20th Amendment:

In the interest of governance or party?

by Dr. Paikiasothy Saravanamuttu

It should not be any surprise that every attempt at constitutional reform in the country will reflect the dimensions of the governance challenge within it. With respect to the 20th Amendment to the Constitution and electoral reform, it is, in particular, the challenges posed by the diversity inherent in our peoples.

The argument for electoral reform of the current system is arguably as old as the system itself, like the case of the executive presidency. Over the decades it has come to focus on the lack of a constituency MP, the costs of campaigning electoral district-wise, the intra-party competition and violence that the preferential system engenders.

Liberal opinion has, for decades, argued that the German system combining Proportional Representation (PR) and the First-Past-the-Post (FPP) system in equal measure and allowing the elector two ballots – one for her constituency MP and the other for the party of her choice which could be different to the party of her constituency MP – would resolve the question in terms of choice and greater representativeness vis-a-vis the electors.

This system, referred to as the ‘Multi Member Proportional’ (MMP), with variants, is also practised in New Zealand and Taiwan as well as in Scotland. The current debate and the gazetted 20th Amendment bill constitutes the local variant of this electoral system and in doing so, somewhat misses the mark with regard to voter choice and the representativeness of the system.

What is proposed is one ballot paper and overall top–up on the basis of seats for a party in proportion to the votes cast for the party at district level, and a national list. This works out in favour of the main parties, as under a FPP system there is a bias in favour of a negative vote – voting for one of the main parties as opposed to a third party of your choice, in order to keep out a candidate from the other main party. The logic is that in order to keep out a SLFP candidate, the chances of doing so are better if one voted UNP as opposed to JVP for example, even though the JVP is the party of choice.

Considerable time

Consequently, the smaller parties and the minority parties are opposed to the system currently proposed on the grounds that it discriminates against them. They are likely, therefore, to petition the Supreme Court and in any event changes of this magnitude to the electoral system could well be determined to require a referendum as well.

This of course could mean that a general election is some time away and closer to the expiry date of the current Parliament – April 23, 2016.

Once passed, the 20th Amendment would require that a Delimitation Commission be established to carve out the requisite number of constituencies and this in turn, will take considerable time as vested interests and multiple identities surface to defend their turf. The accommodation of multiple identities could be a very messy and time-consuming business indeed!

Political expediency

What seems to be happening is that constitutional reform is being driven by the need to pacify vested partisan interests and political expediency. We saw this happen most egregiously with the 18th Amendment under the Rajapaksa dispensation and, to a much lesser extent, with the 19th under the current one.

The proposed number of seats has varied from 260 to 255 – to 225 and now to 237 to accommodate these interests as opposed to those of democratic governance. The tendency, therefore, is to argue for an increase in the number of seats on the grounds that delimitation would be otherwise problematic and that a healthy majority is important for those who govern.

It is also being (put about) that the Sri Lankan electorate will be confused by two ballot papers. Is not this a stronger argument, surely, for taking time to introduce the new system to the electorate without mindlessly sacrificing the arguments for greater choice and representativeness?

The arguments about eradicating intra-party competition and violence and, about reducing the amount of money required to get elected in this hybrid MMP system, do not necessarily hold. Systemic reform, does not always, easily or quickly, translate into reform of the political culture. Election laws will, of necessity, be required to ensure a level playing field amongst candidates and, most importantly, the quality of candidate. Legislating all of this could of course be argued to be an infringement of the freedom of association – another big and necessary debate (there) to come in the future?

Lest we forget, if the 20th Amendment is really about electoral reform, it is about the system through which people chose their government – it is about the operation of the basic mechanism for choice and change in a functioning democracy and should not be treated otherwise.

The 20th Amendment is being posited as a key election promise and a vitally integral part of the Sirisena government’s package of governance reforms. The political reality is that it is much more a justification for delaying an election in order to increase partisan political fortunes.

As such it is haemorrhaging the credibility and support for what is now a majority SLFP government albeit with an UNP Prime Minister, and more importantly the prospects for the country too!The President is on record that there will be a new government by September. When? August is the month of exams and schools are used as polling centres.

The July dates have surely receded.Practically every political party, bar the SLFP-Maithri wing and the JHU, want an early election. Is the debate about the 20th Amendment in this sense a distraction from the main pre-occupation, which is the political fortunes and future of the Sri Lanka Freedom Party (SLFP) as a whole or in parts?

No-confidence motion

There will be a no-confidence motion against the Finance Minister in early July and probably against the Prime Minister in late July. Is this the plan that these motions should succeed leading to the formation of a SLFP government which in turn will give the party a certain fillip when going into an election and the means thereby to vitiate the current problems of party unity?

There is no substitute to asking the basic question regarding electoral reform – why is it needed and what, therefore, should it seek to achieve - and to going back to first principles in the attempt to answer to them. It is too serious a business too, to be done in a hurry and in haste. It is not a case of the best being the enemy of the good but rather of the reach exceeding grasp!