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Referendum is the Key : Five Eminent Judges Will Determine The Democratic Destiny Of Sri Lanka.



“Once to every man and nation, comes the moment to decide,
In the strife of truth with falsehood, for the good or evil side;
Some great cause, some great decision, offering each the bloom or blight,
And the choice goes by forever, ’twixt that darkness and that light.”
“Then to side with truth is noble, when we share her wretched crust,
Ere her cause bring fame and profit, and ’tis prosperous to be just;
Then it is the brave man chooses while the coward stands aside,
Till the multitude make virtue of the faith they had denied.”

– James Russell Lowell

The coming week will see Five eminent Judges of Sri Lanka Go down in history following an anxiously awaited ruling by the Supreme Court on or before October 13th 2020. The five Judge bench is headed by Chief Justice Jayantha Jayasuriya. The other four are the senior – most Supreme court judges namely Buvaneka Aluwihare, Sisira de Abrew,Priyantha Jayawardana and Viith Malalgoda.

As is well-known the Sri Lanka Podujana Party (SLPP) led Govt of President Gotabaya Rajapaksa and Prime Minister Mahinda Rajapaksa has gazetted the draft bill of the envisaged twentieth amendment to the Sri Lankan Constitution. The draft in its present form seeks to disempower the Sri Lankan legislature, circumscribe the Judiciary and strengthen the executive to a very great extent. It is widely feared that if and when the 20th amendment comes into force ,the executive presidency would have the potential to evolve into a Constitutional dictatorship.

There is much concern over this among the people. Thiry-nine fundamental right petitions challenging the proposed 20th amendment have been filed. A record number. The petitioners are mainly from political parties and civil society organizations. They seek recourse from the Apex court in what may very well be a last ditch effort to thwart the attempt to institutionalise authoritarianism through Constitutional means. It is also noteworthy that this may be the last occasion where Sri Lankan citizens could mount legal challenges against proposed Constitutional changes in this manner. The 20th Amendment if passed in its present form will disallow it in the future.

The Courts have given a patient hearing to all submissions made by counsels on behalf of the various petitioners. Since there was a record number of petitions and the Courts were required by law to make a ruling within a specific time-frame time limits for the oral submissions had to be imposed. All submissions ended on October 3rd. The Court will deliver a ruling on or before October 13th to the Speaker of Parliament..

Various points and concepts such as Sovereignty of the people, Separation of powers, Rule of Law, Franchise of the people, Checks and balances were elaborately argued by the learned lawyers appearing for the petitioners. Sri Lanka Muslim Congress leader Rauff Hakeem personally appeared in court to support the petition filed by him on behalf of the party.

Plea For a Referendum

Despite the differences in substance and style, almost all the arguments had an underlying plea. Counsellors for the petitioners in their submissions unitedly pleaded that the 20th Amendment should not be enacted into law unless it is approved by the people at a Referendum in addition to a two-thirds vote of the whole number of the Members of Parliament in favour as required by Article 83(a) of the Constitution.The plea for a ruling necessitating a referendum was a paramount feature of most submissions.

It has been the Govt position that the proposed amendment could become law if passed with a two-thirds majority in parliament alone. It opines that a referendum is not required. This stance has been bolstered further by the opinion of the Attorney-General. Notwithstanding the A-G’s position, counsels for petitioners have argued eloquently that a referendum in addition to a two-thirds majority is indeed a must for the 20 A to be incorporated into the Constitution. They are rooting for a Supreme Court verdict in their favour.

Earlier the President and Govt were supremely confident of getting the amendment passed with a two-thirds majority . It was felt a Parliamentary vote alone would suffice. The Govt was sure of getting it. This cocksure approach has received a jolt.

Firstly the Govt has at face value the support of only 149 MP’s out of a 225 member Parliament. Actually it is only 223 as two national list MP vacancies are not yet filled. Though the Govt has the support of 150 MP’s one of them is the speaker. Thus it has only 149 consisting of the SLPP and allied parties. Therefore it needs a few more votes from the opposition and there are unconfirmed reports of horse deals being clandestinely negotiated.

Secondly and more importantly the ruling regime is also affected by internal dissension. Several MP’s and ministers are not happy with certain provisions of the proposed amendment. Furthermore there is sub – terranean hostility among some parliamentarians at being asked to vote for an amendment that would devalue Parliament and by extension reduce MP’s to virtual non -entities. Furthermore there is an undercurrent of resentment over the 20 A seeking to transform the Prime Minister into a “peon”. These feelings are exacerbated by the fact that the current premier is the elder brother of the president and the single-most popular mass figure in Sri Lankan politics.Therefore it could be surmised that some Govt MP too may be awaiting the Supreme court verdict eagerly to make up theor minds.

