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Friday, March 1, 2024

Entire legal framework of electoral process should be reviewed, modified and strengthened

Sarath N. Silva
The recent incident at Mulleriyawa resulting in several deaths and serious injuries to others, which took place when an election was in progress, depicts the spiral of violence that has engulfed our electoral process. The incident involved high ranking politicians of the ruling party itself and their heavily armed security personnel.
They were empowered and armed by the government which is wholly responsible for the terrifying incident. If that be the level of violence which they inflict on each other, one could imagine the level of violence, intimidation, undue influence, malpractice and corruption of which the opposition parties are victims.

The general tendency has been to sweep things under the carpet and to gradually, perpetrate more of the same. But, this time around, the event has been so shocking that at least one constituent party of the ruling alliance, the Jathika Hela Urumaya (JHU), has openly called for an entire review of the legal framework of the electoral process.

The fault ultimately lies not in the law but in the craving of individuals and groups of individuals and their insatiable clinging to positions and power with its attendant gains. However, the legal framework should be modified and strengthened to restrict the space for abuse and oppression since the ultimate victim has been the democratic electoral process itself. The JHU is on the right track and I think the opposition parties and civil society should build up a strong public opinion calling for necessary review and reform based on past experience so as to uphold democracy.

According to Article 1 of our Constitution being the Supreme Law of the land, our country “Shall be known as the Democratic Socialist Republic of Sri Lanka”. Every politician who holds elected office beginning from the highest ranking, the President and every public officer charged with the administration of the electoral process, takes a solemn oath to uphold and defend the Constitution.

The essence of democracy which forms one part of our country’s name is free and fair elections at which those who wield governmental power are elected to office. The essence of socialism which forms the other part of the name is equality of opportunity. When the two components are combined, our country to be deserving of its name, should have periodic election to the representative organs of government, held according to the due process of law free from intimidation, corruption and other forms of abuse and victimization, thereby ensuring an environment in which every voter is free to exercise his or her choice.

And an equal opportunity should be afforded to every candidate to convince the voter of such candidates claim to be elected to office.

These ideals are drifting to the distant horizon which is made apparent by the fact that the common opposition candidate at the last Presidential Election enjoyed only 12 days of freedom after the conclusion of the election. He has been in custody ever since then and has been denied his pension earned upon 40 years of public service and stripped of his rank and medals awarded on his leading the Army to victory over the terrorists.

However, the lessons of history are that countries evolve to be liberal and democratic from dismal and despondent stated, through the reform and strengthening of the process of free and fair elections. I would identify three aspects of the legal framework relevant to elections that require reform and strengthening to enhance the democratic and socialist ideal set in the Constitution of our country.

They are;

( i)The system of elections,

(ii) Rules that regulate the conduct of

(iii) Regulatory and enforcement mechanism and necessary to keep the electoral process on course.

The British being the last of our imperial rulers in their span of 150 years gradually transformed our state from a monarchy to a Democracy. They did this by appointing Commissions to inquire into and report on the level of reform that was necessary at the particular stage of history.

The first was the Colebrook-cameron Commission the proposals of which were implemented by the Constitutions of 1833, 1910 and 1920. The next was the Donoughmore Commission of 1927 which resulted in the Constitution of 1931 being a watershed in the evolution to a democratic state. Universal adult franchise (the right to vote) was introduced. Our country was the first in the whole region to enjoy this right. Elections were held to the State Council which exercised legislative and executive power in distinct electorates on the “first past the post” system without the intervention of political parties.

The last, was the Soulbury Commission of 1945 which resulted in the Constitution of 1947 that introduced the British form of Parliamentary-Cabinet government with elections of political parties. The first Republic Constitution of 1972 did not make any change in the electoral system which functioned reasonably well with periodic changes of government.

In contrast to the process of gradual reform based on extensive consultation referred to above, the 1978 Constitution was an overall change of the whole system of government and of elections, effected with minimum consultation restricted to Parliament only. J. R. Jayewardene was the architect of the constitution which was drafted by a hand-picked team drawn from outside the public sector.

An Executive Presidency and a Parliament elected on proportional representation was introduced without there being any public demand for it or a comprehensive consultation as to its merits. The only demand at that time was by the TULF for devolution of power which was not dealt with in this Constitution. It appears that J. R. Jayewardene made changes on the basis of the results of the 5 preceding Parliamentary Elections (1960-1977). The results of the 2 main parties, the UNP and the SLFP were as follows;

It is seen that although there were changes of government at every election, the UNP got the higher aggregate and percentage of votes countrywide at all elections, Therefore, if the 1978 model had been in operation the UNP would have won the Presidency and the Parliamentary Elections throughout the period. J. R. Jayewardene whilst giving vent to his will to establish a strong Executive Government had also been motivated to introduce the new system by a desire to keep his party in power. He was right for 17 years but, he probably did not bargain for charismatic leaders to emerge from the SLFP who would turn tables on a weak leadership of the UNP reducing it to the abject state it has descended today.

Further it is seen that J. R. Jayewardene has no genuine faith in the system of proportional representation. In 1983 when the time came to hold the first Parliamentary Election under the new system J. R. Jayewardene avoided it by opting to extend the life of Parliament for another six years pm a Referendum. Thus the architect was fighting shy of his own design! What was introduced by the 1978 Constitution is known as the “crude list system”.

According to which upon the proportion of votes won by a party, its candidates are declared elected in the order in which their names appear in the nomination paper. In May 1988, at the tail-end of his tenure J. R. Jayewardene realized the flow in this system and by the 14th Amendment introduced the Preference System of voting which has had calamitous consequences including the shooting at Mulleriyawa.

The moral of the story is that constitutional reforms should not be actuated or personal motivation but solely to serve the democratic ideal best.

The first-past-the post system has distinct advantage of a direct link between the MP and his defined electorate. He remains continuously responsible and answerable to the voters and could seek reelection only on the basis of performance. This link is diluted and diffused in proportional representation where the electorate is a vast area and there is no clear line of responsibility in respect of a defined area.

Hence the ‘first past the post” system operative in England being the home of Parliament, India, Australia and many commonwealth countries and which served us well for many decades would bring us closer to democrat ideals.

The drawback in this system is that a party may be under represented in Parliament considering the total votes polled by its candidates. This happened in 1970 March when the UNP polled 37.9 percent of the votes but won only 17 seats and in 1977 July when the SLFP polled 29.7 percent of the votes but won only 8 seats. This could be remedied by introducing a mixed system in which only a certain percentage of the seats are filled by MPs elected to constituencies and the others are allocated to the parties or independent groups in proportion to the votes polled by its candidates within the district (the district quota to be nominated by the party).

A further refinement has been made to this system in Germany to make it more equitable which is described as a process of “Topping Up”. That would apply when the number of seats won by a party in the constituencies (On the first past the post system) is higher than the percentage of votes of that party in the district, then the party having a lower number of seats than its percentage of votes would have more seats allocated from the district quota to bring its representation as close as possible to the proportion of votes polled.

A further measure that may be considered to cope with our experience of MPs crossing over to another party is that the seat of such MP would become vacant to be filled at a by-election. In this case of an MP from the district quota the party would be entitled to make a fresh nomination.

I have mentioned these points for further consideration and debate since it is in the national interest to learn from our experience and adopt the best option. The other two matters would be dealt with in a future article

(Sarath Nanda Silva is a former Attorney-General and Chief Justice of Sri Lanka)



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