Tuesday, 4 November 2014 00:26
Empowering the voter
Recently, in Britain, the Queen in her speech at the opening of a new session of Parliament announced that legislation will be introduced which will allow voters to sack misbehaving MPs. This landmark legislation, called the Recall of MPs Bill, will allow constituents to force a by-election if an MP, in their view, behaves badly.
A petition to Recall, as proposed by the Monarch, will require the signatures of a minimum of 10% registered voters, to be obtained and submitted within an eight-week timeframe. As proposed, the new power of Recall will be triggered only if MPs are given a jail sentence or if the House of Commons is of the view that the MP concerned has engaged in serious wrongdoing.
Britainâs Prime Minister David Cameron said that he regarded the proposed Recall of MPs Bill as only a bare minimum of what was acceptable. The draft legislation was due for debate in the House of Commons at the Palace of Westminster early this month.
The Queen in her speech said: âMy ministers will introduce legislation on the Recall of Members of Parliament. The purpose of the Bill is to a fill a gap in the regulatory oversight of MPs by allowing voters to trigger a by-election where an MP is found to have engaged in serious wrongdoing and has had a petition calling for a by-election signed by 10%of his or her constituents. The main benefits of the Bill would be to enhance accountability of MPs to their constituents by giving the public a direct voice in forcing a by-election when an MP has been found to have behaved in a way that falls well below the standard expected of them. It will also establish a Recall mechanism which would be transparent , robust and fair and which would not lead to MPs facing frequent and unnecessary distractions from carrying out the job for which they were elected.â
The British Government in a statement said: âIt is working to reform the political and constitutional system in UK to help restore peopleâs faith in politics and politicians. We want to make politicians and public services more accountable by giving people the ability to recall their MP and devolving more power to local services and communities. We also need to update some of the way our Constitution works, such as reforming the way people register to vote to make the electoral registration system more effective and efficient.â
The Bill would give the electorate the power to hold to account and take action against an MP who has engaged in serious wrongdoing but, under current laws, can stay in their seat until the next general election. The main elements of the Bill are that it would establish a Recall mechanism giving constituents the opportunity to sign a petition to trigger a by-election where an MP is convicted in the UK of an offence and receives a custodial sentence of 12 months or less (in Britain, by law, a custodial sentence of more than 12 months means an MP is automatically expelled) or the House of Commons resolves that an MP should face a recall petition.
The Committee which recommended the process accepted that it would be a novel mechanism for Britainâs political landscape. However, the expenses scandal which engulfed the MPs in the last Parliament highlighted the public dissatisfaction over their inability to hold their MPs to account. Readers know that Britain has an âunwritten constitutionâ based on a number of laws, judicial decisions and conventions, which Walter Bagehot famously termed âBritainâs living constitutionâ. Introduction of the Recall provision is a further evidence of this unending evolution of the regulation of the process of Government which has gone on for centuries in Westminster, the mother of Parliaments.
The world over in most electo-cracies (where irregular elections, not generally free or fair, are held where there is hardly any legal, conventional or âdecent behaviourâ constraint on the abuse of power by members of elected legislatures, in the manner of the Rule of Law, Equality before the Law or principles of good governance, an independent judiciary and autonomous police force and administration, etc.) or even in the so-called âfive starâ democracies, voters over time develop contempt for their elected representatives. This is generally brought about by the boorish and corrupt behaviour of the MPs and their families, other relatives and acolytes.
