Electoral reforms and new constitution

It is the hope and aspiration of the people that a suitable and effective electoral system which reflects the true will of the people is introduced, which is the need of the hour – Pic by Shehan Gunasekara 

I have written extensively advocating the necessity to consider amending our existing electoral system which in my view requires certain amendments towards effective representation. I am pleased to note President Gotabaya Rajapaksa in a recent forum reiterated the introduction of an electoral system and a new constitution as a matter of priority. Towards this endeavour the Parliamentary Select Committee is in the process of finalising its recommendation. 

At this stage it is opportune for me to highlight some of the flaws in our existing system of electing representatives to Parliament. As a keen follower of the political developments in our country I thought of sharing some of my thoughts and views covering the existing electoral system. 

I cherish the numerous opportunities I had in visiting and most importantly in listening to many interesting Parliamentary debates notably by many reputed and well-respected intellectual politicians of yesteryears which unfortunately is now lacking. 

One has to read the Hansard of yesteryears which will bear testimony to their valuable contributions. Some of the notable speeches made by senior Parliamentarians of yesteryears still lingers in my mind.

The last election Parliamentary Elections held in August 2020 in the midst of the pandemic was the most peaceful election ever witnessed by the country. There were no cutouts, no posters, etc., unlike in previous elections where we have witnessed cutouts and posters being the order of the day. There were no incidents of any violence reported, apart from a few isolated incidents of poll violations. Political meetings were kept to a minimum. 

The country was at complete peace, and people moved about feely with their day-to-day activities during and after the elections, particularly on the day the counting was in progress. Notably there were no foreign election monitors unlike in the past elections in which foreign election monitors were invited to cover and monitor every election.

First Past the Post system with a mixture of PR

In many of my previous articles I have advocated the re-introduction of the First Past the Post system (FPP) replacing the existing PR System or a mixture of both if desired. It is the view of a vast majority of the people that the existing electoral system is not in line with the effective representation of the people. 

Even President Gotabaya Rajapaksa has stressed the introduction of a system with the mixture of First Past the Post and Proportional Representation.

Some of the notable flaws

Under the existing PR System, the procedure adopted in electing a representative, leads candidates from one and the same party firing shots at each other to obtain the preferential votes which ultimately decides the winner. Candidates are compelled to compete not only with their rivals in the opposing parties; they have to compete with rivals within their own party as well which is not a healthy phenomenon.

If an individual desirous to serve the people and enter Parliament, such personalities are compelled to campaign not only in their chosen electorate as the organiser; they have to campaign in the entire district within which their electorate is located.

There were numerous instances in the past of such organisers, even though they won their electorates, couldn’t gain entry to Parliament due to their inability to win the confidence of the voters of the entire district which is a costly exercise. Many others even though they failed to win their chosen and designated electorate, were able to gain entry due to their ability to win the entire district. In certain cases some electorates were fortunate to have more than one member to represent them while a few others were deprived of any representation. This is a serious flaw which needs to be rectified towards an effective system of representation. 

The candidates who possess the ability to conduct an effective marketing campaign ultimately gain entry to the Parliament. In other words it ultimately boils down to one’s ability to conduct an effective marketing campaign and such campaigns needless to state are costly. The PR system, introduced in the 1978 Constitution by the then powerful UNP Government, deprived intellectuals without money power of the ability to enter Parliament. It is reported millions are spent by the candidates for their campaigns under the existing PR system.

At all our Parliamentary Elections we have observed many instances of interparty clashes for preferential votes which is common and a compelling necessity. Candidates from the same party even go to the extent of challenging the final outcome of the preferential votes for their own “self-satisfaction” thereby undermining the electoral process. 

It is no exaggeration to state based on the interactions we have had with various people at several social gatherings and other fora many of the voting population are unaware of their candidates, apart from a handful of candidates who were able to give wide publicity and market their preferential number. 

Under the existing Proportional Representation system of electing representatives, many leading and popular candidates at times are not successful at the elections due to their inability to effectively market their preference number which is a major deciding factor. Even a large percentage of the voters go to the polling booths ignorant of their choice. This is one reason which compels candidates to canvas their numbers right up to the polling booth, even though such campaigns are against the election law.

