at present.

In any democratic society, the primary normative objective of electoral reform should be to broaden democracy. That entails a framework of other values and goals that should include making representation more inclusive and more reflective of the diversity of society. In other words, electoral reforms should aim at further democratizing democratic representation at all levels – national, regional and local.

Sri Lanka’s debate on electoral reform has often highlighted the need to further democratize the existing structures and processes of electoral representation. The demand by women for some measure of equality in representation by providing a quota for women is an example. Another example is the argument advanced on behalf of small minorities for increased representation while recognizing their territorial dispersion. The concern among several non-dominant and subordinate caste communities in Sinhalese as well as Tamil societies for the accommodation of their group specific interests in the electoral process is no less democratic in relation to representation. This demand originated in the early 1930s and continues until now in a variety of forms.

Crisis of Representation

Meanwhile, the public debate on electoral reforms began in the 1990s and later gathered momentum in a context which can be described as the crisis of Sri Lanka’s representative democracy. It is a crisis evolved as specific to Sri Lanka, and is independent of what political theory describes as ‘crisis of representative democracy.’ The latter refers to the negative consequences for democracy arising out of the separation of the elected from the electors, once an election is over.

Sri Lanka’s crisis of representative democracy evolved out of two sources, the executive presidential system and the system of proportional representation, established with the 1978 constitutional change. The executive presidential system created a powerful office of the president as the head of the executive as well as the legislative branches of the state, and the president was to be directly elected by the people. This totally undermined the powers, position and authority of the legislature, the core institution of representative government, whose members were also directly elected by the people.

Thus, the popular will came to be represented and expressed at two parallel branches of the state, thereby introducing a great deal of confusion to both the theory and practice of representative democracy in Sri Lanka. This conflict is observable in other political systems too where the President as the head of the executive and then a legislature are elected directly by the people and are deemed to represent popular sovereignty.

PR System

The PR system, the second source of the current crisis of Sri Lanka’s representative democracy, has had a mixed political record. When the system was conceived in the minds of J. R. Jayewardene and his junior colleagues in the late 1970s, they linked it to their larger project with two essential components, namely, to accomplish political stability for a strong state by altering the composition as well as powers of parliament, and to secure the dominance of big political parties in parliament by eliminating smaller parties. Actually, the initial cut off point of 12.5% for any party to even qualify for parliamentary representation was meant to perpetuate the hegemony of the dominant two-party system in Sri Lanka.

In both these aspects, the crisis of representative democracy that has been rooted in the 1978 constitution was a product of the authoritarian intent of the executive presidential system as well as the PR system.

Meanwhile, the PR system went through a radically important shift in the latter part of the year 1988 when the cut-off point to qualify for representation was reduced to 5%. Prime Minister Ranasinghe Premadasa, seeking a broad coalition to garner support for his presidential bid in December 1988, was instrumental in this change. He actually responded to a request made by Mr. M. H. M. Ashraff of the Sri Lanka Muslim Congress.

That change, as demonstrated in subsequent parliamentary and other elections, took the intent of the PR system radically away from what JRJ and his cohorts had earlier conceived. It enabled the smaller and ethnic minority parties to secure representation in parliament and other elected assemblies at provincial and local levels in a manner akin to, or even better than, the previous first-past-the-post system.

Without the PR system with 5% cut off point, parties such as the JVP, JHU, SLMC, Upcountry People’s Front, PLOTE, and Democratic People’s Front would not have obtained on their own the numbers of legislative seats – even one or two at times — they did in the elections held in and after 1989. Its benefits went to new political entities that emerged from Sinhalese, Tamil, Muslim and Plantation ethnic communities.

The only option they would have had under the previous system was to enter into coalition mergers with the UNP, SLFP or Federal Party, the three big players in the electoral party politics.

Thus, the opening up of greater space for several smaller and ethnic minority parties for representation is one of the unintended consequences of the PR system with a low cut-off point. It actually took away the most undemocratic feature of the original PR system, introduced in 1978. More importantly, it enabled ethnic, social, political and ideological diversities of our society to find representation in all legislative assemblies.

Two Sides of PR

The method of preferential voting built into Sri Lanka’s PR system is the other feature of the electoral system that has received a great deal of flack for justifiable reasons. Experience shows that it spawns corruption, broods violence, and leads to severe infighting even among candidates of the same party list.

