By Mass L. Usuf –

Mass L. Usuf

The infamous 18th Amendment to the Constitution drafted by the previous government within closed doors stigmatised the history of constitution making in our island Republic. Public discussion was outrageously disregarded and the amendment was put through as an urgent Bill under Article 122 of the Constitution. This Article now stands repealed by the 19th amendment.

Not as bad as that was the 19th amendment. If not up to the desired level, at least minimum public discussion did take place. However, the public literally was not privy to the 174 changes made to the amendment both by the government and the Opposition. One such change was regarding the Constitutional Council. A good illustration of horse trading, in the face saving act of ensuring the passage of the 19th amendment.

The 17th amendment historically was passed to whittle down the powers of the Executive President by the institution of the Constitutional Council. This Council was supposed to be an independent body. The antithesis to this was the 18th amendment. The draft 19th amendment, Article 41 A(1), had almost the same provisions of the 17th amendment relating to the composition of the Council. Three members of Parliament viz. The Prime Minister, Speaker and the Leader of the Opposition and seven outside of parliament. When the bill was passed on 28 April, hosanna! it became clear that the spirit of the Council had been hijacked by the Parliamentarians. Today, we have a Constitutional Council which is akin to a mini-parliament with seven of the ten members being members of the parliament.

As per the Constitution, the Council is supposed to reflect the pluralistic character of Sri Lankan society, including professional and social diversity. It is to comprise persons of eminence and integrity who have distinguished themselves in public or professional life.

Couch potatoes

Not long after witnessing the 19th amendment drama, now we are faced with the 20th Amendment on Electoral Reforms, as promised by President Maithripala Sirisena. Primary to the proposals were the two basic principles which were also advocated by the Venerable Sobitha Thero. Firstly, that the elected representative should be responsible to the constituents and, secondly, the corrupt ‘manape’ system to be discontinued.

Today, like the 19th amendment, party rivalries and individual fantasies of politicians are going to determine the reforms, literally distancing you and me from the process. Remember, anything to do with the electorate directly impacts its constituents, the voters. The politicians are tinkering the electoral reforms with discussions and debates within closed doors ? This obviously infringes on the basic democratic principles of good governance? Good governance demands transparency. Transparency entails public discussion and active engagement by members of the legal profession, other professionals, civic bodies, interest groups, academics and the ordinary people.

Here again, the Principle of Process cries out loud for attention. The same first principle applied to the 19th amendment too, but the expeditious passage resulted in the Process being ‘collateral damage’. Political expediency !

Abraham Lincoln famously said, “Our loyalty to the Constitution should be placed above politics, parties or personalities”. Unfortunately, in Sri Lanka, party politics and individual aggrandizement have always proven to supersede national priorities and public interest.

Can we like couch potatoes just watch this near hush hush 20th amendment also to pass by us like the 19th did ?

Trust and usurpation

Mr. Asoka Abeygunawardena and his team of Samaritans, who are fully involved in architecting a model, continue to tinker the model each time they meet with the stakeholders. The objective purportedly being accommodation of ideas. Be cautioned that catering to the whims of politicians and political parties above national and public interests would raise the spectre of disaster.

Both the government and the major political parties are preoccupied with the total number of members that would be elected, the basis on which the proportional representation seats would be allocated, the number of members who would be elected by the first past the post and proportional representation. Nevertheless, the rallying cry is for the politicians to be guided by the interest of the nation in the dispensation of the trust delegated by the people. Thomas Paine said, “All delegated power is trust, and all assumed power is usurpation.”

We are a plural society consisting of Sinhala, Tamil, Muslim, Malay and Burgher communities. Any reform should provide equitable representation to these various ethnic communities. There is also concern about women’s representation and the status of smaller political parties. Parliamentary democracy demands an electoral system that is fully representative and, in our local context, facilitating representation that is proportionate to the distinct populations.

Rejected votes

In the amendment that is on the anvil, debate is ongoing whether to have two separate ballot papers one for the party and the other for the candidate or have both in one ballot paper. The outcome would depend on the model that will finally be adopted. It is imperative that the new model should have a simple and straight forward voting system.

In the last Parliamentary General Elections of 2010, the number of rejected votes all island was recorded as 596,972 which is almost 7% of the total votes. Various reasons ranging from the deliberate act of spoiling the vote to voter confusion provides explanation. The last Presidential election not only had 19 names on the ballot paper but was also embellished by multiple Sirisenas and Rajapaksas. The less discerning voter gets confused.

Election is a process by which the ordinary citizen gives away his right to an elected representative. If he cannot do it effectively, it serves no purpose. The public, therefore, has to be informed and educated on how the adopted model works and the way to cast their votes.

The 20th amendment is a matter of national relevance and impinges on the principles of constitution making. While the electoral reforms are welcome, a word of caution to the Parliamentarians, please ensure that national and public interests take precedence over all else. The final outcome will however, reveal whose agenda had been served – that of the government or the parties or the horse trading politicians or the voter and the country in the long run ?

Meanwhile, prudence queries, why is this indecent haste to go through the electoral reforms ? In keeping with the finest traditions of democracy, let’s change to a lower gear and move forward diligently and with circumspection. It is not too late.