Sri Lanka: White Paper should precede legislation on Electoral Reforms

The Local Government system reached its lowest ebb in the last decade with members of Local bodies becoming a law unto themselves and running riot and engaging in all forms of corruption and other illegal activities.

by Javid Yusuf-Jun 4, 2018

Jun 4, 2018

( June 4, 2018, Colombo, Sri Lanka Guardian) The Local Government Elections held in February 2018 is by no means a happy experience for the country. After a delay of three years and amended legislation to replace the Proportionate Representation system of Elections with a mixed system, their does not seem to be a qualitative change in the personnel who have been returned to the Local bodies.

Besides the Election Commission headed by Mahinda Deshapriya and having in its ranks officials from the previous Election Department who have the experience of conducting numerous elections without any problem struggled to make head or tail of the clumsy legislation that was the result of a shoddy and hasty process spearheaded by the Minister of Provincial Councils and Local Government Faiszer Musthapha.

While the respective political parties crunched the figures to show that they had made progress in winning over or retaining the goodwill of the voters, a closer look at what was achieved in terms of the first step at Election Reforms leads us to the conclusion that this disastrous effort should not be repeated at future Elections.

The Provincial Council Elections, the next item on the Election Agenda is already behind schedule. Following the example of the Local Government Amendment Law of 2017, the Provincial Council Election Law too has been (hastily) amended. The Delimitation Committee appointed in accordance with the provisions of the Provincial Councils Elections (Amendment) Act No 17 of 2017 has produced a Report but there are rumblings of discontent with regard to the manner in which the Committee has carved out the Electorates.

The Act provides for the Delimitation Committee Report to be tabled in Parliament within 2 weeks of its receipt by the Minister of Local Government and Provincial Councils and its adoption by a two third majority within a month thereafter. If Parliament does not approve the Report within the time stipulated the Speaker shall appoint a Review Committee headed by the Prime Minister for consideration of the Report. The Review Committee is required to submit its report to the President within two months of it being referred for its consideration by the Minister.
Upon receipt of the Report the President is required to forthwith publish it in the Gazette.

Although the report of the Delimitation Committee has been submitted to Parliament none of the other steps seem to have been taken. The Minister of Provincial Councils has often articulated the position that once a bill has been presented to Parliament his task is over. In the case of the Delimitation Report too the Minister seems to be acting under such a delusion.

The more correct position is that the Minister is responsible not only for the contents of the Bill but has also to see a Bill through all its stages in Parliament and thereafter also be responsible for the implementation and administration of the Law.

Faced with the delay in following through with the implementation of the Provincial Councils Elections Amendment Law it is best to conduct the Provincial Councils Elections under the previous Proportionate Representation system as an interim measure in order to prevent further delay in the holding of the Elections. This can be achieved through a simple amendment approved by Parliament bringing the previous Law into operation for the limited purpose of holding the Provincial Council Elections.

Simultaneously it would be in the National Interest to make a studied and comprehensive overhaul of the Election Laws governing all Elections so that the mistakes of the past as well as the present (Local Government Elections of February 2018 ) be prevented and remedied.

Towards this objective the Government could issue a White Paper setting out the intended Reforms for the different Elections and calling for the views of the political parties and the public. A definite timeline should be laid down possibly three months to translate the views of the different stakeholders into draft legislation.

The White Paper while setting out the reforms that are common to the three tiers of government should also provide for variations in the Law in order to cater to the needs of the different layers of Government. For example in drafting the new legislation effort should be made to incorporate the general principle that an election result should reflect the different shades of opinion and different interests prevalent in society. However the nature of the legislation governing elections to the different tiers of Government should be somewhat varied to also reflect the specific objectives that govern the different layers of Government.

In preparing such a White Paper Government should consult and obtain the views of the Election Commission which could provide valuable insights through its long institutional memory as well as the difficulties it faced in making sense of the new Local Government Election Laws.
While Parliament and to a lesser extent Provincial Councils are required to debate policy and enact legislation that reflect such policy, at the Local Government the delivery of services is the main focus of Local bodies. Thus the emphasis at the two upper tiers of Government can be on political parties and their policies while at the Local Government the focus can be more on the election of capable individuals rather than their party affiliations as policy considerations do not play a big role at that level.

This aspect of the variation in the needs of the different strands of Government was totally missing in the recently concluded Local Government Elections. Although the Local Government Election Reform was intended to strengthen the ward system and improve the quality of those elected this has only had limited success. In many cases people still do not know who their representatives are and there are reports of various individuals with questionable records of public conduct being returned to office.

Another feature of the Local Government Election Law as amended in 2017 that has to be reconsidered is whether there is a need to have multi member wards at this level. It would be better to have single member wards as that would encourage people at the grass root level to work together and build trust among the different communities and to choose the best candidate irrespective of which community he belonged to. This will greatly enhance and feed into the National Reconciliation process.

Besides the experience of the February 2018 Elections showed that the very purpose for which multi member wards were carved out, namely, to ensure that where large concentrations of particular communities other than the main community lived in that area, such communities would also get representation.

