Why Muslims are against 20A

by Latheef Farook

Ven. Maduluwawe Sobitha Thera: “Details of the mechanism in 20A are not clear . . .”

Muslims living scattered all over the island, with special concentration in the east but often in small pockets in the predominantly Sinhalese areas, fear that their representations in the parliament will be reduced considerably under the proposed 20th amendment to the constitution on electoral reforms

Thus they oppose the draft amendment in its present form gazetted on June 18. One should not forget that it was repeated constitutional changes depriving the minorities of their legitimate rights contributed a great deal to the subsequent ethnic war which turned the country into one of the worst killings fields in Asia. Thus constitutional changes need to be studied carefully and should ensure that all communities are provided equal representation.

This is the reason many question why rush this amendment if the next parliamentary election is to be held under the existing system.

Minority representation

Speaking out on behalf of minority communities, even Ven Sobitha Thera had said that “details of mechanism in the 20A is not very clear yet, but from the number game it is very clear the minority representation in the parliament is going to be decreased substantially. This is not healthy for minority community in the country and also other small political parties like JVP who make the difference and raise the voice in the parliament against any social injustice.

A commentator wrote in the Sunday Observer on June 21, 2015 that although the Bill is a significant milestone to eliminate election-related corruption and frauds, they oppose it in its current form because the minorities’ chances of getting elected to Parliament, Provincial Councils and other local government bodies will be reduced considerably.

Columnist Asoka Obeysekera stating that small parties are not protected in the new bill which failed to adhere to international best practice suggested that solution in the way of a dual vote mixed electoral system which preserves the essence of PR whilst guaranteeing constituency representation.

In fact, Muslim fear emanates from the way the community was treated since independence, by successive United National Party and the Sri Lanka Freedom Party governments. These governments with their eyes firmly fixed on the elections, not the interest of the country, continued to woo the majority as the most effective vote caching strategy seldom realizing how they alienated the minorities.

It appears that this trend continues unabated even today under the existing complicated and complex political scenario.

For example, from early 20th Century, especially since independence, governments sought to strip the minorities of their existing rights and privileges.

Advantage

They passed the Citizenship Act No 18 of 1948, Indian and Pakistani Residents (Citizenship) Act No 03 of 1949 followed by the Parliamentary Elections (Amendments) Act.

Within two years this deprived large number of Indian Tamil residents in Sri Lanka of their citizenship rights and franchise.

The overnight disenfranchisement of the Indian Tamil population changed the ethnic structure of the electoral balance providing a clear advantage to the UNP in the general elections of 1952. These Acts made Muslims too voiceless second class citizens - a servile community. What could the Muslims living scattered all over the island do?

In 1972, late Prime Minister Mrs. Srimavo Bandaranaike’s government introduced the new Republican Constitution .This abolished the Senate, paved the way for a more authoritarian government, subjected the judiciary to political control and declared Buddhism as the state religion while other religions were given the freedom of worship.

The new constitution removed Section 29 of the Soulbury Constitution safeguarding the rights of minorities and replaced it with a clause on Fundamental Rights. It also removed the right of minority community members to appeal against any injustice perpetrated against them and put the government in a position to use the state machinery and the administration to harass and intimidate political opponents. This constitution united the Tamil community as Tamil political parties, Federal Party and Tamil Congress, formed the Tamil National Alliance and what happened subsequently is known to everyone.

July 1977 J.R.Jayawardene led United National Government, exploiting its huge majority in the parliament, introduced yet another new constitution in 1978 blending some of the functional aspects of the previous constitutions including some features of the French Gaullist and American Presidential systems. This constitution which repealed the previous 1972 constitution and brought in the presidential system of government also made the judiciary subservient to it and provided absolute powers to the President with no accountability besides declaring Buddhism as the state religion.

Hybrid system

In short, this constitution reduced the island’s minority communities to the position of nonentities. Power was concentrated in the President of the Republic to such an extent that President Jayawardene proudly declared that he had the power to do anything under the sun except making a man a woman and vice versa.

Discussing the plight of Muslims under the 1978 Constitution, late District Judge M.A.M. Hussain who was also a member of the then delimitation commission had this to say: “The Jayewardene Constitution of 1978 is at one with its predecessors in regard to the abolition of safeguards to minorities and it too refrained from re-enacting the provisions of Section 29 of the Soulbury Constitution, reinstating the principle of appointment and resurrecting the Senate. More damaging are its provisions with regard to demarcation of electoral districts.

There was no provision instructing the Delimitation Commission to pay attention to the existence of minorities in the country while demarcating electoral districts.”

It was in these contexts comes the unusual rush to pass the 20th amendment to the constitution to introduce new electoral reforms.

Now the question is why rushing this amendment? Why not discuss this further and ensure adequate representations to minorities?

In fact, none of our modern Constitutions emanated from the hearts of the People, who in terms of Article 3 of the Constitution are the acknowledged Sovereigns of this country. The major proposal in the 20th Amendment will be in the electoral system and the creation of a hybrid system with first past the post and proportionate representation characteristics. This proposal would give rise to great complexity to the electoral process, and its merits, if any, have to be weighed against the unnecessary complications and delays it could give rise to. The hybrid system appears to be a compromise, and is symptomatic of an inability to choose what is best for the country. Such major changes should be carefully considered in consultation with the main stakeholder - The Sovereign Voter. Has this been done? There is no doubt that if this bill is rushed through, it will not only not be in the best interests of the Country but also will go against the principle of the Sovereignty of the People.

Another change proposed in the 20th Amendment is the replacement of the cut out point of one-twentieth (five percent) of the total votes polled as specified in Art 99(6) of the existing Constitution as amended by the Fifteenth Amendment with a lower cut out point of three per cent. (Draft Section 99B(2).

How will this work in the context of the first past the post system, where its significance can be negligible? It will only have a bearing in regard to the balance.