Suggestions to improve Parliamentary system:

Creating a balanced Parliament

Chanaka AMARATUNGA

This essay is a shortened version of a summary of conclusions of a Seminar Series on Constitutional Reform initiated by the Council for Liberal Democracy in November 1987, which were concerned with the role and structure of Parliament. Part I appeared yesterday.

Some were of the view that, if an Executive Presidency did exist, it was logical to exclude members of Cabinet from Parliament as was the case in the United States of America and France, the most distinguished examples of Presidential systems.

Such exclusion would assist a clear separation of powers and would ensure that Parliament would be a better check upon the power of the executive. Such a system also could ensure a better quality of minister, as then ministers need not be party hacks but those able to contribute constructively to the process of governance.

It was argued that Government should be subject to effective Parliamentary scrutiny through the presence of ministers, Minister of State and Deputy Ministers, to ensure greater accountability.

The necessity for ministers to face parliamentary criticism, as they would have to in a balanced Parliament, would improve the possibilities of enlightened Government.

While the authority of Parliament and of the Member of Parliaments should be enhanced, this should not be confused with Parliament having absolute power as was contemplated in 1972. Parliament should have limited authority and its acts should be subject to judicial review.

The ideal was a system which protected the rights of each individual. Acts that violated human rights and constitutional freedoms should not be permitted to be enacted by Parliament even by a two thirds majority and not even by a Referendum.

An important distinction was made between the totalitarian understanding of democracy, which is enforcement of the ‘will of the people’, and liberal democracy which is implementation of the will of the majority while protecting the rights of the individual and of minorities and ensuring checks on any majority.

It was pointed out that Parliament had been transformed into being itself an executive, rather than primarily the legislature as it should be. Of 140 Government Members of Parliament, 96 were ministers of some kind, ie Cabinet ministers, ministers not of Cabinet rank, deputy ministers, and district ministers (this rose subsequently to 112). Thus over two thirds of the five-sixths majority of the Government were ministers (rising to 80 percent).

This had never before occurred in this country, and countered an important requirement of a healthy Parliament, of Government backbenchers in addition to an opposition.

Parliamentary traditions, under Presidential and Parliamentary systems, involved a check by Members of Parliament on ministers. This was now absent. Backbenchers cannot effectively be a check on ministers if a majority of the Members of Parliament are ministers.

Reflecting a balance

Another area of interest was the training and suitability of Members of Parliament. Some argued that the principal weakness of Parliament today was that a majority of the Members of Parliament were not well educated and sufficiently informed on issues.

Even senior Cabinet Ministers admitted that most Members of Parliament did not understand the legislation they were called upon to enact and could say nothing useful on issues of policy.

On the other hand Parliament should not exclusively consist of members who can make impressive intellectual contributions, but should consist also of members who have the feel of ordinary people and know their problems. Parliament should reflect a balance between both types of members.

It was asserted that the real business of Parliament, that is to say its functions in terms of enacting legislation, scrutinizing the acts of the Government and addressing itself to great issues of national policy, is conducted by no more than 10 members on either side of the House.

This was unsatisfactory and there should be more participation in the real business of Parliament, which might require training in political thought and principles.

The question arose whether Parliament has been effective in the protection of Minority rights.

It was agreed that it had not. On the contrary right from the Donoughmore Constitution there had been manipulation, with the pan-Sinhala board of ministers in 1936, the disenfranchisement of the Indian Tamils in 1948, the Sinhala Only Act in 1956 and the repeal of the Soulbury Constitution, particularly Section 29 of it, which was some safeguard for the minorities. After 1970, and more after 1977, Parliament had failed to respect the rights of political minorities too.

The question was posed whether Sri Lankan society was inherently authoritarian and therefore attempts to strengthen liberal democracy and construct a free Parliament would be useless.

It was agreed that, though our society contained some authoritarian tendencies, it had strong liberal tendencies too, and that those who believed in a free society should strengthen the latter and reduce the effect of the former.

The fact that even those who undermined liberal democracy felt obliged to pay lip-service to democratic principles suggested there was recognition that the people of Sri Lanka wanted an open society and a pluralist political system. This was a reason to be hopeful about the possibility of the restoration of a truly authoritative and free Parliament.

A mixed system

The plurality system was unrepresentative and ineffective and that nobody wants to preserve it. However, the electoral system, while proportional in character, should also maintain the link between the Member of Parliament and the people who elect such a member. The issue was raised as to whether an electoral system should encourage regional tendencies or whether it should discourage them.

The merits of a system which did both were considered and there was agreement that this could be done by adopting a mixed system of elections to the Lower House and of adopting, for the elections for the elected element in the Upper House, a system that has the province as the unit of election.

A mixed system for elections to the Lower House meant combination of a territorially based system, which would result in half the seats elected on a constituency basis on the simple plurality system (or, as some preferred, the alternative vote), and a national list from which the other half of Parliament would be elected.

The issue of the cut off point for election both to the House and the Senate was discussed.

It was agreed that the cut off point of 12.5 percent contemplated for the next Parliamentary Election was far too high and would substantially distort representation.

The extremely important point was made that in making proposals for electoral reform we need to priorities the effects we want to achieve, because different electoral systems achieve different objectives.

In deciding on an electoral system for Sri Lanka, the following considerations should be significant:-

An, accurate reflection of the popular vote in Parliament, an easy comprehension of the electoral system (or more particularly the use of that system) by the average voter, the promotion of political diversity, the minimizing of the opportunities for the tyranny of the party over the individual member, the permitting of the election of members who could contribute constructively to the parliamentary process and the possibility of the voter maintaining a direct link with the Member of Parliament.

It was evident that a large measure of agreement had been achieved, though there remained differences of emphasis on particular issues and matters of detail.

Concluded