The JVP’s 20th Amendment: A constitutional Trojan horse?

The JVP has stated that they will be presenting the motion to abolish the executive presidency as a private member’s Bill next month. Even though they have said that they will agree to electoral reform, too, if that is deemed to be a prerequisite for the abolition of the executive presidency, they have not given any indication that they will be including provisions for electoral reform as well in their draft 20th Amendment. Hence it appears that the 20th Amendment is being drafted solely for the purpose of abolishing the executive presidency while leaving the provisions in the present Constitution in relation to the election of members of parliament through the proportional representation and preference vote based system intact. What this means is that Articles 96, 97, 98, 99 and 99A of the Constitution which deal with the election of members of parliament will remain unchanged. This will be a recipe for disaster and nobody in his right mind will be able to agree to such an amendment.

In the past thirty years in which the proportional representation and preferential vote based system of electing members of Parliament has been in existence, there have been only two instances when the party that won a parliamentary election got a clear majority. That was after the parliamentary elections of 1989 and 2010. At all other parliamentary elections held under the present Constitution, the winning party did not get a clear majority in parliament and a coalition had to be cobbled together after the election. Hence in the past thirty years, the government has really hinged on the executive president. If the JVP brings forward a motion to abolish the executive presidency without any changes to the system of electing members of parliament so as to ensure a stable government, then some people are going to say that the JVP is trying to achieve through a Constitutional amendment what they failed to achieve in the late 1980s through the barrel of a gun. In the late 1980s, the JVP shot dead hundreds of petty government officials and set fire to rural government buildings in an attempt to bring the functioning of the government to a halt.

This time they have managed to achieve a comparable result at the local government level by persuading this clueless government to pass reforms to the local government elections law in August last year. Now, elections have been held under the JVP promoted system and what we have are chronically unstable local government institutions in most parts of the country. The JVP (and other smaller parties working together) managed to get this government to ram through similar reforms to the provincial councils law as well last October and if the PC elections are held according to that system, what we will have will be unstable provincial councils as well. After having seen how the new local government elections system worked, the people and politicians of this country are now openly hostile to any suggestion that the yahapalana electoral system be extended to the parliamentary system as well. In fact if the results of the system advocated by the JVP had been apparent when the PC elections system was changed, no party other than the JVP would have voted for it. After the local government elections fiasco there are already calls from parties across the political spectrum demanding that the next PC elections be held according to the old PR and preference vote based system since that was much better than the system that was hurriedly introduced last year.

Electoral reform was always a precondition

As there is no longer any appetite for JVP style electoral reforms, they seem to have hit upon the next best option of calling for the abolition of the executive presidency without reforming the parliamentary electoral system whereby they can introduce anarchy to the central government level as well. In the past any suggestion of abolishing the executive presidency has always been coupled to changing the electoral system to a hybrid first-past-the-post/proportional representation system. Even in the yahapalana campaign that brought Maithripala Sirisena into power, electoral reform was coupled inextricably to the abolishing of the executive presidential system. Furthermore, the new electoral system envisaged was not the pure proportional representation system that JVP took the initiative to introduce at the local government and provincial council level, but the hybrid first-past-the-post/proportional representation system that was decided on by the Parliamentary Select Committee under the Chairmanship of Dinesh Gunawardene in 2008. The system that this Parliamentary Select Committee suggested was first passed into law by the Local Authorities Elections (Amendment) Act No: 22 of 2012. That system was to function as follows:

The representative of each ward would be elected on the first past the post system in the first round and the remaining 30% of representatives would be elected in the following manner: The total number of votes received by all the winning candidates of each political party in the wards and the votes of the political parties which received less than 5% of the valid votes cast, will be eliminated from the race to arrive at the aggregate number of votes polled by the ‘balance candidates’. This would then be divided by the number of members to be returned on the PR quota in that institution to arrive at the ‘qualifying number’. The aggregate of the votes received by the balance candidates of each recognized political party will then be divided by the qualifying number to determine the number of PR candidates that political party or independent group is entitled to.

The changes that parties like the JVP brought through the back door to this system on 25 August 2017 stood the 2012 system on its head and the result is now universally reviled by virtually all political parties including the ethnic parties. For the JVP to pretend to be oblivious to the mayhem they caused and to nonchalantly put forward a proposal to abolish the executive presidency without at the same time changing the way members of parliament are elected, can only be interpreted as an attempt to do through the legislative process what they failed to do in the late 1980s through the bullet. The question is that in the context where the electoral system that was advocated by the JVP has proved to be such a dismal failure, what is the electoral reform proposal that they can append to their Bill to abolish the executive presidency? The simple answer to that is, that they should append to their private members Bill the system put in place through the Local Authorities Elections (Amendment) Act No: 22 of 2012.

The need to prove good faith

When that Act was first passed in 2012, the idea was that the new electoral system would be tried out at the local government level first before being introduced at the provincial council and parliamentary levels. We never got to try out that system because it was changed in August 2017. However, we have seen that the system that replaced it has not worked to the satisfaction of anybody, and on that basis we have no alternative but to fall back on the 2012 system. When the present LG elections system was introduced on 25 August 2017, many people predicted quite early on that it would give rise to chronically unstable local government institutions, because it was so obvious that such could be the only outcome of the system proposed. However, nobody has made such negative predictions about the 2012 system.

We have one final chance to try out the 2012 system by introducing it at the provincial council elections that are coming due and based on the outcome, to introduce it at the parliamentary level as well before the next presidential elections come due in the last quarter of next year. If the JVP is to establish its bona fides with regard to their private members Bill to abolish the executive presidency, they should simultaneously bring forward proposals for electoral reform instead of merely saying that they are ‘willing to consider’ electoral reform. The JVP has together with the yahapalana government participated in flouting both the Constitution and the Standing Orders of Parliament to introduce electoral reforms through Committee stage amendments to Bills introduced in Parliament for completely different purposes. Even this private members Bill to abolish the executive presidency is being looked at with suspicion because there is the distinct possibility that the JVP and their yahapalana buddies may use this Bill too for various political games.

People have this fear that this private member’s Bill in the event that it does get to the Committee stage could be used to bring in more constitutional reforms than just the abolition of the executive Presidency. Even though the Standing Orders of Parliament provide for private member’s Bills, the Constitution does not have any specific provisions enabling Constitutional change to take place through a private member’s Bill and it may be necessary to seek a determination from the Supreme Court in this regard. After the manner in which the JVP worked with the yahapalana government to introduce highly damaging reforms to the LG and PC electoral systems through the backdoor, any legislative initiative by the JVP will be suspect unless they prove their bona fides beyond a reasonable doubt. With regard to the private members Bill to abolish the executive presidential system, the only way the JVP can prove their bona fides is to include in its proposals for electoral reform as well.

(Source: The Island – By C. A. Chandraprema)