The referendum: An illegitimate and unnecessary device

Is it even conceivable that Parliament could make a constitutional amendment by a two-third majority and declare that amendment to be unalterable by that or any other Parliament ever thereafter? The absurdity of such a provision is obvious

By Dr. Nihal Jayawickrama

The 1978 Constitution introduced into the law-making process of Sri Lanka the concept of a ‘referendum’. It was hailed in some quarters as a return to basics. 

In the tradition of the Greek city states, actual decision-making was being restored to the people. 43 years later, what has it actually achieved? It has entrenched provisions which no legislature would have ever contemplated repealing: the prohibition of torture and the freedom of thought, conscience and religion. It has prevented Parliament from restoring to this country its original name – the Republic of Sri Lanka, by dropping that utterly unnecessary prefix borrowed from the Democratic Socialist Republic of North Korea. 

It has installed 4 February 1948 as our National Day – the day on which Ceylon received the gift of self-government and dominion status under the British monarchy, rather than 22 May 1972 – the day on which Sri Lanka unilaterally declared itself a Free, Sovereign and Independent Republic. And, it requires a country-wide referendum to be held before a single note of music in our national anthem, set out in the Third Schedule, could be changed – say, from base to treble. 

More seriously, and most unfortunately, it was successfully invoked in 2018 to impede the JVP’s constitutional amendment which would have enabled the Ceremonial Head of State under the 19th Amendment to be elected by Parliament rather than at a country-wide, divisive, general election. What was most tragic was that the determination of the Supreme Court on that Bill was clearly erroneous in that it had failed to consider a previous relevant binding decision of a Full Court.

Localised single issues

A referendum (or a plebiscite as it is sometimes referred to) is a mechanism frequently resorted to now in Swiss Cantons, usually to seek community views on single issues such as whether Sunday shopping should be allowed, or liquor shops should be kept opened on the day of Sabbath. It is a democratic way of resolving simple single issues. It is not suitable for consulting the population on complex issues such as the text of a new Constitution. 

For example, in Canada in 1992, a package of very significant constitutional amendments designed to recognise and give effect to the multicultural character of that country, known as the Charlottetown Accord, which was agreed upon by all the First Ministers and territorial and aboriginal leaders, was rejected at a national referendum for widely divergent reasons which had no relevance whatsoever to the question at issue. Foremost among these reasons was the widespread unpopularity of the then Prime Minister of Canada. 

So, it was with the 2017 referendum in the United Kingdom on the question of leaving the European Union. The crippling consequences of Brexit were not explained to the electorate, and many in middle-England thought that an affirmative vote would mean the restoration of the British Empire! I was in both countries at the relevant times.

An alien concept

The referendum, as a mechanism of direct law-making is alien to this country and unfamiliar to most Sri Lankans. That was evident in the one and only referendum which was conducted in 1982 in the most bizarre circumstances. President Jayewardene first secured undated letters of resignation from all his Members of Parliament and Ministers. He then forwarded to the Supreme Court a Bill that would extend the life of Parliament for a further six years, and thereby deny the people their right to elect a new Parliament. He certified the Bill as ‘urgent in the national interest’ and required the Court’s decision within three days. He then submitted the Bill to Parliament and required it to be debated and voted on in a single day. 

The Fourth Amendment to the Constitution was next submitted for approval by the people at a referendum. The reason he gave the country was that he had information that ‘a Naxalite group intended to establish a military government if a general election was held’. The Bill he submitted to the ‘people’ was either not read by ‘the people’, or was probably incomprehensible to many of those who did. In fact, it received two diametrically opposed interpretations by the Supreme Court, with the seven-judge bench returning a divided verdict of four to three on its constitutionality. Nevertheless, it was approved by a majority of the ‘people’ in what is now accepted as the first genuine mass rigging exercise in the country’s electoral history. 

The illogicality of the 1982 Referendum is demonstrated by the fact that only 38.6% of the total electorate voted to retain a Parliament in which the ruling party held 140 of the 168 seats, i.e. 83.3% of the voting strength, while 32.0% voted against. On the basis of proportional representation, the governing party would have secured only 93 seats. On the ‘first past the post’ basis, of 160 polling divisions, an affirmative vote was recorded in only 111. 

However, what was most revealing were the voting figures in the Matale electoral district which had been devastated by floods and rain shortly before the Referendum, rendering thousands of families homeless and making communication virtually impossible. That electoral district recorded the highest poll in the country – 80%. One of its four divisions, Laggala, which was the worst affected by the floods, recorded the highest percentage of votes polled in the country in favour of the extension of the life of Parliament: 85.4%!

Issue of legislative competence

A serious constitutional issue that arises is whether it was within the legislative competence of the National State Assembly to have introduced the requirement of a referendum into the law-making process of the Parliament it created under the 1978 Constitution. The 1972 Constitution authorised the new National State Assembly which it established to amend any provision in that Constitution with a two-third majority.

Accordingly, in 1978, the National State Assembly, by a two-third majority, repealed and replaced that Constitution in its entirety. In doing so, it provided that certain provisions in the new Constitution, which it adopted by a two-third majority, could be amended only by a two-third majority in Parliament followed by approval of the people at a referendum. In other words, those provisions were to be unalterable by Parliament even with a two-third majority. 

Could the National State Assembly have invested such a superior status to the law which it had made by a two-third majority that it would be unalterable by a similar majority? If it could have, why is it not possible today for Parliament to pass an ordinary Bill by a simple majority of one, and state that that law may only be amended or repealed by a two-third majority; or to take another example, to state that it may be repealed only by the affirmative votes of all the members of Parliament? 

Is it even conceivable that Parliament could make a constitutional amendment by a two-third majority and declare that amendment to be unalterable by that or any other Parliament ever thereafter? The absurdity of such a provision is obvious. The National State Assembly was a creature of statute, a legal persona. It had no existence outside the provisions of the 1972 Constitution under which it was created. 

Its law-making powers were explicitly defined. It was prohibited from abdicating, delegating, or in any manner alienating its legislative power. It was prohibited from setting up an authority with any legislative power other than the power to make subordinate laws. Therefore, it did not have the power to make a law that could not be amended or repealed by a legislature either by a simple or two-third majority. 

One redeeming feature

Article 83 specifies which Bills require approval by the ‘people’ at a referendum. They are Bills ‘for the amendment or for the repeal and replacement of or which are inconsistent with’ Articles 1, 2, 3, 6, 7, 8, 9, 10, 11, 30(2), 62(2) or 83. On the other hand, Article 82(5) states that a Bill for the ‘repeal and replacement of the Constitution’ shall become law if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members. That Article does not require such Bill to be approved by the ‘people’ at a Referendum. 

Therefore, the scheme of the 1978 Constitution appears to be that, while that Constitution remains in force, the entrenched provisions of that Constitution may not be amended, repealed or replaced without the approval of the ‘people’ at a Referendum, but the repeal of that Constitution in its entirety and its replacement with an altogether new Constitution does not require such approval at a Referendum. Whether or not that was the intention of the yet unknown draftsman of the 1978 Constitution, the field is now open for Parliament to adopt an entirely new structure of government.