Part 1
Politics in modern societies specially in democratic politics is dominated by organisations known as political parties. Such organisations may range from entities with thousands of members tasked with running the affairs of government in a country to a collection of smaller number of members for a political ideal.
Political parties at least in the Sri Lankan context are unincorporated associations and as such in a broader sense are akin to a club or society. However, political parties differ from clubs or societies in one fundamental aspect which is that certain members of political parties hold an elected public office thus representing members of the public in various legislative and executive bodies.
In a democratic country, people believe that laws of the people shall be made by themselves and nobody else. That power is delegated to their representatives elected through an electoral process in a modern representative democracy. Universal franchise and the free exercise of the vote are necessary prerequisites of democracy.
In a democratic system like ours, the legislative body – Parliament which represents the sovereign people and therefore, it is competent to express the will of the people in the form of law. Parliament is a representative assembly. The electoral process is the essential mechanism of representation. With the evolution of representative democratic government with the emergence of party system, the relationship between an MP and his or her political party on the one hand and his or her electorate as the other, has changed.
Electoral system
The electoral system can be considered as a set of rules applicable to hold an election in a country. The electoral system, which is a fundamental element of representative democracy, is the bone structure of any present day democratic system. Any defect in the bone structure would adversely affect the democratic body politic. At the beginning, there were two models of popular electoral systems: The British and the German. The British system was called as plurality; majority or first past the post whereby the candidate securing a larger number of votes than any of his or her opponents, wins the seat. This is the simplest system which has been frequently criticised as producing the least representative results.
The German system was simply called as Proportional Representation (PR). The principles of proportional representation were conceived in the mid 19th Century. It was Thomas Hare who first devised the scheme aimed at securing a close match between the percentage of seats in Parliament they represent. Various forms of proportional representation exist, such as party- list proportional representation, single transferable vote (STV), single non-transferable vote (SNTV) and cumulative voting. In the past 70 years, the Sri Lanka electoral process and the franchise have expanded to such a extent that Sri Lanka could be considered as one of the developed participatory democracies in South Asia.
In Sri Lanka, the electoral system under the Soulbury Constitution was adopted by the framers of the 1972 Constitution without change. Universal Adult Franchise with the principle of first past the post was adopted in both Constitutions as the basis for the electoral process under these two Constitutions. Any vacancies that might arise subsequent to a general election was filled through by- elections under these two Constitutions. Under the 1978 Constitution if vacancies occur, such vacancies would be filled by a process in the Constitution.
One of the key features of the present election system in Sri Lanka to which our Supreme Court had given an interpretation of far reaching importance is that the voters are entitled to exercise their franchise not only to cast a vote for a particular party or an independent group, but also they are also entitled to cast a ‘preference’ for a person or persons from amongst a list of candidates presented by the said party or group for a particular electoral division (the electoral District in Parliamentary or Provincial Council elections and the Local Authority in the local authority elections). Thus, a voter’s entitlement in exercising his / her franchise is twofold : he / she is entitled to cast a vote for a preferred political party or independent group and he/ she is entitled to elect a particular individual /s preferred over and above several others put forward by such party or group.
As such, it can be argued that a person elected to a public office is not merely a proxy of his/ her party, but a person elected by the public to a particular public office over and above certain others in a direct manifestation of the franchise of the people. Thus, it can also be argued that a political party cannot lightly tread on any matter that may have only bearing on such person’s office since he/ she is a person directly preferred by the public over and above certain other members in a particular party and therefore, any decision wrongfully made by such party that may result in such person’s loss of office may equate to a subversion of the franchise.
Here, it is also noted that the above premise has been recognised by judicial authority. It is stated in the judgment of S.N Silva CJ, in Rambukwella v UNP and Others that “As a result of the expulsion by the party, a voter’s preferred candidate is removed from his seat in Parliament.” Thus, in consequence of the expulsion not only the member loses his seat in Parliament, but also there is a subversion of preferences indicated by the electors in exercising their franchise.
1978 Constitution
The Constitution of 1978 brought drastic changes in the electoral system and the form of government including Executive Presidential System. By the 1st Republican Constitution of 1972, Sri Lanka ceased to owe allegiance to the British Government. The 1978 Constitution went a step ahead by including the power of government, fundamental rights and franchise within the framework of sovereignty of the people.
Under the present Constitution, the people of Sri Lanka not only exercise the legislative and the executive powers through their elected representatives and the President, but also on certain occasions directly exercise their legislative power. In Sri Lanka, the ‘first past the post’ election system established a clearer relationship between electors and MPs, making such MPs accountable to their constituents by defining more precisely than before who a Member’s constituents actually are.
