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Electoral systems under new Constitution

A new Constitution looms in the horizon, and it spells new
beginnings for politicians new and old. It seeks to exfoliate the irregular excrescence in the present Constitution and heal the wounds of the yesteryears, but what does it mean for Sri Lanka as a whole? Will it be a fresh beginning for amity and peace, or a stepping stone for a new war? Will it purify the politics in Government, or is it simply another devious political stratagem to keep the Government in power?
For decades until present, the politicos have romped the political arena to outwit the masses into keeping them in power. J.R. Jayewardene administered the only referendum in the history of Sri Lanka to retain 83% of the seats in Parliament, and then drove Sri Lanka to a war in 1983. Likewise, several other politicians had employed political machinery to elongate their terms of power. At present, the government does not appear to be performing as competently as was expected of them. Given the history of politics in Sri Lanka, the new Constitution may purvey the chance they need to survive.
President from Parliament
The promise of abolishing executive presidency has been a topic at almost every election since its inception. The Sri Lanka Freedom Party (SLFP) had been campaigning for it from the very first day. President Chandrika Bandaranaike promised to abolish executive presidency after attaining power. President Mahinda Rajapaksa promised the same. However, executive presidency is a power like no other. It can seep through the soul of an angel and bring out a devil in him.
Only President Maithripala Sirisena appears to have made some effort towards attaining this. The idea is to transfer power to Parliament. Generally, there is no necessity for the President to be involved in the process of abolition.
Parliament may bring forth an amendment to the Constitution without the consent of the President. Although such an amendment will require a referendum due to the contravention of Article 3 and Article 31 (2), both of which are entrenched provisions in the Constitution, the task itself does not involve the President.
However, the President has the authority to be involved in Parliamentary affairs as the Head of Government and change the course of the proceedings. The President has authority to change the Prime Minister and the Cabinet of Ministers with a mere letter signed by him. He also has powers of prorogation and dissolution of Parliament subject to other Constitutional limitations. These extensive powers held by the President make it a requirement for the President to commit himself to the task of abolition.
Being so, Sirisena had shared some of his powers with other political entities through the Nineteenth Amendment. He revived the Constitutional Council and set up independent commissions. He also limited the presidential term to a maximum of five years each time across two terms. However, this was deemed insufficient as the President continued to hold enormous power.
The proposed change was introduced through a Constitutional Assembly. After the Constitutional Assembly was formed, a steering committee actively made proposals and gathered feedback from the people and politicians. 'The draft Interim Report of the Steering Committee of the Constitutional Assembly' reveals that there was a general consensus to abolish executive presidency. It also proposes that the President be elected by Parliament.
Understandably, the post of President will be vastly ceremonial, although certain powers of appointment may be retained. The structure is expected to be similar to India, where any person not generally disqualified will be capable of contesting, but the voters will all be elected representatives of Parliament. A vast number of the powers held by the President is expected to be vested in Parliament, thereby empowering Parliament.
Although, the President is still expected to be the De Jure Head of State of the country, the Prime Minister will be the De Facto most powerful person. All policies of government will run from the Prime Minister of the country. For example, Pranab Mukherjee is the President of India, but all notable powers are vested in Prime Minister Narendra Modi. Another example is the British Westminster system from where many aspects of the reforms appear to have been borrowed from.
Election of Prime Minister
Making the Prime Minister the most powerful person in the country changes how politics should be conducted in the country. It cannot be vested in a party, for it will undermine and contaminate the democratic process.
'The draft Interim Report of the Steering Committee of the Constitutional Assembly' suggests multiple changes to the process of electing Parliamentarians and a Prime Minister in particular. The Steering Committee had strongly been in favour of a system where the Prime Minister is directly elected to Parliament. Each of the political campaigns is run based on their vision of the prime ministerial candidate at a forthcoming election.
However, the Steering Committee also leaves itself open to new suggestions on this. The Committee states that should a process of direct election be employed, then every political party would have the right to name its candidate for the election of Prime Minister, or choose not to name one at all. Perhaps due consideration is given to the fact that not all parties want to rule as Prime Minister.
However, should that be the case, I believe each party should express their willingness to side with the vision of a Prime Ministerial candidate mandatorily. Sri Lankan politics has constantly seen how smaller political parties have put themselves before the people on a certain vision and when they are victorious, they negotiate the seat they have won with any political faction in power and serve their own interests.
Although it is agreeable to permit political parties not to name their Prime Ministerial candidate, it would be more apt for each of the political parties to voice their support in favour of a Prime Ministerial candidate prior to an election.
Should they wish to contest an election independently, it is preferable for them to remain independent after the election too. In other words, post-election crossovers should be prohibited in order to ensure that the people are not deceived.
Westminster system
The Steering Committee appears to have borrowed from the British their methods of conducting Parliament. The Westminster system is essentially a parliamentary system of conducting government designed by the British. It derives its name from the Palace of Westminster in the United Kingdom. Under this system, the Head of State will still be the President of Sri Lanka, who will be vested with the powers of appointment and numerous reserve powers, but nothing substantial as to make the positionof Presidency as powerful.
The Head of Government will be the Prime Minister, and all powers of the President under an Executive Presidency system shall be transferred to the Prime Minister. The Steering Committee, while endorsing this system, appears to have recognized the recent mayhem that prevailed in the UK Parliament after none of the Prime Ministerial candidates secured a majority. The people were split between Teresa May and Jeremy Corbyn before certain political moves were employed to keep Teresa May in power.
