By Bandu de Silva –

Bandu de Silva

The repeated announcement by the government that the Parliament would be dissolved if the proposed 19^th amendment to the Constitution would not be passed brings to my mind a situation that prevailed in Australia when the Menzies government failed in its attempt to get the Communist Party Dissolution Bill passed. Though there was all round support for proscribing the Communist Party including even among sections of the Labour Party (ALP), it was the High Court ruling that the Commonwealth government had no Constitutional powers to bring such legislation that put a damper to the projet.

Frustrated by the Court ruling, Menzies went in for what is called the ‘Double Dissolution,” i.e., the dissolution of both the Parliament and the Senate at the same time. The Liberal Party’s success at the polls in April 1951 saw a determined Menzies going in for a referendum seeking power for a Constitutional amendment enabling the commonwealth government to outlaw the Communist Party which the High Court had clearly said, the Commonwealth did not possess.

In Australia, getting a referendum approved was not an easy task either. It had to receive a ‘yes’ vote not only from the entire national electorate, but also a ‘double majority’. That is a majority in at least four States. That meant the Government required the support of the Opposition Labour Party which was in control of some of the States. The ALP was divided on the issue and the Catholics supporting the ALP came out strongly against the referendum on grounds that the government would get excessive power. The issue for the whole country then was that a ‘yes’ vote would give excessive power to the Commonwealth (read Prime Minister). The referendum failed to receive majority approval finally.

A later writer, John Howard, who was the second long term Prime Minister, wrote in his book: The Menzies Era (Harper/Collins, 2014), that” Menzies had been far too complacent, had not campaigned hard enough and had been a slave to didactic legalism in the design of referendum question.” (This was in contrast to Evett, the Labour leader, who out-performed Menzies by taking the issue very seriously despite the inconsistency within his own party.) “The raw politics were that the public supported a ban on the CPA, and that the Bill the Government had put forward to achieve such a ban had been declared invalid under the Constitution – so the Constitution should be changed in order to make the Act valid. If the Government had stuck to that line and nothing more, it might have been succeeded. Instead, it had complicated the issue and given the impression of wanting too much power”.

In my view, the Australia situation provides a lesson to Sri Lanka. As much as there was general expression of support for banning the Communist Party in Australia, there is widely express support in Sri Lanka for the abolition of the executive presidency, some being more favourable to pruning some of the excessive powers which the present Constitution and its amendments have conferred on that office than going for a total abolition. The vagueness or confusion arising from these somewhat varying emphasis need to be clarified clearly. As it was in the Australian situation, there appears to be apprehension that the proposed amendment to the Constitution in Sri Lanka would concentrate excessive power taking away from the President, and conferring on the Prime Minister. “Concentration of too much power” was what the Australians including Members of Parliament representing the Liberal Party itself feared when the Bill for the Dissolution of the Communist Party and later the referendum proposal were presented in a heavily loaded form.

In Sri Lanka, if one was really going for the Westminister model under which there is no primacy but Cabinet responsibility, one has to think seriously about the outcome of the constitutional amendment as it is now proposed. Strictly from a technical sense, one may not see a legal requirement for a referendum to be held on the Constitutional amendment issue, but there are far more fundamental issues involved here. One cannot forget that the Presidential system notwithstanding its inherent defects of over-concentration of power, provided a strong shield in a situation when the country’s security was seriously threatened. This is what Menezies meant when he said: “wars against enemies, either external or internal, cannot be waged by a series of normal judicial process.” Of course, Menzies was reacting against the High Court decision which thwarted the passing of the “Dissolution of the Communist Party” Bill but hidden within it was the necessity to have strong powers in the hands of the government to deal with such situations.

Referendum in Sri Lanka

As the former Constitutional specialist in our Parliament, Dr N.M.Perera who saw the referendum introduced under the JR Jayewardene Constitution remarked: “In general it is recognized that every parliamentary bill on every minor issue need not go through the referendum process. …. Only important bills like amendments to Constitution, and bills on major issues of policy should be subjected to referendum procedure”. The French Constitution, from which we have drawn inspiration, the learned legislator pointed out, stipulated that Constitutional amendment shall become definitive after approval by a referendum, provided that at the request of the President, the amendment is submitted to the joint discussion of the two Houses sitting as a Congress and obtains a majority of three fifths of the votes cast, the amendment need not be subjected to a referendum.

In the case of Sri Lanka, if one interprets this Constitutional Pundit, the President who is the presiding deity over the Cabinet and the Cabinet are agreed with the Prime Minister leading as n the present case, that a bill or any provision of a bill (for the amendment of the Constitution) need not be submitted for a referendum. “Notwithstanding that bills involving amendment of or repeal and replacement, or bills inconsistent with provision of articles appertaining to the people, the State and Sovereignty set out in Chapter I; bills appertaining to Buddhism in Chapter II and Fundamental rights in Chapter III, must be approved by the people at a referendum after they had received not less than a two-thirds majority in Parliament. If such bills do not receive two thirds majority hey stand rejected and need not be subjected to a referendum”.

In the present state of uncertainty surrounding the effects of the proposed Constitutional amendment, the government should not expose itself to charges that nationally important questions pertaining to the “people, State and Sovereignty”, and to Buddhism and Fundamental Rights are decided by a government which has not even being properly constituted through the electorate exercising its rightful mandate at a free election, but through the application of “raw” politics which smacks of greed for power which has become the whole mark of national politics. It is not the raw political power then that should be at stake but the country’s fundamental interests like security and prospects of division arising from a weakening of the government’s ability to take quick and urgent decisions in issues of national importance in a highly divided Parliament. One may even recall the instability France faced when governments fell overnight. It was for that reason that General de Gaulle introduced the Constitution of the 5^th Republic.

Surely, the circumstances surrounding the serious challenges that the country faced for near thirty years when to security and sovereignty were threatened to the core, should engage the attention of everyone. It is no secret that the TNA and separatists and even India and others are watching the situation developing whereby the Centre would be weakened. The prudent course to follow if our politicians think in terms of the overall interest of the country, is not to depend on legal niceties and technicalities on the interpretation of the applicability of a referendum but to hold a referendum on the vital issue of Constitutional reform placing the question for a “YES” or “NO” vote on the basic issue of what type of reform of the Constitution is desirable.