DHARSHAN WEERASEKERA

I have heard it suggested in certain circles that there will be no referendum on the constitution, i.e. that Maithripala Sirisena and Ranil Wickremasignhe will see to it that the constitution passes into law just by action in Parliament.  In my view, the said suggestion is wrong.  There will be a referendum.

What makes me so sure is that, UN High Commissioner for Human Rights Zied Al Hussein, in his oral update on Sri Lanka at the June-2016 session of the UNHRC, spends nearly 1/3 of the speech extolling the virtues of the constitution that SL is about to have, and also explicitly says:

‘Significant momentum has been achieved in the process of constitutional reform.  On 10^th March 2016, Parliament adopted a resolution establishing a constitutional assembly to draft and approve a new constitution or amendments by the end of 2016, which would then be put to a referendum in 2017.’[1]

Note that the phrase, ‘which would then be put to a referendum in 2017’ is categorical.  How does Zeid Al Hussein know for certain that a referendum will take place?  Obviously, because the Americans told him so.

In my view, the persons who insist that there will be no referendum are operating under a mistaken assumption, namely, that MS and RW are free to do what they want with respect to the constitution-making process, or for that matter government policy in general.  They are not:  the Americans are now in control.  In this article, I shall explain why it is essential for the Americans, as well as for MS and RW personally, that the constitution be subjected to a referendum.

THE AMERICANS

Since the constitution will destroy Sri Lanka’s sovereignty and turn this country into a vassal of the US, the Sinhala-Buddhists will never accept it, and continue to protest against it.  Inevitably, the government will clamp down on those protests, which is to say, undertake a sustained campaign of repression against the Sinhala-Buddhists.

The Americans will participate directly or indirectly in the said campaign, since it is in their interests also to have the constitution ‘succeed.’  Meanwhile, news of what is happening in Sri Lanka will leak to the outside world, because is impossible to hide such things for long, with the internet, social media, and so on.

So, at some point, the Americans will have to justify their actions to the international community.  A referendum lets them do this.  For instance, it gives them a chance to argue that the constitution has been approved by the majority of Sri Lankans, that the protestors are extremists and rabble-rousers, and therefore it is only right that they (i.e. the Americans) help the government defend the constitution against such nasty elements.

MS AND RW

For MS and RW, a referendum is essential for two reasons:  first, if the constitution wins (I presume that by now the US—and their allies the UK and India—have figured out a way to rig a referendum so as to ensure victory) it will provide them with the best excuse for postponing Parliamentary elections in 2020.

Second, if by some chance the constitution loses (that is, whatever plan the US, UK and Indian have concocted fails, and the Sinhala-Buddhists manage to defeat the constitution at the referendum) then the fact that MS and RW allowed the referendum in the first place will help save their necks when the SB’s come for them afterwards.  I shall explain these two points in a bit more detail.

First, as the recent ‘Pada Yathra’ showed, MS is disliked if not reviled by the vast majority of rank-and-file SLFP’ers, which means that, in any future election, if he contests under the SLFP or the UPFA, he is sure to lose.

Let’s turn next to RW.  In my view, because of the hardships resulting from the high price of goods, the incompetence shown in providing basic services such as garbage collection, road-maintenance, and so on, most people in this country including those who voted for the UNP in August-2015 are fed up with the way the country is being run at present.  So, if Parliamentary elections are held today, the UNP will also lose.

The question is, ‘What will happen to MS and RW if they were to lose power?’ In my view, given the mood in the country, and also a perception particularly among SB’s that MS and RW, since coming to power, have done irreparable harm to the sovereignty, humiliated the armed forces, and, under the pretext of ‘national reconciliation,’ re-ignited the separatist ambitions of the Tamils, they (MS and RW) will be in serious trouble if they lose power.

At best, they will have to spend much of their retirement in court or in jail.[2]  At worst, if hard evidence is found that they colluded with foreign countries or with interested parties to compromise the sovereignty of the country, they might have to face life in exile, or, if caught within Sri Lanka, a firing squad, (no doubt after a hasty ‘trial,’ perhaps even with international participation).

In short, neither MS nor RW can afford to lose power, and that means they have to prevent the 2020 Parliamentary elections.  A new constitution will give them an excuse to do this.  For instance, they can argue that the constitution needs time to take root in the country, that it is unwise to subject this process to potential disruptions such as elections, and thereby try to extend the life of Parliament by way of a referendum.

If I’m not mistaken, the above is the tactic J. R. Jayawardena used in order to postpone elections in 1982.  If, however, MS and RW wish to resort to the same tactic, or a variation on it, they need to get the constitution approved at a referendum.  This is for two reasons.

First, most people in this country including UNP voters are well aware of what happened to the country as a result of the postponement of the ’82 elections, and it is unreasonable to suppose that they will want a repeat of those awful events.

So, at a minimum, MS and RW have to show that the present occasion is different from ’82, and they can do this if the constitution is put to a referendum.  For instance they will be able to argue that in ’82, except for the UNP, all other parties were against postponing elections, whereas in the present occasion all parties, including the SLFP, are for it.  They will also say that they are only trying to give the constitution a chance to succeed.

The real value of a referendum, however, is that it lets MS and RW resolve a certain conundrum with respect to the ‘National Government,’  a conundrum they have to resolve if they expect to defeat the SB’s in the clash that is to come.  The conundrum is:  in forming of the ‘National Government’ they abrogated the franchise of the majority of SB’s who voted for the UPFA in the August-2015 elections.

I have discussed the above matter in some detail in two articles (‘The Trap that will be Sprung on March 9^th,’[3] and’ A Day that will Live in Infamy’[4]) both published in Lankaweb.com, and refer the reader to those articles, but in brief, my point there was that the UPFA manifesto for the August-2015 elections didn’t say that, if the UPFA lost, its candidates retained the right to join the winning party and form a government.

