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Majoritarianism and the Mother of Parliaments

Models: One of the more bizarre aspects of our centrist and left-leaning parties is their steadfast adherence to British models.

This was most prominently seen in the manner in which Dr. Colvin R de Silva, way back in 1972, made a fetish of the doctrine of the supremacy of Parliament, which he derived from his understanding of the manner in which the British Constitution, that superb figment of a collective imagination, worked so effectively for three hundred odd years.

D S Senanayake J R Jayewardene Sir Ivor Jennings Dr. Colvin R de Silva

Steeped as he was in the grand ideals of the past, leavened by a practical dash of Marxism, Dr de Silva failed to register, or to explore, how that particular doctrine depended on a very different concept of parliamentarians from that which obtained in the late 20th century.

Parliamentarians, in the great days of Parliament, were individuals, representing - as Burke so brilliantly put it - first and foremost the highest interests of their country. The idea that they were mere representatives of their parties was anathema to him.

Expulsion

Of course in those days Parliamentarians could generally be assumed capable of assessing independently the highest interests of their countries. That is no longer the case, and therefore there is some sense in the concept of the party whip, which developed even in England, and was brought to a fine art here by J R Jayewardene when he instituted the principle of expulsion from Parliament following expulsion from a party.

But, when one accepts the principle of party control, either as reality or as a logical corollary of the manner in which parliamentarians are now chosen, the idea that Parliament is supreme becomes questionable.

In the old days I used to think Dr de Silva was being disingenuous in asserting that Parliament was supreme, when he knew that a majority of Parliament was under the control of the party hierarchy, which was synonymous with the executive of the country.

But, at least until that executive rid itself of the LSSP, he was perfectly happy for both the executive and the legislature to be firmly under the control of the same person or persons.

This meant that, since the principle functions of Parliament are the passing of laws and control of the executive through its financial powers, the executive was in fact able, through its control of Parliament, to pass whatever laws it wanted, and to govern without financial constraints.

Later however, for as I grow old I appreciate more the psychological dimensions of political predilections, I realised there was a very good reason for our leftists refusing to look at anything but the British model. Very simply, the alternative was associated with America, that Great Satan for so many of our intellectuals of past and present.

The fact that much that is admirable in the American Constitution derived from European philosophers was forgotten. Thus though subsidiarity, the separation of powers, the supremacy of a Basic Law, are referred to, they are not explored with the attention to authoritative models, Swiss or French or German, practical or theoretical, that would help us understand what features should be incorporated into our body politic, and how they can best be adapted to our particular requirements.

Despite various study tours eagerly undertaken by would be constitution makers, there is little trace in what is canvassed now of these or other principles that would help us escape from the mess into which our three local constitutions have cast us.

Under threat

I use the word local about all three advisedly, even though current wisdom is that the Soulbury Constitution was an import from Britain. On the contrary, it was drafted by Sir Ivor Jennings at the behest of D S Senanayake.

Determined as he and his Board of Ministers were to get rid of the inconvenient Committee System of the Donoughmore Commission (which had ignored the elitist preferences of Ceylonese politicians), he had recourse to the British oppositional system, which meant by then, given the power of political parties, majoritarianism with a vengeance.

In declaring that majoritarianism is the root of many of our problems, I am not talking only of the abuses minorities have suffered. I refer too to the abuse of opposition parties and interests that has often been a hallmark of our political system.

Despite this, when parties are in power they forget completely that they are liable to suffer worse, given our tendency to follow the example of the Demoness Kali in the Saddharma Ratnavaliya story.

Indeed, the one institutionalised measure that has limited majoritarianism in this country (so that the excesses of the Jayewardene government have not been repeated), the change from a simple majority electoral system to proportional representation, also now seems under threat.

Practically everyone since 1994 has paid lip service to a mixed system, thus vindicating the seminal suggestions of Chanaka Amaratunga, who was excoriated at the time for introducing foreign ideas (German, I should note, not the British / American system I that some now assume was indigenous to Sri Lanka.

However, the actual alternative systems suggested, beginning with Prof Peiris' proposals in 1995, are for a simple majority system topped up by proportionately selected members to a limited extent that would not seriously dent the domination of the majority.

Such domination would be available even to a party that won a vast majority of seats with just a plurality, which the UNP could do given the tendency of our centrist and left parties to squabble on small issues, as they did in 1977, and spite each other with self-destructive efficacy.

Principles

Meanwhile there is no attention to the principles on which an electoral system should be constructed. One obviously should be that citizens be adequately represented, which means small constituencies rather than the large districts in which heaps of candidates now compete, at vast expense, against those in their own parties as well as in others.

But another should be that all segments of the population be fairly represented, which means that the whole parliament should be proportional to votes cast, not only the topping up segment.

This last principle is obfuscated by the racist tosh tossed out by political science tuition notes which students regurgitate ad nauseam, claiming it is the minorities that have from proportional representation.

Neither students nor their doctrinaire mentors look at the facts, which show that the TULF got more seats as a percentage of the whole Parliament in 1977, on a simple majority system, than the TNA did in 2004 under proportional representation.

