Some thoughts on the Second Chamber

By Sumanasiri Liyanage

One of the main lacuna in the 2000 constitutional draft was that although it proposed quasi-federal arrangements closely following the Indian model, it did not have a provision for a second chamber so that it as a whole lacked adequate power-sharing at the center. The report by the the Sub-Committee A (RSCA) includes comprehensive suggestions on the nature, compositions and the powers of the second chamber. Although the Sub-Committee B (RSCB) is not much enthusiastic about the second chamber, it does not oppose to it if it improves center power-sharing arrangements. This is what RSCB says on the subject: “We are not averse to a Second chamber if it is created to give minorities/provincial minorities a voice at the centre but we feel this could be another white elephant and a talk shop at great public expense to expand political cronyism”. Minister Tissa Vitharana includes provisions for a second chamber in his proposals. His proposals are similar to the proposals of the RSCA. He emphasizes the relevance of the second chamber in the following words: “[A] senate is found in almost every country where there is substantial devolution of power. A Senate should be considered a unifying mechanism. It would also function as a mechanism to rectify possible imbalances of representation in the House of Representation. The senate could also facilitate consensus building amongst interest groups”.

Let me first list the main features of the second chamber (senate) as delinetaed in the RSCA and Minister’s proposals (TWP).

1. A Parliament at the Centre shall be comprised of two chambers, the House of Representative elected by the people and the Senate elected by the Provincial legislatures.

2. The Cabinet of Ministers at the Centre shall be comprised of members of both House of Parliament, namely the House of Representatives and the Senate, excluding its Chairman.

3. One of the Vice Presidents shall be the Chairman (non-voting) of the Senate (Second Chamber)

4. The members of the Senate shall be elected by the respective provincial legislatures. The election shall be according to the principle of proportional representation with each provincial legislator having one transferable vote.

5. In determining the size of the Senate there is the need to maintain a fair balance between the Senate and the Parliament. (A ratio of 1:3 between the membership of the Senate and that of the House of Representatives is desirable).

6. All legislation, with the exception of Money Bills, an be initiated in the Senate as well.

7. The Senate can appoint an Arbitration Tribunal to settle inter-province disputes.

In my opinion, these comprehensive proposals would provide an adequate space for power-sharing at the center. However, I believe that some more elements can be introduced into these proposals to make them more attractive. Tissa’s proposals as well as the RSCA suggest that the the Senate shall be elected by the respective provincial legislatures. In some countries, the Senate is directly elected by the people in the provinces, while in many countries the Senate is elected by the regional/ provincial legislatures. Report do not specify how the members of the Senate will be ditributed among provinces. Is it in equal numbers? I undersatnd many mebers of the RSCA think it should be distributed equally between provinces. For example if the Senate is consisted of 45 members, each provincial council may shall elect 5 members. My point is that this will make Sinkahelse representative the majority of the Senate as in the Parliament. If it is the case, then the Senate just will be a replica of the Parliament. In case of the merger of Northen and Eastern Provinces, the provincial representaion from those two provinces would be reduced from 10 to 5.

For a meaningful Senate

So I believe the constitutional discourse should take this factor into consideration and should make center power-sharing more meaningful by allowing more representation to numerically small nations and ethnic groups. Otherwise as RSCB indiactes the Senate “could be another white elephant and a talk shop at great public expense to expand political cronyism.” Then how could the provincial voice be made more powerful at the center? In this regard, in my opinion, the Constitution of Belgium throws some light. The Belgium constitution recognizes the presence of different communities and provides a space for those communities to participate in the decision-making process. I would pose another question? How could numerically very small communities be brought in to the decision- making process? In Soulbery constitution, there was a provision to appoint 6 members to the Parliament to represent non-elected communities in the country. This very important element was done away with in the two republican constitutions. To make the Senate more meaningful and reflective institution that also limits majority control of the decision-making process, I suggest two measures. One of the fears of the numerically small nations and ethnic groups is that the majority can take decisions that are not in favor of them. Of course, the all three documents suggest some checks and balances to avoid this situation.

My first suggestion is that the Senate should be based on Ponnambalam’s 50-50 formula. Suppose the Senate is comprised of 40 members (I prefer small Senate), 20 members out of 40 shall be Sinhalese while the other 20 belong to other communities. Out of this 20, 5 should represent members of very small ethnic groups, like Dutch burghers, other Burgher communities, Malays. I would suggest Thamils, Muslims and Up-country Thamils shall get 5 seats each in the 40 member Senate. Malays, Veddhas, and other small communities, like Malayalis, Telingu community etc. As Tissa’s report and RSCA suggest the Senate can be chaired by one of the Vice-Presidents. All the reports generated in all-party process accept the fact that Sri Lanka is multi-ethnic, multi-religious and multi-cultural society. This is a demographic reality. One of the principal goals of constitution-making is to reflect this reality in the state structure not only by recognizing the presence of different communities but also by empowering those communities to maintain their cultural specificities. Consociational principle suggests multiple mechanisms to protect the rights of numerically small nations and ethnic groups. Mutual veto and double majority are among those measures. 50-50 formula has many advantages over mutual veto and double majority because it is a simple and non-conflictual mechanism that promotes co-operative governance.

My second suggestion deals with the issue of the elective principle. Here I make an attempt to integrate the provincial principle with the communitarian principle. So my suggestion is different to some extent to both Tissa’s proposal and the RSCA. Instead of provincal legislatures electing members to the Senate, I propose that provincial legislators elect members of the Senate subject to the my first suggestion. So the provincial legislators belonging to different communities can elect their respective representatives to the Senate. For example Sinhala members shall elect 20 members of the 40 member Senate. Up-country Thamil members, Thamils and Mulsims shall elect five representatives each. This will give more representative capacity to non-contiguous communities. The next question is how to elect remaining 5 members. Since it is highly unlike that these very small communities get elected in provincial legislatures, I propose these five members shall be appointed by the President with the advise of the Prime Minister and the leader of the Opposition in consulation with different representative bodies of the respective communities (like Dutch Burgher Association).

One objection for this elective principle would be that the Senate membership would be biased to the Western Province since the Wester Provincial Council has large number of members. There is some validity in this criticism. This bias may be avoided by two ways. First, the number of provincial legislatures should not be based only on the size of the voters. A minima and maxima can be adopted. Secondly, each provincial legislator can be given three preferencail votes with the provision that all three votes can be cast on candidate if she/ he wishes to do so. This will also help small parties.

In my opinion the Senate formulated in the above manner would not only reflect the multi-ethnic and multi-religious nature of the Sri Lankan society, but also make it more meaningful institution.

[The writer teaches political economy at the University of Peradenya: e-mail: [email protected]]