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.

Foremost in 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.

The 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.

He complained 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.

The validity 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.

Examining the 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 not unreasonable.

Secondly, did 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 question.

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.

Fourthly, even 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 departmental orders.

This March 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 stressed.

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