A Case for Moderated Parliamentarianism: A Response

Rohan Edrisinha

University of Colombo

Although Professor Tarun Khaitan states that the main purpose of his thought-provoking article is theoretical rather than practical, my observations are based on the experience of my own country, Sri Lanka, and some other countries I am familiar with in the Global South. I argue that Khaitan’s thesis is important and relevant in the region where there is a strong body of opinion in favour of varieties of presidentialism, and suggest greater attention to an issue that, in my view, is closely connected to the relationship between electoral systems, the role of parliament and representative democracy, a key element of moderated parliamentarianism.  

1. Moderated Parliamentarianism 

It is important not to ignore Khaitan’s primary argument, as we focus on the details of the moderated aspects of his argument, that a parliamentary system is better than a presidential one. Though constitutional tradition and context have a bearing on such choices, I would like to suggest that in the Global South, in general, this is true. The political culture in that part of the world including personalism, the focus on a charismatic leader, family dynasties and the politics of patronage, indicates that a political system that reduces the focus on an individual is more compatible with constitutionalism and a democratic culture. Furthermore, often in presidential systems in the Global South, the focus of political power shifts from democratic institutions such as Parliament to unelected presidential secretariats and advisors with considerable accountability and legitimacy deficits.  

Recent attempts to offer semi-presidentialism as a via media have failed in the region as invariably in the efforts to combine the two systems, the mix has often undermined the rationale and logic of each system, particularly with respect to checks and balances, resulting paradoxically in a system (as in Sri Lanka) that is closer to hyper-presidentialism. Semi-presidentialism facilitated cooption of the legislature and other democratic institutions which may have been difficult in a pure presidential system. It is interesting to note (in the context of Khaitan’s remarks in his first paragraph) that the campaigns for presidentialism/semi-presidentialism in many countries in the Global South, including Sri Lanka, Nepal, Bangladesh and Guyana were based on the need for stability-defined as a strong, stable executive, in the words of its main advocate in Sri Lanka “freed from the whims and fancies of the legislature.”  Though the focus of his essay is on the justification for a moderated version of parliamentarianism his choice of “moderating” parliamentarianism, rather than presidentialism or semi-presidentialism, should not be discounted.  

2. Strong Bi-Cameralism where the Chambers are Symmetric and Incongruent

Khaitan’s proposal for a strong bi-cameral legislature with distinctive rationales for each chamber is important in an era where ruling parties and political leaders highlight the need for efficiency over accountability and stability over inclusive representation and therefore prefer a uni-cameral legislature. In many former British colonies that modelled their constitutions on British constitutional traditions, the second chamber was seen as weak, ineffective, “superfluous or pernicious,” an institution for political patronage, and over time the notion of bi-cameralism became discredited. Moderated parliamentarianism with its specific rationales and electoral systems to facilitate them is an important counterpoint to the dominant opinion among politicians and constitution makers in the region with their obsession with executive convenience, efficient government and “stability”. 

Though Sri Lanka has resolutely resisted serious consideration of a return to the bi-cameralism that was part of its first post- independence constitution, it was debated briefly in the context of the decision to explore devolution of power and federalism as part of a constitutional reform package to address the island’s ethnic conflict. In Nepal, however, the Constituent Assembly assumed that a federal constitution required a second chamber to provide for provincial representation at the centre. The importance of provincial representation at the centre, to protect devolution, develop national institutions and foster national unity, was well understood by Nepal’s constituent assembly. I wonder whether, and if so how, Khaitan would modify the design of the second chamber in the context of moderated parliamentarianism within a federal constitutional arrangement in a multi-ethnic, plural society.    

3. Constitutionalism, Electoral Systems and Political Parties 

Khaitan makes the important point that electoral system design was an issue neglected by constitutional lawyers because it was viewed as an aspect of political science (I recall opposition to including electoral systems in a constitutional law syllabus at the University of Colombo in the early 1990s!). He contends rightly that focusing on normative institutional analysis “without simultaneously considering party systems and electoral systems normatively, is looking at a seriously distorted picture of constitutional practice.” In recent years the linkages between electoral system design and constitutionalism, the important impact that an electoral system has on representative democracy, inclusive political institutions, the separation of powers and the quality of constitutional democracy in general, have become more apparent. There are, therefore, difficult policy options regarding electoral system design that often have to be made in constitution making processes. 

