(Adapted from a discussion paper for a seminar series on governance )
Parliament as constituted at present in Sri Lanka does not seem satisfactory. There are complaints about representation, and limitations on participation in decision making. Other problems include conflicts arising from the preferential voting system, crossovers, corruption, the lack of constituencies and by-elections and the uselessness of voting for the opposition. A mixed electoral system however may provide some solutions.
Reintroducing constituencies would
a) Establish links between representatives and a manageable number of people (unlike now, where multiple MPs service people in a large geographical area)
b) Reduce corruption and malpractices since candidates would not compete over large areas
c) Allow better information to constituents with regard to representatives, and monitoring of the development budget of individual MPs
d) Reduce intra-party conflicts as well as the scale of inter-party conflicts since contests would be between few individuals from different parties
e) Introduce bye-elections and limit crossovers, which would have to be justified in a bye-election.
However resolving these problems through a first past the post system alone would exacerbate others, particularly that of the representative nature of parliament. Since on a pure FPPS system an opposition could have few seats even with a high proportion of the total vote, many voters would not be represented.
This would be solved by the German system which allows voters to have a second vote for a party not a person, to decide the composition of parties in Parliament. Thus, if half the people want a particular party, half of Parliament would come from that party. If there are interests scattered in small pockets nationwide, so they could not elect constituency MPs, they could vote for individuals from other parties to represent constituencies, but also vote for another party to represent their particular interests. If there are 10 % of such people, then Parliament would have 10% from a party dedicated to such representation.
The German system in short uses lists for the second half of Parliament, with MPs appointed to make up the final number. Thus, if Party A gets 35 % of the vote but 60 seats out of 100, it will get 10 seats from the list based 100, to make up 70 altogether out of 200. Conversely, if Party B gets 20 % of the vote but only 15 seats, it will get 25 seats from the list, to reach 40.
This system ensures, along with the benefits of constituencies outlined above, that
a) All interest groups with parties to represent them have membership in parliament reflecting actual numbers
b) The party can select able people through the list
c) Crossovers by people from the list will be prohibited, with resignation or dismissal from the party leading to dismissal from Parliament, such persons being appointed solely as Party representatives
Whilst such a system would reduce many problems, other modifications may be needed for other difficulties. For instance, the special interests of regions with little weight in a Parliament deciding by majorities can be protected by weightage for regions through a Second Chamber or Senate. This can also provide for participation by distinguished individuals, as advocates for interests needing consideration without having much political weight, such as religious views, aesthetic concerns, academic and professional viewpoints.
However, such special interests should not have undue weight in examining general issues. Thus a Senate, while having unlimited powers of discussion and advice, could have limitations on decision making powers. It could have powers for instance simply to delay some legislation, by advancing considerations Parliament must examine. If Parliament insists, then Senate consent will not be needed. In other cases, say those involving constitutional change that could impact adversely on particular interest groups, it could have decision making powers, with provision to avoid protracted disputes through mechanisms for consultation and ultimately joint voting.
Meanwhile a Senate could also provide desirable checks on the Executive, being required for instance to approve Executive appointments to particular positions. This is more in line with precedent than the 17th amendment to the Constitution, which was intended to activate a generally accepted constitutional principle, that appointments to crucial positions should not be in the hands of a single individual, but proved another example of the confusion in Sri Lanka between the Presidential and the British Parliamentary systems.
On a Presidential system, appointments are the prerogative of a President elected by the people to act. However, to prevent arbitrary appointments, these are subject to ratification. In the United States, the original exemplar of separation of powers, with different branches of government balancing each other, Presidential appointments are ratified by the Senate, with two thirds required for particularly important ones.
In the British system, actual appointments are made by a nominal Head of State, but as recommended by the Prime Minister. The discretion of the Prime Minister is not limited, and it is unlikely that any Head of State would reject nominees of someone elected by the people unlike himself. Still, the fact that they actually appoint provides a control on the Prime Minister, to prevent him making recommendations that might be questioned.