As critics correctly point out, the system of preferential voting has negatively personalized the electoral process, even undermining the role of political parties as the primary vehicle for democratic will formation among citizens.

However, there is another side — a positive one — to the preferential voting, combined with the PR system, which has led to further democratization of representative democracy in Sri Lanka. It refers to the opportunity it has successfully offered to ethnic and social minorities –the latter are caste groups — to elect representatives from their own identity communities, within the framework of existing political parties, to parliament, provincial councils as well as local government bodies.

In this too, the PR system with preferential voting, has contributed to democratization of representation, beyond the capacity of the first-past-the post (FPTP) system.

How did it work? It worked in the combination of three factors specific to Sri Lanka’s PR system – proportionality, preferential voting and the district as the unit of representation rather than an electorate of relatively small size with small populations. There is an interesting dimension of political geography also working here. Most of the small ethnic minorities — particularly Muslims, Up-Country Tamils and the Tamils in the Western Province – are territorially dispersed. In political theory, they are called dispersed, or non-territorial, minorities.

To reap benefits of the FPTP system of representation, minorities had to be territorially concentrated so that their candidates could poll majorities in conventional electorates.

Thus, the FPTP system with representation confined to relatively small electorates, did not favour non-territorial minorities.

In contrast, the PR system with preferential voting enabled voters of dispersed ethnic minorities within districts to focus on a few candidates and maximize their chances of winning. Districts are not only much bigger than conventional electorates in geographical terms; they often have small minority and caste communities dispersed throughout, across many electorates.

That is how several social minorities — particularly karawa, durawa, slagama, bathgama and wahumpura communities in Sinhalese society – too benefitted from the PR system with preferential voting in parliamentary, provincial council and local government elections. This was reflected in electoral outcomes in Kegalle, Kurunegala, Matara, Galle, Ratnapura and Kalutara distrcits, and even in such an urban, relatively industrialized electoral division as the Gampaha district.

I assume that this has been the case in the Tamil society too.

Not just Things of the Past

Some who are engaged in electoral reform discussions appear to believe that caste and ethnic identity are basically anti-democratic legacies of the past and therefore, any scheme of representation need not accommodate these two identities as foundations of representation. This does not reflect a correct understanding of the sociology of democratic and electoral politics in Sri Lanka.

Any report of past delimitation commissions will show us how much significance these two minority identities have received in the commission deliberations. Similarly, it is an open secret how presidents and prime ministers have always accommodated ethnic and caste-specific demands for cabinet representation during the difficult task of distributing spoils in the form of ministerial positions. In preparing electoral lists, party secretaries are always overwhelmed by caste and ethnicity-specific pressures for inclusion of what has been conceptualized in administrative discourses as ‘special interest groups.’ Rather than disappearing, ethnic and caste identities as domains of immensely valuable political capital have thrived under electoral democracy, particularly under the PR system. This is not a bad thing. On the contrary, it is an eminently democratic way of how representation should work. Since electoral democracy arouses aspirations for emancipation as well as power among all communities, representation to be democratic should include the excluded, bring the marginalized to the centre, and open up new space for representation so that the social, ethnic and cultural diversities, with their renewable energies, find their concrete expression in the electoral and legislative arenas.

Thus, any move towards demarcating electoral districts and divisions anew entails, and demands, sensitivity to social and political geography of representation. That is why the best approach to electoral reforms should not only be a technical exercise. The technical aspect of it should be informed by social and political sensitivity to new representational needs.

Inclusion and Diversity

It is exactly this normative element of inclusion and expressing diversity that is ignored in the current debate on electoral reforms. To give an extreme example, the proposal for the mixed system of elections calls for the re-demarcation of electoral districts/constituencies. Some have argued that this re-demarcation can be done quickly, within just a few weeks, since the google maps and the GPS technology are easily available. This is a technical approach to electoral reforms, which ignores political, ethnic and social geography of voter concentration as well as dispersal, and also the current needs for continuing inclusion and representation of diversity.

