NMSJ Proposals for a New Constitution – IV Electoral Reforms

By Dr. Sujata Gamage, Policy Analyst

The 1978 Constitution devotes several pages to detail the process to elect a Parliament consisting of 225 members. It is fitting that we conclude our proposals for a new Constitution with proposals for electoral reforms.

The Parliament of Sri Lanka appointed a Select Committee on Electoral Reforms in April 2021. At this point, we need to take a moment to contrast this initiative with the President’s action to appoint a committee of lawyers hand-picked by him to draft a constitution and note that the latter is not a legitimate process, and one that is even contrary to his manifesto.

The Parliament appointed a select committee for electoral reforms previously in 2003. Dinesh Gunawardena, who was the chairman of that committee is also the chairperson of the present Committee. As stated in the 2007 Interim Report of that committee, it aimed to find solutions to the (1) Violence, overspending, and misuse of state resources by candidates and (2) The distance between the elected representatives and the voters. The objectives of electoral reforms have not changed since then.

It is indeed widely believed that the main reason for violence and overspending is the elevated level of competitiveness among the candidates in the present preferential voting system, where candidates need to campaign across large areas of land to collect votes. The areas in square kilometres, covered by the present 22 electoral districts, range from 699 in the Colombo District to 7,179 in the Anuradhapura District. Competitiveness among candidates from the same party is particularly detrimental to the health of the political party system.

The idea of a mixed-member system, as a solution, has been on the agenda since 2003. In a typical mixed-member system 60 percent or so of the total number of members are elected in ‘first-past-the-post’ or FPP contests from smaller constituencies. One major concern about the mixed-member system is the fact that communities of interest, whether ethnic, religious, or ideological, have little chance of winning these FPP seats. In response, there are arguments for maintaining the present PR system, but taking steps to change the behaviour of candidates, make electoral districts smaller, or devise numerous ways of assigning smaller areas of responsibility to elected members. The focus of our proposal is on the mixed-member system, but with a view of making it more effective and equitable.

NMSJ devoted several of our weekly Kathikawa series or public discussions on current topics to the topic of electoral reforms. We also held multiple roundtable discussions with key stakeholders. We summarise our findings under the following headings.

1. An independent Election Commission

2. A positive change in the political culture

3. Proportional Representation

4. Ability of the winning party to govern

Independent Election Commission

Essential elements of an electoral process – from (1) delimitation (1) setting of election dates, especially for local government and provincial council elections, on a fixed schedule (3) acceptance of nominations, to the (4) release of results, should be governed by an independent Election Commission. All appointments to the Election Commission and other Commissions relevant to elections must be made in a manner that ensures their independence.

The current practice of an executive President single-handedly appointing the members of the Election Commission subject only to the “seeking of the observations of a Parliamentary Council” is not acceptable. The recent swap of a Commission Membership with the governorship of a Province illustrates the arbitrariness of the powers of the President. A new Constitution as proposed by NMSJ would put a stop to these practices.

Positive change in political culture

There are two types of changes. Changes that require Constitutional amendments or a new Constitution are (1) changing the electoral system to a mixed-member system with smaller polling divisions, (1) enabling by-election provisions to deter violations of election laws, and (3) introducing a women’s quota to Parliament or to the election process to elect Members of Parliament.

Representation of women in Parliament is not just a women’s issue but an issue of national importance. Challenges faced by Sri Lanka and the world in the near future require a major reorientation of how we organise ourselves as societies. Sri Lanka’s Parliaments, since we received universal suffrage in 1931, have had less than five percent representation of women. While we cannot attribute all social ills to a male-dominated legislature, it is an imperative of the times that we bring new perspectives to our government, especially the perspectives of women who constitute 51 percent of the population.

Other changes such as (1) enforcing election spending restrictions (2) making asset and liabilities information available to the public on the internet (3) making public also biographical data of candidates including details of candidates’ education, careers, and information on criminal charges against them and (4) setting minimum criteria for the internal democracy of political parties do not require changes to the Constitution. These issues are discussed further in the section on modifications to election laws short of a new constitution.