Thus, SLFP MP’s who contested under the UPFA banner, but then joined the UNP to form the ‘National Government,’ did not have a mandate for what they did.  If we presume that, for the act of voting to have any meaning voters must have the assurance that their representatives, once elected, will fulfill the promises they made prior to the elections, and not engage in conduct contrary to those promises, then the franchise of the SB’s who voted for the UPFA at the said elections has been abrogated.

Therefore, at the time the constitution-making process began in late January, Parliament was both legally and morally unfit to take up that task.  One may argue that the legal problem was resolved when the JO unanimously endorsed the resolution converting Parliament to a ‘Constitutional Assembly,’ but even so, the moral issue still remains.

If MS and RW try to enact the new constitution without a referendum, the said moral issue will re-surface, this time in its full intensity, and that is something they cannot allow to happen, because of the following reason.

The profound truth discovered by persons such as Gandhi and Martin Luther King Jr.—the 20^th Century’s pre-eminent exponents of the use of non-violence for political purposes—is that moral truth, i.e. the conviction that one’s cause is just, if directed properly, makes a non-violent resistance movement invincible against the power of the State.  They were led to that truth by a certain idea of Leo Tolstoy’s.

Tolstoy’s idea, as far as I understand it, is that the power of the State ultimately rests on its monopoly on violence, which in the final analysis is the ability to unleash the armed forces of the country on its own people.  The function of a non-violent campaign is to force the soldiers to confront the reality of what they are being forced to do.

Tolstoy’s conclusion was that, faced with the said reality, there comes a point where the soldiers refuse to shoot, and that’s the end of the command structure, at the top of which is the political leadership.

To digress a moment, I cannot resist recalling at this stage Tolstoy’s discussion of the above idea in his book, The Kingdom of God is Within You.  In a poignant series of passages, written in his inimitable style, he tells the story of being on a train with a company of soldiers on their way to put down a local rebellion:

‘All these lads, who for the most part come from the country, know what business is taking them out on the train; they know what the proprietors always offend their brothers, the peasants, and that therefore the same is taking place here.  Besides, the greater half of these men know how to read books, and not all books are ones in which the business of war is lauded—there are also those in which its immorality is pointed out.’

‘Amidst them frequently serve freethinking companions—volunteer soldiers—and just such liberal young officers, and into their midst has been thrown the seed of doubt as to the legality and valor of their activity.  It is true, all of them have passed through that terrible, artificial drill, worked out by ages, which kills all independence in a man, and they are so accustomed to mechanical obedience that at the words, of command, ‘Fire by company!  Company, Fire!’ and so forth, their guns rise mechanically and the habitual motions take place.’

‘But ‘Fire!’ will not mean now having fun while shooting at a target, but killing their tormented, offended fathers and brother who—here they are—are standing in crowds, with their women and children in the street, and shouting and waving their hands.  Here they are—one of them, with a sparse beard, in a patched caftan and bast shoes, just like their own fathers at home in the government of Kazan or Ryazan; another, with a gray beard and stooping shoulders, carrying a large stick, just like their father’s father, their grandfather; another a young lad in boots and red shirt, exactly as the soldier who is now about to shoot at him was an year ago.  And here is a woman in bast shoes and linen shirt, just like mother at home….’

‘Are they really going to shoot at them?’

‘God knows what each soldier will do during this last moment.  One slightest indication as to its not being right, above all as to the possibility of not doing so, one such word, one hint, will be sufficient, in order to stop it.’[5]

To turn to the Sinhala-Buddhists, if they launch a sustained campaign of non-violent resistance against the constitution, MS and RW are finished (and so are the Americans, at least as far as their ‘plans’ with respect to SL[6]).  So, it is imperative that the pair retain the moral high-ground, or at any rate a semblance of the high-ground, in relation to the SB’s.  A referendum will let them do the above, because:

One, it means the JO (the purported representatives of the SB’s in Parliament) have endorsed the constitution in Parliament, and two, a winning referendum will mean that at least a portion of the SB’s also have consented to the constitution.  So, MS and RW can argue that the remaining SB’s have no moral right to claim that they have been cheated.

Finally, in the event the constitution loses at the referendum, and MS and RW have to face the wrath of the SB’s, they will be able to plead something like the following:

‘We are now at your mercy because we loved the country more than our own safety.  We knew the risks, but allowed the referendum anyway, because we had faith in democracy and believed sincerely that the constitution would be good for the country. If loving the country is a crime, then consider us guilty.  Harm us, and you will be making a mockery of the very principles that you claim to hold so dear.’

In short, The Americans, and also MS and RW personally, have everything to gain and nothing to lose by holding a referendum:  on the other hand, they are sure to lose everything if they don’t hold one.  So, there will be a referendum.

Dharshan Weerasekera is an Attorney-at-Law. His latest book, The Relevance of American Constitutional Principles to Solving Problems of Governance in Sri Lanka, will be out in bookstores shortly.   

[1] A/HRC/32/CRP.4, 28 June 2016, www.ohchr.org

[2] The same type of treatment they’ve meted out to their rivals in the previous regime but magnified a hundredfold.

[3] 8 March 2016

[4] 16 March 2016

[5] Leo Tolstoy, The Kingdom of God is Within You, Farrar, Straus and Cudahy, New York, p. 341

[6] I presume the SB’s won’t be so dumb as to launch a campaign of violence.  The Americans are maestros at meeting violence with violence and will no doubt enjoy taking on the SB’s.  If one goes by some of their  ‘successes’ of the Americans in places such as the Philipinnes, Indonesia in the 60’s, and even Iraq an Afghanistan more recently, the Americans will see to it that the SB’s are wiped out.