Constitutional-inconsistencies-relating-to-franchise: A response-by Bernard Fernando
While appreciating the recent exposures in the press by Neville Ladduwahetty under the captioned subject, the writer as a concerned sovereign voter is prompted to highlight another fundamental Constitutional inconsistency relating to the ‘Equality of Ballot’ firstly laid down in Article 21 (3) of UN’s ‘Universal Declaration of Human Rights -1948’ signed by Sri Lanka which reads as -‘’The will of the people shall be the basis of the authority of Government; this Will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.’’ It was revealed explicitly in the National press by the writer as far back as in 2015, with empirical evidence, shown from an analysis of results of 2015 General Election. Since the issue was not addressed by the authorities it was followed up with similar analysis of the results of 2020 and 2024 General Elections too.
When the original Proportionate Representation (PR) system was introduced under the 1978 Constitution, it basically attempted to give value to maximum number of valid votes and also meet the primary objective of rational seat allocation based on ‘Equal suffrage’/‘Equal value of vote’, to a much greater extent than the pre -1978-FPP system (Winner takes it all). However, the power hungry, selfish and cunning politicians kept harping on the need to have so called ‘Stable Govts.’ with big majorities. It is noteworthy that sovereign voters of ‘Aragalaya’ fame demanded a ‘dynamic’ Democracy rather than a majoritarian Democracy bordering on dictatorship.
The inconsistency Section 93 of our Constitution clearly states that ‘Voting shall be free, Equal and by secret ballot’, purportedly to comply with the aforesaid UN Declaration. However, due to unabated pressure from power hungry politicians as aforesaid, the Constitution was tinkered from time to time , finally providing for the current distortions mentioned below, that warped the ‘Equal value of vote’ with a debilitating effect on well-intentioned proportionate seat allocation.
- Creation of 22 so called ‘District Bonus seats’ without real physical backing from valid votes of relevant Parties ;
- Imposition of a District vote threshold (Since reduced from 12% to 5%), discarding large chunks of valid votes to the ‘Dust bin’ to favour Major Parties
- Pre-allocation of seats based on the No.of registered voters, on a District basis at a National General Election, when the 196 seats in the National Parliament at the Centre, should have been proportionately allocated based on real National level valid votes %, obtained by Parties, logically considering the Country as a ‘Single Electorate’.
The complex calculations and the jargon such as ‘Relevant number of Votes’ and ‘Resulting number’ or ‘Constructive figure’ etc. stated in the Constitution, that were used to achieve the said distortions discouraged the simple voters to check the veracity of seat allocations that looked mysterious and baffling. It surely lowered the transparency of the Electoral system desired by the simple voters. The Table given below analyzing the results of the 2024 General Elections will provide further concrete evidence leading to the rationale for writer’s submissions. The Table for 2020 analysis is not shown due to space constraints.
Firstly, it was seen from both Tables for the years 2020 and 2025 that, if 100% proportionate arithmetic was applied, as per Column 8 of the Tables, neither SLPP nor NPP would have obtained a 2/3rd majority. Theoretically, to obtain a 2/3rd majority, any Party should muster more than 67% of total National valid votes in a Parliament with 225 or 196 seats. A baffling exposure in the 2020 Table was that EPDP had won 02 National seats in the Parliament with 61,464 votes (.53%), while OPPP with 67,758 votes (.58%) did not obtain a single seat under 196.
Source: Columns 1 to 9 based on NEC Website results -15-11-2024
Column 10 – Based on Electorate/Seat wise results in the Press-17-11-2024 Notes
1. Highlighted columns No.6 &8 show the changes in Party seats under Existing PR distorted by, i) 22Bonus seats sans physical vote backing; ii) 5% District threshold & iii) Pre-determined fixed No. of District Seats).
2. Column 9 shows that the differences between Column Nos. 6 & 8 require a re-distribution of 22 Seats among 13 Parties/Groups arising from application of 100% PR.
3. Column 10 Based on Pre-1978 FPP system reveals lop-sided results seriously affecting ‘Equality of vote’ as happened in 1970 & 1977 General Elections.
4.The Table shows that, if the proposed 100% PR arithmetic ensuring ‘equal value’ for votes was used at the 2024 General election, the NPP would see a reduction from 159 to 139 seats which is below a 2/3rd majority. The ITAK would see a reduction from 08 to 06 seats. NDF sees an increase from 5 to 11 seats while SLPP would see an increase from 3 to 7. SB will increase their tally from1to4.
5.Most importantly, 08 new Parties/Independent groups would democratically enter the Parliament with UDV wining 2 seats while 7 other new parties/ Groups enter with 01 seat each, giving maximum possible value to valid votes, thereby forging a more inclusive and equitable mix to a Parliament with ‘Country first Political Professionals fostering ‘Sri Lankan ness’
On the other hand, the allocation of 29 National list(NL) seats based purely on 100% PR ensures that, even a Party obtaining a national vote % of .58% and 1.6% was entitled to 01 seat at 2020 and 2024 Elections respectively, transparently exhibiting the importance of ‘equal value of vote’ to achieve inclusiveness. However, since the existing practice for nominating NL members defies its objectives, the writer’s proposal to nominate genuine ‘Country first Political Professionals to contest for the 225 or 196 seats holds much water.
