Local Government elections: ‘Manape’ to ‘Amanape’ (preferential vote)!

Our ‘poli-socionomic’ dialogue

Most of us are now familiar with this ‘poli-socionomics’ theme, our hybrid dialogue on current issues we face as citizens, analysed on a foundation of two subject groups; socioeconomics on the one hand and political science on the other.

This is a dynamic process and today will focus the spotlight on another hot-topic, the ongoing local authorities elections (which has in fact been ‘going’ for quite a while now, from place to place); but as it now enters a decisive arena in the major cities and towns including Colombo.

You may recall an earlier ‘round’ of these elections was stayed for a while by order of Court, following several applications against the rejection of nomination papers; these cases were filed mostly by ‘recognised political parties,’ the bulk of them by the UPFA, the next lot by the UNP and some others. The judgments delivered subsequently upheld primarily the importance of ensuring franchise (as opposed to mere ‘technicalities’), holding that the rejection of nominations by the various returning officers were ‘bad in law’.

Even following those elections that were held thereafter and pursuant to the declaration of results, several other applications have been filed, on this occasion by contestants of the same party; most of them challenging the declared result of the ‘preferential vote’ accounted for them.

Herein lies a divergence of interests of the same persons at two stages of the same election; working as ‘a party’ before but against one-another later; of course even during the campaigns we noted several rather unruly incidents between candidates of the same party, but let us leave that where it belongs and out of this dialogue, perhaps noting that old cliché in passing, that ‘politics makes strange bedfellows’. It may be of interest to both the candidates, as indeed the voter, to critically analyse the Local Authorities Elections Ordinance No. 53 of 1949 (which I shall hereafter call ‘the Ordinance’), its amendments and its interpretation by the courts.

Franchise of the people – From participation to representation

Ancient city dwellers back in history, such as the Athenian society during the times of Plato did not have to cast any manape, but opted to take part in policy making themselves, what is referred to in the science as direct or ‘participatory’ democracy; where the entire city-state would gather periodically and decide on matters that affected them.

Over time however as life became a bit more complicated and some of us had to engage in actual work to feed ourselves, we developed a system of ‘representative’ democracy; where we opted to ‘elect’ some persons (exercise our franchise) to do the talking and managing our cities for us.

This system of franchise thereafter underwent several systemic changes both globally and domestically, like our Proportionate Representation System (PRS), which some argue is actually ‘a deal’ by way of which you secure ‘a seat’ anyway, be it on the ruling side or opposition; notwithstanding whether ‘your party’ has actually won or lost the electorate. This allows ‘the member’ to remain within that assembly, where the ‘side changing’ from ruling to opposition is only a matter of time; both ‘major sides’ get their turn!

However, as we are not discussing the demerits of the PRS, let us turn our critical gaze on this Preferential Voting (PV) or the manape syndrome, which in fact counters my above observation; since although the non-victorious party will still secure some seats under the PR system, it is only the manape (PV) that will decide as to whom actually occupies that seat. Thus the 1977 scheme of elections (with prominence on the ‘party contest’) was replaced in 1987 with the PV system, to also elect a ‘preferred candidate’; which has now become a primary reason for conflicts between party-contestants, competing more against their own colleagues at times than another party or group!

So at a basic level this combination between the PR & PV systems operate this way; a party mustering the largest chunk of votes gets to ‘rule’ but all others are also allocated seats ‘proportionate’ to what they polled (subject of course to the drop-outs that don’t reach the ‘proportionate minimum’ threshold); this is the first step. Thereafter each party will be asked to allocate members to fill-up those seats, which is said to operate on the declared PV (manape); this is the second stage, which is primarily a ‘party matter’.

As we have consistently maintained poli-socionomics cannot exist in naïve oblivion of reality, these are ‘people centric’ sciences (as opposed to ‘material based’ sciences like physics or botany) and therefore common human variables must also form part of our analysis; both negative traits like jealousy, conceit and deception as indeed positive attributes like honesty, sincerity and brotherhood must be accounted for.

