Allocation of Seats must be made under PR
The PR system introduced under 1978 Constitution assumed that the seats won by each party or independent group will continue to stay invariable during the entire term. Any vacancy occurring is expected to be filled from the list of nominees of the particular party or group, ending the crossover saga. Article 99 (13)-and modified by the 14th Amendment says if an MP ceases to be a member of the Party to which he belonged and nominated by them for election [or independent group], the seat he represented will fall vacant in 30 days from the date of his expulsion. The party’s next in line, who had scored the highest number of preference votes as per the list issued by the Elections Commission will fill the vacancy. The secretary of the expelled MP can nominate any member outside the list if it runs out of names.
Legislators Crossing the Floor
In the recent past we experienced many a crossing and re-crossings, group crossings [the only member from Senanayakes holds the individual record, while the infamous seventeen seniors led by Karu Jayasuriya from UNP to Mahinda Rajapaksa government hold the group event] resulting in serious distortion of the mandate and making a mockery of people’s sovereignty under the proportional representation system. In recent past crossovers motivated by bribes of cabinet portfolios, cash bonanzas and other perks have been recorded.
Executive Presidency is the ideal system of governance for a developing nation, as long as the person elected as President functions like a Statesman sans political leanings, biases or affiliations of any sort during his tenure of five years. An extra cost of three billion rupees was incurred in conducting the recently concluded 16/11. The Presidential election Act needs to be amended to make independent non-political candidates having to make a deposit of Rs. 25 million or agreeing for compulsory 10-year jail term if they fail to gain the minimum quantum of votes as specified by law. A further reduction in costs can be achieved by conducting both elections, presidential and Parliamentary on the same day. This method can be extended to Provincial Councils and Local Government as well.
"In recent past crossovers motivated by bribes of cabinet portfolios, cash bonanzas and other perks have been recorded"
A parliamentarian elected by the people under a given party at an election, for a specific period, it is essential, that the member remains with the party he or she represent for the full term. Whether a chosen member is debarred from doing so by the party or not, the member should not be allowed to cross the floor by holding the helpless, voiceless voter to ransom. By allowing this, we change the balance of power in the House and also violate the very essence of principles of democracy. An amendment to the Constitution prohibiting Members of Parliament crossing over from the Opposition to the Government would be another remedy, a move that requires an unselfish attitude by the leaders in the Government.
‘Grama Rajya’ with more Public Participation
However, such violations are not deficiencies of the PR system. It happened under the previous first-past-the-post system too, only difference being the crossovers then were on issues of principle, but today from Opposition to Government are negotiated in terms money or ministerial positions or both. It is also advisable to abolish the preferential votes system and reintroduce the old ‘party secretary’s list’ system. The ordinary voter is relieved of the risky task of selecting preferred nominees. The party concerned will be bound to name the most suitable to the parliament. What we need is a cost- effective political administration system. For local authorities it is advisable to develop a non-political system on the lines of ‘Grama Rajya,’ with more public participation.
The Article 99(13), also lays down one condition to the regulation that if a Member of Parliament facing expulsion by his party deciding to challenge the move in the Supreme Court, he or she can continue to sit in the house as usual pending determination by the SC. His seat will not fall vacant until Supreme Court decides the validity of expulsion. In President R. Premadasa impeachment case in 1993 and the signing of resolution byGamini Dissanayake, Lalith Athulathmudali and several other UNP ministers and MPs, it was established by the prosecution that the defendants had not followed the accepted procedure of taking up any grievances first within the party machinery before making such moves. They had even joined the rest in affirming their confidence in Premadasa by voting in favour of a proposal placed before the group.
Judiciary to Explicitly place ‘Interest of Public’
On the basis of rebels not taking the issue before WC of party, the UNP Working Committee resolved to expel the dissidents which was authorized by the Executive Committee. The rebels petitioned the SC, insisting that the WC had no power to eject them and that it they had not been given a fair hearing and it is an infringement of the values of natural justice. Another point the petitioners raised was that, they, as people’s representatives are at liberty to progress according to their own conscience and opinion.
A retired Chief Justice, a controversial man though, had made a very vital proposal to judiciary by professing the need for the judiciary to explicitly place ‘interest of public’ at the basis of all judgments relating to constitutional matters. The universal franchise and sovereignty of the voter can be upheld only if the votes they cast remain intact during the entire term of office of the institution.
The United National Party constitution has given the Working Committee necessary powers to discipline the members. The three-judge Bench held that the exercise of the basic rights of free speech of the members as MPs was secondary to the requirements of internal party disciplinary code: right to basic freedom enjoyed by the rebels in joining another political party amounts to accepting mutual obligations placing restrictions on freedom of speech.
The Court also determined that, subject to the above, a member was free to sign a resolution for impeachment which was a basic parliamentary procedure.
"Election Act needs to be amended to make independent non-political candidates having to make a deposit of Rs. 25 million or agreeing for compulsory 10-year jail term"
Justice Fernando, President of the trial bench held that the petitioners who voted in favour in the vote of confidence on the President Premadasa had ‘lied and deceived the Cabinet’, and deserve expulsion but the other members could not be expelled. Justices Kulatunga and Wadugodapitiya dissenting determined that all the petitioners should be expelled. Under the previous Westminster system [First- past- the post], the representatives were elected from electorates of uneven populations causing a distortion of people’s verdict. Election result in 1970 and 77, exposed the weakness of the system, motivating JR Jayewardene to introduce a fairer, Proportional Representation system [PR] who, himself corrupted it later by introducing the preferential vote and allowing the legislators an opportunity to cross over. The initial draft of PR system attempted to make it fair and impartial by adding Party list system, bonus seats, and the National list that had been grossly abused by leaders who paved the way for People rejects to enter the hallowed precincts of legislator from the backdoor.
Reduction of Minimum Cut-off from 12.5% to 5% a Distortion
Like the half-baked 19A; preferential vote system and reduction of minimum cut-off point from 12.5% to 5% are distortions and irregularities introduced by political expediency against people’s sovereignty. It was President Premadasa who brought in the amendment to please Ashroff, the creator of first Muslim political party. The to-and-fro crossovers could be controlled or restricted by re-introducing the Party list system, where only the secretary of a recognized political party recommends the General secretary of Parliament on his party’s selections, thereby retaining the power and right to intervene in the event of a crossover. Amendments to election laws at various stages over the four decades have made a mockery of parliamentary democracy in Sri Lanka.
“….In a multilingual, multiracial, multi religious country, while courteously respecting traditions and values, the best form of government would be one of cooperation. Let us forget about the Westminster Model or copy of French or German or any other models. Let us create our own system of government to suit our needs, learning from others as well but without copying them. Let us learn to be independent and think as Sri Lankans at least now, on this all important subject of governance. What is called for therefore is a government of national unity consisting of all parties.” -- Archbishop, His Eminence, Rt. Rev. Dr. Nicholas Marcus Fernando in an open letter to all leaders in year 2000