By Laksiri Fernando –

Dr. Laksiri Fernando

I have no major criticisms about the ‘Discussion Paper on Constitutional Reforms’ except that it has not incorporated necessary electoral reforms. My observations on the discussion paper however will be outlined some other time but before that the importance of electoral reforms should be highlighted. My preliminary observation nevertheless is that it should have been titled or explained as ‘interim measures’ for the abolition of the presidential system. Without that clarity the proposals already have created some confusion or misgivings.

It should be the case even in electoral reforms and they should be ‘interim’ to mean a New Constitution should be inaugurated preferably through a Constituent Assembly after a complete ‘free and fair’ general election.

Importance of Electoral Reforms

Even when one refer to the genesis of the presidential system proposed by JR Jayewardene initially in December 1966 before the “Ceylon Association for the Advancement of Science,” he not only proposed to change the ‘parliamentary executive system’ which he disparaged as depended on “the whims and fancies of an elected legislature.” He also proposed to change the electoral system which gave rise, according to him, to those ‘whims and fancies,’ “where the elector elects his legislator according to the defined electoral areas.” (See Selected Speeches 1944-1973, pp. 89-93).

The logic of his two reforms depended on his argument or belief that (1) “Among the new emerging nations in the continents of Africa and Asia, only two countries, India and Ceylon, have preserved democratic system of Government,” (2) “The politicians in power know what is wrong in the economy, they are aware of the remedy, but the desire to be popular and to secure a majority of votes at a general election prevents them from taking the correct remedial measures,” and (3) “If then the system of democratic government has failed in some aspects, we should not hesitate to think of changes and amendments in that system where necessary.” (Ibid).

Not only his ‘theory,’ but also the practice shows that the draconian presidential system in Sri Lanka was erected on a corrupt electoral system. Both systems worked towards one end and that is to undermine the democratic system and people’s influence in the representative government. Therefore, there is no much point in changing one without the other. Both are two sides of the same coin.

What is wrong in the electoral system is not the proportional representation per se, but the abolition of the ‘small electorates’ of at least 160 seats where voters had some control or influence over the election of their Members of Parliament (MP) and their performance thereafter.

As a proper record of history it should however be noted that the present electoral system came into operation only after JRJ in 1989 and before that the manipulation or the control of the legislature was achieved directly through ‘undated letters of resignation’ from the MPs and the extension of the period of Parliament by the controversial referendum in 1982.

Could the new generations of voters believe that there were no parliamentary elections between 1977 and 1989 for twelve years? That period was the (first) mother of all major conflicts and distortions of the democratic system in the country.

The Money Factor

There is much understanding about the adverse effects of the preferential vote competition which begets electoral violence and rivalry even within the same party or coalition not to speak of inter-party violence. The killing of Bharatha Lakshman in October 2011 was directly associated with this predicament, but only one instance. That is also not the only ailment.

There were 160 electorates in 1977 but they became reduced to 22 in 1989. It is the same today. As the election competitions take place within a larger arena of a District, to be a viable contender of a party, a candidate in general requires a considerable amount of money of his own or from others. These are estimated to be in millions if not billions. This may be different in the case of political parties like the JVP, but I am talking in general terms. Even the well-established political parties (the SLFP or the UNP) are not in a position to undertake their candidates’ major expenses. The natural result is the dependence of candidates or political parties on financiers and benefactors.

The system also effectively excludes the independent candidate. Independent candidates, depending on the choice of the people, play an important role in a proper representative system. Australia is one example. The most glaring in this system is the denial of the particular political right accorded in Article 25 (b) in the ‘International Covenant on Civil and Political Rights’ (ICCPR), to eligible everyone “to vote and to be elected at genuine periodic elections.” In Sri Lanka, while all eligible may have the vote, all eligible who ‘intends to be elected,’ to mean to contest, cannot do so under the restrictive circumstances.

There are no equal opportunities for those who may have necessary commitment and ideas but lack sufficient money or right (actually wrong!) contacts. Women are also largely debarred from the system because of violent competitions. There is no level playing field under the system.