It is reported a large amount of votes representing 4.5% of the total votes polled were rejected at the last Parliamentary Elections. At the last Presidential Elections only 1% of the total votes polled were categorised as spoilt votes. Whether this is deliberate or due to lack of understanding of the complicated electoral process is not clear. However, it is not an exaggeration to state the format of the ballot paper which had to accommodate numerous symbols, in addition to the preferential numbers may have confused a large number of the voting population which may have contributed towards the rejection of these votes.

Candidates well accepted and respected in their chosen electorates at times fail to enter Parliament even though a majority of their electorates prefer and vote for them. 

The re-introduction of the First Past the Post system in which the people elect their representatives’ electorate wise is desirable as this will ensure the entry of candidates of unblemished character, integrity who could contribute towards healthy parliamentary debates. It will also provide the voters with the representatives they deserve. Such personalities could effectively contribute towards the Governance by sharing their knowledge and expertise for the greater benefit of the country as at present there appears to be a void of such personalities.

Entry of independent candidates to Parliament

The 1978 Constitution was a complete departure from the previous electoral process of electing direct representatives through the electorates. The pervious system allowed candidates from recognised political parties and independent candidates to contest in any electorate of their choice. 

Prior to 1978 there were many well-known and popular members of Parliament not aligned to any political party who contested as independents and won their seats with vast majority solely due to their popularity among their voters. They immensely contributed towards valuable parliamentary debates. In the past electoral system there were a few multi-member constituencies in certain electorates, to ensure the representation of the minorities. Colombo South, Colombo Central, Nuwara-Eliya – Maskeliya and Batticaloa, and Pottuvil which was a double member constituency are some of the constituencies which come to my mind.

The existing system deprives the entry of any independent candidates unless they form a group and file in their nominations collectively. The success of such independent groups are very remote and this has completely shut the door for the entry of any such candidates unless they are aligned to a registered political party. It is to be noted, there were no independent members of Parliament after the introduction of the 1978 Constitution. 

The Kerala model

It is interesting to examine the Kerala model. In the Kerala Assembly elections held in India recently the incumbent Government led by the left party was returned with an overwhelming majority. The main reason for its victory was attributed to its success in effectively controlling COVID-19. Many commended the Government and notably its Health Minister who was a physics teacher. She was re-elected by a vast majority. 

What is heartening to note is the party’s ability and courage to appoint a new Cabinet comprising 31 newly-elected members. None from the previous Cabinet were reappointed. Even the Health Minister who was recognised by the UN for her efforts in effectively controlling COVID-19 was excluded. It was a decision of the party to give opportunity and tap and utilise new talent for the greater benefit of the State. This decision was gracefully accepted by all members of the outgoing Cabinet. In addition all the members who have served two terms were deprived of re-nomination as the party desired to have new members with new expertise. 

Perhaps Sri Lanka could learn a lesson from the Kerala model in tapping new expertise as it is evident many members have been enjoying the ministerial perks for several decades continuously despite whatever Government was in power. A party should have the courage to take such decisions which may have been deprived due to lack of expertise which could be attributed mainly to the existing PR system of electing representatives.

Proportional Representation (PR)

It was revealed the then UNP Government of President J.R. Jayawardene introduced the PR system with the sole aim of retaining its power base. The party consistently polled more votes in every Parliamentary Election even though they couldn’t win a majority of seats which deprived them the luxury of forming a government in few instances. 

The then framers, it was revealed, felt the introduction of PR system would ensure their uninterrupted continuity of power. However, they were proved wrong at successive elections notably at the last elections where the UNP couldn’t even win a single seat electorally in spite of the PR system. 

National List

The 1978 Constitution provided for the accommodation of members through the National List based on the overall percentage of votes obtained island wide by each party. This provides for the appointment of 29 members, while 196 are elected under the PR system. 

All parties are entitled to appoint members based on their overall performance. Many civil organisations and leading personalities have been consistently appealing to the party leaders to refrain from appointing defeated candidates through the National List. It is heartening to note, none of the parties, other than the TNA, AJP and UNP, nominated any defeated candidates through the National List to the current Parliament. 

In the previous Parliament there were 11 defeated candidates who gained entry through the National List and some of them were even rewarded with ministerial responsibilities. After the conclusion of the last Parliamentary Elections there were many speculations of defeated candidates canvassing their entry to Parliament with their leadership.

