Four decades of constitutional folly and failure – 2
Posted on August 9th, 2019

By C. A. Chandraprema Courtesy The Island

13A -SL never got what India has

President J. R. Jayewardene and Indian Prime Minister Rajiv Gandhi after signing the Indo-Lanka Accord, which paved the way for the provincial council system.

“Upon the making of a proclamation under the Public Security Ordinance or the law for the time being in force relating to public security, bringing the provisions of such Ordinance or law into operation on the ground that the maintenance of essential supplies and services is, threatened or that the security of Sri Lanka is threatened by war or external aggression or armed rebellion, the President may give directions to any Governor as to the manner in which the executive power exercisable by the Governor is to be exercised …” 

(The previous article titled ‘The totally inadequate Sixth Amendment’ was published in The Island on Friday the 12th July)

If one continues the study of the amendments to the 1978 Constitution of Sri Lanka, the 7th Amendment was brought to make provision for increasing the number of administrative and electoral districts. The 8th Amendment was about the appointment of President’s Counsel. The 9th Amendment was to adjust the salary scales of public servants who are not qualified to be elected as Members of Parliament. The 10th Amendment was brought to remove the requirement of a two-thirds majority in Parliament to maintain a state of emergency beyond a stipulated period. The 11th Amendment was about the jurisdiction of the High Court and the authority of the Judicial Services Commission and the number of judges who shall constitute a bench etc. The 12th Amendment was not enacted. Thus we see that Amendments 7 to 12 were largely on housekeeping matters.

It is noteworthy that when the 1978 Constitution was first enacted, under the original Article 155, if a state of emergency had been in operation for a period of ninety consecutive days or a period of ninety days in total during six consecutive months, no declaration of a state of emergency made during the ensuing six months could be maintained for more than ten days unless such Proclamation was approved by Parliament by a two-thirds majority of the whole number of Members of Parliament. It should be noted that this was not just two thirds of the number of MPs who may be present on that day in Parliament, but two thirds of the whole number of MPs in Parliament – a requirement which substantially ups the ante.

In the context of the late 1970s, this provision may have been a knee-jerk reaction to the emergency rule that took place under the Sirima Bandaranaike government. However as the northern terrorist threat grew, wiser counsel prevailed and the Constitution was amended accordingly. Of all the housekeeping Constitutional Amendments, the most useful and important one was arguably the Tenth Amendment, which removed the requirement for a two thirds majority of the whole number of MPs in Parliament to maintain a state of emergency beyond a certain period.

Look-alikes that are not alike

The Thirteenth Amendment was not something that grew out of our soil but was imposed on Sri Lanka by India, which thought it was a suitable compromise solution to the demand for a separate state. The Indian central government at that time saw itself as the champion of Tamil rights in Sri Lanka. So it imposed on Sri Lanka what was supposed to be a replica of the system of devolution that was in practice in India in a ‘one size fits all’ kind of solution. The J. R. Jayewardene government was forced to accept what the Indians imposed on Sri Lanka under threat of a fully-fledged invasion of this country. In the late 1980s, the situation was such that the Indians would have followed through with such a threat. They had at that time not yet tasted the bitter fruit that was to result from this intervention. Hence this particular Constitutional Amendment is the one exception where the folly cannot be blamed on a Sri Lankan government or Sri Lankan political parties. The system of devolution that was imposed on Sri Lanka by the Indians superficially looks like the system in operation in India.

Each Province in Sri Lanka like the States in India, has an elected legislative body which can make statutes applicable within that province in relation to the subjects coming under the purview of the provinces. The powers of the elected provincial councils are, more or less, the same as the powers devolved on the Indian states. The three lists of powers which stipulate the powers of the central government, the powers devolved to the provinces and the concurrent powers that can be wielded by both the center and the provinces are modeled on the three lists in the Indian Constitution. The powers of the provincial governors are the same as those of the state governors in India. As in the Indian states, each province was to have a separate police force with the same powers as the Indian state police forces. The powers over land devolved to the provinces in Sri Lanka and India are, more or less, the same.

