The Political Column

Where is the referendum heading?

The JVP and many other parties believe that the executive presidential system does not suit a country like Sri Lanka, which had a vibrant democracy under a Westminster form of government that existed 1947 to 1978. The executive presidential system bestows enormous power to one individual who, if he or she misuses this power, could put the country into jeopardy. Even the UNP agrees on this. Thus there seems to be a consensus among all parties on the question of checking the enormous power the constitution vests in the executive presidency.

Does this mean the constitution is in crisis? The firm answer is no. The constitution is not in crisis, but constitutional managers have made it appear as if it is in crisis. The constitution enables the executive president to prorogue parliament. President Chandrika Kumaratunga invoked the constitution to prorogue parliament though it happened while a no-confidence motion had been handed over to parliament. The move is, therefore, not unconstitutional, but it is undemocratic and could be interpreted as abuse of power. 

The head of state is expected to use provisions of the constitution in a way not to cause any conflict between parliament and the executive. But critics say the President had used constitutional provisions arbitrarily in a bid to achieve her political goals and not of the country. They say the constitution, which is the foundation of the country's progress, provides for cohabitation and co-existence of two different parties at two different levels. If the President is elected from one party, parliament and the cabinet could be from another party — a phenomenon found in the French constitution.

But unlike in France, the President of Sri Lanka can hold a number of portfolios in addition to him or her being the commander-in-chief of the armed forces, as it is he or she who as the head of government has the power to appoint ministers. However, the President may consult the Prime Minister, who could be from a rival party, whenever it is necessary — meaning that it is not mandatory for the President to consult the Prime Minister on each and every issue. But she is required by the constitution to appoint a person who commands the majority in parliament as the Prime Minister. If the Prime Minister is from another party, then the situation demands that the President should consult the Prime Minister in appointing other members of the cabinet.

If an executive president wants to achieve his or her political objectives using the provisions of the constitution, definitely the country will be plunged into a political crisis, but not a constitutional crisis as some people try to interpret it. 

The constitution is clear on all these aspects. Though the President can prorogue and suspend sittings for some time, the President would inevitably be forced to summon parliament to pass the annual budget. If parliament does not pass the appropriation bill, the government will fall, but not the President. This means that the constitution has given the President ample provision for the creation of a government of national reconciliation on such occasion. It is a way out of the present political impasse, which was precipitated by the prorogation of parliament in an apparent bid to keep the PA in office.

To make a bad situation worse, the President is trying to promulgate a new constitution through extra constitutional methods. To achieve this end, she is going for a non-binding referendum scheduled for August 21. Based on its result she is planning to set up a Constitution Commission to draft the new constitution in consultation with all sections of people.

Questions are being asked as to how the President could resort to such a procedure when the constitution itself has clearly spelt out the method of repealing or amending the constitution. 

Some may point to the 1972 example when the then United Front Government led by the SLFP drafted a new constitution with the parliamentary members from all parties sitting on a constituent assembly. This method was adopted because the 1947 constitution did not contain a specific method to repeal a constitution.

The new constitution introduced in 1972 Constitution contained provisions on how to amend or repeal the Constitution. The procedure spelt out in the 1972 constitution was followed to the very letter by the 1977 government of J. R. Jayewardene. 

The 1978 Constitution similarly spells out the manner in which the constitution can be amended or repealed. In the circumstances, many constitutional experts believe that the government's plan is unconstitutional. But the President appears to be taking little or no notice of these comments. On the contrary, she has said she had consulted French, American and British constitutional experts to work out her plan.

The President while concentrating on the referendum has also launched another campaign to woo political parties to prop up the PA's strength in parliament where her party has lost its majority.

Several government parliamentarians have made overtures to UNP Deputy Leader Karu Jayasuriya with the aim of setting up a national government. Mr. Jayasuriya and Assistant leader Gamini Atukorale have communicated this to party leader Ranil Wickremesinghe who is busy these days planning his strategy to defeat the referendum.

Mr. Jayasuriya said the UNP was prepared to talk within the framework of the joint opposition. He put forward a number of conditions for a healthy dialogue between the government and the opposition. They include the resummoning of parliament, the cancellation of the referendum, President being made responsible to parliament, and taking immediate steps to set up a government of national reconciliation.

