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Key Note address by Dr. Wijeyadasa Rajapakshe, President's Counsel, Minister of Justice and Buddhasasana at the 14 th International Electoral Affairs Symposium conducted by International Centre for Parliamentary Studies with the collaboration of the Election Commission of Sri Lanka at Jetwing Blue Hotel in Negombo on 25th May 2017.



THE GOAL OF DEMOCRACY AND THE ROLE OF THE ELECTORS

Throughout history, there have been monarchies and dictatorships where the public had no even the slightest involvement in any of the affairs of governance in their respective countries. In the case of a monarchy, leadership roles were inherited by a royal family ruled, and the king or the queen hailed from that family. This often resulted in schemes and intrigues, as well as in wars, but again, the public at large rarely had a voice in the decisions that affected their lives. The same was true of government by dictatorship whereas the leader ruled the country often with an iron hand; at times this resulted in the deaths of those who dissented or disagreed with the direction the leader had chosen.

Although democracy is imperfect, it may through voting, people from all economic backgrounds and social strata (not just the ruling elites) can express their view points, and help select members of the government who best reflect those points of view. The importance of elections is that they first provide an opportunity for candidates to discuss and debate the issues, and then they allow eligible voters to be part of the decision as to who should be their leaders, at the federal or the local level.
The term “vote” is associated with or is inseparable from as a consequence or concomitant of elections mostly in democratic forms of governments. It also could be said that the formal process of selecting a person for public office or of accepting or rejecting a political proposition is by voting. In other words, it is a formal and organized choice by vote of a person for a political office or other position.

Although elections were used in ancient Athens, in Rome, and in the selection of Popes and Holy Roman Emperors, the origins of elections in the contemporary world lie in the gradual emergence of representative governments in Europe and in North America beginning at the 17th century. Those who advocated full democracy favoured the establishment of universal adult suffrage across Western Europe and North America, adult male suffrage was ensured almost everywhere by 1920, though women suffrage was not established until somewhat later ; e.g., 1928 in Britain, 1944 in France, 1949 in Belgium, and 1971 in Switzerland.

Free and fair elections and functioning electoral systems are the quintessence of democracy. Elections are used to ensure popular support and legitimacy for those who make governmental decisions. An electoral system is the set of processes that determine how political candidates are elected to office. Electoral systems are important in many ways. First, they have significant political consequences. Electoral systems shape the nature of parties and party systems, and they affect the behavior of politicians and the strategies of voters.

Elections are of utmost importance in any democratic country. As we all know, democracy is defined as a government of the people, for the people and by the people. (Abraham Lincoln’s celebrated Gettysburg speech in 1863 while dedicating of Soldiers National Cemetery after American Civil War) Such governments, as in the ancient city states of Greece, can be formed with the people directly participating in them.

With a government elected by its citizens and that affects every aspect of their lives from schools to health care to homeland security, voting is an important right in democratic society. By voting, one is making his voice heard and registering his opinion on how he thinks the government should operate.

Voting and democracy is very important in a nation because it provides people with an opportunity to voice their opinion and vote for what they believe in, it holds elected officials accountable for their behavior while in office, and it prevents a minority from dictating the policies of a majority.

Although the direct democracy is a form of government in which political decisions are made directly by the entire body of qualified citizens it is impractical in most modern societies; democratic governments must be conducted through representatives through elections which would facilitate social and political integration.

There are several types of election modules in different parts of the democratic world.

Plurality voting is an electoral system in which each voter is allowed to vote for only one candidate, and the candidate who polls the most among their counterparts is elected. It is called first-past-the-post, single-choice voting, simple plurality or relative/simple majority.

Majoritarian voting is a system in which candidates have to receive a majority of the votes to be elected, although in some cases only a plurality is required in the last round of counting if no candidate can achieve a majority. There are two main forms of majoritarian systems, one using a single round of ranked voting and the other using two or more rounds. Both are primarily used for single-member constituencies.
Proportional representation (PR) characterizes electoral systems by which divisions in an electorate are reflected proportionately in the elected body. If particular percentage of the electorate support a particular political party, then roughly that percentage of seats will be won by that party. The essence of such systems is that all votes contribute to the result: not just a plurality, or a bare majority, of them.

Mixed system is used in several countries to elect the legislature. These include parallel voting and mixed-member proportional representation.

From the inception of modern democracy, one question that remains unresolved is how to identify the representative that one is going to elect. Two millennia ago Aristotle said that;

“If there is someone who thinks that he knows everything, but in fact he knows nothing; he has all the makings of a politician.”

The old definition for democracy which says that it consists of the legislature, executive and the judiciary is incomplete in today’s context of modern democracy. It needs two more vibrant branches namely the free media and peoples’ participation and constant vigilance.

When it comes to free media, among other things Sri Lanka has two major and serious obstacles of conducting free and fair elections. Firstly, a substantial number of media institutions both print and electronic are owned and controlled by politicians, if not at least by their family members.