The debate has also effectively ignored the demand for a 1/3 quota for women in parliament as well as other assemblies of representation. Recognition of diversity and facilitating pluralism and inclusion in representation is important to deepen democracy. What we need is an inclusivist, not exclusionary, system of representation. The point then is that if the current proposals are accepted to reform Sri Lanka’s electoral system, it would certainly be a reform in the politically wrong direction. It will not either deepen or broaden Sri Lanka’s electoral democracy.

It is most likely to perpetuate the politics of exclusion, promote discontent among ethnic and social minorities, and enhance the ethnic and social majoritarian politics as well as the dominance of major parties in democratic politics. 

By Professor Jayadeva Uyangoda

Source: http://www.dailynews.lk/?q=features/electoral-reforms-some-critical-reflections#sthash.37Umfyu3.dpuf

Electoral reform logjam broke loose when MPs agreed to an increase to the size of the parliament from 225 to 250. The idealists are up in arms. What is the ideal size of the parliament? What is the ideal mix of representation? They are asking now. These are good questions, but, unfortunately that bus left long ago, as far back as 2007.

The Parliamentary Select Committee on Electoral Reforms was constituted in 2003 and they issued their Interim report in 2007. Interestingly the final report was never published, but, I have posted a scanned copy on my personal Web site. If anybody bothers to read the document, it shows the committee grappling with difficult questions. For example, there is a dissenting opinion by the Sri Lanka Muslim Congress and Ceylon Workers Congress where they challenge the report extensively but offer constructive suggestions at the end.

In trying to meet multiple demands something has to yield. If it takes an increase to bring about changes, it is worthy increase I think. The number 250 need not be a done deal either. A delimitation commission can be given a charge to consider the other alternatives such as 235, 240 and 245. We can also ask the question what can be done with 250 do that cannot be done with 245 and so on. Those are little questions indeed.

We do need people who can look at the bigger picture. Do we want a soviet like government where for example, local councils would be smaller and closer to the communities and the chair and vice chair from each represent the communities in the provincial councils. The parliament would be small. It would leave local issues to local governments and provincial issues to provincial governments. Nice theory, but, has anybody thought of the political and policy tools through which we achieve such? If other countries achieved such significant changes how did they do it? How did we achieve big changes in the past? If anybody wants big changes , I suggest they use their time to do the research and prepare for the big policy moment which may strike.

We did have big policy moment in our country when we changed from a majoritarian FPP system of elections to a PR system in 1978. We are now getting ready to move into in a mixed system of the two, and it is a given, politically. It is not a bad move either. The world is moving from majoritarian systems or PR systems to mixes of the two.

Is this a time for anything bigger? I doubt it. We are more than three-quarters way through our policy window of 100 days. It is not a time for big policy thinking. Our focus would be indeed to do the little tweaks to changes that have been on the agenda for years. Two particular tweaks come to mind.

How much FPP and how much PR?

Those who talk about 50:50 solution do not ask a key question. What if 50 people from one party contest in 50 electorates in a FPP system and other 50 come from a PR of the votes cast, where are you going to find the people to fill those 50 PR seats? Which question leads us to our next tweak opportunity.

Who will fill the PR seats?

The obvious answer is a list submitted the by the party. That is indeed the norm in mixed methods or 100% PR systems. However, in Sri Lanka we have had disastrous results with elections to District Development Councils in 1982 where the lists were stuffed with friend and family. Have we grown up as a country since then? I doubt it. Awarding PR seats to the best runners-up as from FPP races in proportion to the votes garnered by them as proposed in in the 2007 report of the Parliamentary Select Committee (PSC) on Electoral Reforms is still the best alternative.

Innovations through tweaking

Innovations do not come not from arm-chair theorizing but trying to tweak within limitations. Tired of the debate over how much FPP or how much PR we asked ourselves why not use 100% PR, more or less, to decide how many seats each party is getting. Then use the FPP winners and the best runners-up to fill the seats. WE call this this system PSC-NZ combination because the first part comes from New Zealand and the second part from the PSC. More on the PSC-NZ method later.

By Sujatha Gamage

 Source: https://www.colombotelegraph.com/index.php/the-ideal-v-practical-in-electoral-reforms/

During the Renaissance, when classical (that is, Greek and Roman) learning was revived in Europe there were a few Italian city-States that practised some forms of democracy. But these too eventually submitted to the rule of autocrats, or became parts of larger kingdoms.