Supreme Court Ruling

As a result the ruling Rajapaksa regime headed by President Gotabaya Rajapaksa is on shaky ground right now. This however could be an ephemeral state of affairs. Nevertheless the Govt will be looking forward to a favourable ruling by the Supreme Court in this regard. What the regime would like is for a clear-cut Judicial ruling that would rule out a referendum. If the Apex court does deliver such a ruling , that would benefit the regime immensely. All perceived dissent and doubts within Govt ranks would cease. Opposition “frogs”too would jump without hesitation. The two-thirds majority will be easily acquired and 20 A will become part of the Constitution.

The courts could issue different rulings too. The chances are also likely that the court could strike down certain clauses as being contrary to the Constitution and rule that a referendum is necessary on those counts. If such an eventuality occurs the Govt will have three choices. One is for the Govt to introduce the necessary amendments at committee stage in accordance with the Supreme Court determination. This is possible only if the changes are minor and doable.

However if the clauses are of a major nature – striking at the heart or core of the proposed amendment – the Govt has only two other choices left. It can take up the challenge of facing the people directly and win the referendum thereby making 20 A a reality. The other choice of course is to abandon the idea of a 20th Constitutional amendment at present and instead buckle down to the task of forging a new Constitution altogether. The last option would mean a “come uppance” for the Rajapaksa regime.

As stated earlier the Govt would be amenable to making changes in compliance with a court ruling if the clauses concerned are of a minor nature. A ruling affecting fundamental provisions of the draft amendment poses a difficult dilemma. Removing or diluting such clauses would take the “sting”out of the proposed 20 A. Hence passing such a “ reduced” amendment would not serve the basic purpose of those who formulated the draft bill. Why pass a “toothless” amendment?

Given the gung – ho attitude displayed by the Rajapaksa regime, it can certainly go for a referendum and pass the draft bill in its original by securing the people’s verdict. Again such a course of action could prove dicey. In the first place several Govt MP’s and opposition MP’s contemplating a loyalty shift would be put off by such a judicial verdict. They will have second thoughts and review their options. In that context obtaining a two-thirds majority in Parliament could prove to be elusive.

Groundswell of Public Opinion

On the other hand the Govt could cobble together a two-thirds majority and go in for a referendum. This would be a very risky gamble. Thanks to the sustained criticism of the 20 A draft’s negative features by opposition parties, human rights organizations, civil society activists, political commentators and academics, there is a groundswell of public opinion against it. The referendum would provide all those against the amendment a common platform to mobilise their opposition to the amendment.

Since the proposed amendment is certainly a democratic travesty and a blatant attempt to establish a Constitutional dictatorship, the 20 A detractors would be having the moral high ground. Thus the Govt would be on the defensive. Moreover the ruling family may not be able to get Govt MP’s to engage in effective electoral propaganda for the amendment at a referendum. Many MP’s will not genuinely espouse 20 A. Already Prof. GL Periris is demeaning and diminishing himself through his blatantly half-hearted outpourings in support of the 20 th Amendment. So the chances of losing the referendum are very high indeed for the Govt.

Furthermore the Govt has been saying it will draft a new Constitution after it passes the 20th Amendment. This has given rise to the question “why then is there a hurry to bring in this amendment? Many suspect that the Govt has no intention of introducing a new Constitution at all and that President Gotabaya Rajapaksa only wants to consoloidate and entrench his power via the 20 A. In any case it would be most cumbersome for the Govt to conduct two successive referenda on Constitutional reform. If the Govt loses the referendum on 20 A ,it can forget the idea of a new Constitution. Also the regime losing the referendum would encourage and strengthen the opposition. There may even be loyalty shifts among Govt MP’s.

All these above stated factors indicate that a referendum would not be desirable from the Government point of view. What it would like best is a Supreme Court ruling that would unambiguously rule out a referendum. Failing which the Govt would like a ruling that cites provisions that could be amended without diluting the essence of the proposed amendment. Those challenging the amendment on behalf of the people’s sovereignty would love the courts to rule in favour of an outright referendum as they are confident of winning one. Next to that a court ruling striking down the obnoxious clauses would be most welcome.

It is against this backdrop therefore that the five – judge Supreme court bench headed by the Chief Justice is engaged in weighing the pros and cons of arguments advanced by both sides before arriving at a decision on or before October 13. SLMC Leader Rauff Hakeem stated in court “we are in your Lordships’ hands”. Likewise the democratic destiny of the Sri Lankan nation is in the hands of the Chief Justice and four fellow Supreme court judges.

Judges Will Go Down In History

As mentioned in the first paragraph of this article the five eminent Judges would certainly go down in history regardless of their ruling. However it will be the nature of the verdict given by the learned Judges that would determine how history will evaluate them and/or posterity will remember them.

Meanwhile news reports published in Sunday newspapers stated that the Supreme Court ruling on the 20th Constitutional Amendment was sent to the Speaker’s office on Saturday October 10th 2020. According to the reports four out of five Supreme Court Judges Have Ruled that Clauses 3,5,14and 22 in the draft bill require the people’s approval in a referendum along with a two-thirds majority in Parliament to become law. The Speaker is likely to announce the verdict officially on October 20th stated the reports.

D.B.S.Jeyaraj can be reached at dbsjeyaraj@yahoo.com