Mr. Jayasuriya feels that negotiations should be done with utmost transparency. "If this can be done, the question of the no-confidence motion will not arise. There should be a professional management of governmental affairs. It is a question of governance. I am always a team player. A captain cannot be without a team and the team also should have a good captain," he said.

It is reported that the issue is being discussed by the UNP political committee comprising Mr. Wickremesinghe, Mr. Jayasuriya, Mr. Atukorale, Tyronne Fernando and Charitha Ratwatte. 

But what is more disturbing for the UNP is the stand taken by the JVP which had indicated that it was willing to extend conditional support to the government for one year. Its conditions include the abolition of the executive presidency, the setting up of five commissions, holding of all elections on the same day, elections being held under a caretaker government headed by the Chief Justice and the Heads of the five commissions. 

The only country, where elections are held under a caretaker government, is Bangladesh. With a political culture dominated by thugs and the underworld, this system is more appropriate to Sri Lanka.

Political analysts point out that the President's move to discuss with various political parties during the past week the current political scenario was just a ploy to distract attention from the discussions she intended to have with the JVP. 

She spoke with other parties as well, but the meetings appeared mere routine ones. One move that backfired was her proposed meeting with the UNP, which snubbed her by deciding to send its chairman Charitha Ratwatte. 

Under cover of talking to all parties, the President had crucial discussions with the JVP. At the talks, the JVP expressed its willingness to support the government on an issue-by-issue basis. The most crucial demand among them was the withdrawal of the referendum by the President. The JVP feels the new electoral system — a combination of the first-past-the post system and the PR — the President is trying to introduce through a new constitution is disadvantageous to it and other small parties such as the SLMC and the MEP. 

At the JVP rally on Thursday, a statement by the self-exiled JVP leader Somawansa Amarasinghe was read out. The JVP leader said that they would not support the UNP to form a government, which had physically eliminated the JVP leadership. He said the JVP would not be a party to a UNP conspiracy and would not allow the UNP to come back to power. 

In the light of these developments, the PA is wondering whether to withdraw the referendum, which according to critics is a waste of about Rs. 1 billion in public money. The government cannot afford to spend such a huge sum when the people have been burdened with all forms of taxes and the economy is in doldrums.

A question whether the President could cancel it legally and constitutionally arises here. Legal experts say the proclamation is not irreversible." In any case, they say that the President was exercising discretion under Article 86 of the constitution, assuming that a revocation is within the ambit of the said article. Even if it is not, it does not preclude her from cancelling it. Under the normal rules of interpretation, the power to make an order always goes with the power to cancel it unless there is provision to the contrary.

If the President cancels the referendum, her critics would say that it is a correction of injustice. In the legal system, it is an inherent power with the court to correct something wrong. Similarly the President has the power to undo a wrong act, they pointed out.

At the meeting of the joint opposition parties at the Mayor's Centre on Thursday, UNP leader Mr. Wickremesinghe said the President had failed to respond to their joint appeal demanding that the referendum be cancelled. He said they would send a rejoinder to the President as a matter of priority. Mr. Wickremesinghe said that the opposition would campaign vigorously during the next few weeks in a bid to persuade the people to vote 'no' at the referendum and defeat the PA's motives.

He revealed to the other opposition parties that the government was making overtures to the UNP through some of its parliamentarians and ministers. He said the UNP was discussing the matter at length and would give its response soon. But the UNP believes that all these overtures are being made by the government to defuse the build up of acrimony against the government.

According to reports, Prime Minister Ratnasiri Wickremanayake has made an initiative to talk to Mr. Jayasuriya while several other MPs including Chandana Kaththriarachchi had spoken to several other UNP parliamentarians. Minister Mangala Samaraweera, too, had spoken to UNP Leader Mr. Wickremesinghe over the phone but the response was not so good.

The joint opposition also briefed the Colombo-based diplomatic community on the political crisis. When party leaders explained the waning popularity of the government, one diplomat, going beyond the diplomatic norm of not interfering in the internal affairs of the host country, is reported to have said that the government was like the sinking Titanic. 

