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District Multi-Stakeholders Forum

On
Constitutional Reform and Peaceful Coexistence

Policy Paper
on
The Right to Representation and
Participation
Policy Recommendations of the District Multi-Stakeholders Forum on
Constitutional Reform and Peaceful Coexistence
The National Democratic Institute (NDI) is a nonprofit, nonpartisan, nongovernmental organization
that responds to the worldwide quest for popular civic participation, open and competitive political
systems, and representative and accountable government. NDI and its local partners work to establish
and strengthen democratic institutions and practices by building political and civic organizations,
safeguarding elections, and promoting citizen participation, openness and accountability in
government. With staff members and volunteer political practitioners from more than 100 nations,
NDI brings together individuals and groups to share ideas, knowledge, experiences and expertise.
Partners receive broad exposure to best practices in international democratic development that can be
adapted to the needs of their own countries. NDI’s multinational approach reinforces the message that
while there is no single democratic model, certain core principles are shared by all democracies.

In late 2008, NDI commenced a program to promote multi-sector dialogue to build capacity and
consensus on constitutional reform and peaceful coexistence. District Multi-Stakeholders Forums
(DMSFs) were created in eight districts of the South, Central and Eastern Provinces with the
participation of political party leaders, representatives of professional associations and civil society
organizations.

During the initial meetings in early 2009, participants identified specific constitutional and
governance issues that they believed should be addressed through policy, legislative and institutional
reforms to promote, consolidate and sustain democracy and good governance. Comprehensive
dialogues were promoted on the following issues:

1. The right to Representation and Participation


2. The right to Rule of Law
3. The Right to Transparent Governance
4. The right to Effective, Efficient, Responsive and Accountable Governance
5. The right of Women to Equality, Representation and Participation
The recommendations formulated by the DMSF are intended to initiate dialogues through
constructive engagement with policy-level stakeholders, political and civil leaders and others
responsible in promoting democratic governance in the country. The recommendations for policy
reform on the Right to Representation and Participation are presented herewith with the kind
request of the members of the DMSF to H.E. President Mahinda Rajapaksa, Cabinet Ministers,
Leader of the Opposition, leaders of all political parties, Parliamentarians, Members of the Provincial
Councils, Heads of relevant state institutions and the general public to kindly come forward with
commitment, enthusiasm and solidarity to promote informed dialogue based on these
recommendations in order to reach multi-party consensus in the search for a shared future in which
everyone will be accepted and respected as equals in an environment of good governance with
development and peace and free of discriminations, fear, intimidation and violence.

The Members of the District Multi-Stakeholders Forum on Constitutional Reform


and Peaceful Coexistence

August 2010

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Multi-Stakeholders Forum on Constitutional Reform and Peaceful Coexistence

POLICY PAPER ON THE RIGHT TO REPRESENTATION AND PARTICIPATION

Introduction

During the late eighteenth century that idea of democracy as representative government
based on popular elections was developed. Ever since, the debate has centered on who should
participate in public decisions (voting rights) and how participation can be best achieved
through representation. Today, the representative democratic system of governance based on
universal franchise is accepted and practiced in most countries. The current focus is on how
countries can promote, strengthen and consolidate the democratic rule with good governance.

Elections constitute one of the most powerful forms of political representation and
participation. Government which has been chosen by universal suffrage through free and fair
elections is recognized as legitimate and democratic. In the concept of representative
democracy, the governing party must be chosen by elections in a free and fair manner. In this
respect, elections may be thought as an act through which

- to express its trust in the persons elected;


- to ensure a representative parliament or governing body is chosen, inclusive of
parties, ethnic or religious segments, sectors and levels;
- to ensure that the government of the day can be controlled, re-elected and
defeated.

The election system, as such, is one of the most important tools of democracy, enabling
citizens to exercise the right of self-determination. Voting is a common instrument used to
hold governments accountable to its citizens. Electoral systems in any segmental, ethnically
and politically plural society, like Sri Lanka, must ensure the following:

Legitimacy: Electoral system accepted by the plural society should have proper institutional
means of establishing a representative government and losing minority groups or parties
should accept the legitimacy of the electoral results.

Political Integration: The electoral system should facilitate to unite the county, reduce the
polarization among groups and segments and it should channel political conflict through
procedures leading to peaceful settlements without promote solutions by force of arms or
repressions.

Political Parties: Political parties must be able to nominate candidates and canvas votes
across ethnic divides in order to overcome the politicization of ethnic differences.

Representative Government: A government elected under a particular electoral system


should be representative of the interests of different ethnic groups and especially ethnic
minorities on the basis of recognizing their equal participation in the decision process.

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Political Opposition: The electoral system should avoid exaggerated elected majorities, so
that the political opposition can play an effective role in the political process to check the
actions of the government.

National Democratic Institute (NDI) conducted a series of multi-stakeholder forums in eight


districts in the Sri Lanka with the purpose of formulating people’s recommendations for
policy reform to strengthen representation and participation. This paper outlines the key
recommendations made by the forum members.

Background

Like other former British colonies, Sri Lanka inherited a Westminster model of
parliamentary government, with universal suffrage established in 1931 and full general
elections in 1947, but over time found that First Past the Post (FPTP) elections were
incapable of representing minority interests. In 1978, the decision was taken to transform Sri
Lankan government from a parliamentary system into a French-style executive presidency.

Sri Lanka is a nation with a long history of bitter ethnic conflict between the majority
Sinhalese and minority Tamil communities. It was for this reason that the constitutional
drafters were very conscious of the need to ensure that the new office of executive president
would be filled by a national figure representative of all groups in society, and capable of
encouraging consensual politics between those groups. When Sri Lanka changed from a
parliamentary to a presidential system of government in 1978, it did so partly because there
was seen to be a need for a unifying national figure that could represent both the dominant
Sinhalese population, but also the Tamil speaking minorities.

Adequate, substantive and accountable representation of all groups is critical as Sri Lanka
moves beyond conflict and towards a future based on pluralism and equitable participation.

In the current setting it is essential to ensure that there is adequate representation of all
groups, especially minorities and that this representation is meaningful and genuinely
participatory as well as to promote integrated approaches that reduce the divisions in society
and promote collaboration and inclusion.

International Standards and Sri Lanka’s Obligations

Human rights are inalienable entitlements and constitute the fundamental ground-rules for
human development and democratic governance. Human rights norms and standards
guarantee women, men, youth and children the rights to non-discrimination in all aspects of
political, economic and social life, and to full and equal participation in decision-making and
access to power at all levels. As a signatory to International Covenants and Declarations
pertaining to human rights and non-discrimination, Sri Lanka has committed to ensuring that
fundamental rights to participation in all aspects of society and development are preserved
and promoted. The text of the major Conventions and instruments can be found at
www.un.org , with excerpts annexed with this paper. (Annex 1)

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Equal and full participation in public life are human rights issues. Education, health,
employment, protection by the law, access to justice as well as other basic human rights are
inalienable yet none-the-less bound to the guarantees of non-discrimination and equal
opportunity inherent in the right to participation. The human right to participation includes
universal, indivisible, interconnected and interdependent human rights to

-participate on equal terms in shaping and implementing decisions and policies affecting
themselves, their families, communities and societies at the local, national and international
levels

-equal access to public service

-equal access to education and information

-freedom of expression and opinion

-quality between men and women and to full and equal partnership in the family and society

The right to participation is explicitly set out in the Universal Declaration of Human Rights,
the International Covenant on Civil and Political Rights, International Covenant on
Economic, Social and Cultural Rights, Convention on the Elimination of All Forms of
Discrimination Against Women, the Convention on the Rights of the Child and other
international instruments.

Article 21 of the Universal Declaration of Human Rights states that “Everyone has the right
to take part in the government of his country”. This right is extended by the International
Covenant on Civil and Political Rights which affirms that “Every citizen shall have the right
and the opportunity..to take part in the conduct of public affairs..to have access, on general
terms of equality, to public service in his country.” (Article 25)

The UN Declaration on the Right to Development Article 2.3 states that “States have the
right and duty to formulate appropriate national development policies that aim at the constant
improvement of the well-being of the entire population and of all individuals, on the basis of
their active, free and meaningful participation in development and in the fair distribution of
the benefits resulting there-from’.

In Germany, the Lund Recommendations of the Effective Participation of National


Minorities in Public Life (Lund Recommendations), specifically advocate arrangements at
the level of central government to encompass self governance, special representation of
national minorities and territorial arrangements to ensure that local, regional and autonomous
authorities respect and ensure the human rights of all individuals. For more information, refer
to the paper on the German Electoral System (annex 2)

The Copenhagen Declaration and Programme of Action commits states to “Provide a stable
legal framework, in accordance with our constitutions, laws and procedures, and consistent
with international law and obligations, which includes and promotes equality and equity

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between women and men, full respect for all human rights and fundamental freedoms and the
rule of law, access to justice, the elimination of all forms of discrimination, transparent and
accountable governance and administration and the encouragement of partnership with free
and representative organizations of civil society and to “Reinforce, as appropriate, the means
and capacities for people to participate in the formulation and implementation of social and
economic policies and programmes..)”

While Sri Lanka has voted for, signed and ratified most of the international instruments, it
has not extended this commitment to providing constitutional guarantee and institutional
safeguards to recognize and promote the core principles. Clause 4 of the Article 27 in
Chapter VI of the Constitution explicitly recognizes the right to participation in every level in
national life and government: “The State shall strengthen and broaden the democratic
structures of government and the democratic rights of the People to decentralize the
administration and by affording all possible opportunities to the People to participate at every
level in national life and in government”

There are a number of directive principles that advocate equality, equal opportunity and non-
discrimination in governance. Article 29 in Chapter VI makes the directive principles of state
and policy and fundamental duties unenforceable: “The provisions of this Chapter do not
confer or impose legal rights or obligations, and are not enforceable in any court or tribunal.
No question of inconsistency with such provisions shall be raised in any court or tribunals”.

Human rights, equal participation and equitable representation in the legislature and decision
making bodies are inextricably linked. Adequate, enforceable policies and mechanisms must
be designed that reflect international standards and Sri Lanka’s commitment to upholding the
principles of inclusion and democracy. The State as the duty bearer must fulfill its
commitments and obligations to promote the rights of its citizens in accordance with
international standards by creating adequate constitutional, legal and institutional
mechanisms.

Recommendation 1 - Adequate Electoral Representation

In divided societies it is acutely necessary to ensure that equal representation and


participation of all groups is ensured in the policy planning and law-making processes. It has
been widely recognized that the current model for elected representation in Sri Lanka does
not adequately enable representation of diverse political, geographic, social, gender,
religious, ethnic interests. The consensus view is that in this regard Sri Lanka must undertake
a process of reform.

The most groundbreaking work on political representation was done by Hanna Fenichel
Pitkin who established four theories of representation. These theories, which continue to
greatly influence notions of representation today are:

Formalistic Representation – this refers to the institutional arrangements that precede and
initiate representation. Formal representation has two dimensions, namely authorization (the
means by which a representation obtains his or her position or office) and Accountability (the

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ability of constituents to ‘punish’ their representative for failing to act in accordance with
their wishes.

Symbolic Representation -refers to the ways that a representative ‘stands for’ the issues or
constituents he or she was elected to represent.