Bashing of PR System
Ironically, the PR System as a whole has been consistently ostracized and tainted with the brush of corruption and divisive lines, by all and sundry, at the behest of the same power hungry, unethical politicians of the day. In fact, the real culprit is found in its 2nd marriage with the ‘Preference Voting’(PV) mechanism’, after its forced divorce from its original adjunct that advocated District Party lists of candidates in ‘Priority /Merit order’ (Meritocracy) avoiding divisive lines. When the PV system was prostituted by power hungry politicians nominating parachuted black moneyed thugs and infamous characters to grab power by hook or by crook, the PR system cane under fire !
Another acquired Constitutional inconsistency.
Now, it is not a secret that all aforesaid amendments were engineered for pure political expediency, by corrupt politicians as People’s Representatives/Agents without the consent of the People (Sovereign voters) who are the principals/main stake holders. It is a serious mis-use of the provisions of Article No.4 (a) in Chapter 1 of the Constitution which states as- “The legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum“.
“POLITICS IS TOO SERIOUS A MATTER TO BE LEFT ONLY TO THE POLITICIANS”-
Charles de Gaulle.
Article No. 85 under Chapter No. XIII dealing with the Referendum, basically allows the President to submit to the people by Referendum, any Bill which the Cabinet has so certified or which the Supreme court has so determined, having considered any Bill which has received not less than 2/3rd majority of the Parliament. The Article No. 86 subject to article No. 85, further allows the President to submit to the people any matter which in his/her opinion is of national importance.
The fact that all the aforesaid distortions / inconsistencies were used purely for ‘Political advantage’, firmly brings up a fundamental ‘Conflict of Interest’ on the part of the Representatives of the Sovereign People, which has not been duly exposed, inter alia due to low political literacy of the simple voters !
Suggested ‘System Changes’ by Sovereign voters
- Abolish the pre-conditions for President and the Cabinet to decide and certify respectively on any referendum requiring prior approval of Parliament with 2/3rd majority and /or President seeking approval for any Peoples Referendum.
- Provide for an ‘All-purpose clearance from the Supreme Court’, a compulsory prerequisite for any referendum.
- Debar all people’s representatives from involving in all matters relevant to their eligibility criteria, selection process, Salary/benefits etc. posing fundamental ‘Conflicts of Interest’.
- Widen the scope and powers of National Elections Commission (NEC) and PSC/Salaries and Cadre Commission enabling them to table their final recommendations in regard to all under item 3 above, in the Parliament purely for formal approval/Protocol. (The current Election Commission’s objective is limited to conducting free and fair elections and referenda.)
- Strengthen the aforesaid and other relevant Commissions with ‘Permanent task forces’ comprising Retired Judges, Academics, Voter dedicated Civil Organisations and sovereign voter activists to extend ‘People Based Governance (PBG)’.
Note: Proposal Nos.3,4 and 5 are included in writer’s eBooklet captioned –“A sovereign Voter’s crucial ‘System Changes’ to Political and Electoral systems in Sri Lanka with pathway and benefits” last up dated as at 15-11-2025.
Concluding Note
“Equality of Ballot” under Article 93 of our Constitution cannot be achieved only by accurate counting of valid votes. It has to be transparently exhibited through accurate determination of the entitled No. of seats to Parties at any given Election. It can only be done by proportionately allocating the seats to Parties based solely on their National and/or District (in the case of PCs) valid vote % being published officially by NEC. In the process it ensures real value to maximum number of valid votes while paving the way for a more equitable and inclusive People representation under a robust Representative Democracy.
Let us recall that the historic ‘Aragalaya’, also demanded a ‘System change’ towards a Parliament occupied by 225 genuine ‘Country first Political Professionals’ as representatives of the sovereign voters.
Let it be reiterated that the tinkered and distorted PR system of 1978 that became operative only after 11 years at the 1989 General Election, has so far not met voter expectations in regard to, (i) the UN and Constitutional requirement of ‘Equal Ballot’ -through 100% proportionality in seat allocation and (ii) intended equal value to maximum number of valid votes.
In the present context, it is quite clear that the corrupt ‘Manape’ mechanism has to be abolished along with the complex Mixed Member Voting (MMV) system to be replaced by a simple, unique Electoral Model that allows ‘Country first Political Professionals’ to become Peoples Representatives in the Parliament and PCs, representing each Electorate without compromising the ‘Equal Value of Vote’.
The methodology for the unique Model is also explained in the aforesaid Ebooklet of the writer, which deals with a package of 18 ‘system changes’.
An important ‘Spin –off’ of the ‘Merit order’ system is – the voters will have to mark only one ‘X’ against the relevant party symbol, based primarily on the 5 year prosecutable Election Manifesto and secondarily on the ‘merit based’ Candidate list.
The process inter alia entails i.) A massive ‘cost saving’ for the Treasury; ii.)Enhancement of productivity of the Electoral process; and iii) voters being relieved of selecting ‘Horses from lists of ‘Ponies !’
Bernard Fernando,
Former Deputy General Manager –BOC
Email : fernadobernard81@gmail.com
