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20A - A unique constitutional feat combining best of both worlds

4 June 2015 06:03 am - 0     - {{hitsCtrl.values.hits}}

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In democratic systems of government worldwide there are two distinct approaches to elect people’s representatives to the legislature for the purpose of exercising the people’s sovereign power to enact legislation for governance.  One approach is the ‘Westminster System’ of electing the representatives on the ‘First-Past-the-Post’(FPP) system from each of the geographically distinct constituencies or electoral divisions. The other approach is based on the Proportional Representation (PR) system.
 

"Perhaps, the single most criticized feature associated with the present PR system, which is often being identified as the root cause of much of the misery that has befallen the political culture of the country, has been the system of preferential voting."


It is important to comprehend the limitations of either system through practical examples, before generalising the relative merits and demerits of the two systems and discussing their particular relevance to the Sri Lankan context.

Let us first look at some examples of the Westminster System, beginning with the recently concluded British general election.  The Conservative Party which won 51% of the seats only secured a 37% share of the total votes cast.While the Scottish National Party, with its share of only 4.7% of the votes secured 9% of the seats, the UKIP which secured 12.6% of the votes shockingly ended up with a single seat (0.0015% of seats!) in the 650-seat UK Parliament.
This means that one vote cast for SNP, compared in terms of its effective contribution to elect a member, is equivalent to around 150 votes cast for UKIP, while one vote for the Conservatives is equivalent to around 113 votes for UKIP.

Similarly, at the 2014 general elections in India, the BJP, with its 39% share of votes ended up securing an overwhelming 70% of seats in the Lok-Sabha, while the Congress Party, with its 23% share of votes ended up with a mere 8% of the seats.


"It is important to comprehend the limitations of either system through practical examples, before generalising the relative merits and demerits of the two systems and discussing their particular relevance to the Sri Lankan context."


Sri Lanka’s own general elections of 1977, which largely resembles the above two examples from the oldest parliament of the modern world and the largest democracy of the world, is yet another classic example of this major flaw of the Westminster System.  While the UNP’s 51% share of votes translated into an astounding 83% of the seats, SLFP’s 25% share translated into a mere 5% of the seats, which eventually cost them the Opposition of the House.  TULF on the other hand, with merely 7% of the total votes managed to secure more than twice as many seats as the SLFP, thereby becoming the Opposition. This was while the LSSP-Communist-Party-led Left Front, having obtained as much as 6% of the votes, failed to secure a single seat.

The above analysis is quite sufficient to comprehend the fundamental flaw of the Westminster System--namely distortion of the will of the people in its translation into the composition of the legislature.

If disproportionate representation is the fundamental problem of the Westminster System, is not  proportional representation the solution?  Logically, yes.  However, the proportional systems of representation,are not at all flawless.

In Italy, where no single party has gained a clear majority at any of the parliamentary elections held during recent times, unstable ‘hung’ parliaments have long been the order of the day. Sri Lanka has been no different. Under the PR system, no party has been able to get a healthy majority to form a stable government except in 1989 and 2010, both of which were exceptions in their own right.  The governments have often been at the mercy of minority groups, and compelled to give into their unreasonable demands – be they racist, fundamentalist or irrational.  The other negative outcome has been the practice of ‘trading-in’ of parliamentary seats!

Another drawback in the present PR system has been the absence of a direct representative for the constituency. Perhaps, the single most criticized feature associated with the present PR system, which is often being identified as the root cause of much of the misery that has befallen the political culture of the country, has been the system of preferential voting. Aggressive district-wide campaigning, the common formula for success for preferential votes, has propelled election violence to unprecedented heights, while the discriminate spending of often ill-gotten money has had the effect of “lumpenising” the whole landscape of electoral politics and, in turn, has effectively caused the growing middle class of the society to treat the subject of electoral politics as something out of the realm of intellect and professionalism.

