The referendum trap
Posted on March 5th, 2017

By Neville Ladduwahetty Courtesy The Island


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.

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.

7 Responses to “The referendum trap”

  1. Dilrook Says:

    The referendum trap is a danger for the reasons mentioned. However, the bigger danger is a TNA compromise where 13A is tweaked without a referendum.

    Even if the north and east approves the openly federal constitution (certainly there will be no referendum for Tamil Eelam) it doesn’t mean it has to be done. The north and east house only 12% of the population. Most Sri Lankans will reject the openly federal constitution and it will be dead in water.

    On the other hand, if TNA comes for a compromise and that is passed by 2/3 in parliament, that is far more dangerous because then there is a definitive outcome. The outcome will be implemented which will take the nation further away from unitary towards Tamil Eelam.

    To explain via an example, Zeka fever is deadly and without remedy. However, it is very rare. We must fear curable Dengu more as it is more likely.

    There is a concerted attempt by the supporters of 13A to terrorise people with Tamil Eelam (not possible at all) and get them to agree to a compromise with TNA. This is what we must oppose at all cost. A referendum (that will be defeated) is less risky for the nation. In addition, a defeat at a referendum will also seal the fate of the constitution process. Once rejected, the government loses the mandate (if any) for more constitution tinkering. It may also trigger the collapse of the government.

  2. Fran Diaz Says:

    Our thanks to Mr Ladduwahetty for pointing out the Referendum Trap.

    ———–

    Re the possibility of the 13-A getting tweaked into something worse :

    Is the 13-A legal, or is it ILLEGAL due to being imposed under Duress by INDIA on the JRJ govt in 1987 ?

    If the 13-A is forced to be kept on and tweaked further, then this means there is even more duress and more illegality.

    How is it that Universal Laws (such as laws imposed under Duress is ILLEGAL), are NOT being applied in the case of the 13-A in Sri Lanka ?

    Can someone enlighten us ?

  3. Ananda-USA Says:

    Fran,

    Well said! Good point regarding Agreements Forced into Under Duress!

    For example, at the end if WWII thd Czechoslovakia abrogated the annexation of the Sudetenland by Germany with the connivance of Britain and France in the Munich Agreement on the eve of WWII.

    Sri Lanka was BLACKMAILED into amending it’s Constitution to include the 13A, under the threat of military INVASION & OCCUPATION by India.

    I wish JRJ had REFUSED and forced India to INVADE earlier which they did later anyway with the IPKF under the guise of “PEACEKEEPING” to disarm the Tamil Separatists, but really intending to install an Indian surrogate in power in the North and East. I recall they did create an armed Sri Lankan Tamil group for that very purpose.

    Such a REFUSAL would have CLEARLY ETCHED any Indisn-modified Amendment to Sri Lsnka’s Constitution as a PARA-GATHI CRIME!

  4. Dilrook Says:

    @Fran

    Yes. However, by upholding 13A by Sri Lanka long after that duress disappeared, it was given legitimacy.

    No. Duress ended at some point but corruption, etc. keeps 13A still in place.

    A very good question. Add to it, the “deal” collapsed on May 19, 2009 as Sri Lanka unilaterally won the war. India promised to do it if we adopted 13A but failed. So technically, we had no obligation after May 19, 2009 to continue with 13A.

    However, on May 21, 2009, Sri Lanka made a commitment to visiting Indian delegates for the full implementation of 13A.
    On May 23, 2009, Sri Lankan leader and the UN Chief made a Joint Statement for the implementation of 13A.
    On May 27, 2009, Sri Lanka made a third international commitment promising UNHRC (in a self tabbed resolution) for the full implementation of 13A and the resettlement of Tamils (only).

    All these were done voluntarily without duress and without the distraction of terrorism. Since 2009, we have 3 self-made international commitments (not just bilateral that existed from 1987 to 2009) to implement (and safeguard) 13A. We have only ourselves to blame now.

    The “midwife” who delivered 13A in 1987 (overcoming grave threats to his life – he was living in India with Indian citizenship from 1986 to 1987), was the only non-Tamil minister of Perumal’s council, was party to the 2009 life-extension of 13A and the 2017 tweak of 13A. He knows we are divided by political parties and plays his cards very cleverly.

  5. Ananda-USA Says:

    Fran and Dilrook,

    As a Sovereign nation we are LEGALLY ENTITLED to change our mind at the behest of our SOVEREIGN citizens, no matter how the 13A was IMPOSED BY FORCE on Sri Lanka and promises to made to implement in part, in full or in “plus” at any time since UNDER THE CONTINUING THREAT of foreign powers INCLUDING the original AGRESSOR Nation India.

    When we have solved the IMMEDIATE MORE COMPELLING problem of OUSTING this PARA-GATHI unpatriotic Yamapalanaya and of SETIAL ECONOMIC BUNGLERS from powet, and RESTORING a Patriotic Government to power, a brand new Constitution must be crafted WITHOUT ANY REGIONAL Governments and having a STRONG EXECUTIVE PRESIDENCY WITHOUT any TERM LIMITS.

  6. Ananda-USA Says:

    The Yamapalanaya GOSL must NEVER BE TRUSTED to FIDDLE WITH THE CONSTITUTION in anyway!

    They will appoint more Constitutional Committees packed with unrepentant SEPARATISTS, and diddle with the votes in any referendum held to approve their PARA-GATHI Constitution!

  7. Fran Diaz Says:

    Ananda,

    We do totally agree with you !

    ———

    More ….

    Removal of a law imposed under DURESS can act with retrospect, even though that law has been in the country for some years. That is within International Law, isn’t it ?

    The 13-A was imposed on the pro-west JRJ govt during the Cold War times (1946-1991), when INDIA ran with the then Sov Union.

    In the case of Lanka, the DURESS from INDIAQ continued after its imposition in 1987. That is why it APPEARS to be “accepted”. The 13-A was NEVER accepted as Lanka’s own creation. No, not by the People or our true leaders. It is a foreign creation from INDIA and continues to be so. It is so inimical and divisive to life of the citizens of Lanka (including the Tamil people), that it must be removed. Many, many, thousands have died due to the ILLEGAL 13-A.

    Due to the 13-A, Lanka people continue to stay divided.

    Also, the Provinces (the centre piece of the 13-A), are the creation of the British colonists, not a creation of Lanka’s natural leaders.

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