Attitude of the average American voter
One of the best descriptions of this phenomenon is by an American analyst describing the attitude of the average American voter towards their Congressmen and women. I quote: âIt is not hard to discern how most Americans look at Congress, whether in public opinion polls or person-in-the-street interviews. They know they have to live with them, but they hope to have little contact as possible. Can Congress blame us for feeling this way? Year after year, the Congress seems hopelessly deadlocked on issues of immediate concern to the country. Global warming? It needs more evidence, may be deep water in the streets of coastal cities. How about reform of our complicated special interest driven tax system that remains a national disgrace â arguably the worst of the industrial world? This is never a priority. Healthcare for millions of uninsured Americans? It always appears to be on the agenda for the next decade or the one after that. (This was written before Obama-care was made law.) A balanced budget so that the national debt can be whittled down trillions of dollars of debt before it completely consumes our ability to meet tithe growing needs of an expanding population? But that would cost special interests their pet programs, corporate subsidies, and tax breaks â and they fund Congressional membersâ campaigns. It would also mean disappointing legions of well-paid lobbyists who have developed close relationships with long-serving members of Congress. The lobbyists deliver lots of campaign cash, and whatever the ethics and laws, they find ways to richly reward their legislative friends. Instead of seeing positive action, Americans witness headline after headline of Congressional corruption. Some is the old style sleaze â bribery, influence peddling, and personal scandals reflecting ancient vices â that reeks of a sense of entitlement. Other Congressional fraud reflects modern forms of dishonesty. The Congressman, in cahoots with their allies in the State legislatures, have cooked the redistricting books, using sophisticated computer programs to draw the district (electorate) boundaries in such a way that they can almost never lose re-election. The campaign finance laws are deliberately tilted in the incumbentâs direction, too. Itâs wrong and cynical to dismiss all of this as the inevitable consequence of the corrupting power of, well, power. (Remember Lord Acton â âPower corrupts, absolute power, corrupts, absolutelyâ.) What we have not focused on enough (in the USA) is the effect that the rules and structures of the American constitutional system have in encouraging the corruption. Some fraud is likely under any regime and any legislature will be out of public favour most of the time. But the degree and depth of corrupt practices can be reduced over time with sensible reforms. In some ways we can pity the poor Congress. It is not popular now and it has never been popular save for brief periods during national crises. Right from the very beginning, Americans instinctively distrusted the legislative branch and made fun of it. One of the earliest ditties summed up the peopleâs view well:
These hardy knaves and stupid fools,
Some apish and pragmatic mules,
Some servile acquiescing tools,
These compose the Congress!
When Jove resolved to send a curse,
And all the woes of life rehearse,
Not plague, not famine, but much worse-
He cursed us with a Congress.
These verses were directed against the Continental Congress of 1776! And published in the Pennsylvania Evening Post in that year.â
Readers will appreciate that these feelings are compounded when, in electo-cracies where the government MP is all powerful, and the voter has to beseech the governing party MP, his family, other relatives or his acolytes, on bended knee, most times with gifts, for jobs, transfers, school admissions, poor relief payments, etc. and all manner of things, which do not come within the MPâs legitimate purview, in any which way, shows how this anger with the abuse of power, very easily turns into hate. Or even when in a democracy as in Britain, in the last Parliament, blatant falsification of reimbursement claims for allowances are made on taxpayersâ money by MPs are made public.
Ceylon Chamber of Commerce proposal
It is interesting to make a point here that, sensing this anger/hate which builds up against MPs over time, the Ceylon Chamber of Commerce, as far back as August 2006, responding a request from the Government for âPublic Representations on the National Question,â proposed among other things, a âMechanism for Recall of Elected Representatives by Electorsâ. Proposal 17 made to the Committee appointed for the purpose by the Government, was that:
âWe recommend the inclusion of a provision enabling twenty per centum (20%) or more of the voters who voted at the previous election for a territorial constituency to present a petition to the Election Commission, requesting the recall of the member elected to that territorial constituency. The Election Commission will be required to hold a referendum to ascertain whether the member should be recalled or not. If a majority of the voters vote for the recall of the member, the member is deemed to have vacated office and the next person on the party list will be declared elected in place of the member vacating office. If the electoral system is changed and there is a reversion to single member constituencies a by-election will held to fill the vacancy. This provision should apply to elections at all levels (Parliament, Provincial Councils and Local Authorities) The power of the electors to recall a member can be exercised only after the member has completed at least two years of his term of office.â
The Ceylon Chamber of Commerce should be proud and take credit for the fact that it suggested this important groundbreaking reform a full eight years before even the Queen of England, Elizabeth II, got around to suggesting the same identical proposal to the Mother of Parliaments at Westminster.
In Sri Lanka it was made in the context of a number of assassinations of elected representatives over the years, including Solomon Bandaranaike, Alfred Duraiappah, Lionel Jayatilaka, Sam Tambimuttu, Appapillai Amirthalingam, Vettivelu Yogeswaran, V. Alalasunderam, V. Dharmalingam, A.H.M. Ashroff, M.E.H. Mahroof, R. Premadasa, Gamini Dissanayake, Lalith Athulathmudali, G.M. Premachandra, Weerasinghe Mallimarachhi, C.V. Gooneratne, Abdul Majeed, Jayaraj Fernandopulle, and many others, at various times for various reasons.
Readers would recall that just after the Indo-Sri Lanka Accord was signed, the Western Provincial Council for a number of months was compelled to begin its monthly meeting with an obituary reference to a Member of that PC who had been assassinated in the preceding month. Given this high mortality rate for elected politicians, the Ceylon Chamber was eminently sensible in suggesting a Recall mechanism, which may hopefully avoid the need for the tragic âfinal solutionâ.
