By Rohan Samarajiva –

Prof. Rohan Samarajiva

This central question of civilization has assumed greater salience in the aftermath of the Presidential Election of 8 January 2015. This article seeks to shed a little light upon it, with aid of illustrations from recent Constitutional-reform efforts.

Autocracy or democracy?

Two hundred years after the fall of the Kandyan Kingdom, we carry within us thinking from that decadent feudal time. We yearn for a benevolent king who will be decisive and fair, but do not grasp what is required to assure continued benevolence. We do not buy into the concept of checks and balances among clearly defined branches of government. The Kandyan political culture did not separate the executive and legislative functions and while some judicial functions were separate, the lines were porous.

Like the Kings of old, some of our leaders fail to distinguish between what belongs to the state and what belongs to them. They scheme to work around them what checks and balances that exist.

In January, the choice was made in favor of democracy and governance concepts that are alien to our inherited Kandyan political culture. We have been engaged with the modern world long enough for this to happen, but all signs in the past twenty years were against it. But the shift was not irreversible; the tension between the old feudal culture and modern democratic culture persists.

Decisive or messy?

Separation of powers, along with checks and balances, is messy. Outcomes cannot be predicted in advance. The President of the United States is seen as the most powerful person in the world today, but in many instances he is stymied either by the legislature, by the courts or even by lower-level state governments.

Our current President appears comfortable with the notion that he cannot determine the outcomes of all political events. He leaves room for the agency of other members of his coalition as well as his party. To many, this appears a lack of leadership. They cannot understand how the President could be deeply committed to electoral reform without specifying the exact outcome he desires.

The present time is an interregnum. A President who intended to retain untrammeled power for life and hand it over through primogeniture was dethroned. A legislature that was shaped to be in the service of the all-powerful Presidency continued and found itself at the center of political action, especially because the new President chose not to dissolve it and indeed to rely on it for Constitutional reforms. By voluntarily shortening his term and by announcing he will not run for a second term, the President deprived himself of the support of conventional politicians who do not see him as a stable platform for their ambitions. The messiness of decision-making is exacerbated under these conditions.

Well-considered versus hurried?

Some consider the recent Constitution-making to be too hurried. Let us take the case of the 20th Amendment, admittedly one of the most complex Constitutional reforms.

The first-past-the-post (FPP) system bequeathed by the British and still in use in the UK is the simplest of electoral systems; it can be explained in one sentence. It is also one of the most primitive. At the recent UK election, a party that gained 3.8 million votes obtained only one seat in Parliament while another which attracted 1.5 million votes obtained 56 seats.

The district-based proportional representation (PR) system introduced in 1978 and subsequently modified to accommodate a national list, a lower threshold for gaining a seat, and preferential voting was advanced. But it was complicated. It is testimony to the intelligence of our people that they managed to not only understand it, but also bend it to various purposes. Some of these unintended consequences were de facto immunity for election-law violations and internecine violence.

From 1996 or even earlier, there has been considerable discussion among political parties and experts on how these flaws could be remedied without going back to the FPP system or the original PR system adopted in 1978. But nineteen years of talking has not produced any result. Laws are flouted, violence rules and wrong people enter Parliament.

Electoral-system reforms are among the most difficult to enact. It is difficult to assuage the concerns, some real and some perceived, of all political parties. Its passage requires a two-thirds majority from among those who were elected under the old system and who, therefore, were beneficiaries of the old system. Not obtaining the consent of small parties would imperil the legitimacy of the reform.

That both principal candidates at the 2015 Presidential Election committed to electoral reform, in particular to end preferential voting, created a unique opportunity to implement the reforms. The self-imposed 100-day deadline of the victorious contender made the likelihood of enactment stronger.

If one focuses solely on the post-January period, it may appear that reforms are being rushed and that consultation is inadequate. But why ignore the plethora of workshops, hearings and consultations that occurred in the previous 19 years?

In an ideal world, laws will be enacted when all studies and consultative processes have been duly completed. But anyone who examines how major reforms get done would see that they occur within various “policy windows,” some which can be foreseen (such as the first 100 days of a new government) and some which cannot (such as a political or economic crisis). It is the responsibility of political leaders and well-meaning experts to keep developing a stock of policy, legislative or Constitutional options to be drawn upon when windows of opportunity open.

It is unrealistic to demand that all the details of the policy, legislative or Constitutional options be fully worked up starting with the opening of the window of opportunity. Those who so demand are either ignorant of how the political process works or are seeking to stall reforms. Slowing down the process will result in the failure of reforms because windows of opportunity do not remain open for ever. The present window should have closed on the 23rd of April. It was extended by the President who well understood electoral-system reforms are unlikely without time pressure.

Direct or representative democracy?

The 1978 Constitution included many surprisingly progressive elements including justiciable fundamental rights, some checks and balances, an advanced electoral system and even enshrinement of referendum provisions. The current demands for a referendum to ensure the participation of the people in electoral-system reforms illustrate well the pros and cons of direct democracy.

The argument is straightforward. Electoral-system reform necessarily affects the rights of the people. Those entitled to decide on the reforms should not be limited to political parties purporting to represent the people. The people themselves must participate in the reform because their sovereignty is exercised through elections and because political parties’ interests in this regard diverge from those of the people they represent.

But it also fundamentally misleading. From Sri Lanka’s own experience with referenda and from the experience of other countries, it is evident that a referendum is a highly constrained form of citizen participation. It is simply the giving of a yes or no answer to a question carefully negotiated by those in positions of political authority. It is more theater than democracy.

It is disingenuous to equate a referendum with genuine political participation. Few, if any, significant policy, legislative or Constitutional issues can be reduced to simple yes/no questions.

For example, what is best served by asking the people whether they want preferential voting or not. Does it specify what the alternative would be? Perhaps we could ask a more complex question such as “Should preferential voting be replaced by closed party-list nominations or by a hybrid system that allows for some electorate-based representation through FPP as well?” Can most voters understand this question? Does it not exclude the option of staying with the familiar preferential voting system? And even if this question was satisfactorily answered, would it not leave a whole host of details to be worked out outside the realm of direct democracy including the conditions that could be attached to closed party lists or the mechanics of combining FPP and PR?

If we are to follow the logic of direct democracy, we would need not one referendum, but a series of referenda culminating in a yes/no vote on the final worked-up text. Is this realistic? Do we, as citizens not have other demands on our time such as making a living and bringing up our children? Even if we were to participate in direct democracy ritualistically, they would be a considerable burden. But if we were to behave as dutiful citizens and make the effort to understand all the public-policy issues that we have to decide on, we would have no time left for anything else.

Representative democracy underpinned by a well-functioning bureaucracy and a robust public consultation process that would permit input by relevant, specialized interest groups is the best possible option. Churchill was right to say it is the worst form of Government except for all those other forms that have been tried from time to time.