Policy Paper on the Right to Representation and Participation

8/9/2019 Policy Paper on the Right to Representation and Participation

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District Multi-Stakeholders ForumOn

Constitutional Reform and Peaceful Coexistence

Policy Paperon

The Right to Representation andParticipation


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Policy Recommendations of the District Multi-Stakeholders Forum onConstitutional Reform and Peaceful Coexistence

The National Democratic Institute (NDI) is a nonprofit, nonpartisan, nongovernmental organizationthat 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 establishand strengthen democratic institutions and practices by building political and civic organizations,safeguarding elections, and promoting citizen participation, openness and accountability ingovernment. 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 beadapted to the needs of their own countries. NDIs multinational approach reinforces the message thatwhile 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 andconsensus 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 societyorganizations.

During the initial meetings in early 2009, participants identified specific constitutional andgovernance issues that they believed should be addressed through policy, legislative and institutionalreforms to promote, consolidate and sustain democracy and good governance. Comprehensivedialogues 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 throughconstructive engagement with policy-level stakeholders, political and civil leaders and othersresponsible in promoting democratic governance in the country. The recommendations for policyreform on the Right to Representation and Participation are presented herewith with the kindrequest 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 ProvincialCouncils, Heads of relevant state institutions and the general public to kindly come forward withcommitment, enthusiasm and solidarity to promote informed dialogue based on theserecommendations in order to reach multi-party consensus in the search for a shared future in whicheveryone will be accepted and respected as equals in an environment of good governance withdevelopment 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 governmentbased on popular elections was developed. Ever since, the debate has centered on who shouldparticipate in public decisions (voting rights) and how participation can be best achievedthrough representation. Today, the representative democratic system of governance based onuniversal franchise is accepted and practiced in most countries. The current focus is on howcountries can promote, strengthen and consolidate the democratic rule with good governance.

Elections constitute one of the most powerful forms of political representation andparticipation. Government which has been chosen by universal suffrage through free and fairelections is recognized as legitimate and democratic. In the concept of representativedemocracy, the governing party must be chosen by elections in a free and fair manner. In thisrespect, 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, enablingcitizens to exercise the right of self-determination. Voting is a common instrument used tohold governments accountable to its citizens. Electoral systems in any segmental, ethnicallyand politically plural society, like Sri Lanka, must ensure the following:

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

Political Integration: The electoral system should facilitate to unite the county, reduce thepolarization among groups and segments and it should channel political conflict throughprocedures 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 votesacross ethnic divides in order to overcome the politicization of ethnic differences.

Representative Government: A government elected under a particular electoral systemshould be representative of the interests of different ethnic groups and especially ethnicminorities 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, sothat the political opposition can play an effective role in the political process to check theactions 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 peoples recommendations forpolicy reform to strengthen representation and participation. This paper outlines the keyrecommendations 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 generalelections in 1947, but over time found that First Past the Post (FPTP) elections wereincapable of representing minority interests. In 1978, the decision was taken to transform SriLankan 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 majoritySinhalese and minority Tamil communities. It was for this reason that the constitutionaldrafters were very conscious of the need to ensure that the new office of executive presidentwould 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 aparliamentary to a presidential system of government in 1978, it did so partly because therewas seen to be a need for a unifying national figure that could represent both the dominantSinhalese population, but also the Tamil speaking minorities.

Adequate, substantive and accountable representation of all groups is critical as Sri Lankamoves 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 allgroups, especially minorities and that this representation is meaningful and genuinelyparticipatory as well as to promote integrated approaches that reduce the divisions in societyand promote collaboration and inclusion.

International Standards and Sri Lankas Obligations

Human rights are inalienable entitlements and constitute the fundamental ground-rules forhuman development and democratic governance. Human rights norms and standardsguarantee 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 andaccess to power at all levels. As a signatory to International Covenants and Declarationspertaining to human rights and non-discrimination, Sri Lanka has committed to ensuring thatfundamental rights to participation in all aspects of society and development are preservedand promoted. The text of the major Conventions and instruments can be found atwww.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 areinalienable yet none-the-less bound to the guarantees of non-discrimination and equalopportunity inherent in the right to participation. The human right to participation includesuniversal, indivisible, interconnected and interdependent human rights to

-participate on equal terms in shaping and implementing decisions and policies affectingthemselves, their families, communities and societies at the local, national and internationallevels

-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 onEconomic, Social and Cultural Rights, Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child and otherinternational instruments.

