By Neville Ladduwahetty Courtesy The Island

April 28, 2016, 9:38 pm
Franchise is the bedrock of Democracy. The right of franchise is granted to those who qualify to participate in processes that involve the two forms of Democracy, namely, Direct and Indirect Democracy. The right of Franchise is the right to vote “directly” on issues related to the sovereignty of the People at Referenda, or “indirectly”, in order to elect representatives to whom the People temporarily delegate their sovereignty. This enables the elected representatives to act on the People’s behalf, while protecting the Peoples’ sovereignty.

Beginning with the granting of Franchise to a few select citizens, the right of Franchise has over the years expanded its scope to what is now recognized as a Right, stated in the Universal Declaration of Human Rights.

Article 21 of the Universal Declaration of Human Rights states:

(1) “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives”.

(2) “Everyone has the right of equal access to public service in his country”.

(3) “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures”.

Universal adult Franchise was introduced in the U.K. in 1928 and in Sri Lanka in 1931. Exercising the Right of Franchise does not stop at casting the vote. The voter is expected to stay engaged and in fact participate in the processes of governance and make sure that his/her sovereignty is not usurped, but is in fact is protected.

FRANCHISE and SOVEREIGNTY

Provision for the citizens of Sri Lanka to exercise their Franchise directly and indirectly is provided for in Article 4(e) of the 1978 Constitution.

Article 4 (e) states:

“the franchise shall be exercised at the election of the President of the Republic and the Members of Parliament, and at every referendum by every citizen who has attained the age of eighteen years, and who, being qualified to be an elector as hereinafter provided, has his name entered in the register of electors”.

When the citizen exercises his/her Franchise at a Referendum he/she is engaging directly in issues relating to sovereignty specified in the Constitution or as determined by the Judiciary. On the other hand, when the citizen exercises his/her Franchise to elect a President and Members of Parliament he/she delegates part of his/her sovereignty for a specific period to individuals whom the voter expects would act to further his/her interests and wellbeing while protecting the voter’s sovereignty.

The justification for this expectation derives from Article 3 of Sri Lanka’s Constitution” …the sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise”. Therefore, when the citizen exercises his/her Franchise to elect a President, the citizen elects the Head of the Executive who would be exercising the Executive powers of the People as per Article 4 (b). Likewise, when the citizen exercises his/her Franchise to elect Members of Parliament, the citizen elects Members who would be exercising the Legislative powers of the People as per Article 4 (a). And since it is Parliament that would be responsible for exercising the Judicial powers of the People, the exercise of the Franchise by the citizen results in setting in place the “powers of government” referred to in Article 3 cited above.

The genesis of People’s sovereignty is the Franchise. Without it there cannot be “powers of government”. It is thus that the Franchise is included with Fundamental Rights and powers of government as the minimum attributes of the sovereignty of the People. Consequently, any action that impacts on the sovereignty of the People and the basic structure of the State requires 2/3 approval of Parliament to whom the sovereignty of the People have been temporarily delegated including the direct approval by the People at a Referendum.

FRANCHISE in REPRESENTATIVE

DEMOCRACY

The fundamental premise of Franchise is the equality of persons exercising the right of Franchise, because all People are equally sovereign. That equality should extend to all the Members in Parliament in respect of fulfilling the responsibilities of those who elected them. The question that arises is whether the current formation in Parliament recognizes equality of the elected representatives. If equality does not exist, not only is the equality of the People who elected their representatives violated, but so is their sovereign right of equality.

In the Sri Lankan context a citizen exercising his/her right of Franchise selects a political party and an individual who mirrors the political opinions and views of the voter. Such a selection amounts to a free expression of his/her political views. Consequently, the act of exercising his/her right of Franchise places a responsibility on the elected representative, because the voter is temporarily delegating part of his/her sovereignty. Thus, the representative is expected to honor the trust placed on him/her by the voter.

Therefore, the choices open to an elected representative are limited. He could be either with the Government in power or be in the Opposition. A third alternative would be for the party of his/her choice to be part of a Coalition, provided there is consensus within the party for such a formation. However, under no circumstances should some representatives of the party he/she voted for be with the Government while the rest decide to be in the Opposition. To do so would be to violate the undivided sovereignty temporarily delegated to the whole party of his/her choice.

The last situation is what prevails in Sri Lanka’s current Parliament. With the UNP coalition securing 106 seats and the UPFA coalition securing 95 seats at the August 17th General election, neither coalition had the 113 majority needed to form a Government. Therefore, the formation of a coalition Government was inevitable. Had all members of the two coalitions decided to form a Government it would not have violated the voter’s Franchise, because his sovereignty would have remained intact. This was the case with the previous coalition Government in U.K., when the Conservatives and the Liberal Democrats joined forces to form a Government because the Conservatives did not have the needed majority to form a Government.

