Undoing the misuse of referendums

“Instead the constitution needs to be amended as has been agreed by all political parties in the past to remove the authoritarian aspects of this constitution and make it one suitable for a democracy.”
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By Basil Fernando

(June 23, Colombo, Sri Lanka Guardian) There were several reports about a statement by a senior politician of the ruling regime, the Chief Minister of the North/Central Province, stating the intention of the government to obtain a two thirds majority of the parliament for a proposal to extend the term of office of the incumbent executive president. The proposal includes the carrying out of a referendum to seek the approval of the people for this move. In a press release issued on behalf of the United People’s Freedom Party Alliance (UPFA) the government has stated that it has no intention to be in power beyond the period mandated by the ballot. The statement said that, “The president was requested by some sections within the government to continue in office without holding a presidential election.” However, the communiqué says that the president will call for an election after November 19, 2009 or after he completes his official term in office in 2011. The communiqué also reminds that the UPFA and its main constituent, the SLFP, were political parties that firmly believed in democracy and recalled how the SLFP opposed the referendum to extend the life of the parliament during President Jayewardene’s administration.

While the above statement on behalf of the government is reassuring, the very existence of a pressure group within the government to publicly campaign for abandoning elections and pushing to keep the president in power undemocratically, discussion of all the issues relating to this proposal justifies a comment. Further, as the matters being raised are so fundamentally serious and raise questions of constitutional law, a public debate on these matters is warranted.

The move of J.R. Jayewardene in 1982 to extend the life of the parliament by a two thirds majority of the parliament and the holding of a referendum was from the point of view of constitutionalism, fundamentally flawed. However, the matter had not received sufficient attention and the wrong decision that was made by this referendum remains as a precedent. It is necessary to consider that this is no binding precedent and that tremendous damage done to democracy by this move needs to be acknowledged so that it is not repeated.

Many observers have consistently pointed out that all the political disasters in Sri Lanka since 1978 have been the result of the constitution which was adopted by the then president, J.R. Jayewardene utilising the overwhelming majority that the UNP had in parliament in order to accumulate all power into his hands. The 1978 Constitution did not represent the common law tradition or the American tradition or the French tradition of constitutions.

As critics have pointed out, “As the 1978 Constitution was introduced without much thought, Sri Lanka finds itself having the worst of both worlds.” It has also been pointed out that the, “politicians should realise their limitations and understand that the best safeguard against the abuse of power is institutionalizing in the constitution the checks and balances that will prevent accidental or deliberate abuse of power.” The critic who wrote those words was Rajiva Wijesinha in his book, Political Principles and their Practice in Sri Lanka, published in 2005. Rajiva Wijesinha is now a strong supporter of the present regime.

Dr. Colvin R de Silva compared the 1978 Constitution to the constitution of the Central African Republic of Jean Bedel Bokassa; thereby meaning that this was a complete political joke.

The example of Emperor Bokasso (Bokassa, meaning Jean-Bedel Bokassa) of somewhere in Africa (Central African Republic) is now available. And Africa seems to be the source of the new - style President ideal.

(Sri Lanka’s New Capitalism and the Erosion of Democracy by Dr. Colvin R de Silva, in the chapter, "New Style President," page 30.)

By adopting the 1978 Constitution Sri Lanka walked out of the orbit of constitutionalism. It created for itself a politically absurd situation. It is this fundamental political absurdity written into this constitution that lead to other serious political aberrations such as the JVP uprising from 1987 to 1991 and the northern rebellions including the LTTE. The human cost of both these rebellions could possibly have been avoided if the particular type of executive presidency envisaged by the 1978 Constitution was not imposed on the country.

All political leaders including the incumbent president have vociferously called for the abolition of this Constitution and the executive presidency of this ‘new style’. Judging by the statements of all opinion makers in the country over a considerable period it can safely be said that this abolition was a matter on which there is almost unanimous consensus.

Primarily Sri Lanka has walked out of the rule of law orbit. The law is no longer supreme in Sri Lanka. The president is also above the Constitution. The parliament and the judiciary have been undermined to an extent that they no longer function within the framework of the separation of powers. Instead of resolving these problems, if they are made permanent, the country can guarantee only the animal existence of slaves to its citizens. Any proposal for making an executive president for life is nothing other than the permanent abandonment of the rule of law and democracy. Naturally under such circumstances there is no need to talk about human rights for without rule of law and democracy no human rights can be protected.

Further, the implementation of any such proposal would also amount to making a government that is not accountable to anyone a permanent fact. Already institutions of accountability such as the Auditor General’s Department, the Commission against Bribery and Corruption and the judiciary have been undermined. That process of non-accountability will be made permanent if such a proposal succeeded.

