Local Authorities Elections (Amendment) Bill: Progress or Regress?

For nearly six decades since Universal Adult Franchise was introduced in 1931, our State Council/ Parliamentary elections have been on a First Past the Post (FPP) basis. The first Parliamentary election on a Proportional Representation (PR) basis was in 1989, in conformity with the constitution introduced under the Jayawardene Administration. The first Local Government elections under PR were in 1991. The above Bill presented to Parliament in October 2010 will take us some part of the way back to a mixed system in respect of Local Government elections.

Inherent in the FPP system is the ‘winner takes all’ principle, i. e. the votes cast for all the losing candidates (which could well total more than those cast for the winning candidate) do not count. Overall, one political party could secure a land slide victory with less than half the total number of votes cast. A small swing, say 10 percent of the votes cast, from the winning party to the party coming second, could have resulted in a land slide win for the latter. Clearly, the FPP system may not accurately reflect voter preference. It is particularly unfair to the smaller parties, some of which could secure significant shares of the votes cast and yet be marginalized in terms of seats won. Small parties with widely dispersed electoral support may be those worst affected by FPP.

The FPP system therefore promotes opportunist election coalitions unrelated to ideological considerations. As between the major parties, the one that is more successful in engineering such strategic partnerships may triumph. Another ill effect of the FPP system is that even within the party factors such as ethnicity, religion and caste may be decisive in making nominations in respect of each seat. Such a tendency was increasingly evident everywhere. In the colonial period and in the early post independence decades, many national leaders emerged and flourished in electorates in which they were marginal in terms of ethnic/religious/caste identity. In this respect we seem to be regressing.

The PR system on which elections have been held since 1989 also has its draw backs. Firstly there is an inevitable widening of the gap between the electors, and between the electors and the elected, in respect of geographical distance, as well as community of interest. The elector is represented not by a single elected person living within close and easy reach but by several spatially dispersed elected persons you with responsibility diffused over a large region. Particularly in relation to Local Government, this is a major obstacle to effective representation. It is for this reason that several countries, Sri Lanka included, have decided to opt for a mixed system.

The particular hybrid formula embodied in the Bill table in Parliament on 21 October 2010 contains several defects. The objective of Local Government is to empower the people at the local level. This Bill needlessly empowers the Minister in charge of Local Government and the party leaders rather than the voters. This begins the central role assigned to the Minister in respect of the National Delimitation Committee to define boundaries, as well as of other(nameless) Committees (the composition  of which is to be determined by the Minister) that may be appointed ad hoc at the disc recent of the Minister to alter ward boundaries. The Minister may also appoint District Delimitation Committees. The powers of the Minister extend to institutional arrangements for the conduct of the poll.

After the poll the selection of candidates under PR is left entirely to the party leaders. The voters only determines the distribution of PR seats as between the resprective political parties; Curiously, this is based on the numbers of the votes cast for losing candidates under FPP. The voters have no role thereafter. The party or group leader then takes over and selections for PR seats are made entirely at their discretion. Those ‘elected’ under PR owe their ‘election’ to the party/group leader and not the electors.

It is not just the elector who is disempowered in respect of the PR segment of the election; the smaller parties and the minorities (ethnic, religious, caste etc) are also handicapped because the PR ‘elections’ are based on votes cast for FPP candidates. Since the FPP system is biased against the smaller parties as well as the minorities within each party (as explained above) this adverse bias is carried through to the PR ‘elections’ under the Bill before Parliament. This bias is accentuated by the 5% cut off rule. The biggest gainers are the bosses of the major parties. Even the selection of the Mayor/Chairman is done post election by the party bosses; the elected members have no say in this process. Moreover, vacancies are also filled by the party bosses at their discretion with no regard to voter preference.

In computing the entitlement of PR seats, the votes cast for the winning candidates of political parties/independent groups are disregarded ( this makes sense as otherwise those votes wont be double counted ), as also the votes cast for those polling less than 5% of the total ( this makes no sense ). This 5% rule tilts the scales against the smaller parties with widely dispersed support. This rule may also depress the total PR entitlement, since it is the votes cast for the losing candidates who poll more than 5% that are counted in computing the total number of PR seats.

Moreover, since the absolute upper limit of the PR segment of the Council is 30% of the FPP segment, this upper limit of the ratio of the PR segment of the council works out to 30 divided by 100+30, i.e. about 23% of the entire Council. Further, if the winning candidates win by large margins, the prescribed formula of B divided by A+B would apply, bringing down the percentage to less than 23. It would make the process clear to everyone if the percentage is fixed and independent of algebraic formula that is likely to confuse many voters and candidates. Elections often generate much mental stress; there is no need to use a mathematical formula to add to that stress level.

Overall the Bill appears to have been badly designed and hastily drafted. For example the clause specifying that 25% of the total number of nominations may consist of women and youth (S 22(4)) is very confusing. Why is the word may used in preference to shall? Are women and youth one category or two? Is the 25% the maximum or the minimum? If the objective was to provide for specified quotas for women and for youth in respect of nominations, that could have been easily done. Was it the pressure for inclusion of quotas for women the reason foe eliminating the 40% youth quota that prevailed previously? Was this clumsy draft an attempt to show some progress in respect of quotas for women as a cover for regress in respect of quotas for youth?

What is now referred to as PR in elections is, in effect, quotas for political parities/ independent groups based on votes received. If other classifications, e. g. gender and /or youth, are to be brought in to the nominations process, that would pose no problems. But if quotas for women and/ or youth are to be applicable to the election out come, the formula to determine the election out come would unavoidably we extremely complicated. Special rules would have to be devised to remove ambiguities and to keep the process transparent, with no discretion allowed in interpreting the results. It may be to avoid such complication that no provision has been made for gender or youth quotas. Perhaps gender and youth quotas could be provided for in respect of nominations only in the first instance.

There are other errors too. For example the guiding principle prescribed under S 2(a) in delimiting wards is “to ensure equal representation for each ethnic group in that Local Authority area”. What is meant, surely, is to facilitate equitable or proportionate representation.

The biggest flaw in the Bill is the requirement that any party or group that contests any ward must also contest every other ward. It is of the essence of Local Government that voters in each ward should be represented by a person of their choice. The Bill contradicts that principle by requiring that such a person cannot stand for election in any ward except as a member nominated by a political party or group that contests every ward.

This flaw is accentuated by the escalation in the cost of nomination from Rs 250 per candidate to Rs 5,000 per candidate of a political party and Rs 20,000 per candidate of an independent group. A political party with 50 names on its list will have to deposit Rs 250,000, and an independent group with 50 names on its list will have to deposit Rs 1,000,000.These deposits will be forfeit in respect of candidates who failed to secure 5% of the vote. This is in addition to the cost of campaigning in all the wards. Thus this escalation of the deposit fee on top of the requirement to contest all wards would hinder the voters in a ward from electing a ‘favourite son/daughter’ who does not have the backing of a political party or independent group that is contesting every ward.

An innovation that appears to be appealing in some respects is the provision for the count to be conducted at the end of the poll at each polling station. This will take the counting physically closer to the voter and also considerably advance the announcement of results. But this practise would facilitate the disturbing of the count and the falsification of the result. Since each presiding officer will also be the counting officer for that polling station, if that officer is dishonest or incompetent, the out come could be incurably compromised. Particularly if the monitoring system fails to identify and remedy malpractices before the count is completed, the integrity of the entire election for that local body would be undermined.

The Bill needs to be rethought and redrafted.