The Report of the Committee was an excellent one, containing many sound ideas which would go a long way in solving most of the causes of racial strife in Sri Lanka, incorporating many of the Ceylon Chamberâs proposals, was, predictably, shot down and drowned, in a sea of manufactured and simulated confusion, as to whether some official âmembersâ appointed were âfull membersâ with voting powers or mere âadvisorsâ without voting powers! All because the proposals were unpalatable to the powers. It was one of the most pathetic episodes in the history of public administration of this âthrice blessedâ âWonder of Asiaâ.
The Recall provision has been described by Constitutional Law experts as a direct democracy procedure that allows a specified number of citizens to demand a vote for the electorate on whether the an elected older of public office should be removed from that office before the end of his or her term. The definition implies that the Recall must fulfil a set of requirements, which distinguishes this procedure from others aimed at terminating an elected officialâs period in office, such as impeachment.
To be considered an instrument of direct democracy, the process of legally interrupting the period in office of an elected official must involve the initiative and/or the vote of the electorate. When the initiative and the decision to do this come exclusively from the legally-established authorities, such as the legislative or the judicial branch, and do not require the votersâ involvement at any phase of the process, the procedure is more properly called impeachment.
The Recall procedure is most participatory when both the initiative and the approval of the recall require the direct intervention of the citizens, first as the initiators of the request and second by expressing their support for or rejections of the initiative by casting their votes in a referendum. This is defined as a Full Recall. In contrast, a Mixed Recall is where the citizens intervention is required to support or reject through a vote in a referendum a decision, taken by some other authoritative body or the citizens may initiate the request which is then subsequently processed and approved by an authoritative body. Both the British Government and the Ceylon Chamber have proposed a Full Recall.
Experts have expressed the view that a Recall procedure is more coherent with a presidential system of government (with a directly-elected executive official, as in Sri Lanka) than with a parliamentary system of government. There need not be any legal grounds for a Recall. It is totally a political instrument through which the voters in a particular electorate can express their dissatisfaction with a specific person they have earlier elected.
When a justification is required, the acceptable charges often cover a wide range, for example, corruption, incompetence, and criminality and so on. However, even though a Recall does not require a legal justification, the procedures for calling for a recall can be complex and have to be followed in order to activate the instrument and to proceed to the voting phase, as well as to provide for the election of a replacement for the recalled official. While in the British proposal it would be a by-election, in Sri Lankaâs proportional system, it would be the next person on the relevant political party list.
Of all the procedures of direct democracy, the recall is the least widespread, and consequently the least applied. Only a few countries have included the Recall, either the Mixed or the Full types, in their constitutional legal systems. The broadest application of the Recall is found Venezuela, where Full Recall applies to all elected officials, including the President.
The pioneering countries in the conception and implementation of the Recall at local and state levels were Switzerland at the end of the 19th century and tithe USA around the late 19th to the early 20th. US law requires that a specified number of registered voters sign the petition; the Speaker of the legislature announces before the house that the member has been recalled and a by-election follows as soon as possible, giving the voters the opportunity to replace the politician in question.
In Switzerland, Recalls are not provided for at the Federal level, while six Cantons allow Recalls. Most of these were introduced in the 1860s in the course of a broad movement for democratic reform. In the USA a number of State Governors have been successfully Recalled. Some form of malfeasance or misconduct while in office must be identified by the petitioners, in the case of a recall of a Governor. The minimum number of signatures and the time limit to qualify to Recall vary among the states. In addition, the handling of recalls once they qualify a Recall, vary among the states. In some states, a Recall triggers a simultaneous special election, where the vote on the Recall, as well as the vote on the replacement if the Recall succeeds, is on the same ballot.
A safety valve
The Recall provision is a safety valve, in effect giving the voters a civilised and peaceful method and opportunity to Recall a representative whom they have elected who does not perform to their satisfaction. In violent political environments like Sri Lankaâs, it is an essential mechanism to create a less violent, stable political process and hopefully reduce the space, opportunity and need for more violent methods of despatch.
Generally, government politicians, once elected, who are insulated from any checks and balances imposed on them by their voters, their political party or the law, for a fixed term, soon turn out to be corrupt, vindictive, arrogant, abusive, immoral and thuggish and manifest many such other negative attributes. Unfortunately, this is the reality of past experience.
Giving the voter the right to Recall will be a golden opportunity to make politicians accountable and answerable to the voters who elect them and to empower the voters. It will certainly reduce the politiciansâ mortality.
(The writer is a lawyer, who has over 30 years of experience as a CEO in both State 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.)