As the world began entering the Modern Period, beginning in the 16th century, Europe, after reaching Asia and the Americas through its voyages of exploration, began to exercise power over the rest of the world. At this time, Europe was dominated by large empires and kingdoms ruled by hereditary monarchs. But as wealth increased, and more and more people began to feel the need to participate in government, demands for democracy developed. Study of classical authors helped to establish the idea that the State should be based on a social contract, whereby the rulers were bound to act on behalf of the people. If they failed to do this, they could be challenged. The Divine Rights Theory of Monarchy, which held that a State belonged to the monarch, lost credibility.

Challenging the executive power
As mentioned earlier, it was in England that Parliament emerged in the 17th century as an institution capable of challenging the executive power of the king. The French Revolution against monarchy, and the American Revolution against British rule in the 18th century, established the idea that government essentially belonged to the people, and derived its authority from them. Even though at the beginning of the 19th century the kings of Europe tried to restore the old order, this was only temporary. Monarchies prevailed in most countries until the 20th century, but the kings had to accept parliamentary authority which gradually increased. Those who resisted the longest were swept away during the First World War. Those who had compromised earlier, such as the English King, kept their thrones though actual decision-making powers passed to the elected representatives of the people.

It should be noted that another concept of democracy prevailed for some time in the 20th century. This was the notion that democracy, or the power of the people, meant not that they chose their government, but that they had a government that acted in their interests. This was institutionalized in communist countries, which often called themselves democratic republics, but did not allow elections in which people could choose from alternatives. The assumption was that the Communist Party, which was virtually the only political party, allowed to function, represented the people and ensured that they received all they needed.

Democracy
This notion of democracy proved unsustainable and people throughout Europe opted for multi-party democracy towards the end of the 20th century. Communists may have been sincere in their beliefs and intentions, and initially helped to correct gross inequalities in countries that had maintained feudal structures into the modern age. But in practice communist regimes proved unable to satisfy the aspirations of societies as they developed. So before long, they had to give way to more open systems of government, in which democracy meant the power to remove governments from power if they proved unsatisfactory.
It is now almost universally accepted that democracy means the power to choose, with regular elections in which people choose the executive branch of the government as well as a Parliament which acts as a law-maker. However, for countries that adopted the British model, a more serious question has emerged with regard to the limits of democracy, or rather what are the limits to the powers that can be exercised by a government or by a Parliament.

In Britain, which has never had a written Constitution, the assumption is that the Parliament is sovereign, that is, it has the highest powers in the country. This has now changed, as Britain is a member of the European Union and must abide by its rules. But apart from this restriction, the British Parliament can, in theory, pass any law it wishes to. In actuality, the British have certain conventions to ensure that power is not abused. There is also a sound judicial system which ensures on the basis of certain fundamental principles that blatantly unjust laws are not passed.

However, such mechanisms have not been established in many countries that obtained their independence from Britain in the course of the twentieth century. So the idea has developed that once a Parliament had been elected, its powers are virtually unlimited. This has resulted in the abuse of power by duly elected governments on several occasions. An obvious instance of such abuse is when a government extends the term for which it has been chosen. The claim is that the people have chosen the government and, if it wishes to extend its term, it does so having won the mandate of the people. But clearly this ignores the fact that a government is elected by the people for a particular period. If the people want the government to continue, they should exercise the right to vote for it again.

People have now realized that there must be limits to the powers of Parliament. The basic rights of the people have to be entrenched in a Constitution, and the Parliament should not be permitted to change these. Under special circumstances some of these provisions may have to be changed, but this should require consensus, and special majorities should be prescribed to permit this. But there are some rights, such as the right to life, which even an overwhelming majority, cannot take away from any individual. Democracy, it is recognized, means power to people as individuals, and their individual identity cannot be subjected to the decisions of a majority, however large.

Systems of representation
Another unfortunate legacy left behind by the British in their former colonies is a voting system known as the simple-majority system that has led to governments not truly representative of the people they governed. In Britain, Members of Parliament are selected to represent particular constituencies or electorates. Whoever gets the highest number of votes in an electorate is elected as its Member of Parliament (MP). If there are several candidates, an MP can be selected with the support of less than half the electorate. Since the party that has a majority of seats in Parliament forms the government, a government can come to power with the support of fewer than half the voters in the country.