Under the PR system, the constituents get a wider choice of electing the Member, as they are able to choose a Member among the names in the party list. The principal advantage of this system is that it affords an opportunity for various political opinion or distinctive minority political parties or independent groups to secure representation in Parliament, in proportion to their respective numerical strengths. Election systems based on proportional representation tend to favour a multi-party result which demands a coalition to form a Government supported by a majority of the voters or elected candidates. If ‘first past the post’ gives too little weight to smaller parties, PR arguably gives them too much.
PR System
Chapter XIV of the 1978 Constitution (Articles 88-104) deals with Franchise and Elections. Accordingly, Article 99 introduces Proportional Representation System. In Sri Lanka, the 14th Amendment to the present Constitution repealed original Article 99 and substituted a new provision which removed the power of the party to indicate a priority of candidates in the nomination paper and empowered electors to indicate their preferences of not more than three candidates nominated by the same recognised political party. However, the provisions of sub- Article 13(a) of the original Article 99 were included verbatim in the newly enacted Article 99 as contained in the 14th Amendment. With this change to the preferential system, a direct link is established holding the MP responsible to his constituents.
By virtue of Article 99(3) of the 1978 Constitution as amended, any recognised political party or any group of persons contesting as independent candidates may, for the purpose of any election of (Members of Parliament) MPs, for any electoral district submit one nomination paper setting out the names of such number of candidates as is equivalent to the number of members to be elected for that electoral district, increased by three.
Another feature in our present electoral system is the appointments of MPs under National List. By virtue of Article 99 A under the 14th Amendment, 29 MPs are entitled to be nominated to sit in the House. Such appointments are made by the political parties according to the number of seats allocated to the respective party. The priority for the candidates in the list eventually depends on the loyalty towards the party leadership. Section 6 of the Elections (Special Provisions) Act No.35 of 1988 has made this possible with the amendment of section 64 of the Parliamentary Elections Act No.1 of 1981.
Sarath N Silva C.J in Rambukwella v UNP and Others judgment stated, “Under the law as it stood prior to the Constitution of 1978 the expulsion of a member from a Political Party did not have the consequence of such Member vacating his seat in Parliament. Article 99 of the present Constitution departed from the previous electoral system of ‘first past the post elections’ to one of proportional representation, in terms of which a Party is declared entitled to such number of Members of Parliament in proportion to the votes gained by the Party in an Electoral District. In terms of Article 99(2) as it stood, the Party when submitting a nomination paper was also required to set out the names of the candidates in order of priority on the basis of which the candidates were declared elected depending on the proportion of votes gained by the Party.
This system of Elections is generally described as the ‘List System’ or ‘Crude List System’. Article 99(13) (a) in regard to expulsion of a member from a Party with the consequence of his vacating the seat in Parliament, with judicial review by this Court as to the validity of such expulsion was introduced as a part of this system of Elections.”
“The Fourteenth Amendment to the Constitution certified on 24.05.1988 repealed Article 99 and substituted a new provision which removed the power of the Party to indicate a priority of candidates in the nomination paper and empowered the electors to indicate their preference of not more than three candidates nominated by the same recognised political party. Thus the ‘List system’ or ‘Crude List System’ was replaced with the ‘Preferential System’ which is now operative. However, the provisions of Sub- Article 13(a) of the original Article 99 were included verbatim in the newly enacted Article 99 as contained in the 14th Amendment. In view of the change of the electoral system effected by the 14th amendment the review of the validity of a decision of expulsion has to be, in my view, now considered not only from the perspective of a vacation of the seat of the Member in Parliament but also from the perspective of the impact on the Electorate which he was declared on the basis of preferential votes cast in his favour.
As a result of the expulsion by the Party the voters preferred candidate is removed from his seat in Parliament and replaced by a candidate who at the original election failed to obtain adequate preferential votes to gain election to Parliament. In short the winning candidate is replaced by a candidate who has lost, as a result of the expulsion. Thus, in consequence of the expulsion not only the member loses his seat in Parliament but also there is a subversion of the preference indicated by the electors in exercising their franchise. In view of these far reaching consequences I am inclined to agree with the submission of Mr. Wijesinghe that the standard of review of a decision of expulsion should be akin to that applicable to the review of the action of an authority empowered to decide on the rights of persons in Public Law. Generally such review comes within the rubric of Administrative Law.”
MP and political party system
As is the case in any agglomeration of a large number of individuals, it is inevitable that various differences of opinion and disputes would arise among members of political party or between individual members of political parties or between individual members and the party hierarchy. Such matters become issues of public importance when it involves political party members who hold elected public office.
