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Selected Writings by Dharmeratnam Sivaram (Taraki)

Package won’t work

5th October 1997

The enthusiasm for the government’s devolution package and the strident op position to it are, in the final analysis, much ado about nothing. The package will not work. Discussions and further discussions will grind on until it is time for the next general elections.

Here, I will outline the technical impediments and political reasons which ultimately reduce the current pronouncements on the package to meaninglessness. There are two procedures for making the government’s package part of the constitution or for repealing and replacing it with a new constitution . One is the procedure laid down by the present constitution (1978) and the other is an extra-constitutional procedure.

The first procedure is well known - a two thirds majority in Parliament followed by the approval of the people at a national referendum.

This path for ‘constitutionalising’ the PA’s package is simply not possible unless the UNP agrees to support it in order to get the two thirds majority.

(Here, incidentally, one must understand the reality about the referendum in the Trincomalee and Ampara districts proposed by the PA last week to determine whether they, as one unit, should be merged with the northern province.

Even if the result of this referendum were to favour a merger, it can be implemented only by amending the eighth schedule of the constitution which lists the provinces of Sri Lanka.

This in turn requires a two thirds majority in Parliament. The minor brouhaha over this issue is therefore , as usual, premature.)

Firstly let us consider the manner in which the PA is now going to bring the package to parliament before November. It says that the proposal as approved by the cabinet will go through the PSC to the legislature.

If there is no consensus in the Select Committee then the government has to place it before parliament as a majority paper. (This has to be the case as the government is yet to clearly say anything on issues such as land, law and order etc.,)

In that case it cannot be placed on the order paper of Parliament as a bill to amend or repeal the constitution because it would automatically require a two thirds majority and would be subject to the Supreme court direction under Article 120 (a) that it would require approval at a national referendum as well.

In this situation the government can only place this in Parliament as a sessional paper. And that is what I understand it is going to do.The politicians in Parliament can go on discussing the sessional paper if and whenever the house finds the time to do so. This has to be so because, unlike a bill placed on the order paper of Parliament , a sessional paper has no binding status in the legislature.

Hence the government can place the package as a sessional paper in Parliament before November and then carry on until second week of December with the main business of getting the budget through. After this Parliament will meet again only in the first week of January.And then it will be time for the PA to get thoroughly busy with the massive preparations it is contemplating for the 50th anniversary of Sri Lanka’s independence.

This leaves the government with less than three weeks to try the second procedure - the extra constitutional referendum. Any sane person in this country would agree there is absolutely not time enough on the one hand for the elections commissioner to prepare for a referendum, for interested parties to campaign for and against it etc., and on the other to make arrangements for the independence jubilee.

Again after February the government has to hold the provincial council elections by April. Then there are the long overdue elections to the local government bodies in the northeast.

Here we should also remember that the general elections are expected in 1999.Nevertheless, assuming that the government will make an effort after May 1998 to constitutionalise the package, we shall examine the second procedure - as it would remain the only course open to the PA as long as the UNP sticks to its current position.

The second procedure has two versions.

The popular one is that the government can get moral backing for the package by putting it before the people of the country at what is vaguely referred to by some pro PA intellectuals as a ‘non binding referendum’.

Article 86 of the constitution provides for this. (“the President may .......submit to the people by referendum any matter which in the opinion of the President is of national importance”.)

This exercise is useless, mainly because a result in favour of the government’s package can at most be a dubious instrument for exerting moral and political pressure on the UNP to support the devolution plan in Parliament for obtaining a two thirds majority. I say dubious for it is certain that government would definitely not be so rash as to take a proposal which includes all the sensitive issues such as land, law and order, unit etc., which have traditionally stymied peace efforts before the general Sinhala public.

When the devolution plan thus tested at the so called non binding referendum is placed on the Parliament’s order paper as a bill in accordance with Article 82 (sections 1and 2) the supreme court will, if the package were to retain its 1997 content, automatically determine, in accordance with Article 120 (a), that the bill be approved by the people of the country at a referendum.

Therefore the idea of the so called ‘non binding referendum’ essentially presupposes a second referendum by law. Practically and politically it would be stupid to have two referenda on basically the same matter. The 1978 constitution does not appear to have a practical and legally resolvable solution to this eventuality.

The second less known version of the second procedure for ‘constitutionalising’ the PA package is to seek the approval of the people at a referendum under the same Article 86 to transform the parliament into a constituent assembly which would then make a new constitution ( as it happened in 1972)

The main problem in this procedure is that it might be impossible to secure even a simple majority vote in the constituent assembly to bring a new constitution into effect.

When one considers the various trends in the government today vis-à-vis devolution (Ashraff, Srimani etc.,) it seems inevitable that this constituent assembly would turn into a mad hatter’s party as soon as it is established. Nothing therefore is going to be done until the general election which is expected to be held in 1999.

The PA, as one Tamil party leader put it, is certainly bound to seek the support of the Tamil and Muslim parties to secure a two thirds majority at this general election to ‘constitutionalise the package in the second millennium’.

The latter part of next year therefore would rather see the beginning of sundry horse deals between the PA, UNP and minority parties than the establishment of a constituent assembly or the holding of assorted referenda.

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