Article 21 of the Universal Declaration of Human Rights states that Everyone has the rightto take part in the government of his country. This right is extended by the InternationalCovenant 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 generalterms 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 theright and duty to formulate appropriate national development policies that aim at the constantimprovement 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 NationalMinorities 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 autonomousauthorities respect and ensure the human rights of all individuals. For more information, referto the paper on the German Electoral System (annex 2)

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


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ability of constituents to punish their representative for failing to act in accordance withtheir wishes.

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

Descriptive representation - sometimes called passive representation or symbolicrepresentation , is the idea that candidates in elections should be elected to represent specificgroups or identities, rather than the population at large. According to this idea, an electedbody should resemble a representative sample of the voters they are meant to representconcerning outward characteristicsa constituency of 50% women and 20% Muslims, forexample, should have 50% female and 20% Muslim legislators.

Substantive Representation this is demonstrated by the activities of representatives ie theactions 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 aswell as disparities between votes and elected representatives- again, weakening access torepresentation particularly of small parties, women and special interest groups. In the 1970General Election, a party gained 77% (116) of the seats while winning only 49% of the totalvotes 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 winning51% 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 systemon First Past the Post (FPP) and Proportional Representation (PR) systems. (Full report isannex 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) , 70elected from the district PR system (District MPs) and 15 National List MPs. Within theNational List, parties would be required to ensure adequate representation of women (one inthree 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 districtdelimitation would take place to facilitate increased inclusive representation of minorityinterests.

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 theirrepresentative and decide whether to re-elect them or not. As mentioned earlier, many formerBritish Colonies continue to use this system. In cases where there are diverse communitieswithin an electoral boundary, communal electoral rolls wherein minorities have exclusivelyallocated 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 votersin New Zealand.

Adopting a mixed system, as has been advocated, could potentially strengthen bothrepresentation 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 candidatesinability to represent diverse interests. Where parliamentarians are tasked with serving large,diverse constituencies, their capacity to understand and adequately reflect the divergent needsand 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 thetime 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 nineteenthcentury, 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 withregard 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 theirfranchise. These demands were accompanied by the belief that "fair" representation entailedan equalization of population per representative. Changing boundaries to broaden the scopeof 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 forcarrying out the process. The task of drawing districts is usually assigned to a boundaryauthority or de-limitation commission in order to eliminate "politics" from the redistrictingprocess. 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 theelectoral 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. Equalpopulation, geographic considerations and communities of interest are criteria that relatedirectly 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 politicalparties are fairly represented or that racial, ethnic, religious or linguistic minorities have anequitable chance of representation.


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Recommendations

1. The election system should ensure adequate representation of minority communitiesand smaller political parties. Therefore, a system of mixed representation isrecommended. This is to ensure that while electing 60% of the elected

representatives through the first past the post system, the remaining 40% is to beelected through a district based list using a proportional representation system. Thefollowing criteria is recommended for this electoral system:

2. Redefining electorates, through an inclusive delimitation mechanism, to create largerelectorates, (approximately 110 electorates). The delimitation process the electorateshould consider creating multi-member constituencies in areas where there arediverse minority communities to ensure their adequate representation in accordance toreach 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 unrepresentedgroups and key sectors. Sector experts could contribute to developing policies in theirrespective 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 defeatedpoliticians 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 isessential to assess whether the system promotes consociation government so that minoritiescan take part in a meaningful manner.

To facilitate full participation, electoral system must be simple to understand. To betransparent the electoral process should operate under the supervision of a competent andempowered election monitoring body. Voters must be able to fully understand the electoralprocess 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 theyenvisage representation and how the legislature and executive government should ultimatelylook. 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 theprocess should not be too complicated, voting stations should be accessible, safetyand confidentiality should be ensured. Moreover, voters should be confident that theirvote will make a difference. Even within democratic systems, the choice of electoralsystem can influence the legitimacy of institutions. For example, the Australian

Senate between 1919 and 1946 was elected by a highly disproportional electoralsystem (the Alternative Vote in multi-member districts), which produced lopsidedand unrepresentative results, undermining the legitimacy of the senate itself.

3. Providing Incentives for Conciliation Some systems encourage parties to makeinclusive appeals for electoral support outside their core vote base, making platformsless divisive and exclusionary

4. Facilitating Stable and Efficient Government the results a system produces cancontribute to stability- whether voters perceive it to be fair, whether government canefficiently enact legislation and govern and whether the system avoids discriminatingagainst 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 theshape 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 todeliver.

