Posted on January 8, 2011
By Ruana Rajepakse
In 1990, as the result of a recommendation contained in the Report of the Presidential Commission on Youth which was set up by President Ranasinghe Premadasa following the youth uprising of the late 1980s, the Local Authorities Elections Act was amended to include a special quota of candidates aged between 18 and 35 years of age. The rationale for this was the pervasive sense of alienation among the youth of that time which the Commission, headed by Professor Lakshman Jayatillake and including among its members current Minister Professor G.L. Peiris, had commented on in these words: “…… the Commission is convinced that at this particular period of our history, the generation gap has so widened that youth are in fact a distinct category who require separate representation. Although they may share different political ideologies, they are substantially united in the belief that the system does not give them the opportunity to represent and act upon their views.”
Elections were by this time being held under the proportional representation system, and the legal provisions that were introduced required each political party or independent group to give forty per cent of the places on their nomination list to youth candidates. A certified copy of the birth certificate of each youth candidate, or an affidavit from such candidate relating to his age, had to be furnished with the nomination paper.
Party officials have long complained that this process is one big headache, especially as any inaccuracy or failure to file a relevant document results in the entire nomination list of the party being rejected.
However that is not the direct result of having youth candidates, but rather a disadvantage of the proportional representation system whereby one composite candidate list has to be tendered for the whole electoral district.
Readers will recall that a few years ago the Colombo Municipal Council fell under the stewardship of a three-wheeler driver with little or no experience in politics precisely because of this system, after the UNP list had been rejected and the UNP supporters decided to give their votes to an independent group rather than let the Council fall into the hands of the UPFA.
Under the proposed Local Authorities Elections (Amendment) Bill and its related Local Authorities (Special Provisions) Bill which were tabled in Parliament recently, the mandatory quota for youth candidates was to be done away with, and a new clause brought in which reads as follows:
“(2B) Notwithstanding any provision to the contrary in this Ordinance, twenty-five per centum of the total number of candidates and additional persons whose names appear in each nomination paper submitted under subsection (2) of this section may consist of women and youth.” (Italics mine)
This must surely rank as one of the most ridiculous clauses to have ever appeared in a Bill. New laws are not needed to give people permission to do what the law already allows them to do. Even the least educated voters probably know by now that any citizen male or female over the age of 18 and not disqualified by any law, is entitled to vote or stand as a candidate at any election to Parliament, any Provincial Council or Local Authority.
As far as youth of voting age are concerned, it may be that, two decades after the youth uprising of the late 1980s, youth are sufficiently integrated into the political system so as not to require any further affirmative action. However, since the decision to have a youth quota was arrived at following the findings of a seven-member Presidential Commission in 1990, should there not have been at least a ministerial level study of the current situation before the quota was done away with? So far as this writer is aware, there has been no public reference to any such study.
Therefore it seems that the elimination of the youth candidate quota is merely a matter of convenience. Hence the sop to the conscience by this non-binding reminder contained in the proposed clause (2B) quoted above.
However, in a final twist, it now seems that there will not be enough time to pass the proposed amendments, so the youth quota will remain, unless the Government rushes through a fresh amendment designed only to remove the quota without changing the voting system as proposed in the original Bill that recently went before the Supreme Court.
Quota for Women?
The case of women is somewhat different. Statistics bear out that in a country where women marginally outnumber men, and education is available without gender discrimination, the number of women representatives at all levels of government is dismal.
In 1931 when Sri Lankans were given the right to universal adult franchise, women occupied four per cent of seats in the assembly (not a bad ratio for that era), but nearly 80 years on, the percentage has only climbed to six per cent.
Nor has it been a steady climb. In the parliamentary election of 2000, the proportion fell back to four per cent – the 1931 level; and that was with a woman Executive President at the helm. So it is clear that those few women who attain high places in politics, usually as a result of patriarchal family connections, have not shown any greater concern than their male counterparts to give more seats to women.
However, women across party lines in Parliament did make a concerted effort to highlight this issue before the last general election. They all basically had a three-pronged message: Firstly, that women are grossly under-represented in Sri Lankan politics; secondly, that the participation of more women is likely to make Sri Lankan politics less violent and fractious than it is at present; and thirdly, that women are less able, and therefore less likely, to indulge in patronage politics – i.e. “vote for me and I will give you a job”.
Another relevant point that has been made is that women are often found in significant numbers as rank and file party workers, and do a great deal of canvassing at local level; but it appears that they have to work twice as hard as their male counterparts before they can get recognition in the form of nomination.
