By Harsha Gunasena –
The political situation in Sri Lanka is unprecedented. This was caused by the deteriorating balance of payment crisis which was triggered by the wrong decisions taken by the Government which was admitted by the President and the former Minister of Finance.
People in the street have demanded the resignation of the President and the Government, especially the Rajapaksa clan which was the governing cartel of Sri Lanka. Their anger was directed at the members of the legislature as well. All these persons were elected by the majority of the people in the last Presidential election and in the last General election which were conducted in November 2019 and in August 2020 respectively. This unpopularity occurred less than one and half years of the election of the President and little more than one and half years of the legislatures.
The main reason for this situation was that the concentration of power to the inexperienced President by the 20th Amendment to the constitution. He has exercised his authority in an arrogant way and no one including his elder brother who is the Prime Minister was able to take him to the correct path. The best example is organic fertilizer fiasco. He declared his decision proudly at the UN General Assembly and UN Climate Summit held in Glasgow.
Since there is a growing dissatisfaction of the conduct of the public representatives and there are attempts to introduce amendments to the constitution to curtail the power of the President, it is pertinent to explore the possibilities of introducing amendments to the constitution allowing the recalling powers to the voters of the representatives elected by them as requested by many.
Different models of recalling
There are number of examples in different countries in this respect, especially in Europe and in American continent. There are mainly two models. The first model is of three stages. Those are, submitting the recalling petition with a required number of signatures of the voters; holding the recalling election; and if the member is recalled a by election is held to elect a new representative. The second model is a two-stage process. If the sufficient signatories could be collected by the promoters, then the seat is vacant. The next step would be to hold a by election. It is obvious that in the second model the required number of signatories would be higher compared to the first model and it would be over 50% or in some cases over 2/3rd of the voters.
Latvia is a country using proportional representation system and according to Article 14 of the Latvian constitution, not less than one tenth of electors has the right to initiate a national referendum regarding recalling of the Saeima (parliament). If the majority of voters and at least two thirds of the number of the voters who participated in the last elections of the Saeima vote in the national referendum regarding recalling of the Saeima, then the Saeima shall be deemed recalled. Therefore, no individual representatives could be recalled but the entire legislature.
In Germany, the recall of members of the state parliaments exists in five states. Like Latvia there is no possibility of recalling individual members but the whole legislatures.
In Switzerland, the recalling facility is not available in the federal government. However, at the cantonal level it is available and there was only one successful example 160 years ago.
In Ecuador, Article 105 of the constitution is as follows. “People in enjoyment of political rights may revoke the mandate of popularly elected authorities. The request for revocation of the mandate may be submitted once the first and before the last year of the period for which the authority in question was elected. During the management period of an authority, only one process of revocation of the mandate may be carried out. The revocation request must be supported by a number not less than ten percent of people registered in the corresponding electoral registry. In the case of the President of the Republic, the support of a number not less than fifteen percent of those registered in the electoral registry will be required.”
In Canada the parliament tried to introduce recalling facility by Bill C-269. However, this was defeated at the second reading in the House of Commons in June 2021. According to the provisions of the Bill, the recalling petition should be signed by at least 25% of the voters. If at the recalling election 50% of the voters support it, a by election would be held to elect the new representative.
In India, at the time of independence when this proposal for recalling was suggested but the architect of the Indian constitution B.R. Ambedkar did not accept it. In 1974, a Bill was introduced to Lok Sabha to this effect, but it did not pass. However, this facility is available in Panchayat level local government system.
In the UK the situation is different. The Recall of MPs Act 2015(c.25) was passed in March 2015, Here the initiation is not by the public and it is automatic. A Member of Parliament can be recalled if the member commit any of the following. If the MP has, after becoming an MP, been convicted in the United Kingdom of an offence and sentenced or ordered to be imprisoned or detained; or if following on from a report from the Committee on Standards in relation to the MP, the House of Commons orders the suspension of the MP from the service of the House for a specified period of the requisite length; or if the MP has, after becoming an MP, been convicted of an offence under section 10 of the Parliamentary Standards Act 2009 (offence of providing false or misleading information for allowances claims). Speaker should inform this to the Petition Officer and if the subsequent recall petition is successful, by being signed by at least 10% of the electorate, a by-election is called.
In Peru the members of the legislature cannot be recalled but the members of municipalities could be recalled. Peru has the highest number of attempts, recalling elections held and the removed elected members.
Proposed system for Sri Lanka
Under the proportional representation system of Sri Lanka, it is not necessary to hold a by-election if a member is recalled and the non-elected member who has taken highest number of votes at the General Election could be selected as the new member of parliament. Therefore, it would be a three stage process. Those are, submitting the recalling petition with a required number of signatures of the voters; holding the recalling election; and if the member is recalled appoint the person next in line to the legislature. The third stage is just a nomination.
The recalling election should cover the districts since the members are elected by the voters of the entire district. It should be conducted by the Election Commission. The member could be recalled by the simple majority of the voters.
We have to decide the percentage of the voters who should sign the petition. If it is 25% of the registered voters, 450,000 signatures should be obtained in Gampaha district which is the most populous district and 72,000 signatures should be obtained in Vanni district which is the least populous district, based on 2020 electoral statistics. After the intention is conveyed by the promoters along with the underlying reasons for it, the process of obtaining signatures could be facilitated at the offices of the Gramasevakas.
There are attempts to introduce the 21 Amendment to the constitution. Proposals were made by the Bar Association of Sri Lanka and the Samagi Jana Balavegaya. It is suggested to include this provision as well to the proposed amendments covering not only the Parliament but also the Provincial Councils and local authorities.