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The Seventh Death Anniversary of Dr. Neelan Tiruchelvam falls on July 29. We reproduce here one of his articles on the constitution which was published in the Daily Mirror of September 18, 1978.

By Dr Neelan Tiruchelvam

The Leader of the Opposition contended in the Assembly that ‘the making of a Constitution is not an isolated event but a step in the process by which a people assert their identity, articulate their basic values and aspirations and define the instruments of governments through which the sovereignty of the people can be exercised.’

There are two approaches to this process which need to be and clarified.

The first approach is directed towards the elaboration of an institutional framework which more effectively corresponds to the political style of the regime in power.

Such an approach is regarded as the ‘instrumental’ approach to constitution making, and does not envisage the Constitution to be an eternal instrument embodying the highest values and aspirations of the people. There is a measure of impermanency in such instruments as their life span is often limited to the duration of the political regime in power. They provide the means by which those who had captured power can more effectively organize and exercise power.

The second approach to Constitution making envisages the Constitution to be the fundamental law enshrining for all times the basic values, aspirations and ideals of the different components of the body politic. Such Constitutions are somewhat permanent instruments, and even the process of amendment gathers inspiration and direction from the underlying philosophy of the Constitution itself. The second is the ‘consensual approach’.

The instrumental approach recognises a somewhat authoritarian process of Constitution making which disregards the aspirations of groups in opposition to the regime in power. The consensual approach on the other hand views the Constitution as’a legal and political compact capturing the compromises that have been worked out between different communities and political groups. It defines the framework within which the different groups may compete for power and gain access to the resources of a society.

Is the Constitutional exercise that has been recently completed of the instrumental or consensual type?

The resort to a Select Committee procedure meant that the political parties unrepresented in the Assembly could not enjoy direct participation in the drafting process. The non participation of the Tamil United Liberation Front in the Select Committee further eroded the exercise of its ‘consensual’ elements. The conceptual basis for the TULF’s withdrawal from this process has been summarized by Mr. Amirthalingam:

“The Republican Constitution of 1972 sought to sever the legal and constitutional link with the past. Once there is such a break in legal continuity, the sovereignty of the inhabitants of the Island until then under eclipse (during a period of foreign domination of externally designed constitutional rule) resurfaced.

Hence the sovereignty of the Tamil Nation which was ethnically, geographically, and linguistically, separately distinctly identifiable revived.

The United National Party had a clear unequivocal mandate to assert the sovereignty of the Sinhala nation and enact a new Constitution. The mabdate the majority of the Tamil Nation pointed to a different duty”.

The Select Committee constituted in November 3” 1977 tabled its report on June 22 1978. Despite these major handicaps there was remarkable congruence between the views of the United National Party and the Sri Lanka Freedom Party as they related to some of the substantive concerns of the Select Committee. The area of agreement included fundamental rights, judicial review, languages, citizenship, principles of state policy, the creation of an ombudsman.

Although the SLIP has been consistent in its opposition to the Executive Presidency and some aspects of proportional representation its principal concern appears more procedural than substantive.

It protested against the total repeal of the Republican Constitution of 1972 and favoured the interdiction of a Third Amendment containing substantive alterations to the existing instrument.

This position appears to have been further hardened by the addition of controversial provisions in the general and transitional chapters after the Committee Report had been tabled.

The SLFP dissent accordingly warned ominously:

“The sanctity and continuation of a Constitution depends on public acceptance of its provisions. If at the next elections the people grant us a mandate to do so, we shall introduce a Constitution consistent with the views expressed (in our dissent) and the Republican Constitution of 1972”.

The problem still remains whether the Constitutional exercise which appears instrumental, can nevertheless acquire the formal attributes of a consensual instrument. The system of proportional representation provides the clue to this problem, and we must now briefly examine its main elements and their implications for the process of Constitution making.

The rationale of proportional representation is clearly articulated in the report of the Select Committee which states that the present system is inadequate in that it is not fairly representative of the political opinion within the country.

It points out that in 1970, the Sri Lanka Freedom Party was able to secure 603 per cent of a the total number of seats in parliament although it received only 36.9 per cent of the total

vote. On the other hand, the United National Party with 37.9 per cent of the total vote was only able to secure 11.2 per cent of the total number of seats.

In 1977, the United National Party with 50.9 per cent of the total votes secured 83.3 per cent of the seats while the Sri Lanka Freedom Party with 29.7 per cent of the total votes secured only 4.8 per cent of the seats.

It should be noted that the 13 per cent swing for the United National Party resulted in a 22 per cent gain in representation while the negative swing of 7.2 per cent for the Sri Lanka Freedom Party resulted in 55.5 per cent loss in representation. The report reiterates that this is not merely unfair but leads to political instability.

We must then digress to examine the main elements of proportional representation which are found in Articles 135 to 139 of the Constitution.

