Referendum may prove divisive

By Nirupama Subramanian

COLOMBO, JULY 22. It is now becoming increasingly clear that the August 21 referendum on the need for a new constitution called by the President, Ms. Chandrika Kumaratunga, is likely to be a highly divisive exercise for Sri Lanka.

There is little doubt in the minds of most Sri Lankans that the present constitution, which vests enormous, authoritarian powers with the President, should be changed.

But rather than build an environment for consensus on what this new constitution should be, the referendum may only sharpen political differences between the two main parties and heighten tensions between the Sinhalese and minorities.

This is mainly because Ms. Kumaratunga's second attempt (the first was last year) to bring in a new constitution is widely perceived, not as a step towards building a new country, but as a political gamble to ensure that the People's Alliance (PA) government, of which her Sri Lanka Freedom Party is the main constituent, remains in power despite losing its majority in Parliament.

It seems unnecessary to hold a referendum to get the people to say ``yes'' to a new constitution because that is what most people want.

As Ms. Kumaratunga has said so many times, it is this felt need that has given her two terms as Executive President, and two terms to her PA government. She also counts PA victories at all the smaller elections in between as a mandate to change the constitution.

It is not surprising then that the decision to hold a referendum on this question has led to the suspicion that a majority ``yes'' vote is likely to be claimed as a mandate for the continuance of the PA minority government.

Even assuming this is an honest attempt to frame a new constitution, the government seems not to have learnt any lessons from last year's unsuccessful bid to pass the Constitution Bill through Parliament.

It was a Bill drafted mostly by the PA and the opposition United National Party together, but it still failed because there was only a part-consensus on it.

No transparency

There was no transparency during the last six months of the framing process, permitting Sinhala hardline rumours to run wild that the government and the Opposition had together ``sold-out'' the north-east to the Tamils, even while the Tamil parties were arguing that the deal was too little for them to agree to it.

The UNP saw the gathering storm and detached itself from the process on the ground that it did not agree to the provisions in the constitution that enabled the incumbent in the office of Executive President to retain those powers for the full elected term, while automatically becoming the executive Prime Minister as well.

A belligerent government then vowed to push the Bill through even if it meant buying legislators from the Opposition to make up the mandatory two-thirds support for it in Parliament. The whole plan was flawed and it was no surprise that it fell through.

This time around, no one knows what the new Constitution might contain, The president has said she intends to consult all sections of society before framing the new Constitution, but that could be done without holding a referendum.

In fact, as it becomes clear that the campaign for the referendum will be conducted along party lines, with people being urged to vote according to their political allegiance, the referendum even opens out the possibility of a majority voting No.

After all, the PA coalition polled only 49 per cent of the votes in the last general election, that too, with the assistance of the Sri Lanka Muslim Congress, which is now out of the alliance.

What if the ``no'' votes outnumber the ``yes''? Not only will Ms. Kumaratunga's hands be tied for good, future governments will use this referendum as the basis for not touching the draconian constitution.

Even a majority ``yes'' vote has to be substantial for it to hold any meaning. As the referendum is legally non-binding on Parliament, it would still require a two-thirds support to be passed. It might be the government's intention to turn Parliament into a Constituent Assembly and push through last year's Bill, perhaps with some amendments, with a simple majority.

Grave consequences

But such a course of action could have grave consequences for Sri Lanka. There is no provision in the constitution for turning Parliament into a Constituent Assembly and legal experts have warned that a new constitution adopted by such means would have no legitimacy or credibility, and could as simply be thrown out by the next government.

It has so far been held that one of the main reasons for a new constitution is to devolve powers to the Tamil minority so that the ethnic conflict can be settled peacefully.

In statements by the President and members of her Cabinet since the announcement of the referendum, there is only passing or no reference to this aspect of the new constitution.

This has aroused the suspicion of the Tamil parties about what might be in it for them. And there is confusion about where this leaves the Oslo-facilitated peace process with the LTTE. Is the LTTE to be consulted on the new constitution? If not, has the peace process been formally buried?

If the LTTE is not to be consulted on the ground that it has shown itself to be not interested in a solution within a united Sri Lanka, as one minister has said, the President should be wooing the other Tamil parties, especially those in Parliament.

But barring the Eelam People's Democratic Party, a partner in her government, the rest seem totally alienated from her, and leaning more and more towards the LTTE.

The alienation can only grow with the President's referendum campaign that the constitution needs to be changed so that a stable government can be formed without the assistance of minority parties.

The time for a referendum on the issue was perhaps in 1998 or 1999, when it was clear that the government was stuck in its task of bringing in a new constitution due to the intransigence of the UNP. Now, it seems to be a justification for the prorogation of Parliament, a step the President seems to have taken to enable the PA government to side-step a no-confidence motion.

Unless Ms. Kumaratunga quickly effects a course correction, violent demonstrations like the one witnessed last week may become the norm in the days to come, pitting the Sinhalese against each other and against the minorities, and perhaps finishing off for good chances of ever building a consensus on a new Constitution.

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