By Laksiri Fernando –

Dr. Laksiri Fernando

“If one wants to change the nature of a particular democracy, the electoral system is likely to be the most suitable and effective instrument of doing so.” –  Arend Lijphart

Any electoral reform that intends to substantially alter the proportional representation (PR) in Sri Lanka will go against people’ sovereignty. Therefore, any attempt to do so should be opposed. This does not mean that the introduction of ‘first past the post (FPP) constituencies,’ within the existing or a new PR system is undemocratic. In fact those constituencies are necessary to enhance the elector-elector links for better democracy and representative accountability.

Among the so far discussed or disclosed proposals, the ‘best loser’ method associated with the Dinesh Gunawardena (DG) recommendations on mixing (not linking) FPP and PR is the most undemocratic.

There are two main countries which employ the ‘best loser’ (BL) method at present: Mauritius and Japan. It is possible that DG or his advisers picked the method from Japan than Mauritius because the system in Mauritius has been more controversial than in Japan and it is in the process of abandoning at present. Italy also employed the ‘best loser’ method during 1993 and 2005 but abandoned it for whatever the reason.

Experience in Mauritius

When Mauritius received independence in 1967, it adapted this method from the colonial practice of ‘communal representation.’ It was an appendage to the Westminster FPP system to allow certain minorities to give representation on the basis of their assertion. For this purpose all candidates were compelled to ‘declare their ethnicity/religion’ which was fundamentally undemocratic. At the beginning it worked well and even considered a necessary ingredient in a multi-ethnic/religious society. It had nothing much to do with proportional representation.

Mauritius is divided into 21 multimember constituencies and elects 62 members through the FPP system. As mentioned before, the constitution compels all contestants to declare his/her ethnicity and certain minorities (Muslims, Christians, Chinese or Creoles) qualify for the ‘best loser’ accommodation for 8 seats in a 70 member assembly. All may be losers, but only the best are accommodated under the scheme. Therefore, as a method this is similar to what is proposed in Sri Lanka.

There is or was some validity in the concept when it is/was applied in the case of representation of small ethnic/religious minorities. Similarly, if this is applied for representation of women, still there can be some validity.

Yet, the practice was challenged before the UN Human Rights Committee (HRC) as a violation of certain principles in the International Covenant on Civil and Political Rights (ICCPR) and a determination was given in August 2012. That is one reason why Mauritius is now considering its abolition and devising a better method of representation including adopting a PR system.

Among the two main contentions transpired during the HRC determination, the inadvisability of the stereotyped communal representation and the deviation from the principle of ‘one vote one value,’ the latter has much relevance in discarding the ‘best loser’ method in any country.

Sekihairitsu (best losers) in Japan

Unlike in Mauritius, Japan uses the best loser method as a part of proportional representation. This was introduced in 1996. In a 480 member parliament, 300 members are elected through FPP method in single member constituencies and 180 in a PR tier. The PR tier is a list system. This is also a mixed member system, however allocation of seats in one tier does not dependent on the other. In other words, the constituency system is not linked to an overall PR system like in Germany or New Zealand.

As Leonard Schoppa has stated “in a mixed member system, the devil is often in the details,” whether in Japan, Germany, New Zealand, Sri Lanka or Russia. Russia is another country which has an unlinked mixed member system however without a ‘best loser’ method.

The two main principles in the Japanese system are (1) the double candidacy (choufuku rikkouho), which is common to many mixed systems, and (2) the ‘best loser’ (sekihairitsu) provisions. The second provision means that the candidates in the PR list also be nominated in a single member district or vice versa. Japan usually ranks the candidates in the PR list together and not on a preferential order. Then the candidates who win their single member constituencies are deleted from the PR list. Thereafter, the remaining candidates are then ranked according to how close they came to winning their single member constituencies.

The ‘philosophical’ argument goes that perhaps the candidate B lost to A by one vote! Therefore, the best loser concept is democratic. In Japan, the calculation employed is not the calculation proposed in Sri Lanka. Japanese ratio equals, in the above example, the votes received by A divided by the votes received by B.

The following however is the ‘devil’ according to Leonard Schoppa (The Evolution of Japan’s Party System, 2011).

“The PR component of the new electoral system has given a few seats to small parties, but the major parties have used it to solve nomination problems in the single-member districts that are at the heart of the system.” (My emphasis).

Where the Devil in Sri Lanka?