Proportional representation

Since 1989 Sri Lanka has had proportional representation with preferential voting to elect members of Parliament, and fittingly so for a country with a diverse population. As a starting point for a discussion on changes, we propose a Mixed-Member Proportional (MMP) method with the present number of members remaining at 225 with 140 of those to be elected first-past-the-post from the same number of electorates. Variants of our initial proposal are open for discussion, but we wish to emphasise that whatever variant is adopted must provide a proportional result.

The local government election of 2018 was the first time a mixed-member proportional system was tried out anywhere in Asia. Unfortunately, we do not have a good bipartisan analysis of the election. According to a report of the Local Government Electoral System Review Committee of the State Ministry of Provincial Councils and Local Government, the increase in the number of seats in the local government system from the previous 4,386 to 8,719, and the fact that the ‘winning’ party did not get a majority of seats in the councils have been identified as the main issues of the mixed-member proportional (MMP) system used in that election. The increase in the number of seats is indeed a problem. But the argument that a party that wins most seats FPP, with whatever percentage of votes, should receive a majority of the seats in a council is erroneous.

In the 2018 local government election, the Sri Lanka People’s Front (SLPP) polled 44.65 percent of the votes, while the United People’s Freedom Alliance (UPFA) and the Sri Lanka Freedom Party (SLFP) polled 8.94 percent and 4.44 percent respectively, island wide. The total percentage of votes received by these three parties or alliances adds up to 58.03 percent of the votes. Since these three parties previously contested elections under the single banner of the UPFA, the reason the SLPP, the party with the most votes, was not able to gain a majority of seats in the local councils, had more to do with political division than the electoral system. It is unfortunate that a committee appointed by a Ministry endorsed a common misperception among the public and even among the major stakeholders instead of educating them.

Overall, we do not endorse the Ministry of Provincial Councils and Local Government’s proposals to change the mixed-member ratio to 70:30 or compensate for overhang seats of the winning party, by reducing share of seats of other parties to ensure a majority for the winning party, because such measures violently distort proportional representation. Overhang seats are constituency seats won in an election in a mixed-member proportional (MMP) system which are over and above a party’s share of the seats due to the proportion of votes it received. The occurrence of overhang seats is a problem in the MMP systems. There are other methods to address that problem.

Ability of winning party to govern

The optimal result in any electoral system is a simple majority for the winning party so that they can get on with the business of governing, but it should not be at the expense of other parties. The best way to achieve stability in a multi-party democracy is to award a limited number of bonus seats to the winning party, as has been the practice in Sri Lanka for decades, or promote a culture of consensus politics overall. Distorting the proportional electoral system or dependence on an all-powerful President is not in accordance with the representative democracy that we aim to achieve through elections. In that regard, we propose to do away with district bonus seats at the district level and award five bonus seats to the winning party at the national level. We also propose to mandate the return of a minority candidate through those bonus seats if minorities are not represented in the winning party.

Modifications to election laws

The 2003 Parliamentary committee for electoral reforms presented an interim report to Parliament but it was not able to propose an enactment. The sticking point presumably was the key feature of the mixed-member system: The need to redistrict the present 22 electoral districts into 140 electorates. In our detailed recommendations, we propose to make delimitations more transparent and less contentious by using the existing local government and/or divisional secretariat division boundaries as the starting point for delimitations. Ensuring representation for minorities is also addressed. Ensuring representation for parties representing minorities is more difficult in an MMP system, we find.

More importantly, hidden in the 2003 committee report as an annexure are seventeen proposals to change the election laws which were unfortunately abandoned along with the specifics of the contentious method of election. These changes include what we propose under changes to the political culture. Learning from the experience of the 2003 committee, we propose that electoral reforms should be addressed at two levels, as Constitutional changes and regular legislation. Changes that require simple legislative changes should receive the immediate attention of civil society.