Descriptive representation- sometimes called passive representation or symbolic


representation, is the idea that candidates in elections should be elected to represent specific
groups or identities, rather than the population at large. According to this idea, an elected
body should resemble a representative sample of the voters they are meant to represent
concerning outward characteristics—a constituency of 50% women and 20% Muslims, for
example, should have 50% female and 20% Muslim legislators.

Substantive Representation – this is demonstrated by the activities of representatives ie the


actions that they take on behalf of the constituencies they represent.

For further details, refer to annex 3.

It has been argued that the present system in Sri Lanka has led to weakened accountability as
well as disparities between votes and elected representatives- again, weakening access to
representation particularly of small parties, women and special interest groups. In the 1970
General Election, a party gained 77% (116) of the seats while winning only 49% of the total
votes polled. The major opposition gained only 11% (17) of the seats while winning 38% of
the votes. In the 1977 general Election, the winning party gained 83% of seats while winning
51% of the votes whereas the major opposition gained 5% (8 seats) while winning 30% of
the total votes polled.

The 2006 Parliament Select Committee on Electoral Reform recommended a mixed system
on First Past the Post (FPP) and Proportional Representation (PR) systems. (Full report is
annex 4). The proposed model would include 225 Parliamentary Seats divided on the basis of
140 single member constituency seats based on a FPP system (Constituency MPs) , 70
elected from the district PR system (District MPs) and 15 National List MPs. Within the
National List, parties would be required to ensure adequate representation of women (one in
three nominees should be a woman) and 3 of the seats should be reserved for minorities.
Under the proposed reforms, the ward system would be re-introduced and district
delimitation would take place to facilitate increased inclusive representation of minority
interests.

First Past the Post electoral systems have the advantage of ensuring greater accountability of
elected officials to their constituencies. Voters can assess the performance of their
representative and decide whether to re-elect them or not. As mentioned earlier, many former
British Colonies continue to use this system. In cases where there are diverse communities
within an electoral boundary, communal electoral rolls wherein minorities have exclusively
allocated rolls and candidates can ensure that diverse interests are represented accountably.

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Fiji continues to use this system today and it remains as an optional choice for Maori voters
in New Zealand.

Adopting a mixed system, as has been advocated, could potentially strengthen both
representation and accountability.

For more details of electoral systems, see annex 5

District De-limitation

One of the issues that communities face in electing representatives is their candidate’s
inability to represent diverse interests. Where parliamentarians are tasked with serving large,
diverse constituencies, their capacity to understand and adequately reflect the divergent needs
and interests of all the people is limited. This inevitably leads to a sense of
disenfranchisement but also results in broader exclusion of some interests at least some of the
time within the decision making body. This becomes a critical issue when the decisions made
directly impact on the lives of people whose interests have not been represented.

The delimitation of electoral districts is a fairly recent phenomenon. Prior to the nineteenth
century, the composition of legislatures reflected the view that distinct categories of society
(i.e., towns, the clergy, and the nobility) should be represented and not individual citizens.
This view of representation led to legislatures based on subdivisions that varied greatly with
regard to the size of population being represented. In the latter part of the eighteenth century,
and throughout the nineteenth century, citizens began to demand a broadening of their
franchise. These demands were accompanied by the belief that "fair" representation entailed
an equalization of population per representative. Changing boundaries to broaden the scope
of representation of elected officials can be seen as a form of affirmative action.

Countries that delimit electoral districts must establish rules and a formal structure for
carrying out the process. The task of drawing districts is usually assigned to a boundary
authority or de-limitation commission in order to eliminate "politics" from the redistricting
process. The composition of de-limitation authorities should also reflect diverse gender,
ethnic and other identities. Formal re-districting criteria are defined and usually listed in the
electoral laws of the country. The criteria often include factors such as equality of population,
respect for local administrative boundaries and other geographic features such as natural
(physically-defined) boundaries, and recognition of communities of interest. Equal
population, geographic considerations and communities of interest are criteria that relate
directly to the process of creating districts. Other criteria relate to the outcome of the
redistricting process--for example, requiring that district plans be drawn so that political
parties are fairly represented or that racial, ethnic, religious or linguistic minorities have an
equitable chance of representation.

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Recommendations

1. The election system should ensure adequate representation of minority communities


and smaller political parties. Therefore, a system of mixed representation is
recommended. This is to ensure that while electing 60% of the elected
representatives through the first past the post system, the remaining 40% is to be
elected through a district based list using a proportional representation system. The
following criteria is recommended for this electoral system:

2. Redefining electorates, through an inclusive delimitation mechanism, to create larger


electorates, (approximately 110 electorates). The delimitation process the electorate
should consider creating multi-member constituencies in areas where there are
diverse minority communities to ensure their adequate representation in accordance to
reach their population ratio.

3. Representatives nominated through the national list should be decided on based on a


pre-defined criteria with priority given to ensure representation of unrepresented
groups and key sectors. Sector experts could contribute to developing policies in their
respective sectors which are indispensable to enhance state policies such as health,
economy, education, technology, environment etc.

4. National lists should not be utilized as an avenue for unpopular and defeated
politicians to enter the elected bodies.

Recommendation 2- Electoral System Design and Management

The critical factor in envisioning electoral models that will lead to representative government
is whether the system can facilitate representation of the interests of all. Further, it is
essential to assess whether the system promotes consociation government so that minorities
can take part in a meaningful manner.

To facilitate full participation, electoral system must be simple to understand. To be


transparent the electoral process should operate under the supervision of a competent and
empowered election monitoring body. Voters must be able to fully understand the electoral
process and have some means of recourse when their franchise is violated.

A Suitable Model

When designing an electoral system, it is essential for policymakers to define how they
envisage representation and how the legislature and executive government should ultimately
look. International Idea defined a series of ten criteria to inform electoral system design.

1. Providing representation- This encompasses at least four forms, namely geographic,


ideological, party political and descriptive.

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2. Making elections accessible and meaningful – People must be able to vote ie the
process should not be too complicated, voting stations should be accessible, safety
and confidentiality should be ensured. Moreover, voters should be confident that their
vote will make a difference. Even within democratic systems, the choice of electoral
system can influence the legitimacy of institutions. For example, the Australian
Senate between 1919 and 1946 was elected by a highly disproportional electoral
system (the Alternative Vote in multi-member districts), which produced lopsided
and unrepresentative results, undermining the legitimacy of the senate itself.
3. Providing Incentives for Conciliation – Some systems encourage parties to make
inclusive appeals for electoral support outside their core vote base, making platforms
less divisive and exclusionary
4. Facilitating Stable and Efficient Government the results a system produces can
contribute to stability- whether voters perceive it to be fair, whether government can
efficiently enact legislation and govern and whether the system avoids discriminating
against parties or interest groups.
5. Holding the Government Accountable- Accountability, as a bedrock of representative
government is a core contributor to stability. Voters should be able to influence the
shape of the government based on performance, either by altering the coalition of
parties in power or by throwing out of office a single party which has failed to
deliver.
6. Holding Individual Representatives Accountable- Plurality/majority systems have
traditionally been seen as maximizing the ability of voters to throw out unsatisfactory
individual representatives. However, this becomes tenuous where voters identify with
parties rather than candidates, as in the UK.
7. Encouraging Political Parties- Strong and effective political parties are vital in a
vibrant democracy. Electoral systems should encourage this rather than entrench or
promote party fragmentation. Most experts agree that the electoral system should
encourage the development of parties based on broad political views and ideologies
as well as specific policy programmes, rather than narrow concerns.
8. Promoting Legislative Opposition and Oversight-the electoral system should help
ensure the presence of a viable opposition grouping which can critically assess
legislation, question the performance of the executive, safeguard minority rights and
represent its constituents effectively
9. Making the Election Process Sustainable – the choice of any electoral system is, to a
certain extent, dependent on the cost and administrative capacities of the country. It
must also take into account the pressing needs of the country and find a balance
within the electoral process that is both effective and sustainable.
10. Taking into account International Standards- the design of electoral systems takes
place in the context of a number of international covenants treaties and other kinds of
legal instruments. While there is no single set of agreed upon standards for elections,
there is consensus that such standards include the principles of free, fair and periodic
elections that guarantee universal adult suffrage, secrecy of the ballot and freedom
from coercion and a commitment to the principle of open person one vote. Issues
such as fair representation for all citizens, gender equality and rights of minorities,
special consideration for the disabled are also issues that are formalized in

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international legal instruments such as the Universal Declaration of Human Rights,
International Convention on Civil and Political Rights.

Source: International Institute for Democracy and Electoral Assistance – Sweden.

Executive type of the government is a critical issue in designing an electoral system and electiveness
and accountability of elected representatives. A detail analysis on three types of executive types in
governance, Presidential, Parliamentary and Semi-Presidential (Hybrid) systems is given in the
document in annex 6.

An Effective and Autonomous Election Management Body

Monitoring the electoral process is an important integrity safeguard. Transparent


management of the electoral process is vital. An independent appointed office for electoral
management and observation of the process by political parties, the media and individual
electors, as well as non-governmental organizations and international groups is the norm in
democratic systems. However, the autonomy, resources and capacity of such bodies is of
equal significance as their existence.

To be effective, monitoring should cover the entire electoral process, not just some aspects
such as voter registration or polling. Among other things, monitors must examine:

 the appropriateness of the legal framework;


 the appropriateness of electoral procedures and preparations, including training of
election staff;
 delimitation of electoral districts;
 elector registration;
 information and education programs;
 registration of political parties and candidates;
 freedom of assembly and movement;
 freedom from fear and intimidation;
 freedom of expression and equal access to the media;
 use of public resources for campaign purposes;
 activities on election day;
 vote counting and compilation of the results; and
 whether there are appropriate, impartial procedures for lodging complaints about
election results, and legitimate procedures for resolving them

Recommendations

Electoral system should be designed to ensure the following requirements:

a) Simplified electoral system for voters to understand the entire voting and
election of representatives.
b) A system that could sustain transparent electoral processes.
c) A system that could ensure legitimate election processes.

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An empowered and independent election management body should be put in place that will
be accountable to the voters and the rule of law.

Recommendation 3 - Accountable Elected Representation

Accountability is an essential component of representative government and vital to ensuring


human rights principles are preserved through democratic governance. An accountable
system is one on which the government is responsible to the voters in the highest degree
possible. Their ability to participate in decisions which affect their rights and future
development in large part hinges on the validity of the voice they are given by their
representatives in decision making bodies. The nexus between elected representatives and
their constituencies must also be meaningfully maintained. Voters should be able to influence
government either by altering the coalition of parties in power or by throwing parties or
representatives out of office if they fail to deliver.

In Sri Lanka, there is a long history of elected representatives failing to adequately represent
the interests the community in favor of narrow political interests. Lack of accountability and
lack of citizens’ participation in democratic processes are among the root causes of this
failure. Sri Lanka does not offer options to citizens to play an active role in the legislative
process or to taking action when official fail to adequately represent their needs. Elected
representatives must be accountable to their constituents, who must in turn have means at
their disposal to assess and take measures against representatives who are not acting in their
best interests or in the best interests of transparent and effective governance.