Admittedly therefore all political parties will first seek to somehow enhance their total vote (to magnify their PR) and to that extent, may seek to exploit this ‘competition’ amongst contestants; wooing various individuals with some vote-bank to contest on their ticket. Thus having obtained that chunk of the total vote for the party, the question is how ‘interested’ they are in ensuring that it is the candidate garnering the highest PV that is declared elected; would those ‘positive’ human variables such as camaraderie and brotherhood operate in this, or will it be subject to the ‘negative’ like cutthroat jealousy? These questions have occupied the minds of the highest judiciary of this republic, as indeed it ought to in the Legislature when formulating electoral systems; or so we presume!

Judicial interpretation of Legislative intent

When the Legislature formulates laws (such as this ‘Ordinance’) and when that particular law or its amendment is brought up for deliberation in Court, it engages in a ‘statutory interpretation’ process by way of which it seeks to presume what Parliament may have intended when they drafted that particular law; what objectives they may have had in mind; what ‘mischief’ they may have attempted to cure with that provision, etc. Thus when in 1991 an Independent Group that contested the Negombo Municipality brought a complaint to Court, in this case of Ivan Appuhamy Vs Chandananda De Silva, Commissioner of Elections, His Lordship Sarath N. Silva J, PC (as President of the Court of Appeal, as he then was) found that:

• Under the previous (1977) scheme the sole purpose of the candidates was to secure more votes for the party and not seek preference from voters
• The 1977 scheme removed the previous right of a candidate and his agent to be present at counting, that such ‘individual interest’ was replaced by a ‘collective interest’ (as under this scheme it was ‘the party’ that was entitled to appoint ‘counting agents’ – those who will be present at the count and ensure its transparency, and who will call for a recount if necessary)
• However by further amending of the scheme in 1987, bringing in the PV (manape) system where even all three votes could be cast to one single candidate, there was once more a ‘live interest’ for the candidate to ensure accurate counting of his ‘preferences’
• With this new scheme (PV), different ‘interests emerge’ at two stages of the count, firstly in the total vote for the party and then between candidates of that party inter se
• Since historically when candidates were contesting each other, the law provided for each such candidate to appoint a counting agent and seek a recount by himself or through such agent, this 1987 scheme should have included a similar provision and the failure to do so was a lacuna in the law amended by the Legislature
• Therefore at least by positive administrative action, by the Election Commissioner’s Officers using their discretion to permit the candidate to be present at the counting of preferences, the ‘adverse impact of the lacuna in law’ could have been avoided.

This decision was however appealed against by the then Commissioner of Elections to their Lordships of the Supreme Court, where speaking through His Lordship Mark Fernando J, PC the Supreme Court reversed the order of the Court of Appeal, finding that:

• There was no lacuna in the law, that Parliament had deliberately refrained from providing for candidates to be present during counting
• The assumption of partiality in counting agents appointed by the party between different candidates was questionable
• Such distrust and suspicion could not be reasonably said to exist amongst candidates
• This could not be expected amongst members of a team with common political objectives

‘Idealism’ Vs ‘Realism’ in politics

As young undergraduates the greater part of our first year’s study of this ‘science of politics’ was consumed by studying how various politicians and philosophers had approached the world; the ‘Idealists’ with their passionate belief that a new social system built on ‘goodness’ and ‘righteousness’ in people, etc. can solve major human problems such as poverty and war and that we can create a ‘right way of life’ usually in collectivist forms. Then there were the

‘Realists’ who viewed the world for what it was (to them), that nations and politicians ought to or indeed do pursue power or their own self-interests, and most importantly we were also encouraged to learn that they both do exist, to ‘think and not judge’ as to what was ‘right or wrong’; but that was university life then!