Firstly, the identification of the districts as the basic electoral unit. A Delimitation Commission will dive the country into several electoral districts. These electoral districts shall be one or more administrative districts. They shall remain unchanged thereafter.

Secondly, the principle of allocation of seats. The total number of seats will be frozen at 196; each province would be allocated 4 seats to be distributed amongst the districts contained within the Province. The remaining 160 seats would be distributed amongst the several electoral districts according to the number of registered voters. As the population increases the number of registered voters will con increase.

Thirdly, the voting would be for political parties and not for individuals. Recognized political parties present a list of candidates and voting could be based on such lists. There will be no independents unless they could be based on such lists. There will be no independents unless they form a group and present a common list of candidates.

Fourthly, the concept of a cut off vote. This means in effect that if a political party or a group of individuals receive less than I /8ths of the total number of votes cast, these votes would be cancelled and the political party concerned would not be able to return a candidate to the National Assembly.

I have elsewhere examined the impact of each of these elements on the growth of the party system. It would be sufficient for this purpose to summarise some of the major criticisms of proportional representation.

Firstly, one of the consequences of the District being recognized as the electoral unit, would be to eliminate the parliamentary electoral and erode the relationship that has evolved between the Member of Parliament and the Constituency.

The parliamentary electorate has evolved into a distinct political sociological and territorial entity. Within its framework there has evolved a system of social relations w between the Member of Parliament and his constituents. This includes the system ofreciprocity by which constituents asserts the right to make demands upon their representative for jobs for governmental benefits and the corresponding duty to be responsive to these demands.

The Member of Parliament influenced the allocations pf resources and even mediated inter personal conflict. It is difficult to see how this system of reciprocity and the network of social relations within which it was contained could replicate itself within a District. The choice of a district as the basic electorate unit would severe the lines of accountability between the representative and the electorate.

The second criticism relates to that of area of weightage. The issue of representation has been one of immense controversy in the political relationships between various communities. We are all aware that the formula for balanced representation presented by the All Ceylon Tamil Congress was not accepted by the Soulbury Commission.

The Commission held that representation should be on two principles, viz, one member for every 75,000 inhabitants and an additional member for every 1000 square mile radius.

The object of area weightage was to give additional weightage to the minority communities so that the Northern and Easter Provinces were given eight additional seats and the remaining provinces were given 17 seats.

Article 136(4) has reversed this process of weightage by providing that each province will be entitled to 4 seats which in effect means that the ratio of 8:17 has now been escalated to one of 8:28. The additional bonus of 11 seats by increasing the representation of the majority community will undermine the very purpose for which area weightage was introduced.

The third problem relates to electoral lists. One of the implications of a list system is that the power of returning individual representatives effectively shifts from that of the electorate to that of the political party.

The nomination of candidates and the ranking of candidates become issues of immense importance over which the political party would have control. Under the system of election for Local Government the party lists of candidates would not even appear on theballot paper.

No doubt there are other means by which these lists can be disseminated among the electorate. The system of lists have adopted places a greater distance between the individual voter and the individual candidate who would ultimately be returning to Parliament.

It is therefore submitted that system of proportional representation must be preceded by a demonstration process within the political party itself The enormous power that the leadership enjoys in the nomination of candidates, must be modulated to ensure greater accountability to and consultation with the rank and file of the parties.

Most political parties have a organisational structure in which decision making is delegated by the Party Convention to a hierarchy of Committees. But the formal organization often conceals that the real decision making is concentrated in the higher reaches of the leadership. Democratization should find expression both in form and spirit.

Let me revert to the general theme of this article. Does proportional representation provide the answer to whether the new Constitution would evolve into the ‘instrumental’ or ‘consensual’ type? Article 82(B) provides that a Bill for the amendment of repeal of a constitution would require —

(a) a special majority of two thirds of the members of the National Assembly

(b) a majority of the members of the National Assembly plus the approval of the people at a Referendum.

Given the pattern of electoral voting that we have seen over the past three decades, it is unlikely that any of the recognized political parties would be able to capture the legislative majority necessary to enact a Constitution of the instrumental type.Proportional representation would entrench an instrumental Constitution and clothe it with the permanency of the consensual type. The President further implied during the deliberations of the Selection Committee that the new reality could compel the UNP and the SLFP to abandon the policies of partisanship and evolve the political style of consensus.

“Are you not always thinking in terms of the old British System — that the two party system or the three party system will survive? Can we not go ahead of that? Can we not think of a national way?”

On this reasoning proportional representation could foreshadow a transformation in the style of electoral politics and the emergence of a new configuration of power.

On the other hand, there are many who are skeptical of this theory. They content that no formula for representation could per se lead to such transformation.

Consensual politics can only emerge out of a climate of political accommodation. And unless a conscious effort is made to create such a climate, it would require little legal ingenuity to work around the entrenched procedures of constitutional change to reate another ‘legal revolution’.

We would then be thrown back into the cycle of making and unmaking of instrumental Constitutions from which proportional representation can provide no escape.