Many countries in Europe have avoided this system in which a winner by a small margin, who does not even necessarily possess a majority of the whole vote, obtains total power. Elections are instead conducted on a system of proportional representation (PR). In such a system parties obtain seats in Parliament in proportion to the votes they obtain from the people. This can be on the basis of electoral districts, or even the country as a whole. This system is clearly more just than the British simple-majority system. However, there is the danger of the MP becoming merely a party functionary rather than someone who has close ties with the particular constituency he or she represents.
In the next section, I will look at the system of representation which in my view ensures the greatest responsiveness to the people.

By Rajiva Wijesinghe

Source: http://www.ceylontoday.lk/51-88511-news-detail-pr-more-just-than-simple-majority-system-political-principles-and-their-practice-in-sri-lanka.html

• Polls chief to present package to party leaders tomorrow
• 20th Amendment after consensus is reached
• 140 on FPP, 80 PR and 30 National List

New electoral reforms where the number of seats in Parliament will be increased to 250 from the existing 225 will be explained to party leaders tomorrow by Elections Commissioner Mahinda Deshapriya. The new package will see the election to 140 seats through the First-Past-the-Post system, 80 through a District proportional representation system and 30 seats from the National List.

An Elections Department source said the lines on which the new reforms would be carried out were to be placed for study at tomorrow’s meeting to be chaired by Prime Minister Ranil Wickremesinghe. The source said the carving out of the 140 new electorates would get under way only after finality was reached. After they are studied, party leaders would meet again on April 6 to take a decision.

The UPFA parliamentary group will also meet tomorrow afternoon to study the same reforms package Commissioner Deshapriya will present to the party leaders tomorrow morning. They are expected to study the reforms and take a decision in consultation with the Sri Lanka Freedom Party parliamentary group. If the parties reach agreement on the proposed electoral reforms, the Commissioner would submit the proposals to the Legal Draftsman to prepare the amendment before it is submitted to parliament for approval as the 20th Amendment to the Constitution.

The Delimitation Commission will be appointed soon after approval is granted. The Commission will comprise officials from the Census Department and the Surveyor General’s Department with the Elections Commissioner being the secretary.

By S. Rubatheesan

Source: http://www.sundaytimes.lk/150329/news/new-look-at-electoral-reforms-250-seats-142194.html

The Sri Lankan constitutional reform process has been ebbing and flowing, but in recent weeks, the promise of 8^th January seemed to be more ebbing than flowing in the usual morass that our political class is uniquely capable of producing. But if some reports are to be believed, then it seems as if the ‘Troika’ of President Sirisena, Prime Minister Wickremesinghe, and former President Kumaratunga, are rallying to save the reform mandate from dying an inglorious death. One can only hope that bringing the SLFP into government serves the dual purposes of ensuring the success of the reforms and marginalising the forces of chauvinism and authoritarianism. If the political centre, which represents the vast majority of Sri Lankan voters, can be so reconstituted that the UNP and SLFP can together deliver democracy reforms, then it bodes exceedingly well for the future of this country, and for the co-operation that must follow in ensuring devolution reforms in the future. Everyone concerned must remember that if they succeed in these collective efforts, they will be making history. If not, and if the collaboration merely provides a fig leaf for the continuation of the squalid politics as usual, the judgement of history will be commensurately harsh.

It appears the Nineteenth Amendment Bill published last week may well be modified before it is passed, and that such changes, whether embodied in a fresh Bill or moved on the floor of the House, are intended to further democracy rather than retain the bloated executive. While all this is most heartening, if the government is committed to making the democratisation of the state truly irreversible, I would suggest that the following matters must also be considered in any constitutional reform bill to come. This is, no doubt, a liberal wish list, but many of them would find broad acceptance in our society. Indeed, if more time is taken to negotiate far more contentious issues such as electoral reforms, then there is no reason why these matters could not also be included in the reform agenda.