To come back to the earlier point about political financers, these benefactors are not philanthropists. They expect a big price in return. They may also not be the formal business people or companies. They usually are the contractors or emerging business people who desperately require government patronage. The new entrants to this ‘philanthropy’ are the drug and the ethanol dealers. So far revealed information about ‘Mr. Vele Suddha’ indicates to one of these connections. The same goes for the alleged involvement of the former Prime Minister and/or his son. The system had been so corrupt, even after the public revelations, the PM didn’t have the decency to resign. The President looked on or acquiesced.

Let me relate a personal story. Somewhere in 2003, I was invited to meet with the then Leader of the Opposition (LO) to see whether I could academically assist him in his political work. The person who arranged the meeting was my name sake, a friend, an advisor to the LO. When the LO was late for the meeting and when I was naturally uneasy, my friend informed me that the LO was having lunch with some unknown business people who are the benefactors of his and also the party’s election campaigns. I had to reluctantly understand the situation because otherwise under the prevailing system, one has to wait for a ‘Tsunami of funds’ to come to conduct elections. That was exactly what happened in 2005.

The Presidential Factor

But lately there had appeared other ways as well. A wily president could entice even the opposition quite easily, under the circumstances, to cross over in order that he could manipulate and control the Parliament. The then CJ bent the law to this effect. Otherwise, many ‘Honorable Members of Parliament’ could not payback the election financiers.

Other than paying back the financiers, they themselves have to finance themselves, their boisterous sons, families and friends. That was natural or appeared ‘normal’ under the corrupt political culture created under the present electoral system. Politics became a big dirty business even with foreign connections and affiliations, not with the West as usually accused of, except in some Casino related cases, but with some countries and personalities in the East. In return they were given concessions in the Stock Market, BOI or in mega projects and contracts. These deals were considered ‘culturally correct.’

The most distorted and undermined two cardinal principles of democracy as a result were: (1) the necessary representative link between the voters and the voted, and (2) the genuine party affiliations of politicians on public policy grounds. All became blurred and distorted.

At the 2004 elections, the opposition was quite strong like in 1994 or 1999. After the presidential elections in 2005, it became weak, because 39 members crossed over to the government. By 2010 elections, the opposition was pathetically weak. Yet, 16 members again crossed over to the government. The payback could only be managed for the financiers or for themselves by being part of the government not merely as MPs but as Ministers. Therefore, Sri Lanka went into the Guinness Book with the largest Cabinet (65) in the world, and altogether having 105 Ministers in a 225 Parliament.

Subsequent to all these corrupt achievements, it was no wonder that the most skillful operator after JRJ – Mahinda Rajapaksa – tried to perpetuate his and/or family power beyond the constitutional limitations even JRJ himself could not visualize, through the 18^th Amendment as his next logical step. All these evolved parallel to and beyond the war against LTTE terrorism with or without a direct link between the two, except perhaps in the case of arms deals. During the period of the war, people or even the political analysts were not in a proper position to assess the complete gravity of the whole distortion or degeneration of the democratic system.

Conclusion

As we have outlined from the beginning, the root causes of this abuse of democracy, however, are not only within that ‘personality’ or the ‘presidential powers.’ They are within the ‘electoral system’ as well. One cannot be separated from the other/s.

One component of the corrupt political cycle at least temporarily taken away now. The vicious political cycle is temporarily broken, if I may say, thanks to the (if I may say) ‘Astrologers of the 8^th of January.’ The cycle would not be broken permanently, however, merely by changing the presidential powers. There is almost a natural propensity in politics to be corrupt. There should be strong checks and balances. Unless the incorrigibly corrupt electoral system is changed, the Prime Minister may also be forced to play the same role by gratifying his supporters through a larger Cabinet, additional ministerial positions and other benefits. Even the whole system might become blind again to corruption of the politicians and the officials.

What is most important is to create a healthy electoral system where (1) the elected are closer to the electors, (2) the elected or the MPs consider the position as a duty or service and not a privilege, and (3) civil society or citizens’ associations are organized at the electoral level to be vigilant about their representatives.

The above three principles may appear too ideal to some. But if those are taken as objectives, the present electoral system could be reformed even as an interim measure until a permanent system is elaborated with a New Constitution in the future. Unless some basic changes are made before the next parliamentary elections, the quality of the parliament will not be conducive for a national unity government or for democracy.