The referendum trap

By Neville Ladduwahetty

President Maithripala Sirisena’s election manifesto stated: “I will not touch any Constitutional Articles that could be changed only with the approval of a referendum … Instead of the present autocratic Executive Presidential System I will introduce a Constitutional structure with an Executive that is allied to the Parliament through the Cabinet”.

Following his election the President’s 100 Day programme stated: “…process will begin of abolishing the authoritative executive presidential system and replace it with an executive of a Cabinet of Ministers responsible to Parliament…” (100 Day Programme, Daily News, January 10, 2015). This commitment was repeated at the funeral of the late Ven. Sobitha Thera, who pioneered the campaign to abolish the presidential system.

These commitments were made by the President before Parliament unanimously approved a resolution for the appointment of the Constitutional Assembly. Now that this Resolution is in place, how the President hopes to fulfill his commitments to the People remains to be seen.

THE RESOLUTION to APPOINT a CONSTITUTIONAL ASSEMBLY

The relevant Clauses of the Resolution for the appointment of the Constitutional Assembly setting out the procedural sequences to be followed are given below.

Clause 17 states:

“Upon the consideration of the Reports of the Sub-Committees appointed under Clause 5 (b), and the report of the Public Representations Committee, the Steering Committee shall submit a Report to the Constitutional Assembly. Such Report may be accompanied by a Draft Constitution”

Clause 18 states:
“The Constitutional Assembly shall thereafter debate the general merits and principles of the Report and the Draft Constitution (if applicable), and may also debate proposed amendments. At the end of such debate the question that “the Steering Committee be required to submit a final report and a Resolution on a Draft Constitution” shall be put to the Constitutional Assembly by the Chair”.
Clause 19 states:
“The Steering Committee shall thereafter, consider the amendments, (if any), proposed during the debate, submit a Final Report and a Resolution containing a Draft Constitution for the consideration of the Constitutional Assembly. The Prime Minister shall move that such Final Report and the Resolution containing the draft Constitution be approved by the Constitutional Assembly”.
Clause 23 states:
“If the Constitutional Assembly approves the Resolution on the Draft Constitution by a two-third majority, the Report and the Draft Constitution shall be submitted by the Steering Committee to the Cabinet of Ministers, and thereupon the Constitutional Assembly and the Sub-Committees referred to in this Resolution shall stand dissolved”.
Clause 24 states:
“The Cabinet of Ministers shall certify the Bill contained in such Report as a Bill to repeal and replace the Constitution as a whole in terms of Article 75 (b) and Article 120 (b) of the Constitution and that such Bill is intended to be passed with the special majority required by Article 83 of the Constitution and submitted to the People by Referendum.”

The Bill would then be published in the Gazette and placed in the Order Paper of Parliament after which the Prime Minister will move that the Bill “be passed by Parliament by special majority required by Article 83 of the Constitution”.

What is evident from the foregoing is that the provisions of a 2/3 majority and a referendum in the Resolution enables significant constitutional revisions with far reaching consequences, such as abolition of the Executive Presidency, to be introduced in the Draft Constitution.

The more significant lesson, however, is that even if the provisions in the Draft Constitution are limited to start with or diluted from its original sufficiently to qualify for it to be approved ONLY with a 2/3 majority, has no material relevance because the Resolution requires that a 2/3 approval by the Constitutional Assembly automatically kicks in the need for a referendum.

In fact, the stark reality is that whatever shape or form the contents of the Draft Constitution is, as long as it is approved by a 2/3 majority the country would be a victim of the referendum trap.

UNINTENDED CONSEQUENCES of a REFERENDUM

It is clear from the Clauses of the Resolution cited above that the Constitutional Assembly would have the opportunity to debate and introduce amendments to the Report and the Draft Constitution submitted by the Steering Committee. This would provide the opportunity to dilute, amend or even delete provisions in the Draft Constitution.

Theme cartoon googled and added by TWImage result for referendum cartoons

If for instance, all revisions and amendments proposed are incorporated in the Final Report and the Draft Constitution, securing a 2/3 majority would be a certainty. On the other hand, if only the core amendments are incorporated and the others are not, the certainty of securing a 2/3 majority may become somewhat dimmed, but cannot be ruled out. What needs to be recognized and accepted by those advocating the need to fashion the Draft Constitution in the image they wish is that their efforts will only contribute to and pave the way to securing the dreaded 2/3 majority needed by the Constitutional Assembly to precipitate the referendum trap.