Abolish not Reform the Executive Presidency

The government must unequivocally commit to the outright abolition of the executive presidency and return to the parliamentary form of government. Piecemeal tinkering will not do. The 1978 Constitution is so deeply founded on an authoritarian philosophy that the amendatory approach is always bound to leave some provision or other that can be used by some future President to unravel the delicate balance of a bicephalous executive. The power to prevail in political decision-making must return to a collegiate executive and ultimately to Parliament, and must never again be entrusted to a single individual.

Since January, those who have publicly argued for presidentialism in whatever form are unreconstructed Rajapaksa acolytes trying to preserve their own self-interests; or Sinhala-Buddhist chauvinists who see the state as a control mechanism against the minorities; or are crypto-fascists whose conceptual arguments in favour of the presidential state are – with startling candour – drawn from Nazis like Carl Schmitt and totalitarian mass murderers like Stalin and Mao. These are not arguments for the retention of presidentialism; they are advertisements for its abolition.

These views about the nature of the state draw from the worst and most intolerant aspects of our history, rather than the liberal, pluralist, and ecumenical potential that we can glean from both, our colonial constitutional inheritance as well as our South Asian cultural heritage. The social democratic SLFP and the liberal conservative UNP can construct, together with the Trotskyite Left and the minority parties, a formidable reformist platform for the reconstitution of a parliamentary state that is both centrist and decentralist. This is the moment for that grand and historic achievement that has eluded us throughout our post-colonial history.

The Bill of Rights and the Limitation Clause

Our bill of rights may have been a great improvement from what prevailed under first republican constitution, but it is now almost forty years old and reflects the constitutional technology of that era. It is ripe for a revision and upgrade. Among many available models and proposals, there is a draft bill of rights drawn up by a committee of experts under the auspices of the Ministry of Constitutional Affairs that can serve as the basis for replacing the present chapter on fundamental rights. This draft reflects contemporary international and comparative human rights standards far better than what obtains in the 1978 Constitution.

As important as the enumeration of rights in the design of the bill of rights is the framework for their limitation and derogation. The overriding purpose of a limitation clause is to ensure that the essence of fundamental rights is not extinguished, while recognising that in certain defined circumstances, their exercise may need to be restricted. A good framework for this is now found in the limitation clause that has been attached, exclusively and incongruously, to the new right to information in the Nineteenth Amendment Bill. This must be extended to the bill of rights as a whole.

Supremacy of the Constitution and Comprehensive Judicial Review

The principle that the constitution is the supreme law of the land must be expressly inserted in the constitution, and all law, conduct, policy and practice inconsistent with it must be void. This means that both Parliament and the government are subject to the supremacy of the constitution, and it follows that the judiciary must have the power to review any legislative or executive action for constitutionality at any time and in any proceeding. Consistently with this, the ‘Urgent Bill’ procedure for constitutional amendments must be repealed.

A Second Chamber

The recent proposal for a ‘Council of State’ was a half-hearted and rather purposeless nod in this direction, but it is clear that we will benefit hugely from a well-designed second chamber in the central legislature. This has principally two rationales. First, we need a second chamber as a reviewer of legislation and a scrutineer of executive action. This in turns requires a major infusion of expert knowledge into the legislative process. In a political culture where the electoral process is manifestly unable to produce the quality of legislator that is required for these purposes, it follows that a component of the second chamber’s membership will have to be appointed. The procedure proposed in the Nineteenth Amendment Bill for the appointment of the Constitutional Council can be usefully replicated here.

Secondly, we need a territorial chamber to represent the provinces within the central legislative process. This not only invests the provinces with a stake in the centre but also ensures respect for devolution. The Chief Ministers ex officio and a number of other representatives elected by the Provincial Councils should therefore constitute the other component of the membership of the second chamber.

In general, the second chamber need not have financial powers; it could only have a delaying power in the legislative process (relatively short in the case of Money Bills, longer for other categories of Bill, and longest for constitutional amendments); the Minister of Justice must be a member of the second chamber appointed for his or her eminence in the field of law; and other Ministries requiring expertise may also have Ministers or Deputy Ministers appointed from the second chamber. It must possess a strong committee system aimed at producing maximum scrutiny and deliberation.