6. Holding Individual Representatives Accountable- Plurality/majority systems havetraditionally been seen as maximizing the ability of voters to throw out unsatisfactoryindividual representatives. However, this becomes tenuous where voters identify withparties rather than candidates, as in the UK.

7. Encouraging Political Parties- Strong and effective political parties are vital in avibrant democracy. Electoral systems should encourage this rather than entrench orpromote party fragmentation. Most experts agree that the electoral system shouldencourage the development of parties based on broad political views and ideologiesas well as specific policy programmes, rather than narrow concerns.

8. Promoting Legislative Opposition and Oversight-the electoral system should helpensure the presence of a viable opposition grouping which can critically assesslegislation, question the performance of the executive, safeguard minority rights andrepresent its constituents effectively

9. Making the Election Process Sustainable the choice of any electoral system is, to acertain extent, dependent on the cost and administrative capacities of the country. Itmust also take into account the pressing needs of the country and find a balancewithin the electoral process that is both effective and sustainable.

10. Taking into account International Standards- the design of electoral systems takesplace 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 periodicelections that guarantee universal adult suffrage, secrecy of the ballot and freedomfrom coercion and a commitment to the principle of open person one vote. Issuessuch 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 electivenessand accountability of elected representatives. A detail analysis on three types of executive types ingovernance, Presidential, Parliamentary and Semi-Presidential (Hybrid) systems is given in thedocument in annex 6.

An Effective and Autonomous Election Management Body

Monitoring the electoral process is an important integrity safeguard. Transparentmanagement of the electoral process is vital. An independent appointed office for electoralmanagement and observation of the process by political parties, the media and individualelectors, as well as non-governmental organizations and international groups is the norm indemocratic 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 aspectssuch 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 andelection 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 willbe 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 ensuringhuman rights principles are preserved through democratic governance. An accountablesystem is one on which the government is responsible to the voters in the highest degreepossible. Their ability to participate in decisions which affect their rights and futuredevelopment in large part hinges on the validity of the voice they are given by theirrepresentatives in decision making bodies. The nexus between elected representatives andtheir constituencies must also be meaningfully maintained. Voters should be able to influencegovernment either by altering the coalition of parties in power or by throwing parties orrepresentatives 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 andlack of citizens participation in democratic processes are among the root causes of thisfailure. Sri Lanka does not offer options to citizens to play an active role in the legislativeprocess or to taking action when official fail to adequately represent their needs. Electedrepresentatives must be accountable to their constituents, who must in turn have means attheir disposal to assess and take measures against representatives who are not acting in theirbest 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 directrole in the legislation process. This includes the right to participate in referenda, to presentand vote for Constitutional Initiatives and the right to recall elected representatives. The rightto recall can be a major factor in ensuring accountability. Citizens can remove arepresentative from office through a plebiscite initiated when a certain number of voterspresent 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 electedrepresentative at national, provincial or local level be removed. Under the recall process asection of the public will submit a petition signed by a stipulated number of voters askingthat 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 constituencyand no longer has a mandate to be their representative.

Recommendations

1. Electoral systems should be redesigned in such a manner to ensure the accountabilityof elected representation to the voters. In this respect, the following aspects wererecommended:


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

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

2. Accountability of all elected representatives to the voters and their compliancewith the rule of law should be ensured. In this respect, votes should be empoweredthrough legislation to recall representatives who fail to act in the best interests of thevoters.

Recommendation 4 - Womens Participation and Representation

Women are severely underrepresented at the political and decision-making levels in SriLanka, despite boasting the worlds first woman Prime Minister in 1960 and a womanExecutive President for eleven years from 1994. Representation of women in Parliament hasbeen 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 womensorganizations a quota of 25% of the nominations to contest local assembly elections waspromised 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 inconditions of extreme under-development and poverty are among the most under-representedand marginalized in society. Widows and women whose husbands have disappeared facediscrimination 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 repeatedcommitments that the Government has made in the international arena to ensuring thatwomens rights are protected and promoted.

The 1978 Constitution guarantees equal rights without discrimination on grounds of genderand provides for affirmative action to ensure equal rights. A Womens Charter wasformulated in 1993 and accepted as a policy by successive governments. The provisions of CEDAW and the Womens 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 Lankas commitmentto womens rights is to be actualized.

In Sri Lanka women constitute almost 52% of the total population. But their representation inthe 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 toeliminate discrimination against women in political and public life and...ensure equal rightsto vote and be eligible for election; to participate in forming government policy and to holdspublic office. Further, it states that adoption by States Parties of temporary specialmeasures aimed at accelerating de facto equality between men and women shall not beconsidered discrimination. Such measures have been applied in a number of electoralsystems and have proved to be the most effective short-term means of increasing the numberof women elected to office.