Right to Recall

In Countries such as Switzerland and the United States, constituents can play a more direct
role in the legislation process. This includes the right to participate in referenda, to present
and vote for Constitutional Initiatives and the right to recall elected representatives. The right
to recall can be a major factor in ensuring accountability. Citizens can remove a
representative from office through a plebiscite initiated when a certain number of voters
present a petition. This system has been adopted in countries such as the United States,
Switzerland and Venezuala. A ‘recall’ enables a section of the public to ask that an elected
representative at national, provincial or local level be removed. Under the recall process a
section of the public will submit a petition signed by a stipulated number of voters asking
that a public vote be held to ‘recall’ an elected representative. Voters can in so doing remove
a representative on the basis that he or she has lost the trust of the people in that constituency
and no longer has a mandate to be their representative.

Recommendations

1. Electoral systems should be redesigned in such a manner to ensure the accountability


of elected representation to the voters. In this respect, the following aspects were
recommended:

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a) Electorates with the first past the post system of elections should be created in
order to strengthen the voter-representative relationship and to assure the
accountability of elected representatives to the voters

b) Creating electorates with the first past the post system should ensure adequate
representation of minority communities living in various parts of the country who
may not be able to gain adequate representation in electorates using the first past
the post system. This is particularly important for electing adequate
representatives of Indian Tamils and Muslims living in Sinhala dominated
districts and Muslims and Sinhalese living in the Tamil dominated districts.
Multi-member constituencies should be created in these areas to ensure election
of members to represent minority communities.

2. Accountability of all elected representatives to the voters and their compliance


with the rule of law should be ensured. In this respect, votes should be empowered
through legislation to recall representatives who fail to act in the best interests of the
voters.

Recommendation 4 - Women’s Participation and Representation

Women are severely underrepresented at the political and decision-making levels in Sri
Lanka, despite boasting the world’s first woman Prime Minister in 1960 and a woman
Executive President for eleven years from 1994. Representation of women in Parliament has
been abysmally low - around 4 – 5% since 1931 – and is even lower in local assemblies – 2%
- 3%. Elections held in April 2004 resulted in the formation of a new government and saw
less than 5% of women elected to parliament. In response to agitation by women’s
organizations a quota of 25% of the nominations to contest local assembly elections was
promised in the Mahinda Chintana.

Women cannot be defined under a homogenous identity. Social, cultural, religious,


economic, geographic and ethnic identities further inform the special interests and needs of
women. For example, Muslim and Tamil women, women living in remote areas and in
conditions of extreme under-development and poverty are among the most under-represented
and marginalized in society. Widows and women whose husbands have disappeared face
discrimination and are denied access to property and other rights. Women are victims of
violence and sexually based offenses and have little recourse through the legal system due to
inadequate laws and entrenched discriminatory attitudes. This is despite the repeated
commitments that the Government has made in the international arena to ensuring that
women’s rights are protected and promoted.

The 1978 Constitution guarantees equal rights without discrimination on grounds of gender
and provides for affirmative action to ensure equal rights. A Women’s Charter was
formulated in 1993 and accepted as a policy by successive governments. The provisions of
CEDAW and the Women’s Charter need to be incorporated into national legislation and

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adequate mechanisms for implementation need to be put in place if Sri Lanka’s commitment
to women’s rights is to be actualized.

In Sri Lanka women constitute almost 52% of the total population. But their representation in
the parliament is less than 5% and in local authorities it is less than 2%. Increasing the
elected representation of women is vital in ensuring the interests of women are reflected,
particularly in the legislature. Article 7 of the Convention on the Elimination of All Forms of
Discrimination against Women requires States Parties to ‘take all appropriate measures to
eliminate discrimination against women in political and public life and...ensure equal rights
to vote and be eligible for election; to participate in forming government policy and to holds
public office.” Further, it states that “adoption by States Parties of temporary special
measures aimed at accelerating de facto equality between men and women shall not be
considered discrimination. “ Such measures have been applied in a number of electoral
systems and have proved to be the most effective short-term means of increasing the number
of women elected to office.

A suitable electoral model needs to be adopted in order to ensure a minimum 33% of women
representation. Within a first past the post system, women only electorates could be created
to ensure that the diversity of women’s interests could be ensured. Traditionally, under a first
past the post system, representatives are more directly accountable to their constituents.
Women candidates who represent specific ethnic, religious and cultural identities are well
positioned to provide a voice to their constituents and ensure substantive representation. PR
systems tend to result in the election of more women. Electoral systems that use reasonable
large district magnitudes encourage parties to nominate women on the basis that balanced
tickets will increase their elected chances. Some List PR countries require that women make
up a certain proportion of the candidates nominated by each party.

Parties can also be entrusted with the function of ensuring representation in National Lists
based on pre-defined criteria. The Report of the Select Committee of Parliament on Electoral
Reforms of the 6th Parliament recommended that political parties include provisions in their
policies to ensure nomination of women candidates. An often adopted special measure is to
require or strongly recommend that party lists include a certain proportion of women. In
some countries compliance is required by legislation, while in others parties have voluntarily
adopted quotas or targets. Such measures will achieve the desired results only if women are
placed high enough on party candidate lists to be elected to office. A zippered or zebra list, in
which every other candidate is a woman, will often provide the best prospects for women
seeking election. International experience shows that it is critical to have an enforcement
mechanism to ensure that parties abide by any legal requirements governing the placement of
women on candidate lists.

Post-conflict Rwanda adopted innovative measures to advance women’s representation. At


the local level, each voter in Rwanda receives three ballots, one of which includes only
women candidates. Indirect elections to the next higher levels are structured to ensure that at
least 20 per cent of those elected are women. Through this procedure of multiple ballots and
indirect elections to each higher level, 24 of the 80 seats in the lower house of parliament are

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reserved for women. In September 2003, a total of 39 women were elected to serve in the
legislature, making Rwanda a world leader with its National Assembly made up of 49 per
cent women. In addition, Rwanda has instituted a system of all-women councils at the grass-
roots level. The head of each women’s council also holds a reserved seat on the general local
council, forging a connection between the two bodies and ensuring that the concerns of the
women’s council can be communicated to the members of the general council.

Recommendations

1.The election of an adequate number of women representatives should be guaranteed by the


Constitution. There should be a minimum of 33% women in all three elected bodies. In order
to achieve this, the following are recommended:

a) Appropriate election systems and electoral constituencies should be designed to elect


women political representatives to ensure a minimum of 33% representation.

b) A system to nominate representatives through the district based proportional


representation should be decided in such a manner to ensure adequate women’s
representatives at least to equate their guaranteed quota.

2.Women representatives in all elected bodies should be empowered through laws that ensure
their full participation to fulfill their commitment to act against all forms of discrimination
and to promote equality.

Recommendation 5 - Minority Representation and Participation

Representation and participation of minorities in Sri Lanka has been an issue since 1931
when universal suffrage was introduced. Minority safeguard advocated under article 29-2B
of the first post-independence constitution proved inadequate. The subsequent exclusion of
minority rights including disenfranchisement of Indian Origin Tamils as a result of the
Citizenship Act of 1948, the Official Language Act of 1956 which denied the equal status of
the Tamil Language and other acts of political and economic exclusion resulted in calls for a
more representative model of governance.

When minorities are denied an adequate say in political affairs, conflict often results because
a legitimate political voice is the key to all other rights in society. For example, exclusion
from opportunities in areas such as education, social development, employment
opportunities, land rights et. al. can result from a lack of voice in legislative processes that
would prevent discrimination. In the face of endemic exclusion, minorities can begin to see
secession as the only route- this has been demonstrated in the post independence ethnic
relations in Sri Lanka.

It is critical that minorities in Sri Lanka are adequately able to participate in the legislative
process and in decision making that will affect their future right to development.
Participation includes not only numerical representation but also substantive participation in

15
decision making processes. One of the options most widely adopted means of ensuring
broader participation is the formation of a second chamber. Most second chambers (often
called upper houses or senates) exist for one or both of two reasons. The first is to provide a
different type of representation or represent different interests, most often the regions or
provinces of a country. The second is to act as a ‘house of review’, to provide a brake or
delay against impetuous decisions in a lower chamber.

The states in the USA, Brazil, and Australia, the Länder in Germany, and the provinces in
South Africa are all separately represented in an upper house. The second chamber can be
used to represent particular ethnic, linguistic, religious, or cultural groups. A second chamber
may also deliberately contain representatives of civil society. In Malawi, for instance, the
constitution provides for 32 of the 80 senators to be chosen by elected senators from a list of
candidates nominated by social ‘interest groups’. These groups are identified as women’s
organizations, the disabled, health and education groups, the business and farming sectors,
the trade unions, eminent members of society, and religious leaders. Similarly, second
chambers in countries like Fiji and Botswana are used to represent traditional chiefs,
although these are appointed in the first case and elected in the second.

Most jurisdictions have chosen to reflect the different roles of the two houses by using
different electoral systems for the upper house and the lower house. In Australia, for
example, the lower house is elected by a majoritarian system while the upper house, which
represents the various states, is elected using a proportional system. This has meant that
minority interests which would normally not be able to win election to the lower house still
have a chance of gaining election, in the context of state representation, in the upper house.
In Indonesia, the lower house is elected by List PR, while the upper house uses the Single
Non-transferable vote (SNTV) system to elect four representatives from each province. In
Colombia, while both houses are elected by PR, the Senate is elected from one nationwide
district, thus making it more likely that small parties and minority interests will be
represented in that chamber. One of the key advantages of a bi-cameral system is that
legislation can be more clearly seen to have the support of a broad political spectrum.

One of the central issues in the current context is the need to ensure inclusive decision
making. Strengthening district autonomy and decision making to increase participation in
development planning as well as ensuring ethnically inclusive and non-discriminatory
decision making are important integral to the legislative and policy planning processes. Dual
majority decision-making is one mechanism to ensure that the representation of provincial
units and minority communities have maximum say in the decisions which would directly
affect their constituents.

Reserved Seats

A common arrangement at national level is to reserve quotas for minorities- these may be
ministerial posts in government, and/or seats in Parliament. In countries such as Singapore
and Pakistan, Block Vote systems are used to ensure that a minimum number of each
minority is represented in the legislature. Seats are reserved for identifiable ethnic or
religious minorities in countries such as Colombia (black communities), India (the scheduled

16
tribes and castes), New Zealand (Maori), Palestine (Christians and Samaritans) and Taiwan
(Aborigines). By increasing the number of minority representative in legislatures, reserved
seats can strengthen the voice of minorities in political life and can send a signal of goodwill
on the part of the state to minority communities. This is particularly significant as Sri Lanka
transitions from conflict to peace and can bolster reconciliation. It is also important to ensure
that women are adequately represented, and that a minimum quota of 33% in all elected
bodies is ensured to adequately reflect women’s equal function in decision making and
public life.

Representatives these reserved seats are usually elected in much the same manner as other
representatives, but are sometimes elected only by members of the particular minority
community designated in the electoral law. Parties can also be entrusted with the function of
ensuring representation in National Lists based on pre-defined criteria.

Multi-Member versus Single Member Constituencies

In Sri Lanka, diverse interests must be represented equitably and elected representative must
be accountable to the constituents they serve. The inability of representatives to reflect the
interests of all minority groups in their constituencies has inevitably led to a sense of
disenfranchisement and tension within communities. Minority communities should be
ensured representation of their specific needs and interests at all levels of government. They
should be able to elect representatives who will specifically vocalize their issues and be able
to hold duty-bearers accountable where they fail to do so.

