A CIVIL WAR SITUATION
Neither the president nor the ministers have stated the rationale behind the decision of the president to hold a referendum to find out whether the people want a new constitution. The president has directed the commissioner of elections to hold a referendum under the article 86 of the constitution. The president is empowered to do this but why doesn't she direct the commissioner of elections to hold referenda to find out whether the people want the cost of living to be brought down or they want to eradicate the dooshanaya and bheeshanaya. Since 1994 she has been telling that she has a mandate from the people to attend to do all these matters.
Dr. G. L. Peiris has explained that there are three types of referenda and that a referendum held under the article 86 is not binding. He is also on record saying that the answer given by the public at a referendum held under this particular article would help the government to take a decision. The legal position, in respect of referenda, as laid down in the constitution is very clear. However what is not known is the draft constitution that would be presented to the parliament (constituent assembly) after the referendum.
Let us assume, for the sake of argument, that the president wants an answer from the public to assist her to take a decision on the need of a new constitution. Does it mean that the government has still not taken a decision on this matter?. If that is the case what was the government doing during the last seven years with the so-called package? How did the government present a bill to the parliament last August to adopt a new constitution, without taking a decision on adopting a new constitution? One way of resolving this paradox is to assume that the government that had taken steps earlier to adopt a new constitution, during the last few weeks or so decided either that there is no need of a new constitution or decided not to change the constitution. However it is again interested in taking a decision to introduce a new constitution and would like to get help from the public before deciding so. But then the question arises as to how the government that boasts of a mandate from the public to change the constitution decided that there is no need of a new constitution during the last few weeks? If they decided not to change the constitution why did they go against the claimed mandate of the public?
As we have said in these columns the PA is vacillating between the Sinhala nationalist vote and the non national forces. Last week Ms. Kumaratunga told the Reuters that, after the referendum the government would bring a new constitution similar to that was brought before the parliament last August. Within a few days of that interview, on Saturday she told the people that she would consult the Mahanayaka Theros and other organisations that are usually not consulted in drafting constitutions, probably meaning the Sinhala and Buddhist organisations before the new constitution is brought before the parliamentary. The Maha Sangha led by the Mahanayake Theros, the Sinhala and Buddhist organisations would not agree to a constitution that is similar to the one rejected last year and the president's two statements are compatible only if the government is not going to incorporate into the draft constitution, any suggestions by the Maha Sangha and the others on solving the Tamil racist problem. The government most probably would consult the Mahanayake Theros and the others but would not take their views into consideration. The government is trying to win the vote of the Sinhalas, especially of the Sinhala Buddhists at the referendum and then to satisfy the non national forces.
The Sinhala nationalists suspect the intentions of the government in connection with the procedure that would be adopted to approve the new constitution. The president as well as a number of ministers have mentioned constituent assemblies, constitutional revolutions in this connection, as they are not in a position to obtain the two third majority in the parliament. On Sunday Ms. Kumaratunga has told the party members that if the people decide at the referendum that they want a new constitution then she does not need a two third majority in the parliament to get the new constitution approved. Does it mean that the government would not present a bill under the article 82 of the present constitution to adopt a new constitution?
If Ms. Kumaratunga is thinking of other means (for example the so-called constituent assembly) to adopt a new constitution then a serious situation would arise. These other means are not laid down in the constitution and we would not know how she would act after the referendum. Is she thinking of converting the present parliament to a constituent assembly or forming a separate constituent assembly comprising non parliamentarians as well? Is she of the opinion that she could adopt a new constitution with a simple majority in the constituent assembly? Will there be another referendum to approve the constitution adopted by the constituent assembly?
Let us assume that the people say yes at the referendum to be held on 21st August. The people would have then said that they do not want the present constitution and nothing more. They would not have approved a particular new constitution. After the referendum the government forms a constituent assembly and adopt a constitution without allowing the people to approve it at a referendum, claiming that the people have already approved it. The people would not have approved the new constitution as they would not have known it at the time of the August referendum. It is not only unconstitutional but it also denies the right of a referendum to the people to approve or disapprove a new constitution. In other words the people are asked to say yes at the August referendum, to forego their right of a future referendum. It is a case of a referendum being used to deny the right of a referendum.