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

Parties can also be entrusted with the function of ensuring representation in National Listsbased on pre-defined criteria. The Report of the Select Committee of Parliament on ElectoralReforms of the 6 th Parliament recommended that political parties include provisions in theirpolicies to ensure nomination of women candidates. An often adopted special measure is torequire or strongly recommend that party lists include a certain proportion of women. Insome countries compliance is required by legislation, while in others parties have voluntarilyadopted quotas or targets. Such measures will achieve the desired results only if women areplaced high enough on party candidate lists to be elected to office. A zippered or zebra list, inwhich every other candidate is a woman, will often provide the best prospects for womenseeking 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 womens representation. Atthe local level, each voter in Rwanda receives three ballots, one of which includes onlywomen candidates. Indirect elections to the next higher levels are structured to ensure that atleast 20 per cent of those elected are women. Through this procedure of multiple ballots andindirect 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 thelegislature, making Rwanda a world leader with its National Assembly made up of 49 percent women. In addition, Rwanda has instituted a system of all-women councils at the grass-roots level. The head of each womens council also holds a reserved seat on the general localcouncil, forging a connection between the two bodies and ensuring that the concerns of the

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

a) Appropriate election systems and electoral constituencies should be designed to electwomen political representatives to ensure a minimum of 33% representation.

b) A system to nominate representatives through the district based proportionalrepresentation should be decided in such a manner to ensure adequate womensrepresentatives at least to equate their guaranteed quota.

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

Recommendation 5 - Minority Representation and Participation

Representation and participation of minorities in Sri Lanka has been an issue since 1931when universal suffrage was introduced. Minority safeguard advocated under article 29-2Bof the first post-independence constitution proved inadequate. The subsequent exclusion of minority rights including disenfranchisement of Indian Origin Tamils as a result of theCitizenship 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 amore representative model of governance.

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

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


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decision making processes. One of the options most widely adopted means of ensuringbroader participation is the formation of a second chamber. Most second chambers (oftencalled upper houses or senates) exist for one or both of two reasons. The first is to provide adifferent type of representation or represent different interests , most often the regions orprovinces 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 Lnder in Germany, and the provinces inSouth Africa are all separately represented in an upper house. The second chamber can beused to represent particular ethnic, linguistic, religious, or cultural groups. A second chambermay also deliberately contain representatives of civil society. In Malawi, for instance, theconstitution 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 womensorganizations, the disabled, health and education groups, the business and farming sectors,the trade unions, eminent members of society, and religious leaders. Similarly, secondchambers 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 usingdifferent electoral systems for the upper house and the lower house. In Australia, forexample, the lower house is elected by a majoritarian system while the upper house, whichrepresents the various states, is elected using a proportional system. This has meant thatminority interests which would normally not be able to win election to the lower house stillhave 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 SingleNon-transferable vote (SNTV) system to elect four representatives from each province. InColombia, while both houses are elected by PR, the Senate is elected from one nationwidedistrict, thus making it more likely that small parties and minority interests will berepresented in that chamber. One of the key advantages of a bi-cameral system is thatlegislation 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 decisionmaking. Strengthening district autonomy and decision making to increase participation indevelopment planning as well as ensuring ethnically inclusive and non-discriminatorydecision making are important integral to the legislative and policy planning processes. Dualmajority decision-making is one mechanism to ensure that the representation of provincialunits and minority communities have maximum say in the decisions which would directlyaffect their constituents.

Reserved Seats

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


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tribes and castes), New Zealand (Maori), Palestine (Christians and Samaritans) and Taiwan(Aborigines). By increasing the number of minority representative in legislatures, reservedseats can strengthen the voice of minorities in political life and can send a signal of goodwillon the part of the state to minority communities. This is particularly significant as Sri Lankatransitions from conflict to peace and can bolster reconciliation. It is also important to ensurethat women are adequately represented, and that a minimum quota of 33% in all electedbodies is ensured to adequately reflect womens equal function in decision making andpublic life.

Representatives these reserved seats are usually elected in much the same manner as otherrepresentatives, but are sometimes elected only by members of the particular minoritycommunity 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 mustbe accountable to the constituents they serve. The inability of representatives to reflect theinterests of all minority groups in their constituencies has inevitably led to a sense of disenfranchisement and tension within communities. Minority communities should beensured representation of their specific needs and interests at all levels of government. Theyshould be able to elect representatives who will specifically vocalize their issues and be ableto hold duty-bearers accountable where they fail to do so.