It seems to me that part of the problem is that constitution makers and political leaders in the region do not fully recognize that electoral system design could have various objectives or goals as described, for example, by Donald Horowitz, in his article Electoral Systems and Their Goals: A Primer for Decision Makers, that would influence policy makers. Horowitz lists some of them including proportionality of seats to votes; accountability to constituents; durable governments, inter-communal and interreligious conciliation and minority office holding. Often striving to achieve some goals will undermine others. Choices have to be made depending on the context and the policy objectives considered important at the time. 

The constitutional reform processes in Sri Lanka and Nepal illustrate the argument made by Horowitz that given the context and the priorities of the time, policy makers could favour some goals over others. Some may also be completely ignored either intentionally or unwittingly. In Sri Lanka the decision to change from the simple plurality system to a particular kind of proportional representation, though influenced primarily by the self-interest of the party that had just won a landslide victory at the parliamentary elections and which therefore dominated the constitution making process, cited the proportionality of votes to seats rationale and enhanced representation of smaller groups as the main justification for reform. Today, it is generally accepted that Sri Lanka’s constitution makers failed to consider the negative consequences of the new system on other important objectives, such as an MP’s accountability to constituents and the increased financial commitments that parties and candidates require to be competitive in the system.  

In Nepal, the debates on electoral system design were dominated by the issue of inclusion, in a dual sense, so as to ensure that Nepal’s diverse and numerous ethnic groups received parliamentary seats and as Nepalis would state it “that the principle of proportional representation for women” was recognised in electoral system design. The complexity of the inclusion agenda meant that some other important goals of electoral system design were compromised.  

Both examples illustrate the point, however, that often constitution makers focus on a few important goals or priorities while paying insufficient attention to others that in the longer term may be salient and important in ensuring an effective legislature. Electoral system design should ideally be approached holistically and constitution makers should take care to ensure that the pursuit of a new goal does not, blinker like, undermine careful consideration of other important objectives that have a bearing on the nexus between constitutionalism and representative democracy.  

One such objective which the COVID pandemic has highlighted is the role of Parliament as a deliberative assembly. The responses to the pandemic in many countries in the region were dominated by the executive (understandably) but often with little engagement by the legislature. This in my view was a dramatic example of a disturbing trend in the past couple of decades in parliamentary systems in the region, where the role of Parliaments has gradually been devalued in various ways. Parliamentary control of the executive is less effective; members of the legislature have become less independent in their speech and actions due to the more assertive roles played by political parties in determining their conduct; there is less emphasis on the responsibility of individual members of parliament, both with respect to their parliamentary functions as well as accountability to their constituents; there is a more general focus on the party rather than the member; members are seen as ambassadors of their parties rather than representatives of the people. Furthermore, the traditional notion of parliament as a deliberative assembly where policy is discussed and appraised and legislation scrutinized, has diminished in significance as such functions seem to be more effectively performed by other institutions. These developments, in turn, have contributed to a change in the profiles of people who enter active politics and contest parliamentary elections. The consequences have generally not been positive. Recent developments in the region suggest that the general public recognises the necessity of an executive but seems less convinced of the justification for a Parliament.   

This trend, at the very least, requires in my view, a review of the linkages between principles of constitutionalism and representative democracy with a particular focus on the relationships between electoral systems and political parties, on the one hand, and political parties and members of parliament, on the other. The responsibilities of a member of parliament to conscience, party, constituency and nation need to be clarified as these have a significant impact on the effective performance of parliament as a deliberative assembly. Electoral system design and constitution making should focus on this more. A vibrant and effective parliament that fulfils its various functions and is the locus of political power and policy making is an essential feature of parliamentarianism. Advocates of semi parliamentarianism and moderated parliamentarianism should focus on such issues as a logical extension of the important themes that they have highlighted. It will be unfortunate if academics develop a compelling defence of parliamentarianism, as Khaitan has, at a time when the public becomes increasingly disillusioned with the institution it seeks to celebrate.          

Rohan Edrisinha is a visiting lecturer and former faculty of the Faculty of Law of the University of Colombo, Sri Lanka. 

Suggested citation: Rohan Edrisinha, ‘A Case for Moderated Parliamentarianism: A Response’ IACL-AIDC Blog (27 March 2021) https://blog-iacl-aidc.org/workshop-my-paper/2021/05/27a-case-for-moderated-parliamentarianism-a-response.