The Electoral System

The reform of the electoral system features heavily in current debates but for all the wrong reasons, in the sense that parties are using the issue tactically to fulfil other objectives. There is a wide range of options to choose from in the design of the electoral system, but the basic aim must be to preserve the fundamental principle of proportional representation, which is critical in our plural polity, while re-introducing a first-past-the-post element to restore the connexion between the voter and the representative. It cannot be the other way round, viz., that the electoral system becomes essentially a simple plurality system that is partially balanced by a minor element of proportional representation. This is what is envisaged in the Dinesh Gunawardene Committee proposal. This kind of system promotes majoritarianism, reduces Parliament’s representativeness, and produces large governmental majorities which permit ‘elective dictatorship.’ The instability potential of minority or small-majority governments can be addressed with the principle of fixed-term parliaments, which has already found expression in the Nineteenth Amendment Bill.

Sri Lankan liberals have long advocated the German mixed system as a model, but there are newer and more modern systems from which we can now draw. The electoral system used for the election of members to the Scottish Parliament is a particularly good example to follow in achieving the aims outlined above. It also has the advantage over the German system of providing a fixed-membership legislature, whereas for the logic of the Niemeyer method used in the German case to work, the number of seats in the legislature cannot be fixed.

Devolution: A Sunrise Clause

The anti-Rajapaksa coalition could not have been built if minority issues were included in the common programme, but the minorities voted en blocfor the President nonetheless. The new government therefore has a strong obligation to address the fundamental constitutional anomalies that have prevented the realisation of minority political aspirations to autonomy and dignity ever since independence. If the moral force of providing a proper settlement for this historic injustice is not sufficient, then let it be remembered that the ‘peace’ that has prevailed since the end of the war is unlikely to last over the long duration unless and until the Sri Lankan state can better constitutionally reflect the fundamental pluralism of the Sri Lankan polity.

To this end therefore, a ‘devolution sunrise clause’ should be added to the amendment bill. A sunrise clause in the sense I use it here is a constitutional device by which particularly contentious issues may be postponed without derailing a wider process of reforms, but which guarantees that the issues so postponed will be taken up again at some identified future point. In this case, the sunrise clause should have the declaratory purpose of articulating at least the intention to address the issue of devolution in a fair and reasonable way, to formalise the interim policy of the government to fully implement the Thirteenth Amendment to the maximum extent of devolution permitted by it (including through statutory reforms), and to set out the procedures and timelines during the next Parliament by which the process of negotiations will be conducted. This will reassure minorities that their aspirations are not forgotten and it will strengthen moderate minority politicians in delivering their constituencies to the reform process.

Referendum

For the enactment of the reforms I have mentioned above by proper constitutional procedure, and in particular for the abolition of the executive presidency, it is clear that the approval of the people at a referendum would be needed. The government is hamstrung by the commitment it gave, in the different political context of mounting a plausible campaign against the Rajapaksa regime, that the reforms it was proposing would not touch any entrenched clauses of the constitution. The situation is now radically different, and with the broadening of the reform platform with the entry of the SLFP into government, there is no reason that a referendum cannot be offered

The only forces opposing reform in a referendum campaign fought by the reconstituted political centre I have outlined above would be the racist rump in the South (the reverse-racist rump in the North would likely boycott everything as is their wont). There is no doubt that such a referendum can be won handsomely in favour of reform, and this will invest an unassailable legitimacy for the new constitutional arrangements that will prove far more durable, and make it far more difficult if not impossible for ethnonationalists and populists to hijack the state as the Rajapaksas did. It would also be the more honest and forthright way to treat the republican polity that, after all, cherished its democratic traditions enough to throw the Rajapaksas out of office.

 By Asanga Welikala

Source: http://groundviews.org/2015/03/24/constitutional-reform-a-liberal-wish-list/

I come now to what seems a contentious issue, unnecessarily so. The manifesto on which the President won the election clearly pledged that ‘An all party committee will be set up to put forward proposals to replace the current ‘Preferential Representation’ (PR) Vote system and replace it with a Mixed Electoral System that ensures representation of individual Members for Parliamentary Constituencies, with mechanisms for proportionality.’

