A presidential gambit

President Chandrika Kumaratunga prorogues Parliament and simultaneously orders a referendum on the question of a new Constitution, but the fact that the moves pre-empt a pending no-confidence motion against the government draws flak.

IF politics were a mere board-game that people took out of the cupboard to play on a rainy day, then President Chandrika Kumaratunga deserves to be congratulated for a master move that checkmated her opponents and sent them scrambling to ponder their next move.

But politics is real-life business. And in a country like Sri Lanka where governments are elected by popular vote, it is also about respect for Parliament and democracy. By that standard, Kumaratunga fell short of expectations when at midnight of July 10, she prorogued Parliament, clearly to pre-empt a no-confidence motion tabled against the minority People's Alliance (P.A.) government, and simultaneously announced a referendum on August 21 on the need for a new Constitution.

It was a move reminiscent of the tactics of the late Junius R. Jayewardene, the "old fox" who devised the 1978 Constitution to give himself sweeping powers as the country's first Executive President. Kumaratunga loves to hate that Constitution which is still the country's first law, but she showed that she was not above using the powers it gave her when it came to a question of ensuring her government's survival.

While the prorogation was clearly a move to side-step a test of strength in Parliament for her minority government, the referendum was the sweetener - Kumaratunga's pitch to the people that she actually hated the authority and powers vested in her by the Jayewardene Constitution which she had no choice but to use reluctantly in the face of an un-cooperative Opposition, and that she was waiting only for the people's mandate to change it.

The move represented by far the most powerful act yet in Sri Lanka's rapidly unfolding political drama, which began with Kumaratunga's sacking as a Minister of Sri Lanka Muslim Congress (SLMC) leader Rauff Hakeem in June, the subsequent walk-out from the government by MPs aligned with him reducing the P.A. coalition to a minority in Parliament, in turn prompting the Opposition parties led by the United National Party (UNP) to move a no-confidence vote against the government.

Matters seemed to be moving to breakpoint in early July, when the government was scheduled to take up the motion for the monthly extension of the Emergency Regulations. With just 109 MPs in a 225-member House, the P.A. did not have the parliamentary strength to get the Emergency extended. Spearheaded by the UNP, the Opposition claimed it had 115 members who would oppose the motion. The debate on the Emergency was poised to become the government's first test on the floor of Parliament.

There was panic in the ranks of the government, which was clearly visible in the hysterical propaganda it resorted to, painting dark pictures of chaos and civil unrest if the move for the extension of the Emergency was defeated, and accusing the UNP of being hand-in-glove with the Liberation Tigers of Tamil Eelam (LTTE).

It was true that the ban on the LTTE would lapse if the Emergency could not be extended. But the state-run media, stooping to alarming levels of inaccuracy, warned that terrorists would roam free, prisoners would have to be released, checkpoints would have to be dismantled and the armed forces would be unable to take military action against the LTTE. Flouting a government advisory to restrain from publishing graphic photographs, the state-run Daily News devoted four pages one day to a pictorial extravaganza of LTTE bombings, suicide attacks, assassinations and killings of civilians.

That was when Kumaratunga served the first ace. Again, falling back on the powers vested in her by the Constitution - that she likes to describe as bahubhootha - she banned the LTTE under the country's tough Prevention of Terrorism Act, Section 27 of which permits her to promulgate regulations to this end. She also declared every district in Sri Lanka a "security area". She also invoked the Public Security Ordinance, from which the Emergency regulations flow, to maintain essential services and call out the armed forces. The government was thus able to put off the debate on the Emergency indefinitely.

Analysts wondered why Sri Lanka needed an Emergency at all when a state of near-Emergency could be declared through other means available to the President, and the Opposition protested that it only proved that all the hype and hysteria directed against it were misleading.

Anyway, beaten at the semi-finals, the Opposition prepared for what it believed would be the finals, the no-confidence motion. At a meeting of parliamentary party leaders, the UNP said it wanted the debate and vote on the motion to be conducted over a span of three days, between July 16 and 18. But the government said that would be inconvenient, as the national Census was due to be taken on July 17 (Frontline, July 20, 2001).

