Juanita Arulanantham & Andi Schubert
This briefing paper highlights some of the key aspects of this Bill and attempts to provide the reader with a basic introduction to the issues and implications of the Bill in its current form. We first examine the change in the electoral system and some of the implications it will have on the exercise of franchise (point 1) and then discuss the implications of the changes being made to the amount required as a deposit and the way it could affect the smaller parties and independent groups (point 2). In point 3 we briefly deal with the changes to the youth quota from a mandatory 40% youth quota in nomination lists to a 25% youth and women quota and how it affects women and young people. Point 4 addresses the changes to the nomination period which has been shortened to 1.5 days from the previous 7 day stipulation while point 5 deals with the extraordinary powers vested in party secretaries and leaders of independent groups in the filling of vacancies. In point 6 we address the setting up of delimitation committees to draw up the boundaries of the wards. In point 7 we point out that although the Constitution stipulates that all Provincial Councils have to be consulted, the Northern Provincial Council has not been consulted about the formulation of this Bill.
WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER
We asked that the Supreme Court declare that some clauses of the Bill were inconsistent with the Constitution, and also that they require a 2/3 majority in Parliament as well as the approval of the People at a Referendum to be made law.
1. Replacing the Proportional Representation system with a largely ‘first past the post’ system
Under the present Proportional Representation (PR) system the number of members elected from each Party or Group is determined by the proportion of votes received by that Party or Group in the entire electoral area. A party or Group should receive a certain percentage of the total number of votes to have any representative. Candidates are elected on the basis of the total number of preference votes received by them, within the number of seats allotted to the party or group. The proposed reforms introduce a mixed system of First Past the Post (FPP) and Proportional Representation but the number elected under the Proportional Representation system is not fixed. Only a maximum of 30% of the number of members elected under the First Past the Post system will be elected under the Proportional Representation system.
It reintroduces the ward system, where each local authority is divided into electoral units called wards and each ward elects one member (unless there is a provision for more than one member to be elected from a ward – these are referred to as multi member wards). This will necessarily limit the participation of minority parties and independent groups because the First Past the Post system is based on the strength of numbers (as opposed to the proportion of votes garnered). As a result it also defeats the Constitutional objective of a “Representative” Democracy since the FPP system is not “representative” of all political opinions or interests but only of the party or group that garners the most amount of votes. It diminishes the Sovereignty of the People, especially the exercise of their fundamental rights and franchise, and the fundamental rights of thought and free expression (which includes the meaningful exercise of the franchise).
It is also important to understand that under the new ward-based voting system the 5% cut off point for disqualification applies to votes polled in a ward as opposed to a local authority area. This means that even if a candidate polls 7% of the votes in one ward and only 3% of the votes in the next ward, that 3% will not count towards the parties final tally of votes in that particular local authority area. This puts smaller parties, minority and independent groups at a distinct disadvantage because it makes it difficult for these groups to receive allocations from the seats allocated on a PR basis.
2. Mandatory deposits for all candidates
Every party has to make a mandatory deposit of money in respect of each candidate and additional person nominated. According to the Bill a recognised political party has to make a deposit of Rs.5000/- for each candidate it nominates whereas in the case of independent groups a deposit of Rs.20,000/- is expected to be paid for each person it nominates.
The distinction is arbitrary, and irrational and thus violates the fundamental right to Equality. It also violates the voters’ fundamental rights of thought and franchise. It further limits the participation of minority parties and independent groups as every party has to contest in every ward and therefore each of these smaller parties will have to pay the deposit on each candidate for every ward. Since every party that fails to get more than 5% of the vote loses their deposit, this provision effectively discourages the involvement of minority parties and independent groups in the electoral process at the local government level. This is made worse by the fact that there is no provision in the Bill for parties to contest in certain wards only and all parties have to contest every ward in a local authority area. These provisions will thus violate the Constitutional principle of Representative Democracy.
3. Nomination Quota for Women and Youth
The Bill seeks to remove the mandatory existing quota of 40% for youth in nominations lists for local government elections and replace it with a non-mandatory quota of 25% for women and youth. This violates the guarantee for substantive equality under the Fundamental Right to Equality. Article 12(4) of the Constitution recognizes the need for affirmative action relating to women. A mere recommendation cannot meet the obligation of the State to ensure substantive equality of women.
The right to substantive equality of Sri Lankan youth is also violated. The mandatory quota of 40% reserved for youth in nomination lists in local government elections was introduced mainly in response to the findings of the Youth Commission in 1990 that was appointed to look into the causes of the violent youth uprising that took place between 1987 and 1989, and in recognition of the inequalities faced by youth wishing to participate in elected bodies. No legitimate reasons have been established for the withdrawal of the special protection that has been afforded to youth, thus violating the fundamental right to Equality.
