13th Amendment Plus – Is a senate a sufficient safeguard for minority rights?

In a document entitled ‘National Policy on Reconciliation: Working Document – Draft One,’ dated 12 March 2012, under the caption ‘The Strategy,’ in Paragraph B – ‘Political Participation and Administrative Accountability,’ the authors Prof. Rajiva Wijesinha and Salma Yusuf, have stated inter alia that:

‘The Constitution will be amended to provide for a Second Chamber of Parliament based on the principle of equal representation for all Provinces. Legislation in particular areas should require two thirds of the Senate in addition to two thirds of the First Chamber, to facilitate a check on legislation that might seem majoritarian in intent. Ordinary legislation shall require to be passed in the Second Chamber too, with provision for joint sessions to resolve any dispute after the passing of a prescribed period.’

The reference to legislation ‘majoritarian in intent’ clearly indicates that this body is designed to protect minority rights.

Establishment of a second legislative chamber

Establishment of a second legislative chamber is an option which is resorted to allow constitutional builders to permit different forms of representation in the legislature. Whereas representation in First Chambers often is proportional and population based, a Second Chamber can be used to represent territorial representation, as in this case, indicated by the statement ‘based on the principle of equal representation for all Provinces’.

This bicameral model legislative chamber is a design adopted by around 80 countries worldwide. In the Westminster system of Parliamentary democracy the bicameral system was utilised to address the separation of interests between noblemen, the House of Lords and the commoners, the House of Commons.

Over time however the power of the House of Lords has been drastically curtailed, transforming that chamber into almost an advisory body. There are current reforms being contemplated, to further transform its role. Lesotho has such an ‘aristocratic’ second chamber, probably the only one, in the whole world. Second chambers could also have reserved representation for certain societal groups, such as appointed members of traditional ethnic groups, as in the House of Chiefs in Botswana. Although it has limited legislative power, the House of Chiefs must be consulted by Parliament on tribal matters and changes to the Constitution.

In Morocco, trade unions and industrial and agricultural representatives select two fifths of members of the second Chamber. In Ireland, cultural, educational, agricultural, labor, industrial, commercial, administration and social service sectors select 70% of members of the second Chamber.

In Malawi around one third of the members of the second chamber are chiefs, selected at caucus of chiefs in the respective districts, another third are selected from a list of candidates nominated by interest groups such as women’s organisations, the disabled, and sectors such as health, education, farming, civil society, religious groups and business. But the most predominant type of representation is for territorial units as provided in the Draft Working Document on National Policy on Reconciliation.

Attitude on need for a second chamber

The attitude to the need for a second chamber differs from country to country. Countries like the Czech Republic and Poland have in the recent past introduced second chambers, while countries like Croatia, Kyrgyzstan and Senegal have abolished them.

Readers would recall that we in Sri Lanka, abolished in 1972, the Senate which was an integral part of Ceylon’s 1948 Soulbury Constitution. That Senate was an upper chamber which was an oxymoron and a dinosaur, a waste of taxpayers’ money; it generally blindly followed the political party whip dictated by the lower House of Representatives.

Rarely were dissenting or alternative views expressed, given any credence or paid attention to. Although there were generally people of some ability and standing in the Senate, its utility as a constitutional mechanism to improve the governance of the nation can be well captured in this perennial favourite rugby doggerel: ‘Why was he born so beautiful? Why was he born at all? He’s no bloody use to anyone. He’s no bloody use at all!’

If the authors of the Working Draft on National Policy on Reconciliation have this kind of second chamber in mind the whole exercise is a colossal waste of time, intellectual energy and money. The Draft, fortunately, indicates otherwise.

The justification and rationale for a second chamber can be spelt out in the following manner. To increase forms on representation, to provide an institutional solution for the expression of points of view and opinions that will not be able to penetrate the political morass of competitive elections.

Practically it will not always be possible to house all alternative points of view and representation of such views under the single institutional roof of a single chamber. The experience Sri Lanka has had, with the Colebrooke constitution, the Doughnomore Constitution and the 1972 and 1978 republican constitutions bear this point out very well.

A second chamber can also avoid the enactment of hastily drafted, ill-conceived laws, motivated by sudden impulses. Time is provided for a deliberative review and serious consideration. The need for such an institutional mechanism is established beyond any reasonable doubt, when one considers the recent Expropriation Law of Underutilised and Underperforming enterprises. It was badly drafted, one analyst described the quality of drafting as ‘below putrid’.