Media barons as well as journalists have their vested interests in politics and are unable to disseminate information to the general public in an impartial manner enabling the voters to make up their minds as to who should be the individual or the party best suited to rule them.

Secondly, the election period in the country brings a prosperity to the media institutions and individuals and wealthy candidates have all the opportunities to be blown out of proportion and hoodwink the voters by negating the sacred values and principles of democracy. Therefore democracy is not always a governance by the wise, but becomes a governance by fools too.

The most intricate question about the scope and the limit of the power and the authority of elected representatives is a debate that exist for a long time. It is common denomination in almost all the democratic constitutions that the sovereignty is in the people and it is inalienable. Article 3 of Sri Lanka Constitution says that the sovereignty includes the powers of government, fundamental rights and the franchise.

In Sri Lanka, during the British colonial period, McCallum Reforms introduced us the election of peoples’ representatives to the Legislative Council in 1910 and in the Council consisting of 21 members of which 11 were officials and 10 were unofficial. Of the non-official members, six were appointed by the Governor (two Low Country Sinhalese, two Tamils, one Kandyan Sinhalese and one Muslim) and remaining four were elected (two Europeans, one Burgher and one educated Ceylonese). Voting population was fewer than 4% of people based on education and assets. However, in 1920, through Manning Reforms the number was increased up to 37, and later in 1923 to 49 out of which 29 were elected. Sri Lanka gained the Universal Suffrage through Donoughmore Reforms in 1931, being the first Asian country to enjoy that freedom.

With the passage of time the country experienced that the election of members to legislative council on racial basis had a serious negative impact upon our political, social, cultural fabric as it created abysmal gap among the communities leading towards diversified conflicts and unrest in the society.

Jane Russell, while analyzing the racial election system introduced by the British through the Donoughmore Constitution states in her Doctoral Thesis “Communal Politics under the Donoughmore Constitution, 1931-1947” as follows;

“Communalism has been to Sri Lanka what nationalism is to the world. Nationalism, for all its defects, has provided a relatively acceptable and coordinated social structure between the anarchism of the robber baron and the apparently unreachable universal recognition of human equality. So with communalism in Sri Lanka.

A multi-polar, fragmented polity like Sri Lanka, which comprises divisions of language, religion, race, class, caste, and kin is in essence a microcosm of the world.” ( Communal Politics under the Donoughmore Constitution, 1931-1947, Tisara Prakasakayo Ltd, Dehiwala, Sri Lanka, 1982)

Sir Arnold Toynbee dealing with nationalism says that;

“The spirit of Nationality is a sour ferment of the new wine of Democracy in the old bottles of Tribalism. It may be defined (negatively but not inaccurately) as a spirit which makes people feel and act and think about a part of any given society as though it were the whole of that society.” (A.J. Toynbee, Study of History, Vol. 1, p.9, 1934)

If an electoral system itself encourages to overwhelm communalism over nationality, the expected goal of democracy and aspirations of the people become a mere myth. When there was an uprising the spirit of parochialism in the House of Commons, the Mother Parliament in the 18th century (1784) Edmund Burke said that;

“Parliament is not a Congress of ambassadors from different hostile interests, which interests each must maintain as an agent and advocate against the other agents and advocate; but parliament is deliberative assembly of one nation, with the interest, that of the whole; where, not local purposes, not local prejudices ought to guide, but the general good, resulting from the general reason of the whole. A member is elected by Bristol indeed, but he is not a member of Bristol, but a member of Parliament.”

Hans Kohn has remarked in his wisdom that;

“the people identify themselves more and more with their national ideas which, in a process of constant interaction shape and strengthen the national character.”

Jane Russell studying the politics under the Donoughmore Constitution concludes saying that;

“In Ceylon, it was not the national idea or character but the communal idea and the sense of communal identification which increased sharply under the impact of universal franchise.”

The idea of nationalism had gained momentum and popularity in Western Europe through Garibaldi Mazzini and U S A promoted the doctrine of self-determination, which means “let people to decide” as a sensible move. But Sir Ivor Jennings, Political Science Professor cited it as a ridiculous move and asked how people could decide until somebody else takes a decision. Lord Acton, Stanly Baldwin, Arnold Toynbee, Rabindranath Tagore saw the danger of the elevation of the doctrine of self-determination to that of the universal panacea and cautioned against it. Rabindranath Tagore wrote in 1917, that;

“What disaster has there been in the history of mankind like this terrible disaster of the nation fixing its fangs deep in the naked flesh of the world, taking permanent precautions against its natural relaxation. You say form yourselves into a nation and resist this encroachment of nation. Machines must be pitted against machines and nation against nation in an endless bull-fight of politics.” (R. Tagore, Nationalism, London, 1917, p. 28-31)

In Sri Lanka Ponnambalam Arunachalam an ardent believer of self-determination moved the people into action and finally ended up as the most gruesome terrorists war in the world which continued for three decades.

