How Preferable Is The ?Preference-Vote? Route?

By?N Sathiya Moorthy

Say, what is unique about President Ranil Wickremesinghe?s candidacy in this year?s elections to the nation?s top job? It is possibly the first time in the history of any major political party in any democracy for its leader of long years contesting an even more major election as an ?Independent?.

Of course, this is not the first time that the Ranil-led UNP?s ?Elephant? symbol won?t be visible on the ballot for the presidential poll. In 2010 and 2015, Ranil as the party leader, palmed off the ?common Opposition candidacy? against incumbent Mahinda Rajapaksa to unsuspecting others like Sarath Fonseka in the former and Maithripala Sirisena in the latter.? Maithri was less confident and abrasive than the other, and he won. Fonseka lost five years earlier.

Every time there is a presidential election, a lot of names get added on to the ballot because many of them are either ?non-serious Independents? or Independent or ?other? party candidates whom the voters did not take seriously. Unlike in the past, this time there are four very serious candidates, and at least two or three more candidates whom the voters are not likely to take that seriously ? or, that is the perception.

This is apart from other ?less serious candidates?, whether belonging to lesser-known political parties and Independents (not of the Ranil kind), and one ?common Tamil candidate?, whose name and identity are not known. Of course, that is the case with the SLPP parent, who?s latest split has pushed most party MPs to the President?s side. Do they carry as many votes as Team Ranil would want to believe, is the question.

Speculative arena

Yet, none of it seemingly justifies the Election Commission (EC) fixing LKR 50,000 as deposit from candidates of registered parties and LKR 75,000 from ?Independents?. In a way, it robs the latter class of a ?level-playing field?, which is what democracy is all about. Wonder what the Supreme Court would have to say if a ?fundamental rights? petition is moved by a loser, post-poll.

Incidentally, incumbent Ranil, who was just himself alone as his party?s MP in a House of 225 when he contested the presidential poll in 2022, when fellow-parliamentarians alone voted, belongs to the class of candidates who paid up LKR 75,000 as election deposit this time. Apart from opening up the house for support from one-time UNP allies who are now on the other side of the fence, that is by distancing his government from the thus-far under-writers in Parliament, Candidate Ranil might have wanted to send out a clearer message that he was always independent of the other ? who only needed him more than the other way round.

There is a need to acknowledge the presence of President Ranil, SJB Opposition Leader Sajith Premadasa and JVP-NPP?s Anura Kumara Dissanayake. The SLPP under the Rajapaksa?s care has promised to field a candidate after parting with Ranil, but until at least the name at least is known, it is only in the arena of speculation.

Constant refrain

But the speculation does not stop there. Rather, this time round, it begins there, in the number and names of serious contenders ? who also include Dr Wijeyadasa Rajaaksa, until recently the Justice Minister, and Field Marshal Sarath Fonseka, whose plea against the SJB sacking him as party chairman and member all at once, is already pending in a lower court in Colombo. ?Ever since JVP?s Anura K threw his hat into the ring and private opinion polls projected him as the prospective winner in the real show months and months away, street-corner tea-boutique gossip has ended in greater speculation.

The question was/is this: Will any of the leading candidates be able to muster the mandatory 50-per cent plus one vote on the face of it, as all past victors have done since the Second Republican Constitution and the Executive Presidency system came into force in 1978? That the first presidential poll under the new scheme came across only in 1982 has not changed the character of the constitutional provision in any way.

Now, ahead of one more presidential election, the constant refrain is that none of the candidates would be able to cross the victory line in the first lap, given the divided and polarised polity. However, there are still a few who are definite that ?Sri Lankan voters are wise? and will be clear and unambiguous with their mandate, this time too.

Not that second and third preference votes are ambiguous and confusing. They too are a part of the constitutional scheme, as much as Ranil?s election as President through the parliamentary route was, despite doubts and criticism in the matter. That none of the traditional busy-bodies approached the courts, challenging the method of his election, should show that it was constitutional, after all.

Interesting irony

However, a quick look at the presidential poll scheme that includes the second and third preference votes has a fascinating, rather interestingly ironic outcome. While it is common knowledge that while counting in only the ?first preference? votes of the candidates, the victor is the one who has crossed the mandatory 50-per cent mark, in the final count, it is said that if after counting in all three phases, no candidate made the mark, then he who had come on the top of the heap in the first round would have to be declared elected President.

To make it clear, the original condition of him having to secure 50-per cent vote would be waived. After all the tall talk at the Constitution Assembly decades ago, which no one bothered to read a second time or apply to imaginary situations, it only means that the President of the Republic can be elected by a ?minority? number of voters, but he would still represent the whole nation and its people.