This commitment, in the 100-day manifesto, was fleshed out in the commitment to a Compassionate Government and a Stable Country, as follows: ‘The existing electoral system is a mainspring of corruption and violence. Candidates have to spend a colossal sum of money due to the preferential system. I will change this completely. I guarantee the abolition of the preferential system and will ensure that every electorate will have a Member of Parliament of its own. The new electoral system will be a combination of the First-Past-The-Post System (FPP) and the proportional representation of defeated candidates. Since the total composition of Parliament would not change by this proposal, I would be able to get the agreement of all political parties represented in Parliament for the change. Further, wastage and clashes could be minimised since electoral campaigns would be limited to single electorates.’

This makes clear the urgent need for change. Sadly, the United National Party, having scented power, seems determined to continue with a system that practically demands corruption and violence. And while it will not openly promote corruption, the manner in which it is trying to grab vehicles from Ministries to give Members of Parliament shows that it will command resources without hesitation to promote its victory.

Fleets of vehicles naturally seem essential when candidates have to work in whole districts. So do millions of posters and hundreds of people to paste them. That in turn leads to violence that is more intra-party than between parties, since one’s immediate rivals are those in one’s own party. But presumably that matters nothing to the Prime Minister who belongs to the Divide and Rule Jayewardene philosophy in the UNP rather than the more inclusive Senanayake tradition.

The main argument against a First-Past-The-Post System
The main argument against a First-Past-The-Post System is that it distorts the will of the electorate. We saw this in both 1970 and in 1977, when governments had massive majorities in Parliament even though they had just bare majorities. But that is why the Maithripala Sirisena manifesto says very clearly that there would be mechanisms for plurality, and even more significantly, ‘the total composition of Parliament would not change by this proposal.’
This last is a crucial factor, not only to get the support of all political parties, but because anything else would manifestly be unfair. As it is, the smaller parties are not keen on the sort of change that is proposed, because it would affect them adversely. This is for two reasons.

Firstly, the system proposed means that the list, members would be used to top up the numbers selected on the FPP system. So, if the JVP got 5% of the vote, but no seats at all, it would end up with just 5% of less than half the seats in Parliament. If this is 1/3rd as has been suggested, of 225, then the JVP would get just 4 seats. 4 out of 225 is just over 2% of the membership.

Conversely, the party that polled best, be in UNP or SLFP, might get 100 out of 150 seats with just 45% of the vote. It then gets another 34 seats, making 134 out of 225, which is 74%. On the other hand the second largest party could get 40% of the vote but just 30 seats. It would then get another 40% of 75, that is 30, making 60 seats altogether. That is just 27% of Parliament.

Fairness then demands that the listed seats should be to compensate for the disproportionality of the FPP system. And to maximize fairness, the numbers from the constituencies and the lists should be equal. That is why the Liberal Party has for years advocated the German system, which would lead to results as indicated in the table.

On recent patterns of voting, such a result is likely given that regional parties will get more seats on the FPP system with a similar percentage to a national party that might get very little, because its votes will be scattered. Having a compensatory basis for the second list ensures that Parliament reflects the will of the people accurately, while the constituency list ensures link between the people and their representative in Parliament (and also reduces the cost of that representative being elected).

Second aspect to the German system
But there is a second aspect to the German system, which the major parties will not like. The German system gives each voter two votes, one for the individual to represent his constituency, the other for the party he favours. This is essential, because on the FPP system the tendency is for voters to choose between the candidates more likely to win. This means that, even though they support a minor party, they will not vote for the candidate of that party because that would be seen as a wasted vote.

Giving each voter two votes allows them to select the candidate they prefer of those likely to win representation for the constituency, while also allowing them to promote the party they think can best put forward their own political perspective. Thus the JVP and the JHU would not lose out when the final composition of Parliament is decided, nor would the TNA or the various Muslim parties, whose supporters might not vote for the individual candidates of those parties in areas where they feel their following is limited. I have proposed a Constitutional Amendment to this effect, with provision for a Delimitation Commission to divide the country into 100 constituencies with roughly equal populations (about 150,000 according to present figures). Of course the scheme I have proposed could be amended when it is taken up, but I hope it will raise the issue and facilitate recognition of the fact that a fair system that renews the link between Member of Parliament and the people is very easy to introduce.

BY PROF. RAJIVA WIJESINHA

Source: http://www.ceylontoday.lk/51-88219-news-detail-as-compared-to-the-german-system-advocated-by-the-lp-the-electoral-system-the-government-promised.html