Similar to most other unincorporated associations such as clubs or societies, the affairs of political parties are governed by a Constitution. As per the Parliamentary Elections Act No. 1 of 1981 as amended, a political party must be treated as a recognised political party to contest elections. The said Act provides that a recognised political party must have inter alia a group of office bearers and a party Constitution. As such, actions sanctioning its members’ conduct are generally taken with reference to such party Constitutions.
As stated by S.N. Silva, CJ., in the case of Rambukwella v UNP and Others, “A political party comes into existence as a matter of private arrangement (contract) between persons who have the object of gaining power at elections but the character of such Association alters to a certain extent after gaining recognition as a Political Party as provided in section 7 of the Parliamentary Elections Act No.1 of 1981. Thus a Political Party which commences as a private Association gains statutory recognition in reference to its Constitution with specific legal powers generally in regard to elections and it plays a vital role in the realm of Democratic Governance.”
Political parties
All political parties issue manifestoes through which they place their policies before the electorate. All the contestants of a party are bound to canvass only the party manifesto by which it introduces its agenda or rather its policy. This party agenda or the party policy is being drafted according to the choice of the party. One can argue that as the party policies are more national in character, they tend to overlook area specific concerns, however crucial they may be.
The constitutions of political parties have laid down various disciplinary procedures governing MPs who act against the will of the party or party leadership. In view of the expected relationship between the MP and his/ her political party, it is extremely important for the Parliamentarians to balance the loyalty towards the party and his or her individual conscience.
In Sri Lanka, the Constitution of 1978 together with the system of proportional representation has placed the political parties at a higher level of recognition. In general, the Parliamentary mandate of an MP begins with the official announcement of the election result / from the date the MP swear – in Parliament. The date on which his /her mandate ends is variable. In Sri Lanka, in terms of Article 62(2) of the 1978 Constitution, as amended every Parliament shall continue for five years, unless Parliament is sooner dissolved.
The Article 70(1) (5) of the Constitution deals with early dissolution of Parliament by the President. There are also cases in which mandates may be lost in voluntarily, by means of removal from office either by political parties or by means of expulsion from Parliament. Mandates may also be forfeited automatically or otherwise by judicial decisions. Article 66 of the Constitution gives several grounds where the seat of an MP still becomes vacant. Article 89 deals with disqualification to be an elector whereas Article 91 deals with disqualification for election.
Parliament is expected to consist of persons who are truly concerned about policy issues. It should be a legislature which reflects on the burning issues of the day and finally passing judgment and deciding the issue before the House in favour or the will and wellbeing of the people. To accomplish this purpose, the freedom of the MPs in Parliament is essential. Accordingly, Parliament should be a representative institution that accurately reflects the will of the people.
With the evolution of Representative Democratic Government and with the emergence of the party system, the relationship between a Member of Parliament and his / her political party, on the one hand and electorate on the other, has changed. When considering the conduct of the Members who have been elected to Parliament through the vote of the people, the question, which often arises, is whether she or he represents a particular political party or the people of his / her electorate.
In Sri Lanka, Parliament in terms of Article 4(a) of the Constitution has the power to exercise the legislative power of the people. The composition of Parliament specified in Chapter X and Chapter XI deals with its basic functions, procedure and powers. Opposition MPs have a vital role to play in Parliament to safeguard the democracy of a country than changing their party allegiance. The first duty of the Opposition is to offer voters a credible alternative to the majority. Therefore, the Parliamentary opposition must be strong enough both in numbers and in quality, to control the exercise of government within a democratic framework for the benefit and on behalf of the voters.
Freedom of speech is a key element of Parliament’s privileges. It is considered the lifeblood of democracy. The MP cannot be held liable for what is said on the floor of the House or in a Committee in Parliament. Such statements do not attract defamatory laws. The conscience vote of an MP is a result of his freedom in Parliament, complemented by privileges of the House, to cast his vote according to his conscience free of any encumbrances. Conscience votes are quite rare and are usually about issues which are very contentious. Matters such as the prohibition of alcohol, homosexual law reform and the legality of prostitution are often subject to conscience votes.
In Sri Lanka parliamentary history, there seems to be some instances where the MP retained the position in his party even after dissenting Parliament or rather using the ‘conscience votes’. The former Prime Minister Dudley Senanayake permitted a free vote on the question of the nationalisation of denominational schools.
Gamini Jayasuriya, the then Minister of Health remained a strong member of UNP although he resigned from Parliament as he was against the Indo – Sri Lanka Pact entered into between President J.R Jayewardene and Indian Prime Minister Rajiv Gandhi. Dudley Senanayake remained as a Parliamentary backbencher without resigning from the UNP when he was critical on several moves taken under the premiership of Sir John Kotalawala.
To be continued next week
