Bust­ing the myth: Ex­ec­u­tive Pres­i­dency does not pro­tect mi­nor­ity in­ter­ests

Sunday Times (Sri Lanka) - - COMMENT/NEWS -

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 to en­able more par­lia­men­tar­i­ans to par­tic­i­pate in the de­bate.

While it is en­cour­ag­ing that the peo­ple’s rep­re­sen­ta­tives were keen to have their say in shap­ing the con­sti­tu­tional 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.

A sig­nif­i­cant sub­ject 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 will 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 -Rishad Bathi­udeen, Dou­glas De­vanada, Rauff 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 a Pres­i­den­tial Elec­tion, 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 West­min­ster Par­lia­men­tary form of Gov­ern­ment. Un­der the West­min­ster 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. (javidyusuf@gmail.com).

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