What needs to be clearly understood is that as per Clause 23 of the Resolution, a 2/3 majority approval by the Constitutional Assembly is what authorizes the Cabinet of Ministers to certify that a 2/3 majority and a referendum would be needed for the Bill to proceed in terms of Articles 75 (b) and 120 (b) of the Constitution. This then is the referendum trap because outcomes at referenda often turn out not to be on the issues, but on the popularity or unpopularity of the Government in power; as demonstrated recently in Britain and earlier in France and Canada.

Considering the prevailing disappointment with the Government there is a strong possibility that the Bill when subjected to a referendum may be defeated nationally. However, although such a defeat could be pronounced in the South, there is a strong possibility that there would be a resounding approval in the Northern and possibly in the Eastern Provinces; an outcome that would consolidate their differing aspirations. On the other hand, if the referendum is defeated in the Eastern Province as happened during the 1977 election when the electors in the Eastern Province rejected the mandate sought by the Tamil leadership for a separate state, the prospect of a single Tamil speaking region consisting of the two Provinces would be dead for the second time.

These unintended consequences would be exploited by the Tamil leadership both nationally and internationally to make claims for the right of self-determination followed by other claims that go far beyond what was intended through Constitutional Reforms. This is the end game the Tamil leadership is striving for by pushing for a referendum.

If such a catastrophic outcome is to be avoided it is imperative that measures be adopted to prevent a 2/3 approval of the Draft Constitution by the Constitutional Assembly. Therefore, a national campaign should be initiated to oppose the final draft of the amended constitution in the knowledge that a 2/3 approval would inevitably precipitate a referendum. The success of this campaign is vital regardless of the provisions in the Draft Constitution.

CONCLUSION

The intent of the Government was to limit the scope of the provisions in the Draft Constitution to what could be approved ONLY with a 2/3 approval of Parliament. However, the Resolution for the appointment of a Constitutional Assembly does not provide for this approval alone. Instead, what the Resolution provides for is that a 2/3 approval of the Draft Constitution by the Constitutional Assembly is followed by a certification by the Cabinet of Ministers that the Bill relating to the Draft Constitution is approved by a 2/3 majority in Parliament, followed by a referendum (See Clause 23 above). Under these circumstances, for sections of the Government to continue with their original position that no provisions requiring a referendum would be considered is disingenuous, considering that the Resolution incorporating the provision for a referendum was passed unanimously by Parliament.

A referendum has the potential to set in motion unintended consequences. The outcome of a referendum may not reflect the People’s opinion on issues relating to the Draft Constitution or on abolishing the Presidential system. Instead, it may reflect the general disappointment with the Government.

Furthermore, there could be regional differences that impact on a national referendum. Any and all of these would mean a distortion of the outcomes of the referendum.

For any of these reasons there is a strong possibility that the referendum would be defeated in the South but receive an overwhelming win in the Northern Province and possibly the Eastern Province. Such an outcome would be catastrophic to the integrity of the State, because it would endorse and underscore the divisions in the polity. It could be stated with certainty that such divisions would be exploited to the fullest by the combined and coordinated efforts of the Tamil leadership and the Tamil diaspora to make claims starting with the right of self-determination and going beyond to eventual separation.

An overwhelming support for a Draft Constitution in the Northern Province would be similar to the election results at the 1977 election which were projected as a mandate to establish a separate state incorporating Northern and Eastern Provinces, despite the weak support from the East. However, unlike in 1977, the formidable resources by way of the international influence cultivated by the Tamil diaspora over the years would be capitalized to the fullest in order to advance their cause. Therefore, it is imperative that Sri Lanka does not fall into the Referendum Trap.

What is of deep concern and disappointment is that there is not even of an indication of an initiative being taken by Parliament to prevent the 2/3 majority needed to precipitate a referendum. What the country needs now is for a leadership to emerge to galvanize the nation to prevent it from falling into the Referendum Trap; a trap that would set in place a progression of events the likes of which are bound to be unprecedented.

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