Not another question, full of 'sound and fury'
The sudden and petulant withdrawal
of the LTTE from the peace talks may have put into abeyance, previously
floated intentions of the United Front Government to hold a non-binding
Referendum on the peace process. However, given the delightful vagaries
of what passes for politics in this country, one cannot be too sure.
Regardless, there are precise reasons as to why the holding of such
a referendum will be highly inappropriate at this juncture.
this reasoning are some irresistible parallels. In 2001, the People's
Alliance government decided to put a highly convoluted question
to the people at a Referendum. The question was as follows; "
Is a new Constitution as a matter of national importance and necessity
needed for the country?" A Proclamation was issued under Article
86 of the Constitution, read with section 2 of the Referendum Act
No 7 of 1981. This question was arguably redundant as the need for
a new constitutional order had been put to the people implicitly
if not expressly, in 1994 and answered largely in the affirmative.
In any event,
the formulation only begged the question in a very fundamental sense.
Though constitutional reform discussions had been taking place for
over an exhaustive period of time, the actual results of these discussions
on particular contentious matters, had not been put before the people
for debate. Consequently, the asking of such a question amounted
only to 'sound and fury, signifying nothing', for how could a people
respond to the need for a new Constitution without knowing its contents?
These doubts were proved to be well justified when, in retrospect,
it became clear that the Draft Constitution, did indeed contain
problematic transitional provisions providing for the incumbent
of the executive presidency to take on herself the powers, duties
and functions assigned to both a ceremonial President and the Prime
Minister until the expiration of her term of office, in a manner
that was contrary to what had been publicly held out.
One could well
raise similar queries with regard to the peace process, particularly
when the people have yet not been told about the nature of the federal
state that is being contemplated, its boundaries and powers. From
another perspective, the reasons as to why the 2001 proposal for
submission to the People by Referendum, was not a question satisfying
necessary legal requirements, has been succinctly set out in a recent
judgment of the Supreme Court.
in the judgment of M.D.H. Fernando J. (with Gunesekera J. and Wigneswaran
J. agreeing), dealt with four important questions relating to the
conducting of referendums in this country, in reasoning that has
far reaching implications beyond that instant case. ( Sujeewa Aruna
Senasinghe vs Senior Superintendant of Police, Nugegoda and three
others, SCM minutes 17.3.2003). In dispute was an alleged assault
on a lawyer who had been in the vicinity of Nugegoda in July that
year, when some opposition parties were conducting protest marches
against the prorogation of Parliament.
that he had been shot at with rubber bullets on the order of a senior
police officer at point blank range even though he himself was not
taking part in the demonstrations and had merely been remonstrating
with the former in order to allow him to get back to his car which
had been parked at a supermarket nearby. He suffered severe injuries
on the back of his head, on the back of one arm and near his spine,
as a result.
of the 2001 Referendum Proclamation became relevant to the case
in an essential sense, as the primary defence of the respondent
police officers was based on orders issued by the IGP under Section
45 of the Referendum Act. This section prohibited the holding and
taking part in any procession at any time from the date of the publication
of the Proclamation to the date on which the result is declared,
other than on May Day. No sections of the Police Ordinance, under
which the police have ordinary powers with regard to unlawful processions
or in the interests of public order or in order to prevent an apprehended
breach of the peace, were cited.
matter, four crucial questions were posed by court. Firstly, did
the prohibition on processions imposed by Section 45 of the Referendum
Act apply only where there had been a valid Proclamation under Section
2? In answering this in the positive, it is interesting that Directive
Principles of State Policy (specifically, Article 27 (2) (a) of
the Constitution) were used. The rationale was well known; namely
that restrictions on fundamental rights, in this instance, the rights
of freedom of expression and assembly, should be reasonable and
the court lack jurisdiction to determine whether the Proclamation
was valid and/or whether the Referendum Proposal had been duly formulated,
because those were 'political questions'? This bar was firmly rejected
on the basis of accepted principles that all powers and discretions
conferred upon public authorities are to be used reasonably, in
good faith and upon lawful and relevant grounds of public interest.
These are therefore not unfettered, absolute or unreviewable and
the legality or propriety of their exercise must be judged by reference
to the purposes for which they were conferred.
In this regard,
the court reiterated principles relating to the immunity of the
President which only provided a shield of personal immunity from
legal proceedings, leaving the impugned acts themselves open to
judicial review. These principles, earlier applied to actions of
the Commissioner of Elections, were now applied to directions issued
by the IGP.
Thirdly - and
most relevantly perhaps, to the instant discussion- if the court
does have jurisdiction, was the Proclamation invalid because the
proposal for submission to the people by referendum, was not a question
satisfying legal requirements? Section 2 (2) (a) of the Referendum
Act stipulated that the question should be capable of being answered
by a 'yes' or a 'no.' Thus, in the unequivocal opinion of court,
such a question should convey clear, intelligible and meaningful
information of future government action.
These attributes were not satisfied in the 2001 formulation of the
The answer 'no'
could have been given by, at least three categories of persons while
the answer 'yes' was even more ambiguous and could have been given
by several different groups of persons agreed only upon the need
for a new Constitution but holding wholly divergent views as to
what that Constitution should provide. An extensive elaboration
of this reasoning is contained in the judgment of the court.
if the proclamation was invalid for that reason, did the police
act in good faith and in the reasonable belief that the Proclamation
was valid? This was answered in the negative ruling that the police
had not acted bona fide and had, instead indulged in unjustified,
unreasonable and excessive actions that were in violation of police
judgment of the Supreme Court was in relation to a Proclamation
by the President under constitutional provisions that give her the
power to declare the holding of referenda in particular circumstances.
A serious attempt
by the government to hold a consultative referendum with regard
to the peace process, will confront a different and more fundamental
obstacle. This is as to whether such a power does indeed exist when
the circumstances in which referenda could be declared, whether
as part of the legislative process or not, are clearly specified
in Articles 85 and 86 of the Constitution. The caution with which
such an exercise should be embarked upon, cannot be more highly