The Supreme Court to which the bill was referred by the cabinet of ministers as an urgent bill, a historically, serially abused provision of the constitution, generally abused to rush ill conceived laws without an opportunity for adequate nor effective judicial or public scrutiny, was constrained to inquire, in an unprecedented intervention, whether the GOSL’s Legal Draftsman’s Department, was involved in preparing the legislation!

The legislation is supposed to have got some of the names of the so called underperforming and underutilised corporates plain wrong. Some of the entities referred to in the schedule, are said not to come within the definition of properties the law is intended to be used against, as spelt out and defined in the Act itself.

One corporate, which was under liquidation and the owners, had reconciled itself to only getting the ‘salvage’ price for the equipment on site, but after it was included in the schedule to the act, the owners wasted no time to put in a claim for compensation based on purchase price plus reasonable deduction for wear and tear!

In the same way, under the 1972 Republican Constitution’s National State Assembly, in a kneejerk reaction to the 1971 youth rebellion, enacted a series of laws, imposing ceilings on land ownership, housing ownership and incomes. These laws effectively killed agricultural productivity, created a national housing shortage by house construction grinding to a halt and took away the incentive to make profits by legitimate business’s as ceilings were imposed on the income that could be made, and any entrepreneur who had a viable business idea could only implement it, under the cover of the black market. Surely if there was a second chamber, with power, where such kneejerk and ill conceived laws had to be reviewed, there would have been some reasonable filtration and rationalisation?

Important role

This is another important role the second chamber can play – to alleviate and avoid the tyranny of a majority in the first chamber, where majoritarian points of views are legislated using the blunderbuss of an overwhelming number of votes without any consideration for minority views. It is salutary that the Draft on a National Policy on Reconciliation specifically provides that –‘Legislation in particular areas should require two thirds of the Senate, in addition to two thirds of the First Chamber to facilitate a check on legislation that might seem majoritarian in intent’.

In addition a second chamber will provide enhanced oversight and control of the executive. In the present context with the Executive Presidency being all powerful and overwhelming other arms of government such as the legislature, the judiciary, the press, the Provincial Councils and the local governments, the armed forces, the police service and the public administration, especially in terms of the insidious 18th Amendment to the Constitution, a second chamber, to check the executive, is essential and vital if democracy, as we have known it in the past, is to survive.

A second chamber will also make governments much more responsive to special interests, which would otherwise be steam rolled into abject submission. When power is divided, in a bicameral system, and a second chamber, which is empowered, has to be meaningfully consulted, other than an all powerful executive presidency and a tyrannically majoritarian first chamber, lobbyists of powerful vested interests have to canvass a much wider spectrum of support for policies to be implemented.

Rent seekers cannot deliver through a single port hole, where there are many port holes and apertures which can, metaphorically, let in the light, on a transaction or a process. This was well placed in the public domain, when recent legislation to declare lands of historical, archaeological and social etc. importance and vest such properties forthwith in the state was challenged before the Supreme Court, on the ground the 13th Amendment to the Constitution required that such laws have to get the prior approval of the Provincial Councils.

A second chamber would have provided a platform for this point of view to be raised, and the sycophants who were misleading the executive would have been exposed, rather than the executive having to be embarrassed by the Supreme Court.

Requirement of compliance

When a constitution has concurrent, national and provincial lists of subjects and functions, this naturally also imposes a requirement of compliance with the constitution; analysts make two points in this regard.

One, that a concurrent list is an opportunity for majoritarian views to be imposed over provincial points of view and should be done away with. Two, there is a strong case for a fourth list – ‘A Local Government List’ – to be included in the constitution to allow Municipal Councils, Urban Councils and Pradeshiya Sabha, etc. to have a constitutionally sanctified demarcated area of authority. Some analysts further argue that fifth ‘Grama List’ be also introduced to allow residents of Grama Niladhari Division to have an authority to act in their own area on matters which fundamentally concern them. The Indian Panchayats, President Premadasa’s Gramodaya Mandalayas and the recently proposed Jana Sabha are all possible models.

The drafters of the National Policy for Reconciliation would be well advised to consider these possibilities, if the majoritarian steam roller which has caused untold miseries to our nation is to be seriously diluted. This is a method of enhancing representation of different sectors by disaggregating, the power of the legislature horizontally, by, in addition to introducing a second chamber, creating regional or territorial legislatures.