In the Sri Lankan context, multi-member constituencies could have the advantage of enabling
more accountable representation of minority interests, particularly if district demarcations are
expanded.

Best Loser Seats

A final mechanism that is sometimes used in conjunction with the party block vote to assign
seats to the ‘best loser’ from a specified community. In Mauritius, for example four ‘best
loser’ seats are allocated to the highest polling candidates of under-represented groups in
order to balance representation.

Recommendations

1.Adequate and empowered elected representation of minority ethnic communities and small
political parties should be ensured through appropriate electoral system design. Steps should
be taken to ensure representation of minorities to equal proportion of their numerical
strength.

17
2.Election of representatives of small parties should equate proportionately to the total votes
they received and should be ensured in order to recognize their representation and
participation in all elected bodies.

3.Electoral systems and party policies should ensure reduction of divisions among ethnic
communities and encourage integration and inclusiveness of all ethnic communities
irrespective of their size, geographical spread and numerical strength.

Conclusion

An inclusive, rights based constitutional framework that provides enforceable standards


across the board, coupled with appropriate and effective implementation and monitoring
mechanisms must be developed if Sri Lanka is to fulfill its commitment to the international
human rights standards and norms of non-discrimination and participation. Systems at all
levels of decision making must facilitate equitable representation and substantive
participation, should be transparent and ensure accountability.

18
Annex 1

Right to Representation and Participation of Minorities

Relevant international instruments


International Covenant on Civil and Political Rights (ICCPR)

Article 20

2. ‘Any advocacy of national, racial or religious hatred that constitutes incitement to


discrimination, hostility or violence shall be prohibited by law.’

Article 25

‘Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in Article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives.

(b) To vote and to be elected at genuine periodic elections, which shall be by universal and
equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will
of the electors.

(c) To have access, on general terms of equality, to public service in his [sic] country.’

Article 27

‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to
such minorities shall not be denied the right, in community with the other members of

their group, to enjoy their own culture, to profess and practice their own religion, or to use
their own language.’

United Nations Declaration on the Rights of Persons Belonging to National or Ethnic,


Religious and Linguistic Minorities (UNDM)

Article 1

1. ‘States shall protect the existence and the national or ethnic, cultural, religious and
linguistic identity of minorities within their respective territories and shall encourage
conditions for the promotion of that identity.

19
2. States shall adopt appropriate legislative and other measures

to achieve those ends.’

Article 2

‘[…] 2. Persons belonging to minorities have the right to participate effectively in cultural,
religious, social, economic and public life.

3. Persons belonging to minorities have the right to participate effectively in decisions on the
national and, where appropriate, regional level concerning the minority to which they

belong or the regions in which they live, in a manner not incompatible with national
legislation.

4. Persons belonging to minorities have the right to establish and maintain their own
associations.

5. Persons belonging to minorities have the right to establish and maintain, without any
discrimination, free and peaceful contacts with other members of their group and with
persons belonging to other minorities, as well as contacts across frontiers

with citizens of other States to whom they are related by national or ethnic, religious or
linguistic ties.

Article 4

[…]

5. States should consider appropriate measures so that persons belonging to minorities may
participate fully in the economic progress and development in their country.

International Convention on the Elimination of All Forms of Racial Discrimination


(Adopted by the UN General Assembly, Resolution 2106 (XX) of 21 December 1965)

Article 2.2

‘States Parties shall, when the circumstances so warrant, take, in the social, economic,
cultural and other fields, special and concrete measures to ensure the adequate development
and protection of certain racial groups or individuals belonging to them, for the purpose of
guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.
These measures shall in no case entail as a consequence the maintenance of unequal or
separate rights for different racial groups after the objectives for which they were taken have
been achieved.’

20
Article 5

In compliance with the fundamental obligations laid down in Article 2 of this Convention,
States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and
to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic
origin, to equality before the law, notably in the enjoyment of the following rights:

[…]

(c) Political rights, in particular the right to participate in elections to vote and to stand for
election – on the basis of universal and equal suffrage, to take part in the Government as well
as in the conduct of public affairs at any level and to have equal

access to public service.

International Convention on Economic Social and Cultural Rights:

Article 2.2

‘The States Parties to the present Covenant undertake to guarantee that the rights enunciated
in the present Covenant will be exercised without discrimination of any kind as to race,
colour, sex, language, religion, political or other opinion, national or social origin, property,
birth or other status.’

UNESCO Convention on the Protection and Promotion of the Diversity of Cultural


Expressions

Article 7

‘Parties shall endeavour to create in their territory an environment which encourages


individuals and social groups:

(a) to create, produce, disseminate, distribute and have access to their own cultural
expressions, paying due attention to the special circumstances and needs of women as well as
various social groups, including persons belonging to minorities and indigenous peoples;
[…]’

OSCE Lund Recommendations on the Effective

Participation of National Minorities in Public Life

(Lund Recommendations)

A. Arrangements at the Level of the Central Government ‘[…] These may include,
depending upon the circumstances:

21
* special representation of national minorities, for example, through a reserved number of
seats in one or both chambers of parliament or in parliamentary committees; and other forms
of guaranteed participation in the legislative process; […]’.

III. Self-governance

‘14) Effective participation of minorities in public life may call for non-territorial or
territorial arrangements of self-governance or a combination thereof. States should devote
adequate resources to such arrangements. […]’

B. Territorial Arrangements

‘[…] 21) Local, regional, and autonomous authorities must respect and ensure the human
rights of all persons, including the rights of any minorities within their jurisdiction.’

IV. Guarantees

Constitutional and Legal Safeguards

‘[…] Periodic review of arrangements for self-governance and minority participation in


decision-making can provide useful opportunities to determine whether such arrangements
should be amended in the light of experience and changed circumstances.’

UN Declaration on the Right To Development

Article 2.3

‘States have the right and the duty to formulate appropriate national development policies
that aim at the constant improvement of the well-being of the entire population and of all
individuals, on the basis of their active, free and meaningful participation in development and
in the fair distribution of the benefits resulting therefrom.’

Council of Europe Framework Convention for the Protection of National Minorities


(FCNM)122

Article 3

1.‘Every person belonging to a national minority shall have the right freely to choose to be
treated or not to be treated as such and no disadvantage shall result from this choice or

from the exercise of the rights which are connected to that choice.’

2. Persons belonging to national minorities may exercise the rights and enjoy the freedoms
flowing from the principles enshrined in the present framework Convention individually as
well as in community with others.

22
Article 5

1. ‘The Parties undertake to promote the conditions necessary for persons belonging to
national minorities to maintain and develop their culture, and to preserve the essential
elements of their identity, namely their religion, language, traditions and cultural heritage.

2. Without prejudice to measures taken in pursuance of their general integration policy, the
Parties shall refrain from policies or practices aimed at assimilation of persons belonging to
national minorities against their will and shall protect these persons from any action aimed at
such assimilation.’

Article 6

1. ‘The Parties shall encourage a spirit of tolerance and intercultural dialogue and take
effective measures to promote mutual respect and understanding and co-operation among all
persons living on their territory, irrespective of those persons' ethnic, cultural, linguistic or
religious identity, in particular in the fields of education, culture and the media.

2. The Parties undertake to take appropriate measures to protect persons who may be subject
to threats or acts of discrimination, hostility or violence as a result of their ethnic,

cultural, linguistic or religious identity.’

Article 7

‘The Parties shall ensure respect for the right of every person belonging to a national
minority to freedom of peaceful assembly, freedom of association, freedom of expression,
and freedom of thought, conscience and religion.’

Article 15

The Parties shall create the conditions necessary for the effective participation of persons
belonging to national minorities in cultural, social and economic life and in public affairs, in
particular those affecting them.

23
24
Annex 2
THE GERMAN ELECTORAL SYSTEM
In Germany the Constitution is known as the Basic Law. The term Basic Law usually
indicates that it is a temporary but a necessary measure which is transitory in nature. In West
Germany the term Basic Law was used to indicate that the Basic Law was provisional until
ultimate reunification of Germany. However, forty years later when Germany was reunified
no new Constitution was adopted and Basic Law was applied throughout the entire German
Territory. Basic Law is entrenched in that it overrides ordinary ‘statute law’ passed by the
legislature.

The Basic Law established Germany as a parliamentary democracy with separation of


powers into executive, legislative and judicial branches. The legislative branch reflects
Germany’s Federal structure In the which the German ‘Lander’(states) were represented in
the upper house of parliament, the Bundestrat. The lower chamber, the Bundestag, was to be
elected directly through a mixture of proportional representation and direct mandates.

Germany has a bicameral parliament. That is Parliament comprises of two chambers. The
two chambers are the Bundestag and the Bundesrat. Both chambers can initiate legislature.
The Bundestag is the principle legislative chamber and has 656 representatives. Bundestag
members the only federal officials directly elected by the public. All candidates must be at
least twenty-one years old; there are no term limits.

The second legislative chamber is Bundesrat where sixteen Land governments are
represented. Members of Bundesrat are not popularly elected but are appointed by their
respective Land governments. Members tend to be Land government ministers, There sixty-
nine members.

This bicameral system has advantages. Some observers emphasize that different majorities in
the two chambers ensure that all legislation, when approved has the support of a broad
political spectrum- a particularly valuable attribute in the aftermath of unification, when
consensus on critical policy decisions is vital.

The Federal President of Germany is the Head of State. It is a largely ceremonial position
with only a small role in daily politics. The Federal President can neither take the initiative to
dissolve the Bundestag nor name a new chancellor without a prior majority vote in the
parliament. The President is selected by a secret ballot at a Federal Convention that includes
Bundestag members and equal number of delegates chosen by the Land legislatures.

The basic law did not create the office of Vice President. If the President dies in office a
successor is elected within thirty days. Candidates for Presidency must be at least forty years
old.

25
The Chancellor is elected by the Bundestag. He or she heads the federal cabinet. The federal
government shall consist of the federal chancellor and the federal ministers. Every four years
after national elections and the seating of the nationally elected Bundestag members, the
Federal President nominates a candidate and the chancellor is elected by a majority vote in
the Bundestag.

The guardian of the basic law is the German Constitutional Court, which is an independent
constitutional organ and at the same time a part of the judiciary dealing with constitutional
law and public international law. It declare statutes null and void if it contravenes the Basic
Law.

The German Electoral System is a combination of ‘First past the post’ and proportional
Representation, thereby including the positive features of both and mitigating their negative
aspects.

The main features of the system and its application can be illustrated as below:

Imagine the country is divided into 100 constituencies.100 members will be elected on the
first past the post system.

The remaining 100 members will be elected on the basis of national lists submitted by the
parties in rank order determined by such parties. The rank order cannot be changed
subsequently.

Each voter is given two ballot papers.

 To elect the Member of Parliament for his constituency


 To vote for the party of his/her choice. The voter may cast these votes either for the
same party or for different parties.

The allocation of the 200 seats in Parliament is determined strictly in proportion to the votes
received by each party for its national list in the following manner.

1. The votes in each of the 100 constituencies are counted and the candidate receiving
the highest number of votes is declared elected.
2. The votes for each party is counted and their national percentage is determined.
3. The number of seats assigned to each party is determined on the basis of national
percentages.
4. Each party’s tally of seats won on the constituency basis is considered. Thereafter,
seats are added from the national list to ensure that the total number of seats obtained
by each party is in proportion to the votes the party received nationally.