In the Sri Lankan context, multi-member constituencies could have the advantage of enablingmore 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 assignseats to the best loser from a specified community. In Mauritius, for example four bestloser seats are allocated to the highest polling candidates of under-represented groups inorder to balance representation.

Recommendations

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


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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 todiscrimination, hostility or violence shall be prohibited by law.

Article 25

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

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

(b) To vote and to be elected at genuine periodic elections, which shall be by universal andequal suffrage and shall be held by secret ballot, guaranteeing the free expression of the willof 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 tosuch 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 usetheir 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 andlinguistic identity of minorities within their respective territories and shall encourageconditions for the promotion of that identity.


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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 thenational 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 nationallegislation.

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

5. Persons belonging to minorities have the right to establish and maintain, without anydiscrimination, free and peaceful contacts with other members of their group and withpersons 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 orlinguistic ties.

Article 4

[]

5. States should consider appropriate measures so that persons belonging to minorities mayparticipate 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 developmentand 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 orseparate rights for different racial groups after the objectives for which they were taken havebeen achieved.


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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 andto 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 forelection on the basis of universal and equal suffrage, to take part in the Government as wellas 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 enunciatedin 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 CulturalExpressions

Article 7

Parties shall endeavour to create in their territory an environment which encouragesindividuals and social groups:

(a) to create, produce, disseminate, distribute and have access to their own culturalexpressions, paying due attention to the special circumstances and needs of women as well asvarious 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:


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* 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 formsof guaranteed participation in the legislative process; [].

III. Self-governance

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

B. Territorial Arrangements

[] 21) Local, regional, and autonomous authorities must respect and ensure the humanrights 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 indecision-making can provide useful opportunities to determine whether such arrangementsshould 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 policiesthat aim at the constant improvement of the well-being of the entire population and of allindividuals, on the basis of their active, free and meaningful participation in development andin 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 orfrom the exercise of the rights which are connected to that choice.

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


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Article 5

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

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

Article 6

1. The Parties shall encourage a spirit of tolerance and intercultural dialogue and takeeffective measures to promote mutual respect and understanding and co-operation among allpersons living on their territory, irrespective of those persons' ethnic, cultural, linguistic orreligious 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 subjectto 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 nationalminority 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 personsbelonging to national minorities in cultural, social and economic life and in public affairs, inparticular those affecting them.


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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 WestGermany the term Basic Law was used to indicate that the Basic Law was provisional untilultimate reunification of Germany. However, forty years later when Germany was reunifiedno new Constitution was adopted and Basic Law was applied throughout the entire GermanTerritory. Basic Law is entrenched in that it overrides ordinary statute law passed by thelegislature.

The Basic Law established Germany as a parliamentary democracy with separation of powers into executive, legislative and judicial branches. The legislative branch reflectsGermanys 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 beelected directly through a mixture of proportional representation and direct mandates.

Germany has a bicameral parliament. That is Parliament comprises of two chambers. Thetwo chambers are the Bundestag and the Bundesrat. Both chambers can initiate legislature.The Bundestag is the principle legislative chamber and has 656 representatives. Bundestagmembers the only federal officials directly elected by the public. All candidates must be atleast 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 theirrespective Land governments. Members tend to be Land government ministers, There sixty-nine members.

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

The Federal President of Germany is the Head of State. It is a largely ceremonial positionwith only a small role in daily politics. The Federal President can neither take the initiative todissolve the Bundestag nor name a new chancellor without a prior majority vote in theparliament. The President is selected by a secret ballot at a Federal Convention that includesBundestag 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 asuccessor is elected within thirty days. Candidates for Presidency must be at least forty yearsold.


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The Chancellor is elected by the Bundestag. He or she heads the federal cabinet. The federalgovernment shall consist of the federal chancellor and the federal ministers. Every four yearsafter national elections and the seating of the nationally elected Bundestag members, theFederal President nominates a candidate and the chancellor is elected by a majority vote inthe Bundestag.

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

The German Electoral System is a combination of First past the post and proportionalRepresentation, thereby including the positive features of both and mitigating their negativeaspects.

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 thefirst past the post system.

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

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 votesreceived 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 receivingthe 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 partys 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 obtainedby each party is in proportion to the votes the party received nationally.