The SLPP was very bold in finalising its National List within a couple of days after the conclusion of the elections. All other parties took considerable time as it was reported some of the defeated candidates were attempting to enter through the National List. The framers of the Constitution envisaged the introduction of the National List mainly to accommodate intellectuals and technocrats, not in a position to contest and win at an election as the country could immensely benefit from their expertise. The original purpose for which this was introduced does not appear to have been fully achieved. The existing limitation of 29 members under the National List needs to be re-examined or it will be feasible to scrap it completely which will be welcomed by all.

At this stage let us recall the Constitution of 1972 introduced by the then United Front Government of Sirimavo Bandaranaike which completely abolished the National List or the ‘Appointed MPs’ as they were called then. All candidates had to enter Parliament through the votes of the people. 

Prior to the introduction of the 1972 Constitution there was a provision to appoint MPs under the clause of ‘Appointed MPs,’ which I believe was restricted to only six members and reserved for certain communities. Some of the appointed members of Parliament were compelled to seek elections at the 1977 General Elections and all of them lost and were wiped out by the UNP wave.

It’s undesirable for defeated candidates to stake any claim through the National List. They should have the courage and conviction to bow to the people’s wishes and accept the verdict and respect democracy as Parliament is the temple of democracy. 

Feasibility of Second Chamber

There is again talk in some quarters of the reintroduction of a Second Chamber, or in other words the reintroduction of Senate to give adequate representation to certain groups or communities. 

The Senate, i.e., the Second Chamber was abolished by the 1972 Constitution. The main reason for its abolishment was attributed it to be a waste of public funds as it had not fulfilled the aspirations for which it was created. Whatever legislation was passed in Parliament was rubber stamped by the Senate. In certain instances defeated candidates were appointed to the Senate by the parties. In view of its past experience it may not be feasible to reintroduce this as it will virtually be an avenue similar to the National List to enter a Legislature which will be a burden on the taxpayers.

Parliamentary vacancies and by-elections

Prior to the introduction of the PR system in 1978, whenever a vacancy occurred in Parliament, the people had the opportunity of electing a new member of their choice at a by-election. In many countries such vacancies are filled by having by- elections for a vacant seat. The PR system deprived this opportunity to the people in electing the representatives of their choice whenever such vacancy occurs. 

The incumbent Government is deprived of testing the public opinion at regular intervals whenever an opportunity arises due to the death, resignation or a member forfeiting the seat consequent to an election petition. Prior to 1978, all such vacancies were filled after a by-election. This gave an opportunity to the people to give a message to the Government and the Opposition on several vital issues affecting not only the particular electorate but also the entire country. In the absence of regular opinion polls in our country such an exercise will be a very valuable tool for all parties to ascertain the acceptability of their direction and policies.

It’s noteworthy to recall two such major resignations in our Parliamentary history. J.R. Jayewardene, the then Leader of the Opposition and first MP for Colombo South, resigned his seat in protest against the extension of the life of the Parliament by the then Government of Sirimavo Bandaranaike. The other was the resignation of S.J.V. Chelvanayakam, the then Leader of the Federal Party who resigned his Kankesanturai seat in protest against the introduction of the 1972 Constitution. Both the aforesaid personalities were re-elected with wider margins at the by-elections in spite of the massive Propaganda of the then powerful Government which lost both by-elections.

The replacement of this system by PR resulted in a situation where such vacancies are now filled by the candidates defeated at the previous elections, gaining entry to Parliament based on their preferential votes polled at the last elections. Individuals, defeated at the previous elections become Members of Parliament overnight. This deprives the voters an opportunity to elect a new representative of their choice. It will be desirable if the proposed Electoral reform gives due consideration to the re-introduction of by-elections.

Anti-Defection Law

Serious consideration should be given towards the introduction of the Anti-Defection Law which will effectively prevent the members from crossing over to other parties. If they cross over they should automatically forfeit their seat and seek re-election. This law is effective in the Indian Constitution which has effectively shut the door for any cross overs. This will also ensure the stability of a government.

Dissolution of Parliament

It is noteworthy to recall the now repealed 19th Amendment deprived the President of the power to dissolve Parliament unless it is voted by two-third of the members of Parliament. Such an exercise is unthinkable and unrealistic as no member will give their consent for such a premature dissolution. The framers of this stipulation failed to realise this aspect and its reality. 