26
AN EXAMPLE OF THE GERMAN SYSTEM

A) PARLIAMENT-200 seats

100 constituencies

100 National list-Rank order fixed

B) Each voter -2 votes-2 ballot papers


1-Constituency MP
1-National List-Rank Order fixed

C) Votes received nationally by parties(National List votes)counted and number of seats


allocated to each party in proportion to the votes received.
Party A -38% -76 seats
Party B- 35%- 20 seats
Party C- 5%- 10 seats

D)Constituency results declared under the first past the post system

Party A -35/100

Party B-40/100

Party C- 6/100

E)Topping Up from the National List

Party A is entitled to 76; it got 35.It is therefore entitled to nominate 41 from the national
list.

Party B is entitled to 70; it got 40. It is therefore entitled to nominate 30 from the National
List.

Party C is entitled to 10;it has got 6. It is therefore entitled to nominate 4 from the National
List.

If a vacancy occurs in a national seat, such vacancy would be filled by the person whose
name appears next in order of priority on such party’s national list

A cut off point of 5% is adopted. The Electoral law has a five percent clause which sets out
that a party must receive a minimum of five percent of the national vote or three
constituency seats in order to get any representation in the Bundestag.

27
Every German citizen over eighteen years of age is granted the right to vote under the Basic
Law. In order to qualify to vote it is necessary for a German citizen to reside in a particular
Constituency at least three months prior to election.

All elections are held on a Sunday. The voter-turnout is generally high. Around ninety
percent. The most consistent participants in the electoral process are civil servants and a
correlation exists between willingness to vote and increasing social and professional status
and income.

Some critics of the German Electoral system argue that it creates two classes of MPs who
have different if not competing interests. While this may be true, it could be argued however,
that is factor is an asset rather than a defect, for the legislature will contain members who
approach issues from both constituency and a national perspective, thereby buttressing a
representative character of the legislature. Another drawback is the difficulty of small parties
to field and support national list candidate

28
Annex 3
Pitkin's Four Views of Representation

Pitkin offers one of the most comprehensive discussions of the concept of political
representation, attending to its contradictory character in her The Concept of Representation.
This classic discussion of the concept of representation is one of the most influential and oft-
cited works in the literature on political representation. Adopting a Wittgensteinian approach
to language, Pitkin maintains that in order to understand the concept of political
representation, one must consider the different ways in which the term is used. Each of these
different uses of the term provides a different view of the concept. Pitkin compares the
concept of representation to “ a rather complicated, convoluted, three–dimensional structure
in the middle of a dark enclosure.” Political theorists provide “flash-bulb photographs of the
structure taken from different angles” [1967, 10]. More specifically, political theorists have
provided four main views of the concept of representation. Unfortunately, Pitkin never
explains how these different views of political representation fit together. At times, she
implies that the concept of representation is unified. At other times, she emphasizes the
conflicts between these different views, e.g. how descriptive representation is opposed to
accountability. Drawing on her flash-bulb metaphor, Pitkin argues that one must know the
context in which the concept of representation is placed in order to determine its meaning.
Apparently, the views of representation can expand or unduly constrain our understanding of
representation depending on how the ways in which the term is used in contemporary
politics.

For Pitkin, disagreements about representation can be partially reconciled by clarifying


which view of representation is being invoked. Pitkin identifies at least four different views
of representation: formalistic representation, descriptive representation, symbolic
representation, and substantive representation. (For a brief description of each of these views,
see chart below.) Each view provides a different approach for examining representation. The
different views of representation can also provide different standards for assessing
representatives. So disagreements about what representatives ought to be doing are
aggravated by the fact that people adopt the wrong view of representation or misapply the
standards of representation. Pitkin has in many ways set the terms of contemporary
discussions about representation by providing this schematic overview of the concept of
political representation.

Main Research Implicit Standards for


Four Views Brief Description Question within each Evaluating
View Representatives

1. Formalistic The institutional What is the institutional None


Representation arrangements that precede position of a
and initiate representation. representative?
Formal representation has

29
two dimensions:
authorization and
accountability

(Authorization) The means by which a What is the process by No standards for


representative obtains his or which a representative assessing how well a
her standing, status, position gains power (e.g. representative behaves.
or office. elections) and what are One can merely assess
the ways in which a whether a
representative can representative
enforce his or her legitimately holds his or
decisions? her position.

(Accountability) The ability of constituents to What are the No standards for


punish their representative sanctioning mechanisms assessing how well a
for failing to act in available to representative behaves.
accordance with their wishes constituents? Is the One can merely
(e.g. voting an elected official representative determine whether a
out of office) or the responsive towards his representative can be
responsiveness of the or her constituents' sanctioned or has been
representative to the preferences? responsive.
constituents.

2. Symbolic The ways that a What kind of response Representatives are


Representation representative “stands for” is invoked by the assessed by the degree
the represented — that is, representative in those of acceptance that the
the meaning that a being represented? representative has
representative has for those among the represented.
being represented.

3. Descriptive The extent to which a Does the representative Assess the


Representation representative resembles look like, have common representative by the
those being represented. interests with, or share accuracy of the
certain experiences with resemblance between
the represented? the representative and
the represented.

4. Substantive The activity of Does the representative Assess a representative


Representation representatives—that is, the advance the policy by the extent to which
actions taken on the behalf preferences that serve policy Outcomes
of, in the interest of, as an the interests of the advanced by a

30
agent of, and as a substitute represented? representative serve
for the represented. “the best interests” of
their constituents.

One cannot overestimate the extent to which Pitkin has shaped contemporary understandings
of political representation, especially among political scientists. For example, her claim that
descriptive representation opposes accountability is often the starting point for contemporary
discussions about whether marginalized groups need representatives from their groups.

Similarly, Pitkin's conclusions about the paradoxical nature of political representation


support the tendency among contemporary theorists and political scientists to focus on formal
procedures of authorization and accountability (formalistic representation). In particular,
there has been a lot of theoretical attention paid to the proper design of representative
institutions (e.g. Amy 1996; Barber, 2001; Christiano 1996; Guinier 1994). This focus is
certainly understandable, since one way to resolve the disputes about what representatives
should be doing is to “let the people decide.” In other words, establishing fair procedures for
reconciling conflicts provides democratic citizens one way to settle conflicts about the proper
behavior of representatives. In this way, theoretical discussions of political representation
tend to depict political representation as primarily a principal-agent relationship. The
emphasis on elections also explains why discussions about the concept of political
representation frequently collapse into discussions of democracy. Political representation is
understood as a way of 1) establishing the legitimacy of democratic institutions and 2)
creating institutional incentives for governments to be responsive to citizens.

David Plotke (1997) has noted that this emphasis on mechanisms of authorization and
accountability was especially useful in the context of the Cold War. For this understanding of
political representation (specifically, its demarcation from participatory democracy) was
useful for distinguishing Western democracies from Communist countries. Those political
systems that held elections were considered to be democratic. Plotke questions whether such
a distinction continues to be useful. Plotke recommends that we broaden the scope of our
understanding of political representation to encompass interest representation and thereby
return to debating what is the proper activity of representatives. Plotke's insight into why
traditional understandings of political representation resonated prior to the end of the Cold
War suggests that modern understandings of political representation are to some extent
contingent on political realities. For this reason, those who attempt to define political
representation should recognize how changing political realities can affect contemporary
understandings of political representation. Again, following Pitkin, it would appear that our
ideas about political representation are contingent on existing political practices of
representation. Our understandings of representation are inextricably shaped by the manner
in which people are currently being represented.

31
Annex 4

THE SIXTH PARLIAMENT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF


SRI LANKA

(Second Session)

32
INTERIM REPORT FROM THE SELECT COMMITTEE OF PARLIAMENT ON
ELECTORAL REFORMS
Presented by
Hon. Dinesh Gunawardena,
Chairman of the Select Committee
Ordered by the Parliament of Sri Lanka, to be printed, June 05, 2007

INTERIM REPORT

On a motion moved by the Leader of the House on 4th April 2006 Parliament
resolved that;

A Select Committee of Parliament be appointed pursuant to the Committee appointed by Mr.


Speaker during the Second Session of the Fifth Parliament which submitted its interim report
on 23rd January 2004, to further consider reforms to the current system of Parliamentary,
Provincial Councils and Local Authority elections and other matters connected therewith and
to make recommendations in respect of further changes considered necessary to the
Constitution of the Democratic Socialist Republic of Sri Lanka and the existing election laws
and to report together with their observations and recommendations on the amendments
necessary to the said Laws.

Thereafter, this Committee consisting of 32 members, representing all parties in Parliament


was appointed on 7th April 2006 under the Chairmanship of Hon. Dinesh Gunewardena. The
names of the Members of the Committee, appears in Appendix I hereto. The Committee
commenced its sittings o 9th May 2006, and has held 39 meetings up to the date of this
Interim Report. At the commencement of proceedings, the Interim Report of the Electoral
Reforms Select Committee appointed on 28th August 2003 and submitted to Parliament on
23rd January 2004 was tabled and your Committee agreed in principle that the
recommendations made therein should be taken as the basis of deliberations of the
Committee on matters referred to in the Terms of Reference of the Committee.

Your Committee published a notice, in the newspapers in all three languages calling for
representations from the public on the Terms of Reference of the Committee. In response to
the notice, your Committee received 74 representations from Government, Non Government,
Professional and other Civil Organizations and members of the Public. Where clarifications
and elaborations were found necessary, the Committee examined oral representations of
those representatives of Civil Organizations and those who had submitted written
submissions to the Committee.

The Secretaries of 37 recognized political parties not represented in Parliament were


requested by letter to submit their representations to the Committee and if necessary to
appear before the Committee to submit oral representations.

Following recognized political parties unrepresented in Parliament, gave oral evidence before
your Committee.
1. All Ceylon Muslim Congress

33
2. Socialist Alliance
3. United Socialist Party
4. Sinhale Mahasammatha Bhumiputhra Pakshaya
5. Akhila Ilankai Tamil United Front
5. Desha Vimukthi Janatha Party

At the request of your Committee, the following political parties represented in the present
Parliament also gave evidence before the Committee ;

1. Tamil United Liberation Front


2. Ilankei Tamil Arasu Katchchi
3. Tamil Eelam Liberation Organization
4. Eelam People’s Revolutionary Liberation Front
5. Akila Ilankai Thamil Congress
6. Jathika Hela Urumaya
7. Western People’s Front
8. Eelam People’s Democratic Party
9. National Congress
10. Janatha Vimukthi Peramuna (People’s Liberation Front )
11. Ceylon Workers Congress
12. Up-Country People’s Front
13. United National Party
14. Sri Lanka Muslim Congress
15. Mahajana Eksath Peramuna
16. Sri Lanka Freedom Party

The officers, religious leaders, commissions and academics set out in Appendix II hereto
appeared on invitation and gave oral evidence before your Committee.The Committee was
assisted in its deliberations by the Attorney-General, Commissioner of Elections, Director
General of Census and Statistics and Secretary, Ministry of Local Government and
Provincial Councils.

Considering the complexities of the issues raised and the volume of the memoranda received,
your Committee requested the assistance of the United Nations Development Program,
pursuant to which the services of a qualified Legal and Research Assistant was made
available. Thereupon your Committee embarked on a through evaluation to formulate the
most suitable system of election for Parliament, Provincial Councils and Local Authorities.

