As the debate over a new constitution for the country progresses through the Constitutional Council and its Steering Committee, the idea of having a referendum on a new Constitution has been much favoured by the stakeholders. At the initial stages some argued that a mere two-thirds majority in Parliament was sufficient for the promulgation of a new constitution while others insisted that a referendum was a must.
Strange enough this time over it’s none other than the Leader of the Opposition and TNA leader R Samapanthan who has strongly backed the idea of an island-wide referendum. He said the sovereignty is vested with the people and hence it was essential to get the people’s support. He elaborated his position by saying: “There can be a new Constitution for the country only if it is approved by the people of the country.”
Prime Minister Ranil Wickremesinghe also endorsed this saying that the leader of the TNA accepted that the support of the majority community was essential to enact a new Constitution. Across the board there had been general agreement among parties represented in Parliament that a referendum was necessary.
The provision for referenda which was introduced for the first time in our country by the 1978 Constitution was believed to be an enhancement on democracy that existed up to that time. In a representative democracy, elected members legislate on behalf of the people. However, when it comes to a matter of utmost national importance a referendum enables the people to get involved directly and approve or disapprove it.
However, ironically this provision was used by its architect President J R Jayewardene in 1982 to extend the life of Parliament by another term without holding a general election because he wanted to preserve the two- thirds majority he enjoyed at the time. An idea for a referendum never came up thereafter.
Thirty-four years later it has surfaced again and the difference this time is that for the first time it is going to be used for its original intended purpose – to decide a matter of great importance to the country because there cannot be anything more important than a Constitution, more so when it is intended to resolve some vital long-standing national issues.
Sampanthan is right in favouring the idea of a referendum because even if everything is agreed upon in Parliament some parties are likely to challenge the constitutional bill in the Supreme Court on the basis that it is not possible to amend or replace some of the sections of the current Constitution without a referendum. A court ruling in favour of such a petition would be a definite disadvantage for the proponents of such a Constitution.
The country has already tested two homemade Constitutions but none of them has succeeded in resolving the vexed national issue. Both these documents were drafted to suit the needs of the governments at the time, hurriedly passed in Parliament and therefore lacked adequate public discussion or general approbation of the people.
This is going to be independent Sri Lanka’s third Constitution and now it is time for the country to agree on a permanent document. Sufficient public discussion and extensive involvement of all political parties in Parliament are a sine qua non if we are to come up with the right document.
A referendum will be the best way to ensure such debate and discussion while any piece of legislation directly approved by the people in that manner will have the legitimacy that is needed to solidify some sense of permanency for such a document in the minds of the people.