The clause is also uncertain and vague and could be interpreted to mean that no more than 25% of a nomination list can include women or youth. Such an arbitrary limit to political participation of identified groups violates the fundamental right to Equality and the right to political participation under the International Covenant on Civil and Political Rights, to which Sri Lanka is a state party.
Placing both women and youth within the same percentage with regard to participation in local government elections is also self-defeating as there is no clarity as to how the percentage can be divided between the said groups. Further, there is no indication as to whether female youth would be placed under the category of ‘youth’ or ‘women’ which makes this clause even more ambiguous.
For the above reasons, the clause also has no rational nexus to the objectives of the Act. This too violates the fundamental right to Equality.
4. 1 ½ day nomination period (in lieu of a 7 day period)
Considering the importance of the electoral process, shortening the nomination period is arbitrary and irrational, and thus contrary to the fundamental right to Equality. This reduction may limit the participation of minority parties and independent groups and negate the Constitutional principle of Representative Democracy and thus diminish the exercise of the Sovereignty of the People and the direct exercise of fundamental rights and franchise.
5. Filling in of vacancies
The Bill provides for filling in vacancies based on nominations by the secretary of the political party / leader of the independent group, out of any person qualified to be a member. There is no provision for a by-election. Parties could substitute elected candidates with persons not desired by the electorate, making a mockery of the entire electoral process. Parties could even deliberately call upon their elected members to resign, to facilitate the substitution of other persons desired by the party, though not desired by the electorate. This clearly impacts on the exercise of political thought and franchise by the People and the principles of Representative Democracy.
6. Delimitation committee
The Bill establishes a Delimitation Committee and permits the Minister to appoint five persons to this committee. It vests absolute discretion on the appointments to this committee in the Minister, and permits arbitrary exercise of power, and thus violates the Fundamental Right to Equality.
There is provision for the Delimitation Committee to make recommendations to the Minister for the division of each local authority area into wards considering the factors specified. There is no rational nexus between the said criteria in determining the boundaries of wards. This will permit irrational and arbitrary variations being made to electoral boundaries violating the fundamental right to Equality. This concern is made more significant by the fact that the data for delimitation will be based on the most recent census which at present is representative of data from the last census in 2001. Furthermore, this due to the unrest at the time this census did not include some districts in the North and East of the country. In fact in the case of certain districts in the North and the East a census was last conducted in 1981. The sections are ambiguous as to whether the “recommendation’ is a ‘recommendation’ or a ‘binding determination’. This undermines the exercise of political thought and franchise by the People and negates the principles of Representative Democracy;
7. Failure to refer Bill to ALL Provincial Councils
Article 154G(3) of the Constitution provides that “no Bill in respect of any matter set out in the Provincial Council List shall become law unless such Bill has been referred by the President, after its publication in the Gazette and before it is placed on the Order Paper of Parliament, to every Provincial Council for the expression of its views…”
The present Bill legislates on subjects in the Provincial Council List. While the Bill has allegedly been referred to several Provincial Councils, the Bill has certainly not been referred to the Northern Provincial Council.
 This paper is based on the written submissions prepared by Mr. Suren Fernando and Ms.Juanita Arulanantham on behalf of Andi Schubert of the Young Researchers’ Collective challenging the Local Authorities Elections (Amendment) Bill in the Supreme Court on the grounds that the Bill was inconsistent with the Constitution of the Democratic Socialist Republic of Sri Lanka (SC (Special Determination) 6/2010).
 This means that the number of representatives elected under the PR system will not be fixed but will be based on the number of representatives who are elected under the FPP system. For example if 10 representatives are to be elected from a local authority of a particular area as per the provisions of the bill it will not be split up as 7 representatives under the FPP system and 3 representatives under the PR system. Rather 10 representatives will be elected and not more than 30% of that number (3) additional members will be allocated from the PR list – a total of 13 representatives for the local authority (rather than being 30% of the total, 30% is added on to the total. Furthermore this number will never exceed 30% and will always be adjusted down if it exceeds 30%). This means that the actual percentage of members appointed under the PR system will be between 21-23% in practice
 These factors are
(a) the ratio of the ethnic composition of the local authority concerned, and the need to ensure equal representation for each ethnic group in that local authority area ;
(b) the geographical area of the local authority and its physical features;
(c) the population of the local authority area and the density of such population
(d) the level of economic development of the local authority