There are two more fundamental issues involved in this discussion. One is to postpone the election by way of a two thirds majority in parliament and the other is to have a referendum to demonstrate the people’s approval.

Both these means have already been used in 1982 when the referendum on the extension of the term of parliament was passed by the parliament and a referendum was held in December of that year. The then Supreme Court by a five - three majority, approved the act. This whole judgement consisted only one paragraph despite of the momentous historical importance of the issue:

The majority of this Court is of the view that the period of the first parliament may be extended as proposed by the draft Bill which is described in its long title as being for the amendment of the Constitution and intended to be passed with the special majority required by the Article 83 and submitted to the People by Referendum. In view of this decision this Court in terms of Article 120 Proviso (b) states that it does not have and exercise any further jurisdiction in respect of the said Bill.
Three members of this court are not in agreement with the above view.
(Case Reference: S.D.No.3 of 1982 P/Parl.)

It is also strange that the judges who agreed and disagreed were not named in the judgement itself. This happened in a background in which an atmosphere of intimidation had been created against the judiciary by the executive president. It has been reported that Neville Samarakoon, the Chief Justice was among the three that disagreed. The political climate had not allowed the proper exercise of people’s freedoms in order to challenge the most basic notions that were behind this act presented to the parliament and the referendum.

Can a parliament change the complete character of a political system purely by way of a majority that a political party holds? The executive presidency as envisaged by the 1978 Constitution changed the fundamental character of Sri Lanka as a system that accepts the supremacy of the law and democracy. Both of these basic notions were fundamentally altered by the Constitution. The use of democracy to undo democracy itself is an absurdity. This is a fundamental problem of democracy that has been discussed in many jurisdictions including Germany where Hitler came to power under the Weimar Constitution and utilised the loop holes in that constitution to become the supreme dictator. Ever since Hitler’s defeat, the country has been preoccupied in developing constitutional principles and institutions to ensure that a recurrence will never take place. One of the institutions thus created is the constitutional court which will rule on constitutional matters ensuring that fundamentals of democracy will never be abandoned.

Similarly the French developed their Constitutional Council for this very same purpose. Within the American system the inbuilt safeguards prevents any changes of the basic structure of the constitution and from the very adoption of the American Constitution to date, elections for the presidency have been held regularly and peaceful power transfers have taken place. Similarly, India, a neighbouring country to Sri Lanka, has also ensured that the basic structure of democracy is kept intact. The attempt by the BJP to interfere with the constitution was defeated.

The most ludicrous trick J.R. Jayewardene played on Sri Lankans was to create the impression that anything can be done by way of a referendum. His was a vulgarized use of the idea of a referendum. The fundamental elements of a democracy are not open for change even by way of a referendum. The very essence of democracy is the right of the people to choose their representatives. If this notion is given up there is no longer democracy. It is therefore not possible to make someone a dictator, even by a referendum. Such limitation is essential because due to manipulation possible under certain circumstances, like for example at times when some leader is extraordinarily popular, it is possible to move the crowd to make him a dictator. This is what happened in the case of Hitler who at one point was one of the most popular of German leaders because of some of his initial successes which brought the German people some relief and some sense of pride. It has also happened in some instances where by manipulation of popularity the very foundation of society has been destroyed.

A further problem of referendums of this type is that they are never free. The 1982 referendum was a seriously flawed election. It is only when a would-be dictator is certain that the system’s flaws can be manipulated to ensure a victory that such referendums take place. As opposed to democracy which is described as a political system that uses the least amount of coercion such manipulated referendums rely on extreme forms of coercion. Given the tradition within Sri Lanka since 1978 to use enormous force on opponents during times of elections it would naive to expect that a free and fair election would take place at such a referendum.

These initial thoughts are offered to encourage discussion on the need to bring about checks and balances into Sri Lanka’s constitution. It would be a pity if the unscrupulous constitutional methods used by J.R. Jayewardene were to be repeated. Instead the constitution needs to be amended as has been agreed by all political parties in the past to remove the authoritarian aspects of this constitution and make it one suitable for a democracy.

Far reaching constitutional reforms to return to democracy and to improve it will help political parties dedicated to serving the people to do so under stable conditions. Far reaching constitutional developments allowing the wisdom of the people to be expressed through their institutions can also prevent the type of political cruelties witnessed from many quarters, including that of the rebels in recent times. What is needed is to create a peaceful climate for free discussion on these issues in which everyone can participate.

-Sri Lanka Guardian