There is even a provision in the 13th Amendment incorporated into the Constitution as Article 154L for ‘President’s rule’ like in India. Even the wording of this provision in the 13th Amendment is very similar to Article 356 of the Indian Constitution. If the President, on receipt of a report from the Governor of the Province or otherwise, is satisfied that a situation has arisen in which the administration of the Province cannot be carried on in accordance with the provisions of the Constitution, the President may by Proclamation- (a) assume to himself all or any of the functions of the administration of the Province and all or any of the powers vested in, or exercisable by, the Governor. (b) declare that the powers of the Provincial Council shall be exercisable by, or under the authority of, Parliament.

Article 353 of the Indian Constitution has a provision which states that while a Proclamation of Emergency is in operation, the executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised. A similar provision can be seen in the Thirteenth Amendment which has been incorporated into the Sri Lankan

Constitution as Article 154J which goes as follows: “Upon the making of a proclamation under the Public Security Ordinance or the law for the time being in force relating to public security, bringing the provisions of such Ordinance or law into operation on the ground that the maintenance of essential supplies and services is, threatened or that the security of Sri Lanka is threatened by war or external aggression or armed rebellion, the President may give directions to any Governor as to the manner in which the executive power exercisable by the Governor is to be exercised …”

Despite the superficial similarity of the systems of devolution in practice in Sri Lanka and India, Sri Lanka has been deprived of all the most important safeguards that the central government in India has vis-a-vis the states. The shortchanging starts with the safeguard that has grudgingly been given to the Sri Lankan center vis-a-vis the provinces. In Sri Lanka, President’s rule can last only for a maximum of one year whereas in India, President’s rule can last for up to three years. The important safeguards that are available to the Indian centre but unavailable to the Sri Lankan center are as follows:

Safeguards available to the Indian Centre

Article 201 of the Indian Constitution: When a Bill has been passed by a state legislature, it is presented to the Governor. The Governor can either assent to the Bill or reserve it for the consideration of the President. When a Bill is reserved by a Governor for the consideration of the President, the President can either assent to the Bill or withhold assent. The President may direct the Governor to return the Bill to the relevant state legislature with his observations and the state legislature can reconsider it within a period of six months. If it is once again passed by the state legislature with or without amendment, it shall be presented again to the President for his consideration. There is nothing in the Indian Constitution to say that the President is mandatorily required to assent to a Bill from a state legislature even when it is sent to him after being passed for a second time. All that a State can do through its Governor is to present a Bill to the President for his ‘consideration’. Assenting to it or not will be entirely at the discretion of the President. Article 201 gives the Indian President the power to effectively veto Bills of state legislatures.

Some Indian states are much bigger than most nation states in the world and many are far bigger than Sri Lanka both in terms of population and land mass. Yet the Indian President has the power to veto Bills coming from such large sub-national entities. In Sri Lanka however, when a Provincial Governor reserves a statute for reference to the President, all that the Sri Lankan President is empowered to do is to refer it to the Supreme Court for a determination that it is not inconsistent with the provisions of the Constitution. If the Supreme Court determines that the statute is consistent with the provisions of the Constitution, the Governor on receipt of the Court’s determination is mandatorily required to assent to the statute. Thus, we see that when it comes to assenting or not assenting to provincial statutes, the Sri Lankan President is, at best, only a post box.

Article 249 of the Indian Constitution: If the Indian upper house of Parliament the Rajya Sabha has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest that Parliament should make laws with respect to any matter enumerated in the State List specified in the resolution, it shall be lawful for Parliament to make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains in force. Such a resolution shall remain in force for a period not exceeding one year. It can continue to be in force for as many years as is necessary provided the Rajya Sabha keeps renewing the resolution annually. It should be noted that this resolution needs to be passed only in the upper house and not in the Lok Sabha. The 245 member Rajya Sabha is made up of representatives of the Indian states with the number of representatives depending on the size and population of the state.