How will the proposed 20th amendment address those issues?  Retaining the principle of PR at its core, the system will continue to guard against possible distortion of the will of the people in the composition of legislature.  It will also eliminate the instability of the Parliament by ensuring a comfortable working majority to the party that wins a general election and proceeds to form a government.  In the meantime, enhanced chances of representation are envisaged for smaller groups representing any ethnic or ideological minority.  Above all, there will be a member of Parliament for each geographic constituency.  

The particular proposal that is being currently discussed and widely agreed upon by many parties is a pragmatic approach that involves election of 196 members through a combination of constituency-wise first-past-the-post election within the proportional representation at the district level, and election of further 59 members on the basis of national level PR (national list).  Thus the current figure of 196 members elected under district level PR is maintained unchanged, while the national list is expanded to 59 from the current figure of 29, thereby increasing the total number of seats in the Parliament to 255 from the current 225.

To illustrate this scheme let us apply the proposed system to the 2010 election result of the Colombo district.  Under the current PR system the actual distribution of the 19 seats was: UPFA 10, UNP 7, and DNF 2.  However, according to the electoral division-wise result, UPFA was leading in 9 out of the total of 15 electoral divisions, while the UNP was leading in the remaining 6 divisions.  Under the proposed system, those 9 and 6 seats won by the UPFA and the UNP respectively would be directly allocated to them, with the candidates nominated by the two parties to those winning constituencies getting elected as their respective MPs.  As one more seat is to be added to the UPFA and UNP each to fulfil their proportionately due quotas of seats, the same would be added thereby making their final number of seats 10 and 7 respectively.  The DNF, despite not winning any single constituency would receive the 2 seats due to them on the proportion of votes received by them.  Election of members to seats not representing a particular electoral division could be effected either on the basis of ‘best losers’ or on the basis of the order in the district list.

Suppose that all three parties in the above example received respectively the same district level totals, however, with UNP winning 9 less populous constituencies while the UPFA winning the remaining 6 more populous constituencies.  The UNP in this case would still get 9 members elected from those 9 constituencies (i.e. 2 seats in excess of their proportionately due quota of 7 seats); UPFA would get 6 members elected for those 6 electoral divisions that they won, and in addition only 2 more seats from the district list (i.e. only a total of 8 seats as against the 10 seats due, thus with a deficit of 2 seats); and the DNF would be allotted the 2 seats due to them.

Now the question is whether there can be a situation where a party that gets a surplus at the district level ends up with no sufficient seats in the national list against which that surplus is to be set off, as such a situation would amount to a disproportionately larger representation for that party.  For example, let us consider Jaffna district which is allocated only 7 seats as per its population-proportion while there are 11 constituencies in the district.  Then, is it possible for some party contesting in Jaffna district to win all 11 out of 11 constituencies, thus gaining a surplus of 4 seats in excess of its due proportion of 7 seats, whilst not getting the minimum of 4 seats needed at the national list to set off that surplus against?

The answer is “no”, as specific provisions have been built in to the amendment to address such situations. While the total of 59 members to be elected from the national list will be apportioned among all contesting parties/independent groups on the basis of the national level proportion of their aggregate votes, any surplus or deficit of seats accrued at the district level would be set off against their national list quota.Incidentally, one of the objectives of increasing the national list from 29 to 59 is to ensure that any party will have the minimum number of seats in the national list in order to set off against the same any disproportionate surplus of seats gained at the district level on the first-past-the-post basis. The other main objective of increasing the national list is to further promote the principle of inclusiveness through enhanced chances for representation of smaller ethnic or ideological minority groups. The minority parties will certainly be comparatively more benefited from the increased national list, although a totally baseless irrational argument to the contrary is being put forward by certain quarters. All in all, the proposed 20th amendment, regardless of the significant scope available for further refinements particularly by way of effective delimitation, will essentially stand out as a unique autochthonous constitutional feat in combining the best of both worlds - the PR system and the Westminster system - in the Sri Lankan context.  
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