When Soulbury Commission was appointed to make recommendations as to what kind of governmental system is befitting Sri Lanka when they granted the Freedom of Dominion Status, the Commission in considering the adverse effect the election on racial basis, advised to abolish that and to elect members based on constituencies and on geographical basis. Therefore, the Soulbery Constitution adopted in 1947, in principle, did away with it and established election of members on first-past-the-post system including five multi-member constituencies to accommodate minority communities. But when the Proportional Representative System was replaced with the earlier system, in practice minority communities formed their own political party conglomeration of themselves. It is apparent still we are not fully successful in our attempt to come out from this quagmire and to create a policy based on political culture with the national identity.

In the case of Gabcikovo-Nagimaros Project (Hungary/Slovakia) - the Danube case – 1997, International Court of Justice while adjudicating a dispute over a dam on the Danube river, the importance of environmental protection was emphasized by Justice C. G. Weeramanthri, Vice President of the International Court of Justice. After the early formulations of the concept of the development, it has been recognized that development cannot be pursued to such a point as to result in substantial damages to the environment within which it is to occur. Therefore development can be prosecuted in harmony with the reasonable demands of environmental protection.

In case of the powers and authority is of rulers are concerned International Court of Justice states that just as development was the aim of this system, it was accompanied by a systematic philosophy of conservation dating back to at least the third century B.C. . The ancient chronicles record that when the King (Devanampiya Tissa) 247-207 B.C. was on a hunting trip (around 223 B.C.) the Arahant Mahinda, son of the Emperor Asoka of India, preached to him a sermon which converted the King. Here are excerpts from that sermon:

“O great King, the birds of the air and the beasts have as equal a right to live and move about in any part of the land as thou. The land belongs to the people and all living beings; thou art only the guardian of it ….”

This could be considered the oldest formation of the Public Trust Doctrine in between the ruler and the ruled.

In the case of Bulankulama Vs. Secretary, Ministry of Industrial Development (2000) is a significant case with regard to the application of Public Trust Doctrine in environmental matters in Sri Lanka. In this case, petitioners alleged that their fundamental rights would be violated in the event the government proceeds to act upon an agreement that it had entered into with a U S company for mining and export of phosphate at Eppawala by bringing negative impact on environment. Further citing the decision of the Weeramanthri J. in Hungary Vs. Slovakia case, Amarasingha J. said that;

“… the State is the guardian who is required to exercise the power in the trust for and on behalf of the people in that country. The public trust doctrine, relied upon by learned counsel on both sides, since the decision in Illinois Central R. Co. V. Illinois, 146U.S. 387 at 452, 135 S.Ct. 110 at 118 (1892), commencing with a recognition of public rights in navigation and fishing in and commerce over certain waters, has been extended in the United States on a case by case basis. Nevertheless, in my view, it is comparatively restrictive in scope and I should prefer to continue to look at our resources and the environment as our ancestors did, and our contemporaries do, recognizing a shared responsibility. … It is inseparable from the performance of duties and obligations, and accordingly it is the duty of every person is Sri Lanka to protect nature and conserve its riches”.

In the light of the abovementioned history nexus between the elected representatives and the people (voters) is evolved upon the mechanism of voting. Hence the voting could be defined as follows;

“Voting is a right conferred on and a duty cast upon voters to exercise their franchise in entrusting their sovereignty to custodian/s at their choice for a limited period.”

Sri Lanka has taken many steps to ensure free and fair elections inter-alia in establishing an Independent Election Commission through the 19th Amendments to the Constitution in April 2015. But we have failed to achieve our objectives due complexed issues which could be summarily identified among other things as follows;

1. Although the aim of democracy is to reach a consensus among different groups or communities who are having diversified and contradictory idea based on political ideologies relied upon by them, in short, the unity within diversity, in our country during recent past it has been superseded to a greater extend by hostile communal hatred/superiority/ego.

2. Lack of comprehension of the voter to differentiate the role of the representatives in National, Provincial and Local levels. What they expect from their Parliamentarians, as well as their Provincial Council Members and Local Authority Members are the same. National level politicians have to come down to a status of a local council member’s level, if they have to secure their seats in the future. Unless there shall be a change of attitude of the people, their aspirations won’t be met.

3. Proportional Representative System introduced by the Second Republican Constitution shall be changed to reflect the majority view of the constituencies and also to cast upon a responsibility on a certain member who could be trusted as their custodian. It also could minimize the waste of money and tendency towards to corrupt dealings by candidates.

4. Partiality and vested interests of the media barons and journalist have encroached upon sacrosanctity and values of democracy and at large human values and principles have been degenerated to a greater extent leaving people/voters in lurch.

5. There shall be a vibrant mechanism to make aware people/voters that the exercise of their vote is a duty which is greater than that of a right and to be exercised very cautiously not on consideration of petty issues, but on deep and wider consideration of the Nation.

Thank you
Dr. Wijeyadasa Rajapakshe, PC
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