On the submissions, proposals and evidence presented, the following observations are made
by your Committee;

• System of Elections:
Majority of the written and oral submissions made before your Committee supported the
view that;
a. A mixed system, a hybrid of the first past the post and the proportional
representation system as the most suitable electoral system for

34
Parliamentary elections in the country.
b. Final proposal should ensure the establishment of a stable government and
a strong opposition, equitable representation to minority parties and
communities, closer nexus between voters and their elected representatives
and the democratic representation of the people’s mandate.
c. The proposed system of elections should give weight to the elimination or
minimizing violence, undue expenditure at elections and misappropriation
of State resources at the time of elections.
d. The system proposed should be easy to comprehend and relatively easy to administer.
Preferential voting system should completely be eliminated from the system.

• Ward system should be re-introduced for Local Government elections subject to


the re-demarcation of electoral boundaries by a fresh delimitation.
• A mixed system is suitable for Provincial Council elections.
• Need of a permanent Delimitation Commission for Parliamentary and Local
Government elections, and the urgent need for a fresh delimitation.
• Encouraging representation of women in politics.
• Introduction of an electronic voting system.
• Voting by post to be switched to ‘advance voting’.
• Amendments to the election laws on recognition of political parties.
• Amendments to the law relating to the deposit.

Your Committee having considered the matters enumerated above, wishes to make the
following recommendations:-

A. Parliamentary Elections;

The recommendation in the Interim Report of the Electoral Reforms Committee appointed on
28th August 2003 and submitted to Parliament on 23rd January 2004, to adopt a mixed
system of elections being a combination of ‘first past the post system’ and ‘proportional
representation system’ and to refrain from increasing the number of members in Parliament
beyond 225 was taken as the basis of your Committee’s findings, when examining a system
of election suitable for Parliamentary elections.

Models for Parliamentary elections presented to your Committee by Dr. Sudantha Liyanage
of Sri Jayewardenepura University together with Mr. S.B. Ratnayake, and other officers,
religious leaders, commissions and academics were considered by your Committee when
formulating a system of elections suitable for Parliament.

The proposed model is a hybrid of ‘first past the post’ and ‘proportional representation’
systems, including therein the positive features of both, while eliminating the negative
aspects.

The basic features of the system proposed is as follows:-

Parliament to be constituted of 225 seats as follows ;

35
140 -Elected from 140 polling divisions (Constituencies) based on the FPP system
(“Constituency MPs”)
70 - Elected from the District PR system. (“District MPs”)
15 -National List (“National List MPs”)

140 Constituency MPs;

The country will be divided into 140 single member constituencies to return 140 MPs to
Parliament on the ‘first past the post system’. As such, the proposed system requires a fresh
delimitation to re-demarcate 140 polling divisions.

70 District MPs;

70 members will be elected on the basis of a ‘district proportional representation system’


based only on the votes polled by the ‘other candidates’ who contested but did not qualify
under the FPP system.
Accordingly, the ‘district proportional representation’ (“DPR”) seats are apportioned in the
following manner:-

A. Out of the total votes polled for each district, the votes polled by the winning candidates
of the respective political party (under FPP) for each constituency within the district shall be
eliminated for apportioning DPR Seats.
B. The votes polled by the ‘other candidates’ of all the electorates within the district
to be totalled and divided by the total number of DPR seats allocated for the respective
district to ascertain the ‘qualifying number’.
C. The party entitlement of seats under the DPR will be determined according to the
number of votes received by each party for the district through ‘other candidates’
having divided the said aggregate by the ‘qualifying number’.
D. Out of the candidates who contest the elections from one party within a district
the candidate to be elected under the DPR would be the one who receive the
highest percentage of votes from each of the electorates.

The number of DPR seats to be allocated for each respective district may be determined on a
2:1 ratio (ex. 10 FPP seats: 5DPR Seats).

However, this ratio may vary according to the circumstances prevailing in each district. The
area, population and ethnic diversities of voters in each district may be taken into
consideration when determining the number of district MPs to be elected for each respective
district.

• 15 National List MPs;

Each party will be required to submit a list of candidates at the time of nominations to
constitute a national list. The list could contain names of contesting (for constituencies) as

36
well as non contesting candidates. Your Committee strongly recommends that all parties
should take steps to ensure fair representation of woman candidates in the national list.

A. Five seats from the national list will be allocated to the party securing the highest number
of valid votes at the election. (bonus seats).
B. Out of the balance 10 seats 3 seats to be reserved for unrepresented minor parties who
have polled a national vote exceeding the natural cut-off point but have not qualified for a
seat under the ‘first past the post’ and/or ‘district proportional representation system’. In the
event none of the parties succeed in
qualifying for these seats, they will remain as national list seats. C. The balance number of
seats will be apportioned based on the strength of the votes each party receives at the national
level. Candidates to be appointed based on the proportionate allocation will be decided by the
secretary of the party.

The Committee also recommends that necessary legal provision be formulated to make it
mandatory that every third candidate nominated by a party secretary from the national list
shall be a woman candidate.

• Filling of Vacancies;
Where a vacancy occurs in a territorial constituency (FPP seat) it is proposed that such
vacancy should be filled after holding a by election. Nevertheless the results of such by-
election should not affect the DPR seats of such District. Any vacancy occurring in the DPR
seats should be filled by electing a person from the respective political party who has polled
the next highest percentage of votes within his constituency. A vacancy in the national list
allocation could be filled by another candidate from the list, being nominated by the secretary
of the respective party.

Your committee after having evaluated the above proposed model in detail by application of
the same to all election results since 1977, is of the view that the proposed model meets the
goals of providing stability and governability to Parliament while ensuring fair representation
of minority parties and communities.

B. Provincial Council Elections;


Having considered the representations received and the recommendations of the Ministry of
Local Government and Provincial Councils, your Committee is of the view that the present
system based on proportional representation and preference voting should be replaced by a
mixed system of election combining first past the post and proportional representation system
on a 2:1 ratio which is in line with the proposed Parliamentary elections system. The
Committee was further of the view that in demarcating electorates for the purpose of
Provincial Council elections due consideration be given to the district boundaries and the PR
allocation be based on the districts which is similar to the practice followed in Parliamentary
elections.

C. Local Government Elections;

37
Majority of views received expressed that the ‘ward system’ should be re-introduced for
Local Government elections.

Your Committee agreed with the views of the Secretary to the Ministry of Local Government
and Provincial Councils who proposed that the present boundaries of the local government
authorities should be re-demarcated to form an electoral unit, which is territorially and
demographically smaller than the present unit, to increase the participation of the community
and community organizations and to facilitate the management and diversification of
development and economic needs of the area
and ensure a democratic representation of minorities and communities. Accordingly, the
Committee is of the view that the number of local government institutions coming within a
divisional secretariat area be increased to give effect to the above proposal. The Committee
also decided to recommend that the Chairman and Vice Chairman of local bodies be elected
by the local bodies themselves after an election.

Your Committee is further of the view that the ward system based on the first past the post
system should be re-introduced for the Local Government elections with the possibility of
electing 30% of representatives under the proportional representation system based on the
same principal involved in Parliamentary and Provincial Council elections in order to ensure
the representation of minority communities or unrepresented parties.

The proposal of the Ministry of Local Government and Provincial Councils highlighted the
need to establish “Ward Committees” at local government ward level consisting of
representatives of community based organizations and officers involved in the development
activities of the area. These Committees can be chaired by the ward member. It is anticipated
that this process will facilitate the community participation in decision making at ward level.

D. Delimitation Commission;
The need for a fresh delimitation of electoral boundaries was viewed as a very vital factor by
the majority who made representations before your Committee. The Attorney General
indicated in his submissions that the Delimitation Commission should ideally be a
commission standing perpetual.

As such, your Committee recommends that necessary steps be initiated as early as possible
for the constitution of a Delimitation Commission to implement the proposed system of
elections and Article 95 to 99 of the Constitution be amended suitably to re-constitute a
Delimitation Commission. Further, your Committee would like to recommend that it is
mandatory to take in to consideration the concerns of the minorities by the Delimitation
Commission.

E. Women Representation in Politics;


Representations made before your Committee by members of the Women’s Caucus in
Parliament representing woman MPP of all political parties in Parliament, the women heads
of all Local Authorities and other women’s groups highlighted the need to increase the
women’s participation in politics. Your Committee therefore recommends that political
parties should include provisions in their policies to ensure nomination of women candidates

38
in order to guarantee better representation of women in Parliament, Provincial Councils and
Local Government bodies.

It has already been mentioned under the caption “National List” that the Committee has
recommended that necessary legal provision be formulated to make it mandatory that every
third candidate nominated by a party secretary from the national list shall be a woman
candidate.

F. Electronic Voting;
Further to the recommendations made in the Interim Report of the Electoral Reforms Select
Committee appointed on the 28th August 2003, submitted to Parliament on 23rd January
2004, your Committee is of the view that an electronic voting system should be introduced
on a priority basis.

The Commissioner of Elections expressed to the Committee, the urgent need for the
introduction of an electronic voting system, emphasizing that it will reduce considerably the
heavy expenditure incurred presently by the Department for manpower during elections, lack
of efficiency in counting and delays in releasing elections results.

As such, your Committee recommends that immediate steps be taken to implement the above
proposal.

G. Voting by Post to be switched to Advance Voting;


The Commissioner of Elections proposed to your Committee that as the present system of
postal voting has many deficiencies, they can be overcome by the introduction of the
‘advance voting system’. The Commissioner of Elections was of the view that the voters who
are presently eligible to apply for postal voting can be considered as ‘Advance Voters’ and
provide voting facilities for them at centres specially installed and managed by the officers
appointed by the Commissioner of Elections/Returning Officers, in the presence of agents of
the contesting political parties and independent groups well in advance of the date of the poll.
He proposed that the advance voting date should be a date not earlier than 14 days and not
later than 5 days before the poll. It was proposed that after the closure of the poll, the ballot
boxes be taken to a central secured place until the count commences after the poll.

The Commissioner of Elections viewed that this methodology will eliminate many
discrepancies in the present postal voting system including influencing and intimidation of
voters, elimination of instances of applying for postal voting with incorrect information, etc.

Your Committee having considered the views expressed by the Commissioner of Elections
and considering the recommendation made in the Interim Report of the Electoral Reforms
Select Committee appointed on 28th August 2003 relating to advance voting, unanimously
agree that postal voting be replaced by the ‘advance voting system’.

H. Recognition of Political Parties;


The Commissioner of Elections noted that present provisions under sections 7, 8, and 9 of the
Parliamentary Elections Act, No. 1 of 1981 as amended by Act, No. 29 of 1988 relating to

39
the recognition of political parties is inadequate, as it is based on the satisfaction of legal
criteria rather than by recognition of such party by the voters.

Your Committee having considered the proposals submitted by the Commissioner of


Elections and the recommendations made in the Interim Report submitted to Parliament on
23rd January 2004 by the Electoral Reforms Select Committee appointed on 28th August
2003 relating to recognition of political parties recommends that necessary amendments be
made in the election laws to rescind registration and recognition to political parties as the
case may be, on the basis of specific criteria that pertain to the overall concept of voter
acceptance.