The principle of subsidiarity, if applied, i.e. the power and the financial responsibility of carrying out a function must lie with the authority closest to its implementation, will really make for responsible accountable government. Subsidiarity is an organising principle that matters ought to be handled by the smallest, lowest or least centralised competent authority. The Oxford Dictionary defines subsidiarity as the idea that a central authority should have a subsidiary function, performing only those tasks which cannot be performed effectively at a more immediate or local level.

Four main methods of selection

There are four main methods of selection of members for a second chamber. The first is to represent political or administrative sub units of the nation, elected directly by the people either by first past the post or proportional representation. . The Draft National Policy on Reconciliation seems to be on this route with a reference to ‘equal representation for all Provinces’. Many nations have this model – Argentina, Australian, Indonesia, Italy, Switzerland and the United States of America are examples.

The second method is that the legislatures of the sub units elect representatives to the second chamber. This method is found in Austria, India and Ethiopia, by a majority of votes of the legislatures of the sub units or by proportional representation. France has a unique system; senators are elected by an electoral college composed of representatives from legislative assemblies of the various levels of government, the French equivalent of the Sri Lankan Parliament, the Provincial Councils and local governments.

In France in fact 95% of the senators come from the (local government) municipal level. Such a senate will really reflect the diversity of the country. The third method is where the state government, our Provincial Council, appoints members to the second chamber as in Germany. The Fourth is based on nominations by the state governments, our Provincial Councils; the federal government appoints members to the second chamber as in Canada.

Opportunity for other ‘non political’ groups

There is also an emerging body of opinion that for emerging democracies , it would be fatal error to limit representation in the second chamber to what is referred to as the ‘political class’. What is referred to as ‘political class’ here are professional politicians, who are, have been or aspire to be, members of national or provincial or local legislative bodies.

The very essence of a democratic process is participation, and the second chamber should be an opportunity for other ‘non political’ groups, such as chambers of commerce and industry, organisations of professional associations, trade unions, civil society organisations, women’s groups, youth groups, religious organisations to have representation, as in many countries, so that points of view which would not be put forward by members of the ‘political class’ could be expressed.

The ‘political class’ is represented already in the legislatures at the various levels of government – national to provincial to local. The argument is that a second chamber at the national level is the ideal forum for alternative points of view, which are found within a nation to be provided with a platform to express itself.

Criteria on which such representation (of Senators not elected from the Provinces) will have to be carefully worked out, with an autonomous Credentials Committee which would manage the process of selection through a transparent, accountable and participatory process and test the validity of nominations made, against the criteria, would be essential. Also an Ombudsman who would adjudicate challenges to the Credentials Committee’s decisions, on a fixed time table, may be with a power of judicial review on a point of law alone, by the Supreme Court, again to be determined within a timeframe.

Some suggested criteria would be gender, race, religious and age balance in the second chamber reflecting national demographics and for a country with literacy attainment such as ours, the education profile of the second chamber members should reflect the national averages. For example, since around 2.5% of the population have a university degree or an equivalent professional qualification, it is logical that the second chamber representation reflects this.

Legislative competencies

On the issue of legislative competencies of a second chamber, it varies, worldwide, from being a purely advisory and consultative body to having the power to initiate, delay and also veto legislation. Most constitutional models allow the legislation that is delayed or vetoed by the second chamber to be enacted through a process such as a second passage through the first chamber, a referendum or a joint bargaining process between the two houses. The ‘joint session’ referred to in the Draft indicates this path.

The 13th Amendment to Sri Lanka’s 1978 Constitution, is already at a ‘minus’ position as there have been doubts cast on the land and police powers in the Provincial list being actually given. If this ‘minus’ is to be transformed to a ‘plus’ by creating a second chamber with power to limit majoritarian urges with equal representation from the Provinces, it would be vital that provisions be made also for:

1. Alternative representation of the non ‘political class’ in the second chamber

2. The second chamber to have real authority to stall unacceptable legislation, (the ‘joint session’ solution proposed would do, provided the Senate is empowered to bargain hard to strike an acceptable deal)

3. The political party whip which dominates the first chamber will have no application in the second chamber

4. Since Provincial representation is intended, some Senators will be elected on proportional voting from the Province as the electoral unit.

Legislation will have to considered on its merits in the second chamber by delegates who represent interests other than those solely represented by the ‘political class’ in the first chamber. Without this, the chances of 13- ever becoming 13+, by creating a second chamber, are remote.



(The writer is a lawyer, who has over 30 years experience as a CEO in both government and private sectors. He retired from the office of Secretary, Ministry of Finance and currently is the Managing Director of the Sri Lanka Business Development Centre.)