It should be noted that the majority required to pass such a resolution is only two thirds of the Members present on that day and not two thirds of the whole number of Members of the Rajya sabha. This provision gives the representatives of other states of the Indian union sweeping powers to resolutely intervene to bring a separatist state under control. The Rajya Sabha has the power to apply this provision to a part of India or even the entire country if necessary and there is no limit to the number of years it can be in operation provided the resolution is renewed annually. Article 250 of the Indian Constitution: Parliament has the power to legislate with respect to any matter in the State List whenever a state of emergency is in operation. This power may extend to the whole of India or to just one state according to requirement. Article 251 of the Indian Constitution stipulates that whenever the Indian Parliament makes laws relating to subjects coming under the states in terms of Articles 249 and 250, the law made by Parliament so long as it is in force, will override any law on the same matter made by the state legislatures. In Sri Lanka, if Parliament is to legislate on a matter coming under the purview of the PCs without the consent of each and every provincial council, it will have to be passed by a two-thirds majority in Parliament. In Sri Lanka this requirement does not change even when an emergency is in operation.

Article 354 of the Indian Constitution: When a state of emergency is in operation, the Indian President has complete power over the powers of taxation of the Indian states. Thus. he can suspend or modify the powers of taxation given to the states by Articles 268 to 279 of the Indian Constitution. Such a provision gives the central authorities a very strong hold over the states. The Sri Lankan President has no such powers under the 13th Amendment.

There is no gainsaying the fact that Articles 201, 249, 250, 251 and 354 of the Indian Constitution make a world of a difference. If the Sri Lankan President was able to veto any statute passed by the Provincial Councils, if all the Provincial Council Members in Sri Lanka sitting as a formal body (in lieu of a Rajya Sabha) was able to with a two-thirds majority authorise the Parliament to take over all the functions of a provincial council in the national interest and continue for an indefinite period, if the declaration of a state of emergency automatically vested Parliament with the power to make laws with regard to any subject coming under the provincial councils by a simple majority, and the powers of taxation of the provincial councils can be automatically taken over by the center whenever a state of emergency is in operation, the whole game would be different. The attitude of the people towards the devolution of power itself would be different.

What we have now is a situation where Sri Lanka is expected to implement the devolution part of the Indian system including having separate police forces for each province, but without any of the above mentioned safeguards. During the last years of the Congress Party government, the full implementation of the 13th Amendment was a constant demand made on Sri Lanka. That demand should have been accompanied by an invitation to adopt Articles 201, 249, 250, 251 and 354 of the Indian Constitution as well. If a country like India needs such safeguards, how is anybody to argue that Sri Lanka can do without them? The above mentioned Articles of the Indian Constitution are just key examples of what is lacking in Sri Lanka’s 13th Amendment. There is much more. In the previous article, we have pointed out how lacking the Sri Lankan Sixth Amendment is when compared to the Indian 16th Amendment. All these things finally add up to a massive Constitutional failure in SL.

Playing ducks and drakes with electoral system

August 8, 2019, 12:00 pm 


By C.A.Chandraprema

(The previous article in this series of self-contained pieces on the Constitution was published on Monday the 22nd July.)

The electoral system as regards Parliament originally laid out in the 1978 Constitution was very different to what we have today. Before the Fourteenth Amendment, there were to be only 196 MPs and not 225. There was no National List. There was no preferential vote system. Some features of the elections system were the same as what we have today. Each Province was to have four seats distributed among the electoral districts in that Province. The total number of seats to be allocated in this manner was 36 (4 X 9 Provinces). Each province got four seats irrespective of its population, land mass, and number of electoral districts.

Then, as now, 160 seats were to be apportioned among the various electoral districts in accordance with the number of registered voters in each of them. The total number of voters registered in the Electoral Register of the country was divided by 160 to arrive at the ‘qualifying number’. The total number of voters registered in each of the electoral districts was then divided by this qualifying number to arrive at the number of MPs that each electoral district was entitled to return. Any leftover seats would be allocated to the districts with the highest number of residual votes. (It should be noted that seats are not allocated to the districts on the basis of their population but on the number of registered voters.)

