Midweek Review
The castration of popular sovereignty

by Durand Appuhamy
The President has taken refuge in a Referendum to put off the evil day of a defeat in Parliament for her government. It is probably her hope that a win in at Referendum would restore the credibility, attract Opposition MPs to her government, and therefore she would be able to railroad through parliament her legislative programme including the Draft Constitution. The citizens should realize that this is a cynical use of a Referendum now to castrate the power people could exercise in any future Referendum. The President’s pet Draft Constitution provides for the use of Referendum in various situations. However, on very crucial issues of the very life and death of the nation, the Referendum abysmally fails to come to the rescue of the nation. So it is a Referendum now to extricate herself and her effete government, but it is also a Referendum to demolish its effectiveness in any future crisis situation.

Once the Draft Constitution is passed in its present form, the Regional Councils (RC) will be given exclusive legislative and executive powers over various subjects listed in the Regional List (Art. 130.1 & 137.1). If any of these powers are abused and found to be to the detriment of the people and the country, then there is no possibility whatever of any recovery, and the rectification of that abuse, without the consent of the abuser, i.e. the RC concerned.

The RC is the final arbiter. A two-third majority in parliament, and a winning approval at Referendum on the issue would avail nothing. It has to be approved by resolution of the RC concerned. The Referendum resorted to now in a crisis situation to salvage the government from its precariously moribund position would be totally ineffective and impotent under the new constitution, if and when the country is plunged into a constitutional crisis. Therefore, the answer to the question posed at the Referendum should be a firm and resounding NO.

Take note, that at a future date, if another President, parliament and the people (at a Referendum) want to abolish the RCs, and change the Constitution for whatever reason, it will become an impossibility. Such is the out and out surrender and abdication of power imposed by the Draft Constitution on the parliament and the President. This is because any such step has to be approved by the RCs (Art. 101.2 & 137.1). This is another reason for rejecting this proposed Referendum.

Even if the President abolishes an RC (under Art. 223. 1) and assumes all the powers of the RC, yet she is restricted in what she could do. The President has to submit her decision to a Tribunal of three members within 14 days. One member of this Tribunal would be nominated by the President, the second member would be a nominated by the deposed Chief Minister of the abolished RC, who could be the chief suspect who initially engendered this crisis. The third member would be nominated by the first two. The decision of the Tribunal is final and cannot be challenged in any court of law. If this situation has arisen due to armed rebellion, then the fate of the whole nation would depend on the decision of three nominated members with no qualification whatever for this job, except that one member must always be the stooge of the chief suspect! ! If they decide in favour of the RC, then the President, the Parliament and the people at a Referendum cannot in any way save the country from being fragmented.

The present constitutional crisis was precipitated by the perceived absence of the votes necessary to pass the monthly proclamation of the State of Emergency by parliament. What will happen to the country if the same situation obtains under the Draft Constitution, where one or more of the Regions have resorted to armed insurrection and secession? Well, a State of Emergency can be declared and troops could be dispatched to quell the rebellion. The police and the armed forces will have to be ruthlessly efficient to accomplish this task within 100 days. This State of Emergency will lapse at midnight on the 100th day.

Thereafter the RC’s approval will be required to extend the State of Emergency and to permit the deployment of the security forces to continue their operations against the insurrectionists (Art.222.7a). If the RC’s members and/or their friends are the secessionists, then they will not give assent to extend the Emergency. The armed forces will have to be withdrawn posthaste, if their lives are to be saved. This situation is more or less the same as now. But what would be the result? The separatists will succeed, Sri Lanka as a nation would become extinct and pass into history. No President, no parliament and no Referendum would bring back Sri Lanka. Surely, should you not reject this Referendum outright?