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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 papers1-Constituency MP1-National List-Rank Order fixed

C) Votes received nationally by parties(National List votes)counted and number of seatsallocated to each party in proportion to the votes received.Party A -38% -76 seatsParty B- 35%- 20 seatsParty 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 nationallist.

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

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

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 partys national listA 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 threeconstituency seats in order to get any representation in the Bundestag.


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Every German citizen over eighteen years of age is granted the right to vote under the BasicLaw. In order to qualify to vote it is necessary for a German citizen to reside in a particularConstituency 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 acorrelation exists between willingness to vote and increasing social and professional statusand income.

Some critics of the German Electoral system argue that it creates two classes of MPs whohave 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 whoapproach issues from both constituency and a national perspective, thereby buttressing arepresentative character of the legislature. Another drawback is the difficulty of small partiesto field and support national list candidate


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Annex 3

Pitkin's Four Views of Representation

Pitkin offers one of the most comprehensive discussions of the concept of politicalrepresentation, 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 approachto language, Pitkin maintains that in order to understand the concept of politicalrepresentation, one must consider the different ways in which the term is used. Each of thesedifferent uses of the term provides a different view of the concept. Pitkin compares theconcept of representation to a rather complicated, convoluted, threedimensional structurein the middle of a dark enclosure. Political theorists provide flash-bulb photographs of thestructure taken from different angles [1967, 10]. More specifically, political theorists haveprovided four main views of the concept of representation. Unfortunately, Pitkin neverexplains how these different views of political representation fit together. At times, sheimplies that the concept of representation is unified. At other times, she emphasizes theconflicts between these different views, e.g. how descriptive representation is opposed toaccountability. Drawing on her flash-bulb metaphor, Pitkin argues that one must know thecontext 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 contemporarypolitics.

For Pitkin, disagreements about representation can be partially reconciled by clarifyingwhich view of representation is being invoked. Pitkin identifies at least four different viewsof 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. Thedifferent views of representation can also provide different standards for assessingrepresentatives. So disagreements about what representatives ought to be doing areaggravated by the fact that people adopt the wrong view of representation or misapply thestandards of representation. Pitkin has in many ways set the terms of contemporarydiscussions about representation by providing this schematic overview of the concept of political representation.

Four Views Brief Description Main ResearchQuestion within each

View

Implicit Standards forEvaluating

Representatives

1. FormalisticRepresentation

The institutionalarrangements that precedeand initiate representation.Formal representation has

What is the institutionalposition of arepresentative?

None


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two dimensions:authorization andaccountability

(Authorization) The means by which arepresentative obtains his orher standing, status, positionor office.

What is the process bywhich a representativegains power (e.g.elections) and what arethe ways in which arepresentative canenforce his or herdecisions?

No standards forassessing how well arepresentative behaves.One can merely assesswhether arepresentativelegitimately holds his orher position.

(Accountability) The ability of constituents topunish their representativefor failing to act inaccordance with their wishes(e.g. voting an elected officialout of office) or theresponsiveness of therepresentative to theconstituents.

What are thesanctioning mechanismsavailable toconstituents? Is therepresentativeresponsive towards hisor her constituents'preferences?

No standards forassessing how well arepresentative behaves.One can merelydetermine whether arepresentative can besanctioned or has beenresponsive.

2. Symbolic

Representation

The ways that a

representative stands forthe represented that is,the meaning that arepresentative has for thosebeing represented.

What kind of response

is invoked by therepresentative in thosebeing represented?

Representatives are

assessed by the degreeof acceptance that therepresentative hasamong the represented.

3. Descriptive

Representation The extent to which arepresentative resemblesthose being represented.

Does the representativelook like, have commoninterests with, or sharecertain experiences with

the represented?

Assess therepresentative by theaccuracy of theresemblance between

the representative andthe represented.

4. SubstantiveRepresentation

The activity of representativesthat is, theactions taken on the behalf of, in the interest of, as an

Does the representativeadvance the policypreferences that servethe interests of the

Assess a representativeby the extent to whichpolicy Outcomesadvanced by a


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agent of, and as a substitutefor the represented.

represented? representative servethe best interests of their constituents.