The original Parliamentary elections system in the1978 Constitution did not have a preferential vote system. Each political party or independent group was to submit one nomination paper for each electoral district setting out the names in the order of priority that the candidates should be elected. The number of nominees on each nomination paper would be equal to the number of Members to be elected for that electoral district, increased by one-third. The party or group that gets the highest number of votes in that electoral district was to have the candidate whose name appears first in the nomination paper declared elected.

Thereafter, the parties or independent groups that polled less than one-eighth (12.5%) of the total votes polled in that electoral district were to be taken out of the race. The votes polled by these disqualified parties and independent groups, would then be deducted from the total votes polled in that electoral district to arrive at the ‘relevant number of votes’. The ‘relevant number of votes’ was then to be divided by the number of members to be elected for that electoral district reduced by one. (The reduction of one seat being the one that was allocated to the party that got the highest number of votes.) The number resulting from the division of the ‘relevant number of votes’ by the number of members to be elected for that electoral district reduced by one, is the ‘resulting number’.

The number of votes polled by each party and independent group that got more than 12.5% of the votes in that district beginning with the party or group which polled the highest number of votes, is then divided by the resulting number to arrive at the number of MPs each such party or group was entitled to in that district.

Under the original system laid down in the 1978 Constitution, political parties were to have the right to change the order of priority of the names in the nomination paper even after they had been declared elected and to substitute the names of other persons in place of those who have died or ceased to be members of such party. Thus, this was a system that gave the political party complete power over its MPs. This system was never implemented.

The 14th & 15th Amendments

The Fourteenth Amendment, which was introduced, in May 1988, before any Parliamentary election was ever held under the 1978 Constitution, introduced the preferential vote system whereby voters were entitled to indicate up to three preferences for candidates of the party they voted for. Thus, it was not the political party hierarchy that would decide who would get a seat in Parliament but the voters themselves. This was undoubtedly a more democratic way of doing things, but the preferential vote system gave rise to a number of other problems such as candidates having to canvass for preferential votes across an entire district, some constituencies ending up without an identifiable representative in Parliament, big spenders unsuited to hold public office being able to skim preferential votes off the entire district to get into Parliament, and the institutionalization of corruption due to the heavy expenditure involved in getting elected.

The Fourteenth Amendment also increased the number of MPs in Parliament from 196 to 225 by the addition of the National List of 29 seats, which were to be apportioned among the parties contesting the election on the basis of the proportion of votes they polled nationwide.

Perhaps, in recognition of the difficulties involved in obtaining preferential votes from all over an electoral district, the 14th Amendment, provided for electoral districts entitled to return more than 10 members to be divided into two zones and those entitled to return more than 20 MPs to be divided into 3 zones. Since there are no districts entitled to return more than 20 MPs, two zones would have been the maximum per district. Many districts would not have had zones at all because they were not entitled to return more than ten MPs. Each zone was to be a combination of two or more of polling divisions (constituencies/electorates). The number of MPs each zone was entitled to return was to be determined on the same basis as apportioning seats to each electoral district as outlined earlier.

In December 1988, the Fifteenth Amendment changed the system of elections yet again and the provision in the Fourteenth Amendment to divide some districts into zones, was abolished. The most far reaching and damaging change in the elections system introduced by the Fifteenth Amendment was the reduction of the district cut off point from 12.5% to 5%.

This enabled many small ethnicity and religion-based political parties to proliferate and has undermined the ability of the national political parties to form stable governments. The reduction of the cut-off point was not a well thought out matter of policy but a part of the political horse trading that went on before the 1988 December Presidential elections.

The Fifteenth Amendment was signed into law just 48 hours before the Presidential election of 19 December 1988 so that President Premadasa could obtain the votes of the then newly formed Sri Lanka Muslim Congress.