The same evening Mr. Wickremesinghe addressing the party's political affairs committee dropped a bombshell. He said Tyronne Fernando had 18 members with him and he too had asked eight portfolios from the government to form a national government. 

Party rank and file are wondering as to why Mr. Wickremesinghe mentioned this when he was very well aware that there was no such a move by Mr. Fernando to join hands with the PA. Some say Mr. Wickremesinghe was taking a swipe at the Jayasuriya-Atukorale group.

Meanwhile in the PA camp, President Kumaratunga is spearheading the campaign to safeguard her government from sure defeat in parliament once it is resummoned on September 7. She was even ready to mend fences with her estranged minister, S. B. Dissanayake. She is said to have asked Presidential Secretary Kusumsiri Balapatabendi and Minister Mahinda Rajapakse to meet Mr. Dissanayake.

Problems cropped up between President Kumaratunga and Mr. Dissanayake and a few other ministers some months ago mainly due to the President's failure to consult them when taking crucial decisions. She had reportedly directed the state media to blacklist some of the cabinet ministers who were not toeing her line. 

Mr. Dissanayake in particular has allegedly crossed the path of the President and is at loggerheads after the President ordered a probe on the affairs of the Samurdhi Fund which comes under his ministry.

With Mr. Dissanayake's departure from the PA inner circle, Minister Sarath Amunugama has filled the void.

Today, more than anybody else, Minister Amunugama has become a critic of the 1978 Constitution. Mr. Amunugama was a senior civil servant during the UNP regime and at one time a secretary to the Ministry of State when Anandatissa de Alwis was the minister. After President Premadasa took over the reins of the UNP, he joined the bandwagon of the anti-Premadasa group within the UNP. He later joined the DUNF with Gamini Dissanayake and came back to the UNP when Mr. Dissanayake rejoined the party. Thereafter Minister Amunugama successfully contested the 1994 general elections on the UNP ticket from the Kandy district.

It was only after President Premadasa was elected President that most of these politicians saw the differences of the executive presidency. Minister Lalith Athulathmudali who was the advocate of the executive presidential system at one stage opposed it when Premadasa was elected President. Similarly, Gamini Dissanayake offered the necessary numbers to President Chandrika Kumaratunga to abolish the executive presidency mainly due to political reasons. 

For most of the UNPers, what was good for J.R. Jayewardene was not good for Premadasa. They agitated within the party and finally were thrown out and made a third force called the DUNF.

The DUNF has today died a natural death and some of the DUNFers joined hands with the PA in 1994, while another group joined the UNP. Minister Amunugama is one who joined the UNP. But after having differences with the leader decided to leave the party and formed an outfit called the Alternative Group of the UNP. He has now crossed over to the SLFP and has become a vehement campaigner against the 1978 Constitution.

Minister Amunugama addressing a recent meeting of the government servants criticised the SLMC and many a PA politician who had become a stumbling block to the promulgation of the new Constitution. 

On another occasion he said: "The sovereignty that lies with the people of Sri Lanka, which is delegated to parliament, will be directly exercised by the people themselves at a referendum and if the people gave their mandate through such a device for a new Constitution, there was no need to go to parliament for approval afterwards."

Some political analysts believe that the referendum is a brainchild of Mr. Amunugama and there are various questions raised about the formulation of the question too.

Meanwhile, the Ceylon Workers' Congress had a crucial meeting with the UNP on Thursday evening.

CWC leader Arumugam Thondaman represented the CWC along with R. Yogarajan and several others while Mr. Wickremesinghe, Mr. Atukorale and Ravi Karunanayake represented the UNP.

The meeting was said to be fruitful and both parties agreed to meet again to discuss details of a strategic plan they are hoping to embark upon. The CWC delegation apparently expressed their dissatisfaction over the referendum and a new electoral system.

However, now all eyes are focused on the referendum and the UNP more evidently wants the government to continue with the referendum since the opposition is united on the issue.

But signs are emerging that President would move to cancel the referendum.

Situation Report

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