This resulted in the major Constitutional crisis in October 2018 and the Supreme Court by its unanimous decision ruled the then President didn’t possess the power nor authority to dissolve the Parliament before the expiry of the stipulated period of four-and-a-half years. This even deprived the new President of dissolving the Parliament immediately after his victory in November 2019, which would have saved the calamity of having the elections under the global pandemic. 

Presidential Election and nomination of candidates

At the last Presidential Election, there were 34 candidates from various parties and colours. Many of the candidates were well aware their prospects of victory were remote. Some filed in their nominations as proxies for the major candidates while some others may have filed in their nomination with the aim of gaining cheap publicity. According to media reports this cost the country and the Election Commission an additional sum of Rs. 2 billion. It also contributed in confusing the voters in appropriately identifying their preference from the long ballot paper, which was two feet in length as it had to accommodate all 34 candidates.

Serious consideration should be given towards amending the existing eligibility criteria to make it mandatory for a candidate to at least obtain a stipulated minimum number of votes from the total votes polled. The deposit should be increased substantially or in the alternative they should be stipulated to provide a bank guarantee which is equivalent to cash. This will ensure the entry of only serious candidates and will result in the elimination of all other candidates who do not possess the support of the people towards their policies. 

This will be a blessing not only for the Election Commission, it will also enable the voters to select their preferred candidate without any difficulty and the country could save millions of rupees allocated to the conduct of Presidential Elections.

Introduction of Electronic Voting Machines (EVM)

The time is now opportune for us to consider utilising technological innovations towards the conduct of elections particularly in casting and counting of votes. In comparison to the pencil and paper system which is in existence at present in casting voter preferences and the resultant counting of such ballot papers, effective introduction of EVM will ensure the voices of the people are clearly heard and there is no room whatsoever for any manipulation. 

This system is in place in neighbouring India and is working very well and the results are announced almost on the same day of counting. This will minimise the massive cost incurred at present and will eliminate all forms of manipulation in tampering with the choice of the voters. 

Expenditure on elections

It is no exaggeration to state massive amounts are spent on elections and according to media reports a sum of Rs. 10 billion has been expended at the last Parliamentary Elections. The Provincial Council Election is due anytime; after which we could expect the Local Government Elections, all of which will result in the expenditure of a substantial sum. 

Elections after elections. The expenditure is bound to rise in view of the existing COVID-19 and adherence to the precautions set by the health authorities as done at the last elections since any election will necessitate the congregation of people at various public places.

The authorities should seriously consider a mechanism to have at least all three major elections on one and the same day (i.e., the Presidential, Parliamentary and Provincial Councils). The voters could be given three ballot papers to elect their president, member of Parliament and the provincial councillor on one and the same day. Not only could billions of rupees be saved, it will ensure political stability in the country and the policy makers could concentrate on their mandate and responsibilities entrusted to them by the people without wasting their precious time and energy on election campaigns. This will not be a complicated process compared to the existing PR system which needs effective understanding to ascertain the choice of the voters.

It is noteworthy to mention in the United States, which is one of the largest democracies in the world, the people elect their president, members of congress and the senators on one and the same day in addition to other state elections. However, the senators and members of congress are elected at regular intervals for a term of six years and two years respectively. The Presidential Election is held every four years on the first Tuesday of November of the stipulated year. 

The German lesson

It was reported in the media post the recently-concluded General Elections in Germany to elect representatives to its Parliament (Bundestag) in which Chancellor Angela Merkel’s party failed to win a majority against its main opponent, that neither party is able to form a government. Talks are on and this will take months towards finalising the formation of a government even though the elections have been completed. 

The main reason is attributed to the Germany’s complex voting system. This system combines both the Proportional Representation and First Past the Post system. It is interesting for us to study the German model of electing representatives to ensure such flaws in our proposed electoral system don’t deprive the country of the formation of a government immediately after the conclusion of an election which will result in political instability which should be avoided at all costs.

The Government is in a very commanding position with an over whelming mandate which is a golden opportunity to revise the existing electoral system, hence this opportunity should be fully utilised and not missed. The previous Yahapalana Government missed a golden opportunity towards this endeavor for which it was given a mandate by the people inclusive of abolishing the executive presidency.

It is the hope and aspiration of the people that a suitable and effective electoral system which reflects the true will of the people is introduced, which is the need of the hour.