Constitutional stratagems key to S.L crisis

[TamilNet, Thursday, 12 July 2001, 03:50 GMT]
"Asking us whether we are in agreement with the proposal that the 'country needs a new Constitution?' is akin to asking a person whether he wants to marry or not marry a woman whom he does not know at all. How can they ask us to vote for something when we do not know whether it is black or white," asked Mr. Wimal Weerawansa, MP, the propaganda secretary and senior leader of the radical Marxist Janata Vimukthi Peramuna (People's Liberation Front), condemning the Sri Lankan President's decision to suspend parliament and hold a referendum in August.

President Kumaratunga has to transform the Parliament by consent into a constituent assembly or she has to set up a constitution commission if she, consequent to a majority "yes" vote at the proposed referendum in August, intends to override all current legal procedures for introducing a new constitution.

According to the provisions of Sri Lanka's present constitution (promulgated in 1978), a bill to repeal it has to be approved by two thirds of the members of Parliament and endorsement at a national referendum.

President Kumaratunga has now sought to overcome this by holding an extra-constitutional referendum by appealing to the supremacy of the people's will above all law.

"It is with the firm conviction that the people reign supreme above all that the Government has decided to hold a Referendum on August 21," the government communiquÈ proroguing Parliament on Tuesday said.

"But surely the PA regime cannot explain its new constitution satisfactorily to the people in this short period before the proposed referendum. How can the people rationally decide what they should do at the referendum when they do not even know what they are going to voting for?," a JVP spokesman asked.

Even if a majority "yes" vote is used as the basis for overriding the procedures laid down by the present constitution for repeal and replacement, the President has to go by precedent to establish an acceptable mechanism for introducing a new constitution.

In this respect, the President has two precedents to go by.

1.Independent Sri Lanka's first constitution was framed by a commission under Lord Solbury. The Solbury commission heard representation from many sections of the island's public, political parties and other interest group before drawing the constitution for independent Ceylon (as Sri Lanka was known at the time) with British legal experts such as Sir Ivor Jennings.

2. In 1970, the United Front, an alliance of leftist parties and the Sri Lanka Freedom Party (SLFP), which won the general elections that year claimed that its victory was a mandate from the people to do away with the 'imperialist' system and replace it with a republican constitution. For this purpose, the United Front government transformed the Parliament into a constituent assembly which debated a draft constitution and approved it by a simple majority.

The Sri Lankan President cannot introduce a new constitution by transforming the Parliament into a constituent assembly because she would still not have a majority in that body to have it (the new constitution) endorsed. She can only hope to use the majority "yes" vote at the proposed referendum in August to exert moral pressure on the opposition in order to make them fall in line.

The main, if not sole, purpose of Ms. Kumaratunga's proposal to hold the referendum in August is clearly to change the electoral system. She is obviously pushing to change the system of elections so that her party can have a very effective majority in Parliament. Solving the ethnic conflict is not the Sri Lankan government's priority right now.

This motive is quite apparent in the government's communiquÈ, "The main reason for the present crisis in Parliament is the 1978 Constitution. Although the PA won more than two thirds of the Parliamentary seats at the last two elections, that mandate is not properly reflected in Parliament due to the prevailing electoral system associated with the very same Constitution. "It has been difficult to find solutions for the problems faced by the people as a result of the distortion caused by the improper reflection of our mandate in Parliament."

However, the constitutional change desired by the Kumaratunga regime can only be brought about on the basis of the British precedent. This is too would not be smooth sailing for the President because the opposition could challenge the validity of such extra constitutional methods in Sri Lanka's supreme court.

Therefore, the referendum appears to be largely aimed at compelling the opposition to abandon the no confidence motion against the People's Alliance regime. It would also buy enough time for the PA to consider the option of a fresh general election.