By Javid Yusuf –
The debate on the Interim Report of the Steering Committee of the Constitutional Assembly is over and the focus of the Parliamentarians shifts, at least during the next month, to the Budget debate. The Constitutional Assembly discussions which were originally scheduled for only three days were extended to five days in order to enable more Parliamentarians to participate in the debate.
While it is encouraging that the peoples representatives were keen to have their say in shaping the Constitution Reform process the officials who would have to figure out what to incorporate in the draft of the Constitution based on the views expressed in the Constitutional Assembly debate will not have an enviable task.
Their task would have been much easier if the Parliamentarians had presented their views in line with the process envisaged in the resolution setting up the Constitutional Assembly. The Interim Report of the Steering Committee describes its contents as the “principles and formulations that reflect the deliberations of the Steering Committee” at its 73 meetings.
It also goes on to state that “included in this Interim Report are observations and comments by Members of the Steering Committee on the principles and formulations contained in the Report. “ These observations and comments are those set out in the Annexures to the Report.
In other words the Annexures contain the reservations and or further additions to the discussions in the Steering Committee. It would have made the task of the drafters easier if the Parliamentarians expressed their views on the alternative proposals and gave their own alternative suggestions in case they objected to any particular proposal. Unfortunately this did not happen.
One of the significant subjects that was missing in the five day debate in the Constitutional Assembly was the views of the minority parties with regard to the all important issue of the abolition of the Executive Presidency. The perception of the minorities will be a significant factor in the event a referendum is held to decide on a new Constitution.
One is therefore compelled to look for the views of the Political Parties representing the minorities in the observations contained in the Annexures to the Steering Committee Report.
The Tamil National Alliance does not comment on the Executive Presidency in its observations and can therefore be presumed to agree with the formulation in the Interim Report that “there was general consensus that the Executive Presidency as it exists today be abolished.” This is further buttressed by the TNAs statement in its observations on the Steering Committee Report that “in the interests of reaching an acceptable consensus, the TNA wil be willing to consider agreement with the main principles articulated in the interim report if the same are acceptable to the two main parties.”
In what is described as the “Joint Proposal submitted by ACMC, EPDP, SLMC and TPA” under the names of the Leaders of the respective parties Rishard Bathiudeen, Douglas Devanada, Rauf Hakeem and Mano Ganesan and contained in the Annexures to the Interim Committee Report, the four Parties propose the election of the President directly by the People and do not endorse the abolition of the Executive Presidency.
Additionally the ACMC has made a separate observation contained in the Annexures to the Interim Report where it specifically states that the Executive Presidency in the present format should not be changed.
It is understood that the SLMC too has made further proposals at the commencement of the Constitutional Assembly debate.
Over the years there has been a myth spread that the Executive Presidency helps the minorities and ensures that the rights of the minorities are protected.
Our experience of the last 40 years of the existence of the Executive Presidency clearly shows that this is furthest from the truth. In fact the minorities have never suffered as much as they have done under the Executive Presidency.
The armed conflict which raged over the North and East saw its genesis after the Executive Presidency came into being and during those three decades the conflict took its toll on the Tamil community. The Muslim community also suffered immensely during the period of the armed conflict even though not directly involved in the armed conflict but did not benefit from any protection from the Office of the Executive Presidency.
During the previous regime since 2012, the Muslim community faced unprecedented harassment and attacks which the Institution of the Executive Presidency could not prevent. However much the Muslims remained patient and attempted to get their grievances addressed because of the powerful nature of the Executive Presidency they did not succeed.
The argument has been put forward that because the entire country functions as one electorate during Presidential Elections, the minorities have the opportunity to participate in electing the Head of State and therefore this helps to ensure the rights of minorities. However Sri Lanka’s experience is that this does not ensure the minorities adequate protection from the time the President is elected until the next Presidential Election.
If the fact that the minorities vote is important for the election of a President is sufficient safeguard for the minorities, President Mahinda Rajapaksa who was seeking a third term would have ensured the Muslims were protected and spared of the agony of targeted attacks during the latter half of his second term.
Additionally the Presidential Elections of 2005 and 2010 proved a President could be elected without the help of minority votes. The enforced boycott of the 2005 Presidential Election by Tamil voters under LTTE directions saw Mahinda Rajapaksa emerge victorious without the benefit of Tamil votes. Mahinda Rajapaksa was re elected President in 2010 after the armed conflict almost entirely by Sinhala voters.
The fact that Maithripala Sirisena was elected President with the help of minority votes does not invalidate the argument that the Executive Presidency does not help the minorities.
Two independent and respected Constitutional Law experts Dr. Rohan Edirisisnghe and Dr. Asanga Welikala have repeatedly argued that the so called protection afforded to minorities by the Executive Presidential System was a myth.
Dr. Asanga Welikala in one of his writings captures the argument very well.
He poses the question and answers it himself: “But does the overwhelming support of the minorities for President Sirisena in 2015, without which he would not have won, prove the opposite contention? I do not think so, for the reason that the minority vote came unconditionally to him, and what is more, the common opposition was careful to studiously avoid any reference whatsoever to the demands of the minorities let alone be seen to be promising anything to them, so as to ensure that sufficient numbers of the majority deserted Rajapaksa. All that the minorities are left with after the 2015 presidential election is the goodwill and decency of the new President and his government to treat them with some sort of respect, and when and if possible, to address their political and constitutional problems. Can this be even remotely regarded as an argument that the presidency ensures the protection of minority interests?”
The nature of the Institution of the Executive Presidency is such that after an Executive President is elected he is by the very nature of the Office insulated from the people. That is why President J. R. Jayewardene described the Executive Presidency as a system which is not subject to the whims and fancies of Parliament. Once installed in Office it is very difficult for the minorities or their representatives to access an Executive President to have their aspirations addressed.
This is the complete opposite of the Westminister Parliamentary form of Government. Under the Westminister system the minorities have the opportunity of influencing the election of Parliamentarians who in turn have ready access to the Prime Minister and Cabinet Ministers both in and out of Parliament. The minorities are able to influence their representatives continuously and not only during election time. These representatives are in turn compelled to take it up with the Prime Minister and Ministers to whom they have much easier access.
This is a system which works well for the minorities because the Prime Minister and the Government through the Parliamentary representatives are compelled to keep their fingers on the pulse of the people including the minorities for their continued existence.
It is not surprising that the Muslim politicians in Parliament (other than those from the UNP) are not in support of the call to abolish the Executive Presidency. All these politicians were comfortably ensconced in power during the Rajapaksa Presidency and during the difficult times faced by the Muslims and had no hand in the preparation of the manifestoes or campaigns in support of President Maithripala Sirisena. All of them pledged their support to Maithripala Sirisena only a few days before the Presidential Election after determining which way the wind was blowing.