This objective was defeated both by the provisions of the Law itself and the conduct of the political parties themselves. The Law did not prescribe that the individual candidates who polled the highest number of votes (first and second in a double member ward ) should be elected. Instead it postulated that both candidates of the political party which won the ward would be declared elected. Often the two candidates were from the same community.

On the other hand there were instances of political parties nominating candidates from the same community for a multi member ward which again defeats the objective of a multi member ward.

Another glaring omission in the Local Government Law is the absence of provisions to enable local leaders and influentials to enter the fray in their individual capacity. The provision in the law that one has to be on a list of a political party or independent group discourages talented individuals coming forward to take over responsibilities and thus their services are lost to the country.

The Local Government system is the third tier of Government and is the administrative level that is closest to the people. The proposed Constitutional Reforms have suggested an enhanced role for Local bodies with more administrative powers being conferred to them. This is to bring Government closer to the people and to make devolution of power more meaningful.

With the new system in large measure reverting to the old ward system which characterized Local Government in the past, it would have been prudent to include provisions that enabled public spirited individuals to come forward to serve the people as had happened previously.

Such individuals may not wish to be aligned with political parties but are known to the local community as persons with integrity and a commitment to serve society and easily identifiable at the local level. An infusion of such public spirited individuals into Local Government would greatly help in infusing new blood into the system and rehabilitating Local Government which had deteriorated rapidly in recent times.

The Local Government system reached its lowest ebb in the last decade with members of Local bodies becoming a law unto themselves and running riot and engaging in all forms of corruption and other illegal activities.

Unfortunately the new system precludes and discourages well meaning public spirited individuals from playing their role in society. If any individual wishes to contest an election he can do so only if he does so through a political party or an independent list of candidates.

If he chooses to contest as an independent the number of candidates he has to gather for inclusion in such a list will vary according to the Local body in which he hopes to contest. For example for the Colombo Municipal Council he will have to gather a total of 113 candidates to be on his list out of which 34 have to be women. The deposit that he will have to pay is 565,000/-. For the Bulathsinhala Praddeshiya Sabha he will have to find 28 candidates including 8 women and pay a deposit of 140,000/-. For Walikamam North Pradeshiya Sabha he will have to find 38 candidates including 11 women and pay a deposit of 190,000/-. For the Muttur Pradeshiya Sabha he will have to find 24 candidates including 7 women and pay a deposit of 120,000/-. Any aspiring independent candidate wishing to contest any other local body in the country will have similar challenges before embarking on a mission to serve his community.

The need to make such an effort even before starting his campaign will completely dim the enthusiasm of any civic minded individual and make him give up his idea of serving his fellow community by seeking election to a Local Government body. In contrast if an individual is permitted to contest by himself all that he has to do is to pay a deposit of 5,000/- and walk round his ward and canvass around 1000 households to support him at the Election. The voter will judge him on his personal attributes of integrity and capability rather than his religious, ethnic or political identity. This will greatly enrich the quality of Local Government.

In hindsight some of the provisions of the 2012 Amendment Act may be better than those of the 2017 Act. The 2012 Act provided that in determining the number of candidates from a political party to be returned from the additional list (that is other than from the wards ) the votes of the candidates from that political party who had won their wards would be excluded and only the votes of the candidates from that political party who were defeated would be taken into consideration. In contrast the 2017 Amendment provided for taking into consideration all the votes of the winning candidates of the political party concerned in determining the number of candidates returned from the Additional list .

This amounted to giving a double value for the votes of those who supported the winning candidates in the winning wards and seems unfair.

Another unsatisfactory feature of the 2017 Law is that it allowed some candidates who were defeated in their respective wards to be nominated and appointed from the Additional list . To add insult to injury there are reports that some of those defeated candidates who were nominated from the Additional List ended up as Chairmen or Deputy Chairmen of Local bodies.

The criticisms of the 2012 Act and the process that followed were more in relation to the delimitation of the wards than the Act itself. While the review of the 2012 Delimitation Report which took three years was going on the Ministry of Local Government and Provincial Councils had ample time to initiate and take steps to amend any shortcomings in the 2012 Law. Instead it was only after the 2012 Delimitation Review process was completed that the Ministry woke up from its slumber and passed amending legislature in haste thus contributing to a rather chaotic scenario after the February 2018 Local Government Elections.

Yet another matter to be carefully considered is the proportion of the First Past the Post (FPP)system and the PR system. In the 2012 Amending Law 30 percent of the number elected on the FPP system was the number to be elected through the Additional List on the PR system. The 2018 Local Government Election Amendment Law changed it to a 60 Percent (FPP) and 40 Percent(PR) proportion. But for the Provincial Elections Amendment Law for some unexplained reason the proportion was changed to 50:50. The rationale for these changes are not at all clear and it is important that it is looked into more carefully to choose what system serves the country best.

It is to avoid a repetition of the shoddy way that the Local Government Elections Law and the Provincial Councils Elections Law was passed in 2017 that it is suggested in the National Interest that a White Paper is prepared for discussion on Electoral Reform. A considered approach to Electoral Reform can greatly contribute towards changing the political culture and enhance the quality of Governance as a whole.