Rethinking Democracy: Addressing Sri Lanka's Electoral System Flaw in Preference Voting

 The Issue

Laws should be explicit and unambiguous. However, the Constitution of the Democratic Socialist Republic of Sri Lanka and the Presidential Elections Act (No. 15 of 1981) do not fully meet these criteria.

This article exposes a major flaw in both the Constitution and the Act related to the preference voting system in presidential elections.

Presently, preference votes are disregarded when a candidate receives more than 50% of the valid votes, a common occurrence since the enactment of the Act.

However, given the significant changes in Sri Lanka's political landscape over the past three years, compounded by the COVID-19 pandemic and economic challenges, it is increasingly improbable for any candidate to secure such a majority.

This situation highlights a serious concern: if preference votes come into play because no candidate achieves the 50% threshold, the final winner may not truly reflect the majority's will.

This flaw emphasizes the urgent need to meticulously review and possibly amend the Constitution to better embody the democratic tenet of majority governance.

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Election Results :  Past and 2024 opinion polls

Theses give percentages of votes in actual president elections.

 

year	UNP/NDF	SLFP/SLPP /PA	JVP/NPP	SLTC	SLMP	first two	bal
1982	52.9%	39.1%	4.2%	2.7%	0.0%	92.0%	8.0%
1988	50.4%	45.0%	0.0%	0.0%	4.6%	95.4%	4.6%
1994	35.9%	62.3%	0.0%	0.0%	0.0%	98.2%	1.8%
1999	42.7%	51.1%	4.1%	0.0%	0.0%	93.8%	6.2%
2005	48.4%	50.3%	0.0%	0.0%	0.0%	98.7%	1.3%
2010	40.2%	57.9%	0.0%	0.0%	0.0%	98.0%	2.0%
2015	51.3%	47.6%	0.0%	0.0%	0.0%	98.9%	1.1%
2019	42.0%	52.3%	3.2%	0.0%	0.0%	94.2%	5.8%

 

This gives a set of opinion poll for 2024 presidential election.

(Polling firm - Institute for Health Policy)

Date	Dissanayake NPP	Premadasa SJB	Wickremesinghe UNP	SLPP	Lead	Margin of error	Sample size	first 2 total	others
Dec-23	50.0%	33.0%	9.0%	8.0%	17.0%	±1–4%	14941	83.0%	17.0%
Oct-23	51.0%	30.0%	13.0%	6.0%	21.0%	±1–4%	567	81.0%	19.0%
Sep-23	46.0%	29.0%	17.0%	8.0%	17.0%	±1–3%	599	75.0%	25.0%
Aug-23	38.0%	35.0%	18.0%	9.0%	3.0%	±1–3%	556	73.0%	27.0%
Jul-23	39.0%	33.0%	19.0%	9.0%	6.0%	±1–3%	466	72.0%	28.0%
Jun-23	40.0%	35.0%	15.0%	9.0%	5.0%	±1–3%	506	75.0%	25.0%
May-23	38.0%	34.0%	18.0%	10.0%	4.0%	±1–4%	630	72.0%	28.0%
Apr-23	45.0%	37.0%	13.0%	6.0%	8.0%	±1–4%	580	82.0%	18.0%
Mar-23	48.0%	37.0%	11.0%	4.0%	11.0%	±1–5%	521	85.0%	15.0%

 

This clearly shows following points:

1.     Until now, counting preferences was unnecessary, as a majority of over 50% was consistently achieved.

2.     In 2024, a preference count is likely to be needed.

3.     Historically, the first two candidates secured more than 90% of the votes, but in 2024, this might decrease to 70% or less.

4.     Consequently, parties outside the top two could garner around 30% of the votes in 2024.

5.     Drawing from firsthand experience as an election official, including overseeing numerous elections, there is evident confusion among voters regarding preference marking and inconsistency among officials in manual preference counting. While this was not a concern in Presidential Elections, it has been an issue in Parliamentary and Local Government Elections. The prospect of a closely contested election could complicate preference counting significantly.

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Challenges and Prospects in Sri Lanka’s Electoral Leadership and Process

The current Sri Lankan president, appointed by Parliament following the predecessor's resignation, was not elected through a popular vote but received his seat based on the party’s total vote tally. This method of appointment has raised doubts about the mandate's legitimacy, exacerbated by controversial reforms he initiated. The situation highlights a broader issue with the electoral system, particularly as the country transitions to nationwide elections with likely preference counting.

Historically, the electoral process has been straightforward, with more than 50% of the votes typically going to just two parties, ensuring clear winners. However, recent political and economic shifts indicate a move towards a more fragmented electorate, with no party likely to secure an outright majority. This change necessitates a reliable preference counting system to ensure that future presidents genuinely represent the majority's will.