I. Legal Reforms;
The Commissioner of Elections emphasised the urgent need to bring in necessary laws and
modifications to the existing legal framework pertaining to elections to enable the conducting
of free and fair elections. The particular areas that were highlighted by the Commissioner of
Elections are annexed to this report as Appendix III. The Committee recommends that
necessary steps be taken in this regard very early.

Your Committee considered the subsequent joint letter of the United National Party, the
Janatha Vimukthi Peramuna and the Tamil National Alliance received on 14.03.2007, which
appears in Appendix IV hereto. The reply sent to the Hon. Chief Opposition Whip on
28.03.2007 on the above representation appears in Appendix V hereto.

Your Committee recommends that urgent steps be taken to incorporate necessary


amendments to the election laws to implement the proposals of your Committee as morefully
set out in this Interim Report.

A detailed report containing the recommendations in respect of the other matters identified in
this report and/or any other matters referred to in the terms of reference would be submitted
to the Parliament in due course.

We, the Members of the Select Committee on Electoral Reforms do hereby approve
the Interim Report of the Committee.
1. Hon. Dinesh Gunawardena (Chairman) Signed
2. Hon. P. Dayaratna Signed
3. Hon. Nimal Siripala de Silva Signed
4. Hon. Jeyaraj Fernandopulle
5. Hon. W. D. J. Senewiratne Signed
6. Hon. (Dr.) Sarath Amunugama Signed
7. Hon. Rauff Hakeem
8. Hon. Douglas Devananda Signed
9. Hon. A. D. Susil Premajayantha Signed
10. Hon. Karu Jayasuriya Signed
11. Hon. P. Chandrasekaran
12. Hon. Mahinda Samarasinghe Signed
13. Hon. Milinda Moragoda Signed

40
14. Hon. Janaka Bandara Tennakoon Signed
15. Hon. (Prof.) Tissa Vitharana Signed
16. Hon. D. E. W. Gunasekara Signed
11
17. Hon (Prof.) W. A. Wiswa Warnapala Signed
18. Hon. Dullas Alahapperuma Signed
19. Hon. Mano Wijeyeratne Signed
20. Hon. Ameer Ali Signed
21. Hon. M. H. Cegu Isadean Signed
22. Hon. Mahinda Amaraweera
23. Hon. Muthu Sivalingam
24. Hon. M. Joseph Michael Perera
25. Hon. John Amaratunga
26. Hon. Vijitha Herath
27. Hon. Anura Dissanayake
28. Hon. Wijeyadasa Rajapakshe Signed
29. Hon. Bimal Rathnayake
30. Hon. Rajavarothiam Sampanthan
31. Hon. Mavai S. Senathirajah
32. Hon. (Ven.) Athuraliye Rathana Thero Signed
W.B.D. Dasanayake
Secretary to the Committee and
Deputy Secretary General of Parliament
12

41
42
Annex 5
Five Electoral System Options: Advantages and Disadvantages
System Advantages Disadvantages

List Proportional  Proportionality  Weak geographic


Representation (List PR)
 Inclusiveness representation
 Minority representation  Accountability issues
 Few wasted votes  Weaker legislative support for
Easier for Women president more likely in
representation to be elected presidential systems
 No (pr less) need to draw  Coalition or minority
boundaries governments more likely in
 No need to hold by-elections parliamentary systems
 Facilitates absentee voting  Much power given to political
 Restricts growth of single- parties
party regions  Can lead to inclusion of
 Higher voter turnout likely extremist parties in legislature
 Inability to through a party out
of power

First Past The Post  Strong geographical  Excludes minority parties


(FPTP) representation  Excludes minorities
 Make accountability easier  Excludes women
to enforce  Promotes ethnic cleavages
 Is simple to understand  Many wasted votes
 Offers voters a closer choice  Often need for by-elections
 Encourages a coherent  Requiring boundary de-
opposition limitation
 Excludes extremist parties  Increases the politicization
 Allows voters to choose
between candidates
 Strong legislative support for
president more likely in
presidential systems
 Majority governments more
likely in parliamentary
systems
 Reduces the wastage of
resources (money) of
candidates and parties

 Reduces electoral
malpractices, including

43
violation of electoral laws
and electoral violence.
Two-Round System  Gives voters a second  Requires boundary delimitation
(TRS) chance to make a choice  Requires a costly and often
 Less vote splitting than administratively challenging
many other second round
plurality/majority systems  Often need for by-elections
 Simple to understand  Long time-period between
 Strong geographic elections and declaration of
representation results
 Dis-proportionality
 May fragment party systems
 May be destabilizing for deeply
divided societies

Parallel System  Inclusiveness  Complicated system


 Representation of minorities  Requiring boundary
 Less party fragmentation delimitation
than pure List PR  Often need for by-elections
 May be easier to agree on  Can create two classes of
than other alternatives representatives
 Accountability  Strategic voting
 Few wasted votes  More difficult to arrange
 May be easier to agree on absentee voting than List PR
than other alternatives  Does not guarantee overall
proportionality

Mixed Member  Proportionality  Complicated system


Proportional (MMP)  Inclusiveness  Requires boundary delimitation
 Geographic representation  Often need for by-elections
 Accountability  Can create two classes of
 Few wasted votes representatives
 May be easier to agree on  Strategic voting
than other alternatives  More difficult to arrange
absentee voting than with List
PR

Annex 6
Governing Systems and Executive-Legislative Relations

(Presidential, Parliamentary and Hybrid Systems)


The relations among a country’s governing institutions differ depending on whether a country has a
presidential, parliamentary or hybrid political system. Although each country has its own variance on

44
these political typologies, some conclusions have been drawn about the characteristics of each of
these systems and their relationship to political conflict and executive and legislative power. These
generalisations are useful for helping to determine characteristics of political systems of other nations,
but actual practice varies between nations within each type. The next few pages will seek to highlight
these characteristics. Table I provides a comparative view of these political typologies.

This paper examines the following three aspects of executive-legislative relations:

1. Separation of powers – the extent to which the powers of government are separated
functionally between branches of government;
2. Removal from office – how each system defines the conditions for removing the executive
and dissolving the government; and
3. The structure of legislative parties and leadership – the influence that the governing
system has on the structures developed by parties in the legislature; degree of hierarchical
control, internal discipline, and latitude for openness to representing local differences. Party
discipline is needed to keep control of the executive, a need that varies among the three
systems.

The United States (US) has a presidential system, as do countries it has influenced regionally,
culturally or militarily, including Latin American countries and the Philippines. With the exception
of the US, presidential systems in the past have often been associated with politically unstable and
authoritarian regimes. Countries that have adopted a form of the parliamentarianism include the
United Kingdom (UK), much of continental Europe, Israel, Japan, many of the former British
colonies in Africa and Asia, and most Caribbean countries. The French hybrid system has
provided a model for a number of countries and is highlighted throughout this section. Countries that
have adopted the French Model include former French colonies in West Africa – such as Cote
D’Ivoire, Gabon, Mali, and Senegal -- and a few eastern European states, such as Poland and
Bulgaria. Portugal also has a hybrid system, with similar elements as the French model. The
Portuguese system has influenced former colonies like Mozambique and Angola.

Separation of Powers

Key differences among the three systems include the extent to which the powers of government are
separated functionally between branches, and in the powers one branch does or does not have over
another. These include the extent to which the executive can control the legislative branch, or the
extent to which the legislature can control the executive (oversight), and the extent to which the
legislative branch controls the capacity to legislate. One important area of control and competition is
the capacity to introduce and approve legislation, and these vary considerably among the three
systems.

In a presidential system, political and administrative powers are divided between the executive,
legislative and judicial branches. Officials in these branches serve different terms of office and
different constituencies. In a parliamentary system, Parliament is sovereign and executive authority
(exercised by the Prime Minister and Cabinet) is derived from the legislature. In a hybrid system,
executive power is shared between a separately elected President and a Prime Minister.

Presidential

In a presidential system, the President (who is the chief executive as well as the symbolic head of
government) is chosen by a separate election from that of the legislature. The President then appoints

45
his or her cabinet of ministers (or "secretaries" in US parlance). Ministers/Secretaries usually are not
simultaneously members of the legislature, although their appointment may require the advice and
consent of the legislative branch. Because the senior officials of the executive branch are separately
elected or appointed, the presidential political system is characterised by a separation of powers,
wherein the executive and legislative branches are independent of one another. Presidents have great
control over their cabinet appointees who serve at the President’s pleasure, and who are usually
selected for reasons other than the extent of their congressional support (as in parliamentary systems).
In general, the British Prime Minister is more constrained to represent his/her parliamentary party in
the Cabinet.

The U.S. represents the strongest form of presidentialism, in the sense that the powers of the
executive and legislative branches are separate, and legislatures (national and state) often have
significant powers.

Parliamentary

Parliamentary systems, unlike presidential systems, are typified by a fusion of powers between the
legislative and executive branches. The Prime Minister (who is the chief executive) may be elected to
the legislature in the same way that all other members are elected. The Prime Minister is the leader of
the party that wins the majority of votes to the legislature (either de facto, or in some cases through an
election held by the legislature). The Prime Minister appoints Cabinet Ministers. However, unlike in
the presidential systems, these members are typically themselves legislative members from the ruling
party or ruling coalition. Thus, in a parliamentary system, the constituency of the executive and
legislature are the same. If the ruling party is voted out of the legislature, the executive also changes.
Continued co-operation between the executive and legislature is required for the government to
survive and to be effective in carrying out its programs.

The UK represents the strongest form of parliamentarism (sometimes referred to as the Westminister
system).

Hybrid

The term hybrid generally refers to a system with a separately elected President who shares executive
power with the Prime Minister. The President usually has the constitutional power to select the Prime
Minister. If the constitution and/or political circumstances tend to place the emphasis on the powers
of the President, it is sometimes termed a semi-presidential system. If, on the other hand, the Prime
Minister and the legislative leaders enjoy more power than the President does, it may be referred to as
a semi-parliamentary system.

For political reasons, Presidents generally appoint leaders of the ruling coalition to the post of Prime
Minister, although they are not required to do so constitutionally. The Prime Minister may or may not
be a member of the President’s political party, depending upon what party or coalition of parties
maintains the majority in the legislature.

The French system is the hybrid model most often cited as a semi-presidential system. In the French
system, the President has broad powers. For example, the President nominates the Prime Minister and
selects his own cabinet, over which he presides. The President, his cabinet and attending bureaucracy
initiate and draft most legislation. The French President, like some others in hybrid systems, has some
areas where his power is well defined, such as in the conduct of foreign affairs. The day to day
running of the government is, however, left to the Prime Minister and Cabinet.

46
For purposes of clarity and simplicity, the French system is highlighted in the above and following
text as the hybrid example. However, Table I point out possible variations on this model.

Legislative – Executive Terms and Removal from Office

A key difference between presidential and parliamentary systems lies in the power to remove a chief
executive or to dissolve the legislature. In parliamentary systems, the chief executive’s term of office
is directly linked with that of the legislature, while in presidential systems the terms are not linked.

Presidential

In a presidential system, in line with the notion of a separation of powers, presidents and members of
the legislature are separately elected for a given length of time. Presidents have no authority to
remove members of the legislature. Premature removal of either legislative members or the President
can only be initiated by a vote in the lower legislative chamber and under particular conditions. Thus,
under normal circumstances, even if the political party that the President represents becomes a
minority in either or both houses of the legislature, the President will remain in his position for the
full term for which he was elected.

