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Confusion, contradictions over Executive Presidency

A string of decisions by Sri Lanka Freedom Party (SLFP) ministers with President Maithripala Sirisena in the chair, revealed exclusively in the Sunday Times last week, have sparked a heated political debate.

Main among them is a proposal by Agriculture Minister and SLFP General Secretary Duminda Dissanayake that they should oppose any moves to abolish the Executive Presidency. He also said Maithripala Sirisena should be the party’s candidate at the next presidential election.
This, together with other far reaching decisions, was adopted at a meeting attended by some 14 SLFP ministers on Tuesday, January 3. It was summoned by Sirisena immediately after the weekly ministerial meeting. Among the other decisions were not to support any constitutional changes that require a referendum, not to allow a merger of the Northern and Eastern Provinces and to fully implement the 13th Amendment to the Constitution as a means of devolving power to the provinces.

In public statements, four SLFP ministers confirmed the decisions made by them. They were Sarath Amunugama, Duminda Dissanayake, S.B. Dissanayake and Dayasiri Jayasekera. However, contrary to claims by some of them, the SLFP Central Committee (CC) is yet to endorse their decisions. A meeting has not yet been summoned. It is only after they are endorsed by the CC that the decisions will become SLFP policy. The fact that such matters have been decided by their ministers, two years into office by President Sirisena, is by itself an indication that those issues were now being considered as options.

There were also detractors to the SLFP ministerial move. Some, including those in civil society groups, claimed no final decision has been made by President Sirisena about retaining constitutional provisions relating to the Executive Presidency. Nor has he accepted the request to contest the next presidential election. As revealed in these columns, when Minister Duminda Dissanayake’s proposal was being made, President Sirisena remained silent. Silence can often be more eloquent than words. That stoic silence not only led to the proposal being adopted unanimously but also gaining credence that it reflected the new thinking on the part of the SLFP in marked contrast to its previous positions.

More so, when Sirisena has repeatedly declared that he would abolish the Executive Presidency. In addition, he had also made clear that he did not expect to contest a second term. In his manifesto titled “A Compassionate Governance – Stable Country,” released ahead of the January 8, 2015 presidential election, Sirisena declared, “Instead of the present autocratic Executive Presidential System, I will introduce a Constitutional structure with an Executive that is allied to Parliament through the Cabinet.”

He added; “In order to change the Executive Presidential System I am taking as background material agreements for abolishing the Executive Presidential system reached by the Movement for a Just Society headed by Venerable Maduluwave Sobhitha Thera as well as proposals contained in the Draft 19th Amendment compiled by the Pivituru Hetak Jatika Sabhava headed by Ven. Athureliye Rathana Thera, which proposed a Constitutional alliance of the President and the Prime Minister. I will also consider the changes proposed to these proposals by the United National Party.”

Since the presidential election, Sirisena has made several public statements. He told Parliament on September 9, 2015; “We should not maintain the Executive Presidency to prevent the possibility of a war emerging in the future, but to create an environment to prevent the recurrence of such a situation.” Participating in the cremation ceremony of Ven. Maduluwawe Sobhitha Thera at the Parliament Grounds, Sirisena pledged he would do “everything possible to introduce a new system of governance by abolishing the Executive Presidency as desired by the late Thera.”

Until yesterday, President Sirisena — if indeed he has not changed his mind since the statements made after being elected President –has not clarified the position. It has prompted the protagonists to go ahead with public assertions that the presidency should remain and Sirisena should be their candidate. An SLFP Minister, who spoke on grounds of anonymity, claimed that the party had “no better person than Sirisena to win a presidential election. Therefore, he is the only choice. We have to win it and have no alternative candidate.” However, the move has raised concerns in the United National Party (UNP) as official Government spokesperson and Health Minister, Rajitha Senaratne was to declare. Though he did not take part in the SLFP ministers meeting, he waxed eloquent at the media briefing after the weekly ministerial session. He was unaware that the SLFP Central Committee had not met to discuss the decisions of the ministers. Yet, he tried to give the impression that it was the official view. Here is the relevant Q & A:

Q: The SLFP Central Committee has resolved that the Executive Presidential system should remain. This is contrary to the mandate from the people. What is your opinion?
A: That is why we are proposing a new constitution. That is to abolish the Executive Presidential system.
Q: However, the SLFP Central Committee has resolved not to abolish the Executive Presidential system. Without their support it cannot be done?
A: We need to discuss this in the future.
Q: The position was that the Presidential system will be changed.
A: Our position remains the same. That’s what the President has been saying continuously.
Q: The SLFP Central Committee has decided that the Executive Presidential system remains and President Maithripala Sirisena will be the Presidential candidate.
A: Even this morning I met the group. They said they were reasoning out.
Q: What are reasons?
A: I need not tell what someone else discussed.
Q: So, you say that the Executive Presidential system will be abolished.
A: Definitely, it should be abolished. That is a pledge given by the President even at the cremation of Ven Maduluwawe Sobitha Thera. I know his stand on this issue.
Q: But, it is the Central Committee which has decided.
A: The decision has not been taken when the President was there.
Q: But, Minister Sarath Amungama has said that the decision was taken at a meeting presided over by the President and that he did not make a comment about it.
A: There has been no decision taken, but a discussion has taken place.
Q: Keeping aside the fact that the President will be the candidate for the 2020 Presidential elections ……..
A: No! No!! There will be no presidential election in 2020. There will be no issue of a candidate, when there is no election.
Note: Minister Senaratne’s claim there would be no presidential election in 2020 is based on the argument that there would be no such event when that office is abolished.
Q: But the Central Committee has decided.
A: They take many decisions – for instance during Chandrika (Kumaratunga’s) time they said a Federal government should be set up and during former President (Mahinda) Rajapaksa’s Government they said we should have unitary status. Since 1994 it has been resolved that the Presidential system should be abolished. It has been told at all election platforms. This is something that could not be done or deliberately not done. At that time there were practical difficulties due to the war. But since 2010 that was not an issue. Our President remains in that position that it should be abolished.

In the answers Minister Senaratne gave, he also makes clear “we need to discuss in the future” on the move to retain the Executive Presidency. In other words he is conceding that new issues have arisen and those, contrary to previous arrangements, require a further dialogue. This is whilst a debate on the five reports of Steering Committees (on the draft Constitution) due in Parliament last week was put off. The postponement came at the express request of the SLFP which wanted “more time” to study the reports.

Another area where President Sirisena’s non-committal stance over the SLFP ministers meeting has had an impact is on the Tamil National Alliance (TNA). “The country needs another Constitution. We have a good opportunity to make this a reality. All of us can make this happen. We need to work towards this,” declared TNA leader Rajavarothiyam Sampanthan. Though cautious in responding to queries posed by the Sunday Times, the answers he gave nevertheless reflect the mood in the TNA. See box story on this page.

The TNA has been pressing for “power sharing” arrangements when a new Constitution is adopted. It wants a system that “existed earlier in a unit of a merged Northern and Eastern Provinces based on a Federal structure.” It is not only the retention of clauses relating to the Executive Presidency in the Constitution and President Sirisena’s candidacy that is at issue. If the SLFP’s Central Committee endorses the unanimous decision by its ministers not to support any constitutional change that requires a referendum, it is just as good as retaining the Executive Presidency. After all, such a change would require a referendum besides a two thirds vote in Parliament.

A senior TNA member, Dharmalingam Siddharthan, took up a stronger position. He told the Sunday Times, “We have a mandate from the people for a federal constitution with the merger of North and East to resolve the National question. Discussions are underway with the Government on how best to come to an agreement. We cannot accept the 13th Amendment as a comprehensive power sharing mechanism.” Siddharthan warned; “If the Government abandoned the idea of finding a solution for the National question, we won’t be part of the Constitution making process and we would be compelled to leave it.”

Suren Surendiran, the spokesperson for the London-based Global Tamil Forum, told the Sunday Times; “President Maithripala Sirisena at the Presidential election and PM Ranil Wickremasinghe at the general election won with the mandate from the people of this country calling for the abolition of the executive presidency and for a referendum on a new constitution.” Formally confirming that a GTF delegation met President Sirisena when he was in London in 2015, Surendran said; “President Sirisena related to an analogy to Father Emmanuel and I in one of our meetings with him that he is driving a train, he may drive the train fast sometimes, slow at other times and may even stop at some points but never reverse or drive backwards.”

The decisions of the SLFP ministers, now the subject of a political debate, comes as President Sirisena frowned on moves to revive the call for foreign judges to probe alleged war crimes by troops and Tiger guerrillas. He told Tuesday’s weekly ministerial meeting that he could not allow NGOs (Non-Governmental Organisations), which were dictated to by “an international political agenda” to run Sri Lanka. He was alluding to recommendations made by the Consultation Task Force on Reconciliation (CTFRM) that foreign judges should be included in courts that would probe alleged war crimes. He said what was sought was a credible mechanism and he would ensure that. He noted that Sri Lanka had enough expertise. The CTFRM was appointed by Prime Minister Ranil Wickremesinghe. It, however, handed in its report to former President Chandrika Bandaranaike Kumaratunga, who is spearheading the Government’s efforts towards reconciliation.