In Sri Lanka the 17th amendment set up a Constitutional Council with many members, almost all of whom are from Parliament or selected by its leaders. The Council selected members of important Commissions, and the President had to appoint them. There was no provision for resolution if the President thought any names sent to him inappropriate. Conversely, for some positions, the President made recommendations which the Council had to approve.
Since the President was elected by the people, and the Council had a majority of members who were not elected (though appointed by Parliamentarians), the relative status of the two elements was odd. It would make sense therefore, while ensuring checks on arbitrary appointments, to follow established constitutional provisions and use a standard institution for the purpose.
A mixed system of election then, based on the German system, with appropriate modifications, would provide some solutions to problems, with a Senate providing others.
A Streamlined Executive
The original example of a Presidential system, the American one, specifies the number in the Cabinet. This makes sense, since government performs functions for which continuity as well as professional capability are important. Thus particular Ministries responsible for specified Government Departments allows for long term planning. And, since the President can select anyone he thinks suitable, he can appoint people with relevant professional skills.
In the British system however, since Members of Parliament have to be appointed, specific professional skills may not always be available. It becomes more practical to shuffle Departments around between different Ministries. Some flexibility may also be needed, in case ensuring more support in Parliament leads to a need to create more Ministerial positions.
This phenomenon can however get out of hand. The multiplication of Ministries in Sri Lanka has also developed over the years with the reduction of clearcut responsibilities for MPs in constituencies. Earlier MPs were responsible for small areas, and could perform well there. Now, with large districts represented by many people, the ability to take productive decisions has declined, while there is also less credit available for success. Therefore MPs seek executive positions in which to shine, and through which they provide special services to potential voters in entire Districts.
If the size of the Cabinet is reduced, it will therefore be necessary to provide alternative fields for MPs to show their functional capacity. Smaller constituencies for which individual members are responsible will facilitate this, along with a specific budget for targeted development.
The business then of executive action to benefit the country can be left to professional experts. While an American style system, with the Cabinet outside Parliament, may be unacceptable, the President should have the option of selecting outsiders, subject to Parliamentary approval. MPs who take on executive responsibilities with potential conflict of interests could resign their seats, with some major portfolios of national concern kept within Parliament as a principle.
The removal of some at least of the executive from a dual role would increase the supervisory authority of Parliament. If those exercising executive authority were not part of the group required to allocate and monitor funding, the controlling authority of Parliament would be more effectively exercised. It would also encourage the independence of institutions such as the Auditor General’s Department, if they reported to a Parliament without the executive authorities whose decisions might be in question.
The separation of Executive from Legislature would also enhance the advisory functions of Parliament. In Sri Lanka bipartisan consensus was most successfully achieved during Donoughmore Constitution days, when members of the State Council served on specific Committees, the Chairs of which were Ministers. This bipartisan approach was abandoned with the classic British Westminster model of adversarial politics, with government and opposition.
Thus, though Parliament now has consultative committees, these are dominated by Ministers. While some Parliamentarians use these to resolve particular issues affecting constituents, there is little input into policy. If however the Committees were integral components of Parliament, to advise and monitor rather than supplement Ministerial activity, a bipartisan approach could develop. This would assist representatives of special interests without a governmental role to participate in conceptualization together with their colleagues, not simply assist Ministers looking into individual cases.
A system then of a limited number of Ministries, to which qualified individuals outside Parliament could be appointed, would
a) increase efficiency and encourage a national perspective for executive action without Ministry resources being used for individual purposes
b) facilitate Parliament concentrating on its main tasks
c) allocate and monitor financial resources without subordinating debate and discussion to confrontation
d) pass laws and amend them on the basis of catering to the nation as well as all interests represented, without subordination to particular needs
e) examine the suitability of candidates for high positions in terms of national interest and relevance to all those represented in Parliament
Such a relationship between the Executive, acting in the interests of the country without concentrating on limited electoral concerns, and the Legislature, which should debate in a spirit of national consensus, not confrontation, would encourage active participation in policy making by all representatives of the people.