The Steering Committee proposes that by the end of the election, the Election Commission will be vested with the power of determining whether a Prime Ministerial candidate has received an adequate amount of prior commitments from elected representatives in Parliament. If none of the candidates have obtained an adequate number, a special session solely for this purpose will be arranged in Parliament and a Prime Minister will be elected.
The election will be held on an 'exhaustive ballot system'. Under this system, all of the candidates are put together on a list for people to vote and at the end of each round, the candidate with the lowest popularity gets eliminated, and Parliament will then go for another vote. This would continue until at least one candidate obtains an absolute majority of over 50% of the Parliamentary vote. The election will be conducted by the Secretary General of Parliament, which will be an appointment made by the Constitutional Council.
As is the case in the present Constitution, the President will retain the power to dissolve Parliament but on exceptional circumstances only. The Steering Committee believes that Parliament should be permitted to function for a period of at least four years and six months before an absolute power to dissolve is given to the President.
Prior to that period, Parliament can only be dissolved under two circumstances. If a 'No Confidence' motion is passed in Parliament with no less than a two-third majority, or if the government is unable to pass the annual budget through the annual 'Appropriations' Bill after three consecutive attempts. Parliament can also be dissolved if Parliament passes a 'No Confidence' motion against the Prime Minister after two years of being in power.
The Second Chamber
The Steering Committee has expressed that a new Second Chamber be established like in the Westminster system of the UK. It will be largely representative of the provinces. The Committee recommends that it should contain 55 members, of which 45 members will be drawn from Provincial Councils and 10 members elected from Parliament through a 'Single Transferable Vote' system. The 45 members from Provincial Councils will mean that each Provincial Council will be entitled to five representatives in the Second Chamber.
Parties of the nature of Sri Lanka Muslim Congress (SLMC), Tamil Progressive Alliance (TPA) and the All Ceylon Makkal Congress (ACMC) have proposed that the Second Chamber form an ethnic composition. Being so, they have proposed that the Second Chamber be formed of 18 Sinhalese, six Sri Lankan Tamils, six Sri Lankan Muslims and six Malayaha Tamils (Upcountry Tamils).
The ethnic composition formula appears to revert to the British period where representatives of each ethnic group were handpicked to perform their roles. In my opinion, the initial segregation on the basis of ethnicities was the root cause of all the racist issues prevailing today. If at all, we must be rid of the system in totality and represent the country only as Sri Lankans. Segregation based on ethnicity will only provide a platform for people to raise racist tendencies, and they will be given a platform to be bigoted openly. Therefore, I believe that the ethnic segregation system proposal should be burned to ashes, and thereafter buried so far beneath the ground that new seeds of racism can never be sowed.
The Second Chamber will not have power to veto legislation, but they may refer legislation back to Parliament for reconsideration. The Second Chamber will play a role similar to the House of Lords in the UK. No Constitutional Amendment can be passed unless both chambers of Parliament have approved with two-thirds majority. In the case of other legislation, the Second Chamber will have oversight and make their opinions known.
The Electoral System
The Steering Committee appears to be proposing the 'Mixed Member Proportional' system for Parliament too. The Mixed Member Proportional system refers to a hybrid two-tier system of conducting elections. There would be a 'first past the post' (FPP) system and a 'proportional representation' (PR) system.
Although the system is still untested in Sri Lanka, the delays in delimitation will certainly be a cause for concern. The delimitation of wards to hold elections under the 'First Past the Post' system has been in contention for a long period of time regarding the Local Government elections. The Delimitation Commission had been appointed in 2012 and the report is still pending five years later.
If the delay in conducting the Local Government Elections is a political ploy, then delimitation can once more be used as an excuse to delay Parliamentary Elections and keep the current Government in power. If the government proceeds with this electoral reform, the government will have a maximum of three years to complete delimitation and conduct elections accordingly.
In any case, it is proposed that there will be a total of 233 seats in Parliament. Under the FPP system a total of 140 seats shall be elected, and 93 seats will be under the PR system. The seats under the PR system will be distributed under provincial and national levels, but the exact structure is yet to be determined.
Under the FPP system, elections will be conducted on the basis of Single Member Constituencies (SMC) where each constituency will be capable of generating only one member. In certain areas marked as Dual Member Constituencies (DMC), two members with the highest number of votes may be elected to Parliament. The Steering Committee proposes that there should be not more than five DMCs in the country.
The current system of three votes per voter is to be replaced by a two vote system. Under this system, each voter will be granted one vote for the candidate and another vote for the party. While this system of voting appears to be good, it remains to be seen what measures will be employed if the candidate and the party share no relationship. However, the report does state that anti-manipulation rules will have to be present in the Constitution.
While these propositions are generally good and bring forth a breath of new life into the political situation in the country, there are matters that remain contentious. It is also imperative to note that disempowering the President and making the role of Prime Minister more important would mean that former President Mahinda Rajapaksa has no more barriers between him and the most powerful position in the country. It is possible that Rajapaksa could once again return to power and rule Sri Lanka once the United National Party (UNP) has introduced the new Constitution. This is unless the UNP has some other tricks up their sleeves to prevent Rajapaksa from contesting again.
(The writer is a law tutor and an independent researcher of laws. He holds a postgraduate degree in the field of human rights and democratization from the University of Colombo and an undergraduate degree in Law from the University of Northumbria, United Kingdom)

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