I see these divergent viewpoints in the above two judgments of their Lordships, Fernando J and SN Silva J, two extraordinarily gifted, eminent legal brains that this country has ever produced, both brilliant President’s Counsel who proceeded to adorn the highest benches of justice of this Republic, both with razor-sharp ‘judicial intellect’ and the ability to elucidate that with crispness inherent in them; viewing this particular issue of the manape (PV system) in their own style and approach; one seeing the ‘reality’ of how it operated ‘politically’ and the other seeking the ‘ideal’ in which it is expected to operate.

One evening of January 2009 we received the sad news of the demise of His Lordship Fernando J, and immediately after returning from paying our respects, I was moved to put pen-to-paper; I’ve searched and located what I wrote then of these two judges:

“… I’ve had occasion to see appellate Judges in action overseas, and I can safely say that our Mark Fernando J was as good as a bunch of them put together, if not better! If ever there is a judge whose demeanour on the bench, razor sharp intellect, judicial temperament and speed of comprehension that I should like to emulate; that would be His Lordship… If I were asked to name another who could match his incisiveness, ease of grappling with the most complex of issues and crystallising the crux of it, and elucidating all of it in a coherent and judicially sound judgment; I could only think of one other and that is His Lordship the incumbent Chief Justice (I was referring to Sarath N Silva, J)… These two judicial minds, though diametrically opposite personalities in many ways, in my humble opinion, form the crème de la crème of our lifetime. I am certain that much would be said against me for these very words, or I may very well end up in a soup for speaking it… At times when in absolute dismay at the status quo of several things in this country, in absolute naivety and far divorced from the Realists, I ponder, what great milestones we may have achieved with these two super intelligent judicial brains working together; but this was not to be…Sri Lanka was once again not that fortunate to have the best of what she got…”

Well, that is what I thought then and I haven’t seen any reason to change my mind now!

The ‘Manape’ that leads to the ‘Amanape’ in local govt. elections

Contrary to common opinion once again, two diametrically opposite political thinkers in history holds almost similar views on people, elections and their inability to decide correctly. Plato criticises the judgment of ‘common people’ and writes that they will decide on ‘impulse, sentiment or prejudice’ and that democracy in fact ‘encourages bad leadership’!

He proceeds to write that such a leader will always attempt to retain popular favour by the easiest way, telling people what they like to hear but not what they actually require, likening them to ‘salesmen’ who sell the people comfort but not tell the truth. Hitler commenting on the same subject likens the psyche of the broad masses to a woman’s emotional decision making, stating that “… the masses have very little idea on how to make a choice…they feel very little shame at being terrorised intellectually and they are scarcely conscious of the fact that their freedom as human beings is impudently abused…”

Thus both these diametrically opposite political thinkers also highlight the lack of proper judgment by ‘the people’ to make a right choice and how they can be motivated by sentiment, emotion and impulse to make mostly an incorrect choice. This situation is compounded by parties and groups seeking to muster the maximum possible votes, topped up by candidates of the same party competing with each other; in addition to (or sometimes worse than) contesting an opposing party!

What is clear then is that the legislature must immediately take a cue from the Judiciary and promptly follow-up on what it has been assuring the voters for some time now; to once and for all get rid of this ‘manape’ fiasco that leads to unnecessary trouble with ‘amanape’ even amongst the same party members! Until such time though the poor candidates have no option but to seek the intervention of courts in order to effectively protect their interests; which could be avoided to a great extent by some timely and ‘reasonable exercise of discretion’ by the officers of the Elections Commissioner.



(The author is a practitioner in Sri Lanka. He obtained a Master’s Degree in Laws (Hons) from King’s College London and was granted conversion as a Barrister. He also holds a Bachelor’s Degree in Political Science, Int. Relations and Journalism from the University of Colombo and a Postgraduate Diploma (Hons) in Int. Relations, Political Science and Conflict Resolution from the BCIS. He is a life member of the Bar Association of SL (BASL), a member of the International Bar Association (IBA) & formerly of the Association of Sri Lankan Lawyers UK (ASLLUK). He was awarded ‘The Outstanding Young Person’ (TOYP) for Legal Accomplishment in 2008. He may be contacted on [email protected] for any clarification on his writings.)