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

Similarly, Pitkin's conclusions about the paradoxical nature of political representationsupport the tendency among contemporary theorists and political scientists to focus on formalprocedures of authorization and accountability (formalistic representation). In particular,there has been a lot of theoretical attention paid to the proper design of representativeinstitutions (e.g. Amy 1996; Barber, 2001; Christiano 1996; Guinier 1994). This focus iscertainly understandable, since one way to resolve the disputes about what representativesshould be doing is to let the people decide. In other words, establishing fair procedures forreconciling conflicts provides democratic citizens one way to settle conflicts about the properbehavior of representatives. In this way, theoretical discussions of political representationtend to depict political representation as primarily a principal-agent relationship. Theemphasis on elections also explains why discussions about the concept of politicalrepresentation frequently collapse into discussions of democracy. Political representation isunderstood 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 andaccountability was especially useful in the context of the Cold War. For this understanding of political representation (specifically, its demarcation from participatory democracy) wasuseful for distinguishing Western democracies from Communist countries. Those politicalsystems that held elections were considered to be democratic. Plotke questions whether sucha distinction continues to be useful. Plotke recommends that we broaden the scope of ourunderstanding of political representation to encompass interest representation and therebyreturn to debating what is the proper activity of representatives. Plotke's insight into whytraditional understandings of political representation resonated prior to the end of the ColdWar suggests that modern understandings of political representation are to some extentcontingent on political realities. For this reason, those who attempt to define politicalrepresentation should recognize how changing political realities can affect contemporaryunderstandings of political representation. Again, following Pitkin, it would appear that ourideas about political representation are contingent on existing political practices of representation. Our understandings of representation are inextricably shaped by the mannerin which people are currently being represented.


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Annex 4

THE SIXTH PARLIAMENT OF THE DEMOCRATIC SOCIALIST REPUBLIC OFSRI LANKA

(Second Session)


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INTERIM REPORT FROM THE SELECT COMMITTEE OF PARLIAMENT ONELECTORAL REFORMS

Presented byHon. 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 Parliamentresolved 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 reporton 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 theConstitution of the Democratic Socialist Republic of Sri Lanka and the existing election lawsand to report together with their observations and recommendations on the amendmentsnecessary to the said Laws.

Thereafter, this Committee consisting of 32 members, representing all parties in Parliamentwas appointed on 7th April 2006 under the Chairmanship of Hon. Dinesh Gunewardena. Thenames of the Members of the Committee, appears in Appendix I hereto. The Committeecommenced its sittings o 9th May 2006, and has held 39 meetings up to the date of thisInterim Report. At the commencement of proceedings, the Interim Report of the ElectoralReforms Select Committee appointed on 28th August 2003 and submitted to Parliament on23 rd January 2004 was tabled and your Committee agreed in principle that therecommendations made therein should be taken as the basis of deliberations of theCommittee 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 forrepresentations from the public on the Terms of Reference of the Committee. In response tothe notice, your Committee received 74 representations from Government, Non Government,Professional and other Civil Organizations and members of the Public. Where clarificationsand elaborations were found necessary, the Committee examined oral representations of those representatives of Civil Organizations and those who had submitted writtensubmissions to the Committee.

The Secretaries of 37 recognized political parties not represented in Parliament wererequested by letter to submit their representations to the Committee and if necessary toappear before the Committee to submit oral representations.

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


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2. Socialist Alliance3. United Socialist Party4. Sinhale Mahasammatha Bhumiputhra Pakshaya5. Akhila Ilankai Tamil United Front5. Desha Vimukthi Janatha Party

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

1. Tamil United Liberation Front2. Ilankei Tamil Arasu Katchchi3. Tamil Eelam Liberation Organization4. Eelam Peoples Revolutionary Liberation Front5. Akila Ilankai Thamil Congress6. Jathika Hela Urumaya7. Western Peoples Front

8. Eelam Peoples Democratic Party9. National Congress10. Janatha Vimukthi Peramuna (Peoples Liberation Front )11. Ceylon Workers Congress12. Up-Country Peoples Front13. United National Party14. Sri Lanka Muslim Congress15. Mahajana Eksath Peramuna16. Sri Lanka Freedom Party

The officers, religious leaders, commissions and academics set out in Appendix II heretoappeared on invitation and gave oral evidence before your Committee.The Committee wasassisted in its deliberations by the Attorney-General, Commissioner of Elections, DirectorGeneral of Census and Statistics and Secretary, Ministry of Local Government andProvincial 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 madeavailable. Thereupon your Committee embarked on a through evaluation to formulate themost suitable system of election for Parliament, Provincial Councils and Local Authorities.