We have still not seen the devil in Sri Lanka! Of course we have seen many devils in the political arena, but what I mean is behind the electoral reform proposals to introduce the ‘best loser’ method. The final report of the Gunawardena (PSC) Committee is not available for public scrutiny. This is even after the acceptance of ‘right to information’ in principle as a constitutional right. The Interim PSC Report does not have much meat. It is only of six pages. What it says in total about the national electoral system is the following.

“The majority view favours reforms to the present system leading towards a Mixed System of a combination of First-past-the-post and Proportional Representation Systems. Concerns were raised in respect of a proposed change of the present system by minority parties and communities of interests who urged the committee to ensure equitable representation in the system that is finally proposed.”

“Your Committee is of the view that a mixed system be adopted which includes elements of First-past-the-post and Proportional Representation systems. The modalities and particulars of the system to be adopted would be further considered by the Committee at its future sittings and would be presented to Parliament in due course.”

“The Committee is in agreement that the present number of Members of Parliament should not be increased.”

Of course it calls for a mixed system. It talks about a combination of FPP and PR. The Interim Report focuses on other things like national identity cards, postal voting and even electronic voting which are not altogether unnecessary. It is possible that there was a final report subsequently. However, I have heard even the Election Commissioner saying he has not seen or it was not submitted to him.

There is much talk about the ‘best loser method’ or concept nevertheless. However, there can be several methods of applying even the ‘best loser’ method as we have seen above in the case of Mauritius and Japan.

In the President Maithripala Sirisena’s Election Manifesto he says the following.

“I guarantee the abolition of the preferential system and will ensure that every electorate will have a Member of Parliament of its own.  The new electoral system will be a combination of the first-past-the post system and the proportional representation of defeated candidates“

The first sentence is much more important than the second. It guarantees the abolition of the preferential system and the introduction of electorates (constituencies) with its own Members of Parliament. It does not say about abolishing the PR system. It is obvious that the formulation is not well thought out in the hurry perhaps. Although it says ‘the proportional representation of defeated candidates’ what is necessary is the proportional representation of all deserving parties for good governance in the country.

Like the bizarre terminology of the ‘best loser,’ the advocacy of a ‘system of defeated candidates’ proportional representation’ (DCPR!) smacks democratic principles and good governance. It is unfortunate that this has creeped into Mr. Sirisena’s Manifesto. By changing the terminology to ‘runner up’ from ‘best loser’ would not make a difference.

Best-Loser Mentality

Schoppa identified the intent to ‘solve nomination problems’ as the main motive behind the ‘best loser’ method in Japan. What could be the motives in Sri Lanka? I hardly think the concern in the Gunawardena report was for the minor or minority parties or democratic principles. It is important to figure the period in which this ‘secret’ report has finally carved out – 2007.

The political class in Sri Lanka has, by and large, become a parasitic tribe. Look at what they say about the Best Loser at the Presidential elections! The best loser should become the Prime Minister! This is the same mentality in proposing the ‘best loser’ method in the electoral system. Gunawardena is the main man behind both moves.

I have seen in recent times at least two key political figures, one in the government and one in the dubious opposition, lamenting that they might lose their assigned electorates under a FPP competition. One was also a key member of the Gunawardena Committee. So they can only get into parliament under the ‘best loser’ system.

This is not to say that there is anything particularly wrong in placing the same candidate in both tiers (FPP and PR), if the political party so desire and the person so deserve. This may be necessary particularly in the case of women candidates. However, accommodating the ‘best losers’ or ‘defeated candidates’ should not be the starting point or the decisive factor in the PR tier.

There is also a key difference between the constituency of the FPP winner and the PR winner. In the case of Sri Lanka, the first should be the constituency or the electorate and the second should be the overall district. Responsibility and accountability should be different. The losers should not be packed to the same ‘Kalawana’ seat. The proposed ‘best loser’ accommodation is arbitrary like the old ‘Kalawana’ double seating.

The ‘best loser’ (first loser) method can be a trick to redistribute PR seats among the loser candidates of major parties in any country. What about the second or the second best losers? The method will betray the purpose of proportional representation altogether. As some of the members of the HRC pointed out in the Mauritius case, the best loser system violates a basic principle of universal franchise, ‘one vote one value.’ What the proportional representation tries to achieve is not the equalisation of (obvious) unproportioned votes between winners and losers but to give due share of representation to proportionate votes that the parties and/or candidates receive from the people.

It is best that the ‘best loser’ concept is totally dropped in election vocabulary not only in Sri Lanka but everywhere altogether.