This article starts where I left off last week, on the un-wisdom of trying to give this country another constitution when we have not yet worked some of the most important parts of the present one to their full potential. However today we look at the consequences of a referendum, which is a must for the repeal and replacement of the constitution, and is also required for the amendment of certain entrenched clauses of the present Constitution.

These entrenched provisions comprise Articles 1 (the State), 2 (unitary status), 3 (sovereignty of the people), 6 (national flag), 7 (national anthem), 8 (national day), 9 (place of Buddhism and other religions), 10 (freedom of thought, conscience and religion), and 11 (freedom from torture, and cruel, inhuman or degrading treatment). In addition, a referendum is required in respect of any Bill to extend the term of the President or Parliament to more than six years.

In 1987 the Government of the day had the required two-thirds majority to pass the Thirteenth Amendment to the Constitution in Parliament. What it sought to avoid was any inconsistency with one of the entrenched provisions of the Constitution which would have required the holding of a referendum.

The Thirteenth Amendment Bill together with the Provincial Councils Bill that was necessary for the full implementation of the proposals, went before a full Bench of the Supreme Court where legal counsel on behalf of a large number of petitioners argued that it altered the ‘unitary’ status of the country and therefore required a referendum, while the Attorney-General and lawyers on behalf of then President J. R. Jayewardene strenuously argued that it did not.

Out of the nine Judges, four including the then Chief Justice Sharvananda held that no referendum was required, another four held that both Bills taken in their totality required a referendum, and the remaining Judge held that the Bills would require a referendum unless two clauses were amended. It is clear from this narrow ‘victory’ for the then government, that any proposal to devolve power beyond the Thirteenth Amendment will almost certainly require a referendum.

It is also highly likely that such a proposal would not carry at a referendum. This is exactly what hostile sections of the international community are waiting for.

No matter that the ballot is secret and no one will know whether in fact some sections of the Tamil and Muslim communities vote with the Sinhalese against such a measure. The situation that will be portrayed abroad is that the Tamils can never achieve their ‘legitimate aspirations’ under a ‘Sinhala majority’ government and the stage will be set for a forcible partition aided and abetted by the West following the Kosovo model. In one stroke all the gains of the past two years will be wiped out and this country will be back not just at square one but at square minus one.

Indeed this may be the reason why some non-governmental pressure groups are hell-bent on giving this country a ‘federal’ Constitution. They know it will not carry at a referendum but that is precisely what they want.

In any event the requirement of a popular referendum for constitutional change as contained in Article 85 of Sri Lanka’s Constitution is not as democratic as it may seem at first glance. When used as a mechanism for constitutional change it can in fact produce anomalous results. If two-thirds of the People’s representatives in Parliament vote in favour of a particular amendment, is it democratic to allow such a measure to be rejected by a bare majority (50 per cent + 1) of the voters?

Furthermore, while the two-thirds majority in Parliament is required to be counted on the basis of the total membership of the House including absent members, the count for the referendum is taken on the basis of the actual votes cast and not the total number of registered voters. The only limitation to this rule imposed by Article 85 is that where the total number of votes cast does not exceed two-thirds of the total number of registered voters, the Bill will only be deemed to be approved if not less that one-third of the whole electorate had voted in its favour. In short, one-third of the registered voters in the country can stop a Bill that has the approval of two-thirds of the People’s elected representatives.

This means that the system of representative democracy that normally prevails under the Constitution can be overridden by direct or majoritarian democracy in respect of those features of the Constitution that are considered most fundamental. This appears to be a contradiction in terms. If the desire is to entrench certain provisions to a greater extent than others, it would appear more logical to require a more than two-thirds majority in the legislature to alter such provisions, .e.g. a three-fourths majority or even the consent of all the parties represented in Parliament.

On the other hand Article 86 sets out a separate procedure for the President to refer matters of national importance to a non-binding referendum to gauge public opinion. This clearly envisages the referendum to be held before Parliament decides on a proposed legislation and would seem to be the more logical course of action, by providing guidance to the legislators on the state of public opinion on a particular issue without fettering their independent judgment.

The difference between representative democracy and direct or majoritarian democracy can be illustrated with a simple equation. Let us say that the status quo on a particular issue is ‘x’. A proposal is forwarded to change this to ‘x + 10’. A referendum is held where 55 per cent of the people vote in favour and 45 per cent vote against.

If it is a binding referendum the proposal becomes law in its totality. It is a winner take all situation.

On the other hand, if the referendum is non-binding, i.e. only an expression of the people’s opinion, the legislators can take into account the strength of both majority and minority opinion when framing the relevant laws. With reference to the above example, they could, for instance, decide to modify the proposal to ‘x + 5’; or they might even decide that any kind of change may be too divisive for the collective good.

Turning to the question of a referendum in relation to the adoption of a whole new constitution, it must be said that such a process does not usually take place in a functioning democracy, because a constitution under which there is functioning democracy generally does not require wholesale repeal and replacement. Such a procedure usually occurs in newly created States or States where there is a collective desire to repudiate the past and start afresh, as in post-apartheid South Africa, or post-communist Eastern Europe, or else where there has been an unconstitutional change of government which needs to be legitimized, as in Thailand a few years ago.

In Sri Lanka, even while there have been flaws in the conduct of elections, there have been many significant gains in terms of civil rights and public accountability which have been achieved through judicial interpretation of the present Constitution. It is unlikely that a properly informed public would want to consign these gains to history and start afresh with a new document.

There is, in addition, the question of a meaningful choice being given to the parliamentarians and the voters. A requirement to vote yes or no for an entire Constitution does not give space for those who may wish to support some of its features but reject others – apart from the question of how many people will actually read it in its entirety.

Last but not least, it is important to remember that when a new constitution is adopted it is the judicial power of the people that is most easily tampered with, as all judges appointed under the previous constitution cease to hold office and the government under the new constitution cannot be compelled to re-appoint them.

Articles 163 and 164 of the 1978 Constitution provided for all public officials and lower court judges who held office under the previous Constitution to continue to hold office under the new Constitution, but expressly stated that the judges of the Supreme Court shall cease to hold office. Thereafter in the guise of restructuring the superior courts, selective promotions and demotions were effected.

Although this was undoubtedly a flaw in the present Constitution, it was a once and for all provision that cannot be repeated – unless we adopt yet another new Constitution.

So far the post-conflict pronouncements of the present Government indicate a preference to work within the framework of the present Constitution (including the Thirteenth Amendment). It is a wise choice at a time when so much needs to be done at ground level to make even the most basic rights meaningful.