A number of Latin American presidential systems have provided an additional constitutional check on
the power of the President in this regard, likely due to a history of authoritarian executive rule. For
example, in Honduras, Mexico, Nicaragua, Panama and Paraguay, a President is not allowed to
serve more that one elected term. In other countries, including Ecuador, El Salvador, Guatemala
and the US, the President is not allowed to serve for more than two consecutive terms.

Parliamentary

In a parliamentary system, the Prime Minister can be removed from office in two ways. The first is
through a ‘no-confidence’ motion, which is typically filed by the opposition or a coalition of
opposition parties. The no confidence motion calls for a vote in the legislature to demonstrate that the
legislature no longer has confidence in the Prime Minister (the Chief Executive) and his cabinet of
Ministers. If the vote passes by a majority, the Executive, including the Prime Minister, is forced to
step down. Since the Prime Minister and his cabinet of ministers are members of the legislature, this
brings about new legislative elections. The term of the Prime Minister, therefore, is generally linked
to that of the rest of the legislature. However, the Prime Minister can be removed by his/her own
party members, in a setting outside of the legislature. For example, Prime Minister Margaret Thatcher
was removed by party vote and replaced by John Major during the Conservative Party caucus. Such a
removal, whereby the party decides to change its leader, does not force legislative elections.

Hybrid-French

Unlike in a parliamentary system, the legislature in France cannot force the resignation of the
President. Rather, the President may dissolve the parliament’s Lower House, the National Assembly
(but not the upper house, Senate). Further, the President appoints, and can remove the Prime Minister,
who is effectively the head of the cabinet and legislature. Similar to the parliamentary model, the
National Assembly can also force the government (the Prime Minister and legislative leaders) to
resign by passing a motion of censure. Thus, in the French model, while the Prime Minister is
vulnerable to removal from both the legislature and the President, the President cannot be removed
prior to the end of his/her electoral term.

47
Party Discipline

Party discipline, simply defined, refers to the practice of legislators voting with their parties. It is
typically stronger in parliamentary systems than in presidential because the "executive" government
requires majority party cohesiveness for its own survival. In countries that are transitioning to a two
or multiparty system -- whether presidential, hybrid or parliamentary -- party discipline may be
generally weak owing to the fact that parties may be newer, lack a strong internal structure and
constituent base and/or lack experience in operating in a multiparty legislature.

Presidential

Parties in presidential systems tend to be less structured than parties in parliamentary systems. Failure
to vote with one’s party does not threaten to bring the government down. Therefore, members of the
legislature are freer to identify with regional, ethnic, economic or other divisions when considering
policy issues. This tendency is likely strengthened in presidential systems – such as the US – that also
employ a first-past-the-post electoral system. Because they are usually directly elected and
identifiable with particular districts or regions, many members see a duty to their constituents (in a
district or state) as the first priority, with allegiance to a party and its platform as secondary. While
the legislators are under some pressure to vote with their party, particularly on important votes, the
consequences of not doing so are not as serious to the individual legislator and to the system. Because
legislatures and executives are elected separately and often for different terms, it is not uncommon for
them to be controlled by different parties.

Parliamentary

Parliamentary systems in developed countries are characterized by parties that are highly structured
and tend toward unified action, bloc voting and distinct party platforms. This party discipline is
required in parliamentary systems primarily because deviation from the party line could result in
bringing down the government. Parliamentary systems require that the "executive" and legislative
members come to agreement upon issues, lest it force the dissolution of the government. In addition,
majority parties in parliamentary systems are perceived by voters to have a mandate to run the
country. Therefore, each party may develop a system of punishments and rewards. Individual
members of the legislature who deviate from a party vote may be punished by exclusion from their
party within parliament or may not be nominated by the party in the subsequent election.

Similarly, opposition parties theoretically want to maximize their power in a system dominated by the
majority by voting as a block and squelching internal dissent. Opposition party discipline is more
likely if the party or parties perceive that they can eventually gain the majority. Consequently, for
both majority and minority parties in parliament, important policy decisions are made within party
structures, such as party caucuses, rather than within the legislature itself. Obviously, it is not possible
for the legislature and executive to be controlled by different parties in a parliamentary system.

The following are common attributes mentioned by supporters of the two systems based on party
discipline:

Advantages of weaker party discipline in presidential systems:

 Relations between individual members and constituents tend to be stronger.


 The President and individual members are directly accountable to the voters.

48
 In deeply divided societies, some theorists argue that the parliamentary system can lead to
one party controlling the state and locking other ethnic or regional groups out of power.

Advantages of stronger party discipline in parliamentary systems:

 Parties and stable party coalitions within parliament can be held accountable to the public
based on their promotion of the party platform.
 The chief executive can be made accountable to her/his party and the parliament as a whole
by a vote of no confidence at any time.
 Highly organized parties can act as a link between party leaders and constituents at local
levels.

Hybrid-French System

France’s transition from a parliamentary to a semi-presidential or hybrid system has been credited
with resolving the instability created by shifting party alliances and resulting changes in government.
The French hybrid system functions more smoothly when the majority party in parliament is also the
party of the President, but this needs not always be the case. However, the French system has
sometimes resulted in a situation of cohabitation, whereby the separately elected President may face
a Prime Minister and majority party in the legislature from a party different than his own (which
occurred in 1993 and 1997).

This situation has the potential to combine the possible negative aspects of both presidential and
parliamentary systems, leading to conflict and deadlock. As in a parliamentary system, party
discipline is encouraged, as deviation would potentially bring down the majority party and its Prime
Minister. At the same time, party discipline may discourage cooperation with the President,
paralyzing the policy-making process. This prospect is tempered by the fact that the President can
dissolve parliament and/or remove the Prime Minister. The Prime Minister is encouraged to play a
balancing role, as he or she must maintain the confidence of both the President and the legislature.

The Legislative Function: Who Formulates, Initiates and Amends Legislation?

In parliamentary, presidential and hybrid systems, the legislature is a forum for discussion of political,
economic and social issues and is required to legitimize new laws. One of the major differences of
these systems lies in the legislature’s power (or lack thereof) to formulate and initiate legislation.

Presidential

In a presidential system, the legislature sets its own agenda and passes its own bills. The legislature
typically formulates and introduces legislation. The legislature can and often does work closely with
the executive branch in formulating legislation, particularly when the same party is in power in both
branches. The executive can draft laws, but members of the legislature must introduce them on the
floor. Some presidential systems, however, limit the legislature’s power to amend the proposed
executive budget, and a president may force the legislature to act on legislation within a certain
period.

 The legislature tends to have broad powers to amend any legislation. Lack of resources, and
other factors may act to blunt this power, however. In some countries, like Mexico during the
period of one-party domination, the President effectively controlled the Congress’ lawmaking
function.

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 The potential for legislative assertiveness is greater in presidential systems, but the actual
realization (and staffing up for assertiveness) depends on the presence of other conditions.
 Legislatures in presidential systems are more likely to have specialized and permanent
standing committees and subcommittees with a number of professional staff to help draft,
review and amend legislation. Large congressional staffs in the United States came about in
the post WWII years, with the greatest growth in the sixties and seventies. Staff and other
resources are typically much greater in the U.S. presidential system than in the Latin
American or other presidential models.
 Via the committee system, the legislature has extensive powers to call expert witnesses,
members of the cabinet, presidential advisors, etc. for public or private hearings before the
legislature.
 The President can veto legislation, which can only be overridden by a 2/3 vote in the
legislature.

Parliamentary

In parliamentary systems, the executive (meaning the Prime Minister, cabinet and bureaucracy)
controls the legislative agenda, and individual legislators have little political power to introduce their
own legislative initiatives.

 The chief executive and his/her cabinet initiate any piece of legislation affecting the budget or
revenue. In the UK and other similar models, legislatures can only amend legislation on
narrow, technical terms.
 There are significantly fewer permanent or standing committees with relatively few
professional staff to help draft and review legislation. (There are exceptions – Germany’s
semi-parliamentary system has relatively strong committees where legislation can be
initiated, reviewed and amended by individual members. Australia has a larger staff system
than does the UK).
 Important policy decisions can and often are made at party caucuses rather than within
committees.

Hybrid French System

 Bills can be introduced by the individual members, the executive and the government (the
Prime Minister and the cabinet). However, the introduction of executive initiated bills takes
precedence over member bills.
 The executive sets the agenda in the legislature and can call for a package vote, which forces
all or none of the pieces in a package of legislation to be passed.
 The executive can make any bill it initiates result in a motion of censure if rejected, which
dissolves the parliament.
 The President can by-pass the legislature by taking a proposed bill directly to the public
through a national referendum. If a majority of voters support the bill, it becomes law without
any input from the legislature.

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Table I. Executive-Legislative Relations in US and European Models

US Presidential UK – Westminster German semi-


parliamentary parliamentary French Hybrid

Separately Elected Prime Minister; Chancellor, chosen Separately elected


President, Cabinet PM and Cabinet from the majority President with
Who makes up the nominated by the elected by the party (or coalition) strong powers
majority party in
Executive Branch? President and in parliament; chooses a Cabinet
the legislature The
confirmed by the Cabinet, or cabinet members and Prime
legislature Ministers, are selected by Minister who
members of the Chancellor with presides over the
(Cabinet members legislature. parliament’s legislature. (The
cannot approval (may also President resides
simultaneously be Hereditary be members of the over the Cabinet,
members of Monarch is head leg.); indirectly who cannot be
of state (mostly
legislature, and vice- elected President members of the
ceremonial).
versa) is head of state legislature.)
(weak powers)

Legislature cannot The legislature The legislature can The legislature


remove the President, dissolves the chief dissolve cannot remove the
Can the except under extreme executive and parliament, President, but can
legislature remove conditions, and the cabinet through a removing the dissolve
the executive, and president cannot vote of no Chancellor and parliament,
vice-versa? dissolve the confidence, forcing cabinet, but only if removing the
legislature. new parliamentary they simultaneously Prime Minister
elections. select a new and cabinet. The
chancellor. President can
dissolve the lower
house.

Upper House: Senate Upper: House of Upper: Bundesrat Upper: Senate

Bodies involved in Lower House: House Lords Lower: Bundestag Lower: National
the legislative
process? Govt. cabinet Lower: House of Chancellor and Assembly
departments assist in Cabinet; Council of
drafting bills, but Commons State President; Prime
most originate via Minister and
committees in The government cabinet appointed
legislature; President (Prime Minister, by PM who sits in
can veto legislation, cabinet and the legislature

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which can be bureaucracy) (can be MPs).
overridden by 2/3 Occasionally bills
vote of both houses. referred to select
committees for
consultation.

Both Houses Executive and Both Executive and both Executive and
Houses, but MPs Houses are active, both Houses,
Who Initiates Executive can draft can’t introduce bills but the majority of Appointed bodies,
Legislation? legislation but a that affect govt. bills passed are such as the
member must
spending or introduced by the Economic and
introduce it.
taxation. Can only Executive. The Social
amend on technical President can issue commission make
grounds. "decrees," which recommendations
Executive-initiated have the force of on drafting
bills take law, without the legislation. MPs
precedence over legislatures cannot introduce
member bills. consent. any bill that raises
or reduces
expenditures.
Executive-
initiated bills take
precedence over
member bills.

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