This is not what happened in Sri Lanka. In Sri Lanka the UNP coalition and the SLFP faction of the UPFA coalition reached an understanding that they would commit to be with the ruling Government. This understanding was not acceptable to the entirety of the SLFP. This caused some members of the SLFP to be with the Government while the rest of the SLFP and those in the UPFA deciding to form the Joint Opposition. Consequently, the UPFA is divided into a faction that supports the Government with the rest forming the Joint Opposition. This division has resulted in the sovereignty of those who voted for the UPFA to be divided. A voter is therefore not aware as to which faction of the UPFA represents his sovereignty and interests. This has been compounded by the fact that the “understanding” has left a section in the Joint Opposition mute because they are presumed to be part of the government, and therefore not recognized as part of a legitimate Opposition in a Democracy.

This lack of recognition defies all norms of Representative Democracy and dishonours the sovereignty and the trust of the People who voted for the UPFA. Furthermore, the lack of recognition has prevented them from participating as a legitimate Opposition should in a Democracy. It also denies the SLFP faction in the Opposition from expressing the political interest and concerns of those who voted for them. Consequently, the voices of the Members of Parliament who represent them have been silenced. It should be recognized that members of the UPFA who are in the Opposition have neither dishonoured the voter, nor violated the voter’s trust and sovereignty.

The compulsion to go to such extreme lengths was to create the impression that the “arrangement” between the UNP and the SLFP represented a National Government as per Article 46 (5) of the 19th Amendment. The fact that the entirety of the SLFP is not represented in the formation of the National Government means that the “arrangement” is only with a faction of the SLFP. Therefore, the formation of the present Government with only factions of a political party does not qualify to be recognized as a National Government per the Constitution.

The need to engage in this unconstitutional “arrangement” was in order to increase the size of the Cabinet with the approval of Parliament. This has enabled the Government to expand its numbers to the point of ensuring a 2/3 majority in Parliament. The current state of affairs where the sovereignty of those who voted for the UPFA is divided could entirely be attributed to distorting the concept of what constitutes a National Government.

CONCLUSION The origin of the word franchise goes back to Anglo-French, meaning freedom, liberty, The origin of the word franchise goes back to Anglo-French, meaning freedom, liberty,

Exercising the right of Franchise by a citizen does not cease at voting. Its meaning is far more significant. When a citizen exercises his/her Franchise to elect a President he/she is electing the person responsible for exercising the Executive powers of the People. Likewise, when a citizen exercises the Franchise to elect Members of Parliament he/she is electing persons responsible for exercising the Legislative powers of the People. Since Parliament is responsible for exercising the Judicial powers of the People the act of exercising a citizen’s Franchise in the election of the President and Members of Parliament means participating in institutionalizing the “powers of government” which together with Fundamental Rights form the bedrock of the sovereignty of the People.

The meaning of Franchise is to temporarily delegate the citizen’s sovereignty to the President and the Members of Parliament and for them to exercise the “powers of government” referred to in Article 3 of the Constitution. And since all citizens are equally sovereign, all Members of Parliament should also be equal.

The compulsion to create a National Government has resulted in denying equality to some Members of Parliament by not recognizing them as the legitimate Opposition due to a “political arrangement” involving two political parties – the UNP and the SLFP (latter did not contest the August 17th General Election),. This inequality has resulted in some members of the UPFA being with the Government while the rest have remained with the Joint Opposition. The consequence of this was to divide the sovereignty of the voters who voted for the UPFA, and make the faction with the National Government more equal than the faction with the Joint Opposition.

The division within the UPFA is a violation of Article 46 (5) of the 19th Amendment because a National Government is required to be formed with the entirety of recognized political parties and NOT with factions of political parties. The current set up, therefore, is not only a violation of the concept of a National Government as intended in the 19th Amendment, but also is in violation of what Franchise stands for, which is for a voter to temporarily delegate his/her sovereignty to the whole of a political party or a coalition such as the UPFA.

It is apparent from the foregoing that the formation of the National Government as it currently exists has resulted in the following:

1. It has divided the sovereignty of the voters who voted for the UPFA by making one faction less equal than the other.

2. It has violated the concept of a National Government intended in Article 46 (5) of the 19th Amendment because one constituent party in the National Government is not represented in its entirety but as a faction of a political party.

3. The current formation of the Government does not meet the threshold of a National Government because such a Government is required to be formed by the party with the largest majority “together with the other recognized political parties” as per Article 46 (5) of the 19th Amendment.

Taken together, the measures adopted in the formation of a National Government have resulted in the violation of the Constitution.