Forgotten is the fact that the principal opposition party has benefited most under proportional system, which helped reduce the authoritarianism and constitutional manipulation that was a feature from 1970 to 1988.

And this hankering after majoritarianism on the British model extends even to another aspect of Parliament in which the Americans moved smartly away from the Mother of Parliaments. I refer to the idea of a Senate, where alas the shade of Sir Ivor Jennings once more rears its hoary head.

Of course I may be doing Sir Ivor an injustice, and the Senate Ceylon had with spectacular uselessness for a quarter of a century after independence may have been devised by D S Senanayake rather than his devoted constitutional expert. But since Sir Ivor then tried to perpetrate something similar in Nepal, when asked by its King to advise on a Constitution, the conclusion is that that ridiculous rubber stamp was dear to his heart.

Domination

I say rubber stamp, because that Senate replicated the domination of the executive over the lower House, with knobs on as it were. Half the Senate was elected by Parliament, which meant a majority of that half was selected by those who had a majority in Parliament. This was by a complicated election system called the Single Transferable Vote.

In the early days there were elections which caused mathematical headaches to the Clerk to the House, as the Secretary General of Parliament was then called. After 1964 however a more enterprising and perhaps more lazy Clerk told the Prime Minister and the Leader of the Opposition that, given the numbers they controlled, they would get three and two Senators respectively of the five elected every two years.

It would save everyone a lot of trouble if they restricted themselves to nominating the exact number of electable candidates.

The politicians followed his advice which confirmed that the party allegiances of elected Senators were a foregone conclusion. And, in addition to these fifteen predictable worthies, there were fifteen more, five nominated every two years by the Governor General. Since the Governor General acted on the advice of the Prime Minister, this meant that the Prime Minister had the support of the fifteen appointed Senators in addition to the nine he had got elected.

In short, instead of the Senate being a forum of independent debate and analysis, it provided a classic case of the second copy of the morning paper bought to check that what the first said was true.

Sadly, this is basically the model the SLFP has suggested in its proposals for Constitutional Reform. One third of the Senate is to be proportionate to the vote for Parliament, while another third is to be appointed by the President.

The other third will be District Chief Ministers, appointed by the President in concurrence with the District Councils.

The problem here is not that the President would thus invariably control a majority of the Senate. That could be a problem if he did not control a majority in Parliament, but since this would lead to complications anyway, the situation of the Senate then will be the least of the country's problems.

Rather, the problem is that the President's control of the Senate would be on the same basis as his control of the lower house, which is what would make such a Senate a rubber stamp and hence redundant.

Model

It seems that, as way back in the forties, our politicians have looked on the House of Lords as a model. The upper house contained worthies appointed by the Sovereign, some chosen to represent the opposition. Hereditary members generally managed not to upset the balance, and now cannot do so given the recent reform.

What Jennings missed however was the signal contribution of British individualism, and the traditions of the Lords which have even now, despite the strengthening of party feeling in politics elsewhere, ensured a more dispassionate approach to political questions than was possible in Sri Lanka.

Now of course the problem has been compounded by the Head of State in Sri Lanka being an active and powerful politician. Even if he genuinely wanted to nominate only those who he felt would, regardless of political opinions or party affiliations, contribute to assessing legislation, he would find it difficult to resist partisan pressures.

The manner in which nomination to Parliament on the National List has been hijacked by party rather than national interests - making a mockery of the claim of the tuition brigade that it is a way of ensuring enlightened members of Parliament - makes it clear that a Senate nominated by the President will hardly fulfil the purpose of a Second Chamber.

But, once again, we have failed to consider what the purpose of a Second Chamber is. Certainly it is to review legislation - and perhaps also assess appointments to senior administrative and executive positions - but it needs to do this from a perspective that is different to that of the lower House.

That is why, in all mature democracies - and none of them, I believe, except for New Zealand, does not have one - the second chamber is the repository of the interests of the people calculated in a different manner from those represented in the principal chamber.

Sharing of Power

Generally, upper Houses represent regions, with weightage to ensure restrictions of the power of the dominant group in any society, who would tend to have a majority in the lower house since that is selected purely on the basis of population.

Once again I do not mean only a dominant racial group. Rather, in the United States or Australia or Germany or India, representation is on the basis of provinces or states, with greater or lesser weightage to ensure that the units with large populations and hence large numbers in the lower house cannot dominate the parliamentary process.

The SLFP proposals go some way towards this in giving each District one member, for the third of the Senate based on Districts. But without any such limitation on the other two thirds, we are bound once again to have the domination of the Western Province, with a little help from its Kandy / Kurunegala / Galle / Matara District urban associates.

Besides, putting the District Chief Ministers in the Senate, necessitating their constant attendance in Colombo if the Senate is to fulfil its functions seriously, will take away from their primary commitment to their Districts.

Rather, what would make more sense is members elected direct to the Senate from Districts or Provinces. The latter would be preferable, for any unit would need about five members if diversity were to be adequately represented, while the Senate should be compact so as to build up a strong collegiate identity.

Nine Provinces electing five members each by Single Transferable Vote, the mathematical complexities now simplified with computers, would produce a viable Senate, which would, as the SLFP proposals so eloquently put it, 'facilitate sharing of power at the centre'.

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