How then is such a scheme with inherent loopholes better than the traditional first-past-the-post system? The question is also for all those who have been constantly demanding to rehash or reform the prevailing ?preference vote scheme? for Parliament elections, too.

New normal

It goes like this. Straight and simple, if one of the candidates crosses the 50-per cent marker in the first round itself, then it is a done thing, no issues. But where none of the candidates crosses the proverbial Rubicon, then and then only the second preference votes of all candidates other than the top two are looked into and those marked for either of them is added up. It is the case with the third preference vote of all losing candidates, too. Only those third preference votes marked for the top two are considered ? and naturally so.

The irony creeps in here. Once the election, rather the vote-count is on into second preference votes, the victory-marker is re-adjusted to ground realities, if either of the top two is still unable to make it. That is if together after adding the second preference votes of losing candidates to the top two (only those second preference votes marked in their respective favour and not those that are marked for other losing candidates), and if their grand total adds up to only 90 per cent, and not 100, as would have been imagined, then the standard is lowered.

The new normal becomes 50 per cent of the 90 per cent polled, or 45 per cent of the total votes polled and counted. Then, whoever has scored most votes under the new normal is declared elected.

The funnier or more ironic part is when the counting is pushed into the third-preference vote stage. If at the end of the third preference count, too, none of the original candidates (reduced of course to the top two, for the record), then he who has obtained the maximum number of votes in the first round is declared elected. Of course, he would not have crossed the mandated 50-per cent mark.

Luck as the decider

It does not stop there. Providence or Lady Luck also has a possible role here. If in the event of the top two polling equal number of votes at the end of it all, then the EC has to decide the victor, yes, by a draw of lots. But there is no seeming constitutional clarity if at the end of the first-round counting two candidates vie for the second slot, or, even the first slot.

In the first case, should the runner-up for counting in second and third preference votes be selected through a draw of lots? There does not seem to be a specific provision if two or more candidates obtain the same number of votes in the first round, and yet, none of them cross the 50-per cent mark.

If for instance there are four candidates obtaining the same number of votes in the first round, and still none of them obtains 50 per cent, should there be a draw of lots to select those who graduate to the second and third preference vote stage(s)? The Constitution is silent on it.

Sky-high powers

The question is this: If at the end of it all, there is room still for Providence in the election (or, is it then selection) of the nation?s President, why go through the rigmarole of preference votes, their counts and further calculations that may lead to nowhere? Why not revert to the good old ?first-past-the-post? system, which of course was never in play in the country, for the simple reason, an elected presidency came into being only with the Second Republican Constitution but with its own written-down rules and instructions?

Those that still stick to the present constitutional scheme (possibly without applying their minds, as the Founding Fathers too did) may argue that even so, the Constitution provides for a scheme in which the preference of a majority of voters is taken into consideration while electing a President through direct elections. Maybe, it is also an attestation to the Executive Presidency scheme, where it is still argued that any incumbent had ?sky-high powers? and he or she should be seen as enjoying maximum popular support even to act as a democratically-authorised ?autocrat? in his or her own ways.

For now, however, those questions can wait, and have to wait. Right now, if the divided polity actually believes that this presidential election would run into the second and third-preference vote stages, then how do they intend educating the voters on the very idea? Though the scheme has been in vogue all along, because no one expected a situation as prevailing in the run-up to the current poll, there was no need for anyone to educate the voters about the concept of second and third-preference votes.

There was, and is still the fear that if any party or candidate or his campaign managers start talking about second and third-preference votes in public, then it could well be construed as conceding the election even before D-day. But in internal discussions of party strategists and also parlour talks of grey-haired academics, the topic would soon begin doing the rounds, if not already.

The fact is that the voters still need to be ?educated? on preference votes in the presidential election, which is now confined to the parliamentary election, though under a different mode and model. But the literate Sri Lankan voter is not uneducated about the idea of ?preference votes?, only that they have to be told, rather reminded about the existence of a different format for the presidential election, too ? and they should most definitely consider marking two more preferences (that is not the name of the candidate of their first preference).

If political parties are shy of doing it, should not the Election Commission undertake the task, even through the short-span of time available to it, through news conferences, Press statements, TV talk-shows, and if need be massive media ads? What then about civil society organisations, especially those that consider themselves working on the election front, to educate the voter in particular, to join the effort, which would be true education in their context, too?

(The writer is a Chennai-based Policy Analyst & Political Commentator. Email: sathiyam54@nsatiyamoorthy.com)