In the 30 years that has passed since this system of elections came into operation in 1989, it has given the party that wins the Parliamentary election a clear majority only on two occasions in 1989 and 2010. There have been calls for electoral reform including the reintroduction of a constituency based system so that each constituency will have an identifiable representative in Parliament and for the abolishing of the preference vote system. The need to canvass throughout a district in order to get elected has also come in for much criticism as this has increased the costs associated with an election campaign and the costs associated with maintaining the MP’s presence among the constituents and given rise to endemic corruption.

The best thought out proposal for reform of this electoral system was put forward by the Parliamentary Select Committee on Electoral Reform headed by Dinesh Gunawardene in 2007 after several years of deliberations. This PSC was first set up under the UNP government in 2002. According to the proposal put forward by the Dinesh Gunawardene Committee, Parliament was to have a total 225 MPs as at present. Of this, 140 MPs were to be elected directly from constituencies on the first past the post system. Another 70 MPs were to be elected on the district proportional representation system as follows: Firstly, the votes polled by the winning candidates in the constituencies within the district will be eliminated. Then the votes polled by the ‘other candidates’ of all the electorates within the district were to be totaled and divided by the number of proportional representation seats allocated for that district to arrive at the ‘qualifying number’. The number of votes received by each party for that district through the ‘other candidates’ would be divided by the ‘qualifying number’ to arrive at the number of seats that party was entitled to on the proportional representation quota. The candidate to be elected to Parliament under the district proportional representation system would be the ‘other candidate’ who has received the highest percentage of votes from his electorate (the best losers among those who contested the constituencies).

*Dinesh Gunawardene PSC recommendations

* The 15 National List seats were to be allocated as follows: Five seats would go to the party securing the highest number of valid votes at the election as bonus seats. Out of the balance, three seats were to be reserved for unrepresented minor parties that polled more than 5% nationwide but have not qualified for a seat. If there are no such parties, these three seats will be allocated in the same manner as other national list seats on the basis of the number of votes polled by each party at the national level. This is the best proposal for electoral reform that we have on the table at present. The only drawback is that this system requires a new demarcation of constituencies/ electorates to reduce the present number of 160 constituencies to 140.

Dr. Sudantha Liyanage, who designed the system that was modified and adopted by the Dinesh Gunawardene PSC, is skeptical that the delimitation process would be able to go off without a hitch, because some districts would have to bear the brunt of the reduction in the number of seats. Even though there is around one year till the next Parliamentary election, nobody is recommending electoral reform at the Parliamentary level at this stage due to the fear that the delimitation process may not be completed in time. The only real chance for the implementation of this system is if the political parties manage to come to an agreement on the delimitation of constituencies before the Bill to amend the section on Parliamentary elections in the Constitution is introduced. Not that this is impossible. An agreement between the two main political parties will suffice for that purpose. The two main political parties did cooperate with one another when the Dinesh Gunawardene Committee recommendations were passed into law for the local government level in November 2012.

The system that was put into place in 2012 for the local government institutions was never implemented. In 2017, it was changed again by the present government, introducing a pure proportional representation system which is now reviled by everybody including the political parties that promoted it. The 2018 local government election was held under this new system leaving everyone disgruntled. The UNP government of the late 1980s played ducks and drakes with the system of elections and, today, we have another UNP government doing the same thing. The next government will have to take up electoral reform as a matter of priority. Nobody wants the long delayed provincial council elections held under the elections system introduced in 2017.

Electoral system: No option but patchwork solutions?

August 9, 2019, 8:59 pm 


By C. A. Chandraprema

(Continued from yesterday)

Due to the difficulties anticipated in the delimitation process if the Dinesh Gunewardene PSC recommendations are to be implemented, some including Dr. Sudantha Liyanage, who designed that system, have given thought to an alternative proposal which will retain the present proportional representation system but still provide the party that wins a parliamentary election a working majority. This is based on the logic that if we can’t have proper electoral reform we must at least ensure that stable governments will be formed until a proper electoral reform process takes place. Most importantly, the alternative proposal would not require a fresh delimitation. One such proposal is to take about 12 seats out of the National List and to give them to the winning party as bonus seats. (As we saw in yesterday’s article, the system proposed by the Dinesh Gunawardene Committee also had five bonus seats from the National List allocated to the winning party).