If the government appoints a constituent assembly to adopt a new constitution a civil war situation would arise resulting in the killing of thousands of Sinhala youth, strengthening the position of Prabhakaran as the army would be withdrawn from the north to fight the civil war and finally replacing the PA government with a UNP government that would ultimately give a confederation to Tamil racism. Though I would not use the word conspiracy the non national forces have been working according to a plan with number of options and the current position would lead to the above scenario. The incidents on last Thursday were only a rehearsal to a civil war situation. Though neither the UNP nor the PA has any respect for any democracy, western or otherwise, they would both claim that they are acting to safeguard the sovereignty of the people and in the process sacrifice the lives of thousands of the very same people on behalf of whom they are acting. The JVP is not far behind and they would also take to streets soon or later. The Inter University Students Federation has already issued a statement that they would organise protest marches. The outfit of Sinhala Prabhakaran would have already taken to streets if not for the fact that they do not have much support of the Sinhala people. At least a few of those who are responsible for promoting Sinhala Prabhakaran as a national figure did so with the intention of making use of him in a situation similar to what we are undergoing at present.
However it is still possible to avoid this bloodshed. The government should immediately withdraw the referendum or should as a government, not as Ms. Kumaratunga or as some ministers, give a pledge to the people to the effect that (i) it would not bring back the draft bill rejected last August, (ii) it would consult the Mahanayake Theros and the Maha Sangha and the Sinhala and the Buddhist organisations before drafting the new constitution, (iii) it would proceed only under the article 82 to adopt a new constitution. The Sinhala nationalists then would be in a position to think again on the referendum. If neither the referendum is withdrawn nor a pledge is given along the lines indicated above, the Sinhala nationalists, I am afraid, have no choice but to vote "No" at the referendum.
It has to be repeated that the SLFP is the party of the Sinhalathva and social justification. The SLFP should not give into the pink socialist SLMP and the Marxists in the PA. Very often it has been the Marxists who have been responsible for the downfall of the SLFP led governments. The Marxists who cling to the (o)sari pota to come to power think that the SLFP led governments are in power because of their strength. They behave as if the dictatorship of the proletariat has been established and having scant regard for capitalist democracy want the governments to ignore the constitutions and the institutions that have been established legally. The Marxists and the Liberals have been able to mislead the SLFP, as the party of the Sinhalathva and social justice has not been able to evolve its own nationalist ideology.
Though Mr. Bandaranaike formed the SLFP in 1951 it did not have a mass base. It was formed as a liberal party led by a liberal. However around 1955 the nationalist movement that had gained strength through the campaigns of Maha Sangha Vens. Baddegama Vimalavansa, Henpitagedera Gnanaseeha, S. Mahinda, the Vidyalankara Bhikkus, and lay leaders such as Messrs. L. H. Meththananda, N. Q. Dias. R. G. Senanayake was looking for a political leader. Mr. Bandaranaike did not miss the opportunity and the liberal SLFP was transformed into the SLFP of the Sinhalathva and social justice through a metamorphism. The SLFP adopted the policy of Sinhala only after this metamorphism in 1955. It gained a mass base after 1955 and in that sense the SLFP (of the Sinhalathva and social justice) was established in 1955 and not in 1951 by Mr. Bandaranaike. The leadership of the party went to Mr. Bandaranaike who continued to be a liberal though he was no longer leading a liberal SLFP. Thus there were differences between the leadership and the nationalists from the very beginning and people like Messrs. Meththananda and R. G. Senanayake had to form their own parties as a result.
Mr. Bandaranaike entered into a pact with Mr. Chelvanayakam in 1958 that was opposed by Mr. J. R. Jayawardhane as well as the Sinhala nationalists as it would have led to a federal constitution being the first step towards an Eelam according to the "little now more later" policies of the leader of the Ilankai Thamil Arasu Kadchi (Lanka Tamil State Party) . However then the Sinhala nationalists were able to defeat it without joining the street processions of Mr. Jayawardhane. The situation today is not very much different from what it was in 1958. The daughter of Mr. Bandaranaike, a pink socialist is leading the SLFP and is about to introduce a constitution that would lead to a confederation. The nephew of Mr. Jayawardhane is leading street demonstrations against this step. As Mr. Jayawardhane did if the nephew comes to power he would introduce worse legislation. The Sinhala nationalists should be able to defeat the daughter's constitution without joining the bandwagon of the nephew. If the Sinhala nationalists are not capable of doing that a civil war situation could not be avoided.
Professor Nalin de Silva
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