Finally, the culture of organized election violence that first surfaced in the 1980s and appears now to be endemic, seems to deter the party hierarchy from appointing women candidates due to the fear that they will not be able to give back as good as they get. Words such as “shakthiya” and “haiya” (strength and toughness) are used to explain why women are not suitable for the job.
The reply of the women is that if sufficient numbers of them are appointed as candidates the need for such physical toughness may decline. However, such arguments have thus far fallen on deaf ears, and the proportion of women candidates on nomination lists is as dismal as the ratio of those who finally get elected.
With respect to local government bodies, the percentage of women has tended to be the lowest of all the levels of government, as illustrated by the following statistics: The all-Island average percentage of women members of local bodies was 1.7 per cent in 1991, 1.9 per cent in 1997 and 1.8 per cent in 2006. In 2006 there were only 3.0 per cent of women elected to Municipal Councils, 3.4 per cent to Urban Councils, and 1.6 per cent to Pradeshiya Sabhas.
Furthermore, the lack of elected women representatives is matched by a failure among the mainstream political parties to nominate sufficient numbers of women candidates so as to give women an opportunity of being elected in sufficient numbers to accord with their percentage of the population.
Sri Lanka lags far behind other Asia-Pacific countries in this respect. In a 2001 survey conducted by UN – ESCAP of the percentage of women representatives in local government bodies, Sri Lanka was right at the bottom with a mere 2 per cent, behind Japan, Philippines, Thailand, China, Nepal, Australia, Vietnam, New Zealand, while India and Bangladesh topped the list with percentages of 33 and 33.3 respectively.
A number of countries have attained reasonable levels of women’s representation only after some form of affirmative action. In India, Pakistan, Nepal and Bangladesh there is a percentage of seats reserved for women candidates, which ranges from 20 per cent in Nepal to 33 per cent in India and Pakistan.
Nor is this only an Asian problem. Elsewhere round the globe women have faced the problem of under-representation. As Sri Lanka, unlike its Asian neighbours, presently has a system of proportional representation, the most relevant examples for us may be the South American countries where the “PR” system is prevalent.
In Argentina, women are required to make up a required percentage of each party’s nomination list at parliamentary, state and municipal elections. The required percentage on the parliamentary list is 30, which has resulted in Argentina ranking ninth in the world in terms of women’s representation in parliament.
Today Bolivia, Brazil, Costa Rica, the Dominican Republic, Ecuador, Peru, Panama and Venezuela have joined Argentina in requiring a fixed percentage of women candidates on each party’s nomination list, ranging from 40 per cent in Costa Rica to 20 per cent in Ecuador.
Even in Europe, a quota system has been found necessary in a number of countries including France, Belgium and the Scandinavian countries.
When the recently proposed Local Authorities Elections (Amendment) Bill went before the Supreme Court, lawyers representing a number of women’s groups argued for a mandatory quota of places for women. Significantly, nearly all the (male) counsel who had come to challenge the Bill on other grounds, also expressed support for the women’s cause.
Article 12(1) of the Constitution declares that all persons are equal before the law and are entitled to the equal protection of the law; Article 12(2) prohibits discrimination on a number of grounds including sex; and Article 12(4) allows for affirmative action in respect of three categories of persons, namely women, children and disabled persons.
It was argued that given the dismal levels of women’s representation in elected bodies, the State was under a duty to take affirmative action in this regard under Article 12(4) in order to ensure to women the right to equality guaranteed by Article 12(1). This argument was opposed by the State.
The Court was of the opinion that Article 12(4) was only “a shield” and not “a weapon”. It was available to the State to justify any affirmative action it chooses to take for the advancement of women but the Court would not order such action.
However one has to say with respect that the precedent quoted by the Court from the 1991 case of Ramupillai v. Festus Perera is not very convincing. In that case the dispute was about ethnic quotas – which is not a matter justified either by Article 12(4) or any other article of the Constitution. Only by way of obiter dicta, Justice Mark Fernando had stated in that case as follows:
“Article 12(4) in particular does not authorize “affirmative action” for women, children and disabled persons, but out of an abundance of caution, declares that nothing in Article 12 shall prevent affirmative action; apart from proved “inequality” Article 12(4) would not permit, for example a quota of 60 per cent being stipulated for women in any sphere.”
The petitioners on behalf of the women’s groups would probably agree with this last statement wholeheartedly. They were not asking for 60 per cent; they were only asking that the proposed quota of 25 per cent mentioned in the Bill be made compulsory – “shall” instead of “may”.
*Posted on http://www.island.lk