At the parliamentary elections of 1994, 2000, 2001, 2004 and 2015 the winning parties got 105, 107, 109, 105 and 106 seats respectively inclusive of the national list seats. So it was a case of being short of anything between 4 to 8 seats to have the 113 seats that will provide a working majority. At the elections mentioned above, the number of national list seats that the winning party was entitled to was 14, 13, 13, 13, and 13 respectively. Even if 12 seats are taken out of the national list and given to the winning party as bonus seats, that number would include about 6 to 7 seats that the winning party was entitled to anyway and the number of seats the winning party finally gets as actual bonus seats, could be as low as five or six. This could lead to a situation where even after getting the 12 bonus seats, the winning party may still not get a working majority of 113 seats – a frightening thought.

Abolish the national list

In this context, there is perhaps a solution of sorts, which this writer would like to suggest. As pointed out earlier, the national list was only an afterthought which came with the Fourteenth Amendment. Originally, there were supposed to be only 196 MPs in Parliament, and no national list. My suggestion is that the national list be abolished altogether leaving only 12 bonus seats for the winning party after the fashion of the 1948 Constitution, which had provision for the appointment of six MPs by the party that forms a government after an election. That would reduce the number of MPs in Parliament from the present 225 to 208 (196 elected MPs + 12 appointed MPs). A reduction in the number of MPs will always be welcomed by the general public.

In today’s context, it is important to specify that the 12 bonus seats will be given to the party that wins the most number of seats at the election, and not to the party that manages through various horse deals to cobble together a government after an election. The 1948 Constitution assumed that it would be the party that wins the most number of seats that would form a government. That assumption will not work with today’s conspiratorial and interest group driven politics and it is absolutely essential to specify that it is only the party that wins the most number of seats that will get the 12 bonus seats.

The 1948 Constitution, with only 101 MPs in Parliament, gave the party that forms a government six bonus seats. So to have 12 bonus seats in a Parliament of 208, is not excessive at all. If the number of MPs is reduced to 208, the number of MPs necessary to form a stable government will be 105. An examination of the election results of the past 30 years will show that after 196 MPs are elected from the districts, an additional 12 bonus seats would enable the winning party to have a working majority. It is, of course, impossible to totally eliminate the possibility of the winning party falling just short of a working majority. The idea would be to ensure that hung Parliaments are the exception rather than the norm. As things stand today, winning parties without a working majority is the norm. The two exceptions to that in the past 30 years being the Parliaments of 1989 and 2010.

The National List has earned a bad name and abolishing it will be welcomed by the public and even by elected MPs. One difficulty in abolishing it is that over the years, every political party has got accustomed to nominating a few critically important people to Parliament through it. In the case of the winning party, this will be no issue because there will be the 12 bonus seats to which they can be appointed. However, the parties in the Opposition will have no way of appointing people they believe to be of importance to the party, to Parliament. Perhaps, the way to deal with this may be to take a leaf from the original 1978 Constitution and give the political parties unfettered authority to appoint whoever they like to one or two seats won by that party in each province.

Each province is allocated four seats in Parliament. When these seats are apportioned to the various electoral districts in the province, they become the district bonus seats that everyone is familiar with. Even though the popular belief is that each district has only one bonus seat, some districts have two bonus seats. If a Province has three electoral districts, two electoral districts will get one bonus seat each and the remaining district will get two bonus seats. To illustrate this by way of an example, the Colombo district is entitled to17 seats going by the number of registered voters in the district. With the bonus seat, the Colombo district should have 18 seats. But it actually has 19 seats because it has got the left over seat in the Western Province.

