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Monday, 12 April 2010

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An alien electoral system

Liberty of human beings and protection of property rights are the essence and foundation of any highly developed and recognized civilization in the world. It is very evident and cogent that human beings have obtained liberty after going through long and tedious journeys. An analytical approach reveals the fact that liberty has many aspects either granted by law or protected by law in many fields in life.

Religious story

History reveals many instances where liberty had played a vital role in different fields in human life.


Parliament - House for good governance. File photo

Upheavals and vicissitudes of society wherever it is, witness the above facts in a very unfailing manner. Widespread social and religious story where it reveals Mahasammatha king enlighten us with the full and perfect concept of franchise of the people even in choosing their king many thousands of years ago.

In that concept all the people who were living at that time chose the person who was most suitable to be their king.

Therefore the king was known as Mahasammatha. "The word Mahasammatha per se discloses the meaning "accepted by large."

The rationale behind this was that liberty of the human beings was regarded in a very high and deep manner even in choosing their king.

Sri Lankan kings

So much so this concept was regarded as important, even Sri Lankan kings used the prefix Mahasammatha before their names as descendants of Mahasammatha Vansa, many many centuries after this incident.

This everlasting rationale behind the concept of Mahasammatha is liberty of the subject or more that of human beings who are entitled to a flexible mechanism in choosing their governors.

It is very respectfully submitted that law recognized the liberty of human beings or subjects where any infringement had taken place illegally. For instance, the application for writ of habeas corpus, was granted for the slave woman whose detention was illegal in England where slavery was not legal.

This is one of the greatest events where liberty of the subject was recognized. A free person's protection of property rights also go hand-in-hand with liberty.

Stone script

In ancient Sri Lanka also, though there was a monarchy headed Government many aspects of liberty of the subject was recognized. In 10th Century, B.C. when very remote area like Mahiyangana was maladministered by the king's administers, people of the area petition to the king.

The king himself restored the situation back listening to the views of the subject.

This situation is very clearly manifested in Badulla stone script. This can be mentioned as a very important and sound element, where the King himself listened to the views of people, further his subjects.

It is very clearly submitted that, this is a very admirable instance where, in a monarchy headed state, democracy of the meaning to-day is not in existence, views of the people or the subjects were very deeply cared for. At the sametime, this is one of the instances where flexibility of the attitude of the king is exposed. At the sametime liberty of the subject, further views of the subject was recognized.

Further their property rights were also very effectively protected by Law by way of taking the views of the people into consideration.

It is submitted that above mentioned situations witness the fact that whatever the form of government prevails many aspects of liberty of the subject, recognising freedom, maintaining flexibility in dealing with their problems and above all granting legal protection were sine qua non in upheavals and vicissitudes of the society where ever it was.

The British Government introduced into Sri Lanka, the form of Parliamentary Government.

The present day concept of democracy per se was introduced into Sri Lanka by the British, franchise, which is one of the aspects of the liberty of the subject is the background of democracy which is prevalent today introduced by British. British introduced into Sri Lanka Parliamentary democracy in 1948 with the independence.

The right of franchise is the result of a long and tedious struggle even before it was introduced into Sri Lanka. Therefore it is submitted that what we have received today is a blossomed flower in some other country. Therefore it is submitted that Parliamentary democracy and right of franchise both are alien concept to Sri Lanka. Even then after adopting these concepts, a lot of changes have taken place in those fields, as the circumstances call for.

Parliamentary Election

In explaining Parliamentary democracy and franchise, it is inevitable that some more concepts which are inextricable interwoven with those concepts like Parliamentary Election and methods of performing them need deep explanation. From 1948 up to 1978, pluralist system was in force in Sri Lanka in the field of Parliamentary Elections. In the year of 1978 the new Constitution was introduced. The Constitution of Democratic Socialist Republic of Sri Lanka which is hereinafter referred to as 1978 Constitution was the new Constitution which was introduced in 1978.

The 1978 Constitution is important on many aspects in the field of Constitution of Sri Lanka.

The 1978 Constitution is the Supreme Legislation in this country which introduced many fields exposing some aspects of liberty of the subject along with that of property and of fundamental rights. Such as fundamental rights. Habeas corpus, law relating to proportional representation and preferential system, writ of certiorari and property rights of the people.

Preferential system

Law relating to proportional representation has to be explained in detail. Before 1978 Constitution the election was held according to the pluralist system.

Since proportional representation and preferential system is enshrined in the 1978 Constitution, that gets the priority and has to be followed. These two systems are alien to Sri Lanka. Therefore a complete and comparative analysis is desirable in these fields.

As I have submitted in the above mentioned paragraphs of his article proportional representation and preferential system are alien to Sri Lanka. The Fourteenth Amendment to the Constitution 1978 deals with these two concepts.

According to Article 99(2) every elector at an election of members of Parliament shall, in addition to his vote, be entitled to indicate his preferences for not more than three candidates nominated by the same recognized political party or independent group.

Electoral district

There can only be one nomination paper setting out the names of such numbers of candidates as is equivalent to the number of members to be elected for that electoral district, increased by three.

Then votes polled by disqualified parties and disqualified independent groups shall be deducted from the total votes polled at the election in that electoral district and the number of votes resulting from such deduction is hereinafter referred to as the relevant number of votes. The relevant number of votes shall be divided by number of members to be elected for that electoral district reduced by one. That is considered as resulting number.

A recognized political party and an independent group which polls the highest number of votes is entitled to get a candidate nominated by it, who has secured the highest number of preferences, declared elected.

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