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

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


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Parliamentary elections in the country.b. Final proposal should ensure the establishment of a stable government anda strong opposition, equitable representation to minority parties andcommunities, closer nexus between voters and their elected representativesand the democratic representation of the peoples mandate.

c. The proposed system of elections should give weight to the elimination orminimizing violence, undue expenditure at elections and misappropriationof 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 tothe 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 LocalGovernment 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 thefollowing recommendations:-

A. Parliamentary Elections;

The recommendation in the Interim Report of the Electoral Reforms Committee appointed on28th August 2003 and submitted to Parliament on 23rd January 2004, to adopt a mixedsystem of elections being a combination of first past the post system and proportionalrepresentation system and to refrain from increasing the number of members in Parliamentbeyond 225 was taken as the basis of your Committees findings, when examining a systemof election suitable for Parliamentary elections.

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

The proposed model is a hybrid of first past the post and proportional representationsystems, including therein the positive features of both, while eliminating the negativeaspects.

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

Parliament to be constituted of 225 seats as follows ;


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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 toParliament on the first past the post system. As such, the proposed system requires a freshdelimitation to re-demarcate 140 polling divisions.

70 District MPs;

70 members will be elected on the basis of a district proportional representation systembased 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 thefollowing manner:-

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

The number of DPR seats to be allocated for each respective district may be determined on a2:1 ratio (ex. 10 FPP seats: 5DPR Seats).

However, this ratio may vary according to the circumstances prevailing in each district. Thearea, population and ethnic diversities of voters in each district may be taken intoconsideration when determining the number of district MPs to be elected for each respectivedistrict.

15 National List MPs;

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


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well as non contesting candidates. Your Committee strongly recommends that all partiesshould 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 numberof valid votes at the election. (bonus seats).

B. Out of the balance 10 seats 3 seats to be reserved for unrepresented minor parties whohave polled a national vote exceeding the natural cut-off point but have not qualified for aseat under the first past the post and/or district proportional representation system. In theevent none of the parties succeed inqualifying 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 nationallevel. Candidates to be appointed based on the proportionate allocation will be decided by thesecretary of the party.

The Committee also recommends that necessary legal provision be formulated to make itmandatory 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 suchvacancy 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 DPRseats should be filled by electing a person from the respective political party who has polledthe next highest percentage of votes within his constituency. A vacancy in the national listallocation could be filled by another candidate from the list, being nominated by the secretaryof 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 thegoals of providing stability and governability to Parliament while ensuring fair representationof 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 presentsystem based on proportional representation and preference voting should be replaced by amixed system of election combining first past the post and proportional representation systemon a 2:1 ratio which is in line with the proposed Parliamentary elections system. TheCommittee 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 PRallocation be based on the districts which is similar to the practice followed in Parliamentaryelections.

C. Local Government Elections;


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Majority of views received expressed that the ward system should be re-introduced forLocal Government elections.

Your Committee agreed with the views of the Secretary to the Ministry of Local Governmentand 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 anddemographically smaller than the present unit, to increase the participation of the communityand community organizations and to facilitate the management and diversification of development and economic needs of the areaand ensure a democratic representation of minorities and communities. Accordingly, theCommittee is of the view that the number of local government institutions coming within adivisional secretariat area be increased to give effect to the above proposal. The Committeealso decided to recommend that the Chairman and Vice Chairman of local bodies be electedby 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 thesame principal involved in Parliamentary and Provincial Council elections in order to ensurethe representation of minority communities or unrepresented parties.

The proposal of the Ministry of Local Government and Provincial Councils highlighted theneed to establish Ward Committees at local government ward level consisting of representatives of community based organizations and officers involved in the developmentactivities of the area. These Committees can be chaired by the ward member. It is anticipatedthat 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 bythe majority who made representations before your Committee. The Attorney Generalindicated in his submissions that the Delimitation Commission should ideally be acommission standing perpetual.

As such, your Committee recommends that necessary steps be initiated as early as possiblefor 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 aDelimitation Commission. Further, your Committee would like to recommend that it ismandatory to take in to consideration the concerns of the minorities by the DelimitationCommission.

E. Women Representation in Politics;Representations made before your Committee by members of the Womens Caucus inParliament representing woman MPP of all political parties in Parliament, the women headsof all Local Authorities and other womens groups highlighted the need to increase thewomens participation in politics. Your Committee therefore recommends that politicalparties should include provisions in their policies to ensure nomination of women candidates


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in order to guarantee better representation of women in Parliament, Provincial Councils andLocal Government bodies.

It has already been mentioned under the caption National List that the Committee hasrecommended that necessary legal provision be formulated to make it mandatory that every

Policy Paper on the Right to Representation and Participation

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Transcript of Policy Paper on the Right to Representation and Participation