One seat for the political party

Going by its number of registered voters, the Gampaha district should have 17 seats. With the bonus seat that it is entitled to, the Gampha district has got 18 seats and no extra seats. In the Central Province, after Matale and Kandy have been allocated one bonus seat each, the Nuwara Eliya district has got the extra seat. Likewise, the Anuradhapura and Polonnaruwa electoral districts in the North Central Province have two bonus seats each because the NCP has only two electoral districts. If each electoral district was to have only one bonus seat, there would be only 22 bonus seats for the 22 electoral districts in the country. But in reality there are 36 bonus seats. Though many people in the Colombo district may believe that they have only one bonus seat, they have two, and this extra seat passes off even among politicians as a seat that the Colombo district is entitled to on the basis of its number of registered voters under Article 98 of the Constitution.

The Colombo district is entitled to only 17 seats under Article 98 but they have 19 with the two bonus seats. Countrywide, these extra seats add up to 14 of the 36 seats allocated to the provinces. If one goes by the principle that each district should have only one bonus seat, we see that some Provinces have one or even two seats over and above the bonus seat and the seats that the electoral districts in that Province would be entitled to on the basis of the number of registered voters. The Western Province will have one such special seat, the Central Province one, the North Central Province two and so on. If the political parties contesting in those provinces are allowed to fill one or two seats they win as the party deems fit, that may meet the need of political parties to accommodate politically important individuals in Parliament.

Of course such dignitaries may have to make themselves useful in the election campaign in the relevant province and especially in the district which has this extra seat so as to pacify those at the ground level and to justify his appointment to Parliament. It may of course be a bit difficult at first to convince the ground level politicians that some districts have one extra seat. If J.R.Jayewardene’s original plan was to give the political party complete authority over appointing MPs to Parliament after an election, surely there is nothing wrong in allowing political parties to appoint just one MP at their discretion and that too only in the districts that have this extra seat?

Appointing constituency organisers as MPs

If we are constrained to apply a patch work solution to the problem of not being able to implement the Dinesh Gunawardene Committee recommendations due to anticipated delimitation issues, then we will have to seek a patchwork solution to the issue of having constituency based representation as well. One solution could be to take the responsibility for appointing representatives for the constituencies out of the ambit of the Constitution and hand it over to the political parties.

All political parties still appoint their electoral organisers on the basis of the existing 160 electorates or constituencies. The appointment of an electoral organizer by a political party could become a more formal affair where the letter appointing a person as an electoral organizer is accorded some legal validity while political parties retain the entitlement to change their organisers at any time as they deem fit. When an election comes along, these organisers become the candidates with their names appearing on the party nominations list. If the preference vote is done away with, candidates can be declared elected to Parliament by their party on the basis of the percentage of votes that each electoral organizer/candidate obtains within his constituency to bolster the overall performance of his party in that district.

This will eliminate the need for the preference voting system and the need for candidates to canvas for votes throughout an entire district with all the concomitant problems of such a system. Since the number of MPs that a political party will get in a district will be decided on the basis of the proportion of votes it polls, and not on the number of constituencies it wins, every electoral organizer will have to be given constituencies of a regular size with a specified minimum number of registered votes so as to give him a fair chance to obtain a proportion of votes that would get him a seat in Parliament. This way, the responsibility of bringing down the size of the electoral unit from a district to a single constituency or a combination of small constituencies will be shifted from the Constitution to the political parties.

Under such a system, it could well be that a candidate who has won the constituency allocated to him by his party may not be elected an MP if his party’s allocation of seats according to the proportion of votes won in the district runs out before it comes to his turn. He would then be the next on the list to be appointed to Parliament on the death or resignation or expulsion of an MP elected on his list. This kind of thing happens even now. All political parties have electoral organisers who regularly win the electorates they have been assigned by their party but who never get into Parliament because they have not been able to obtain the required number of preference votes. In any event, electoral reform is an urgent need in this country and even a patchwork solution will be better than nothing.

(Part 3 Concluded)

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