Foreign Minister Mangala Samaraweera, now in Europe, spoke at Chatham House in London about the reconciliation process. On the question of judges, he noted that “…there are divergent views even within the Government in respect of the participation of foreign judges in the proposed judicial mechanism. However, despite this divergence of opinions, there is a clear consensus across the board on the need for an independent and credible domestic mechanism as promised by the manifesto of President Maithripala Sirisena. As a democratic and sovereign Government, we will work out the architecture of such a mechanism in consultation with all the stake holders.”

The ministers at their weekly meeting also discussed the National Human Rights Action Plan (NHRAP) 2017-2021. Its urgency has been underscored by European Union’s initial moves to restore to Sri Lanka the General System of Preferences (GSP plus). The NHRAP report runs into more than 300 pages and several ministers raised issue over what they perceived as controversial provisions. Among them were Patali Champika Ranawaka, Susil Premajayantha and Mahinda Samarasinghe.

One provision that was described as controversial was the introduction of a State of Emergency only after Parliament votes with a two thirds majority. Ministers called for the withdrawal of this provision. Among the other recommendations were:

• Repeal the Vagrants Ordinance of 1842, used specifically against street sex workers and transgender persons.
• Reform the Evidence Ordinance to remove discriminatory provisions on credibility of women’s evidence including the need for independent corroboration.
• Initiate reform of Muslim personal laws based on recommendations made by the Independent Committee on Muslim Personal Law Reforms (2010)
• Take steps to ensure that employers in public and private sectors introduce mandatory guidelines and appoint committees to respond to sexual harassment and abuse of women in consultations with trade unions and Employers Federation.
• The exception in regard to girls below 12 years to accommodate Muslim personal law to express a general norm in the way that has been done in other areas of criminal justice system.
• Criminalise marital rape without any exceptions, including where spouses are judicially separated.
• Decriminalise homosexuality by repealing Section 365A of the Penal Code to conform to Article 12 of the Constitution.
• Broaden the definition of torture in the Torture Act to include non-state actors and to recognise sexual violence as a form of torture, in line with jurisprudence on Article 11 of the new Constitution on the right to freedom from torture. Alternatively, enact a separate offence of torture under the Penal Code that will cover state and non-state actors as well as sexual violence.

In a two-page Cabinet Memorandum, Foreign Minister Mangala Samaraweera introduced the 300 page NHRAP. He noted “…the purpose of the Human Rights Action Plan 2017-2021 is to address all relevant human rights concerns, in keeping with the policy of the National Unity Government to uphold, strengthen, promote and protect the human rights of the people of Sri Lanka. It would provide a blueprint for the conduct of human-rights related interventions and activities for the benefit of the people of Sri Lanka while ensuring the securing and sustaining trade facilities such as EU GSP plus as well as foreign investment. Further, it would facilitate Sri Lanka’s engagement with Human Rights Treaty bodies and other special procedures and mandates addressing human rights as well as the Universal Periodic Review.”

President Sirisena observed that the NHRAP should not be accepted only as a means of seeking restoration of the GSP Plus from the European Union. Irrespective of that aspect, he declared, its aim should be to protect human rights. He asked that the issues raised by ministers over the NHRAP be discussed with Premier Wickremesinghe and the necessary amendments made. This is before the plan comes up for final approval at next Tuesday’s weekly ministerial meeting.

A three member team of SLFP ministers met Premier Wickremesinghe at Temple Trees last Friday to discuss changes in the NHRAP. They were Susil Premajayantha, Mahinda Samarasinghe and Faiszer Musthapha. Also present was the acting Foreign Minister Harsha de Silva.
One of the provisions that has been excluded is the requirement that there should be a two thirds vote in Parliament to declare a State of Emergency. The existing provisions in the Law are to remain. Another is not to decriminalise homosexuality. Officials present at the meeting have been told to make the changes in the plan and forward it for approval by ministers next Tuesday.

The political developments in the past many days have bared an important aspect. Contradictions are galore with Ministers, deputies and other politicians making different remarks on the same issue. The confusion apart, the people are unable to discern which the Government’s official position is and which is not. Some ruling party politicians have found the easy way out – blame such reportage on the media. When there is no way out of the growing embarrassment, kill the messenger seems an age-old philosophy.

The Sunday Times