The evolving political landscape, marked by the rise of smaller parties and changing voter sentiments, underscores the urgent need to refine the preference counting mechanism. This approach should address past challenges of manual vote tallying and adapt to the current realities, where a more diverse vote distribution may occur. Ensuring an electoral system that accurately captures the voters' preferences is crucial for maintaining the integrity and fairness of Sri Lanka's presidential elections.

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The Constitution of the Democratic Socialist Republic of Sri Lanka

 

Article 93. Election to be free, equal and secret

 

The voting for the election of the President of the Republic and of the Members of Parliament and at any Referendum shall be free, equal and by secret ballot.

 

 

Article 94. Election of the President

 

(1) At the election of the President every voter while casting his vote for any candidate may -

 

         (a) where there are three candidates for election, specify his second preference; and

 

         (b) where there are more than three candidates for election, specify his second and third preferences.

 

(2) The candidate, if any, who receives more than one-half of the valid votes cast shall be declared elected as President.

 

(3) Where no candidate is declared elected under paragraph (2) of this Article, the candidate or candidates, other than the candidates who received the highest and second highest number of such votes, shall be eliminated from the contest, and –

 

(a) the second preference of each voter whose vote had been for a candidate eliminated from the contest, shall, if it is for one or the other of the remaining two candidates, be counted as a vote for such candidate and be added to the votes counted in his favour under paragraph (2); and

 

(b) the third preference of each voter referred to in sub-paragraph (a) whose second preference is not counted under that sub-paragraph shall, if it is for one or the other of the remaining two candidates, be counted as a vote for such candidate and be added to the votes counted in his favour under sub-paragraph (a) and paragraph (2),

 

and the candidate who receives the majority of the votes so counted shall be declared elected as President.

 

(4) Where an equality is found to exist between the votes received by two or more candidates and the addition of one vote would determine –

 

(a) which candidate is to be declared elected under this Article; or

 

(b) which candidate is not to be eliminated under this Article,

 

then the determination of the candidate to whom such additional vote shall be deemed to have been given for the purpose of such determination shall be made by lot.

 

 

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A practical example involves three primary parties: Pohottuwa, SJB, and NPP

 

Pohottuwa secures the majority of votes, predominantly from staunch supporters.

SJB garners the second-highest vote count, mainly from undecided voters,

while NPP ranks third, also receiving a significant portion of their votes from staunch supporters.

 

The SJB's base of undecided voters, seeking change and not favoring the incumbent party Pohottuwa, tend to give their secondary preference to NPP.

Thus, while these voters primarily support SJB, they prefer NPP as a secondary choice if SJB cannot secure a win.

 

On the other hand, voters for Pohottuwa and NPP, being staunch supporters, are less likely to allocate their preferences to other parties as they do not wish for any other party to prevail.

 

Given SJB's position as the runner-up, it remains a contender in the preference tally. However, the final outcome sees Pohottuwa victorious,

 

contrary to the desires of the majority who preferred either SJB or NPP over Pohottuwa.

 

This situation brings into question the principles outlined in "Article 93. Election to be free, equal, and secret," specifically the aspect of equality.

The stipulation demands that the electoral process for the President of the Republic, Members of Parliament, and any referenda be conducted freely, equally, and through secret ballot.

 

The contested outcome suggests a breach of the 'equality' component, indicating a discrepancy between the election result and the broader electoral preference.

 

 

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Understanding Sri Lanka's Hybrid Electoral System

Sri Lanka's electoral framework has evolved into a hybrid model, influenced by both the French and Irish voting systems, since transitioning to a French-style executive presidency in 1978. Here's how these influences play out:

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Irish System Overview:

In the Irish system, known as Single Transferable Vote (STV), voters rank candidates in order of preference. The counting process eliminates the least popular candidates sequentially, redistributing their votes to remaining candidates based on voter preferences until someone achieves a majority.

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French System Overview:

The French electoral system operates through a two-round process. Initially, voters choose among all candidates. If no candidate gains a majority, a second round takes place between the top two, allowing voters to reassess and make a final decision.

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Contrast with Sri Lankan System:

Sri Lanka's electoral system, a hybrid of French and Irish models, allows voters to rank candidates similarly to the Irish system's preferential voting. Unlike Ireland's sequential elimination, Sri Lanka historically focused on two main parties, quickly narrowing down to the top two candidates and bypassing lesser parties. This contrasts with the French two-round system, which provides a reflective interlude for voters to reassess their choices, highlighting differences in how each system handles voter preferences and democratic representation.

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Conclusion and Legal Pathways for Electoral System Reform in Sri Lanka

Sri Lanka must amend its constitution and election laws to ensure electoral integrity and avoid the socio-political unrest and financial waste of past flawed elections. The judiciary's proactive role is essential, allowing for preemptive judicial review to correct potential constitutional discrepancies and avoid political manipulation. This approach ensures the electoral system's alignment with democratic principles, accurately reflecting voter intent and fostering a stable, financially prudent, and democratic process. Legislative and public support, combined with judicial oversight, is vital for the timely implementation of these necessary reforms.

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