Instead it proposed August 7 to 10 as its preferred dates. It seemed like a not-so-subtle ploy to prorogue the House and dissolve it. The Constitution allows the President to prorogue Parliament for a maximum of 60 days, and bars any dissolution of the House for at least one year after a round of elections. In this case, that date would come on October 10, and pushing the debate to August would safely take Kumaratunga to the date when she could prorogue the House till she was allowed to dissolve it.

In view of this, the UNP did not consent to the dates proposed by the government. Instead, all 115 members (excluding the Speaker, who is a member of the UNP, but does not count during voting) on the Opposition benches signed a letter to the Speaker asking him to schedule the debate for a day after the Census.

Meanwhile, nervous that all this would lead only to early elections, several members of the P.A. tried to push for a national government, and Prime Minister Ratnasiri Wickremenayake said he had had talks with UNP leader Ranil Wickremesinghe on this. But according to him, the UNP backed away at the last minute.

Although the signatories to the letter to the Speaker included those who had not yet indicated their support to the no-confidence motion but only wanted an early debate, the UNP projected this letter itself as a sign of its impending victory, its supporters giggling with delight at the prospect of the upcoming battle in Parliament.

But their joy was short-lived as Kumaratunga served up her second ace. The prorogation of Parliament by itself was not unexpected, though its timing seemed to have caught the Opposition unawares, but it was the referendum that was the real stunner. There were cries that Kumaratunga had resorted to a dictatorial and anti-democratic move, but the Opposition could do little else about it, for both prorogation and the holding of a referendum are well within the powers granted to the President under the 1978 Constitution, a document that the UNP itself approved when in power.

THERE is some hair-splitting on whether the President can prorogue the House when the government has already lost its majority, but that is more a moral rather than a constitutional argument. The other point that the Opposition is trying to prove is that there cannot be a referendum on changing the Constitution. But the 1978 Constitution is clear that only a proposed legislation to amend or replace the Constitution cannot be put to the people, whereas Kumaratunga's question for the referendum is couched in the most general and political terms. The question for the referendum is: do you agree that the country needs a new Constitution, which is nationally important and an essential requirement? The wording has caused anger and confusion in the Opposition, as this is a question with which no one really disagrees. It is the contents of the new Constitution that are in question, they argued. "It is like being asked to sign a blank cheque," fumed Karunasena Kodittuwakku, spokesman of the UNP.

It is perhaps this line that the Opposition will seek to sell to the people in the referendum campaign. It is likely to argue that the move is a ploy to bring in through the backdoor the 2000 Constitution Bill that the government withdrew from Parliament last August following protests by the Sinhalese, led by the Buddhist clergy, that it gave away too many powers to the Tamils.

The UNP, which had a role in drafting the Bill, had distanced itself from it in the last minute, citing the transitional provisions that allowed the retention of the Executive Presidency till the present incumbent completes the full term of office. The UNP and Janatha Vimukthi Peramuna will base their campaigns on the premise that the new Constitution is nothing but the old draft document, hoping to arouse Sinhala ire against the President.

The announcement of the referendum has struck a blow to the solid phalanx that the Opposition projected before it was announced. The Tamil political parties that put down their names in support of the no-confidence motion are now not so sure if they can oppose a new Constitution, particularly if it will mean concessions to the Tamil minority. The Tamil parties may decide that the means adopted by Kumaratunga may well justify the end, that is, a new Constitution. But for that, they will first need to know what is going to be in it. Although many of them were publicly opposed to the 2000 Constitution Bill as offering "too little", privately they acknowledged that this was as good as it could get and hoped that it would be passed.

But their decision on the referendum is certain to be influenced by the LTTE's reaction to the latest developments. As yet, it is not clear where the LTTE figures in Kumaratunga's plans to push through a new Constitution, or what implications this has for the Norwegian-backed process to get the two sides together for peace talks.

For the Tamils, and all the others who want the see powers devolved to the minorities, there will also remain the disappointment that Kumaratunga could have held a referendum on a new Constitution any time since 1994, but chose to do it only when her government's survival was threatened. Kumaratunga's campaign for the referendum is also not likely to provide any reassurance to the minorities. The main issue for her campaign is a new Constitution for changes to the electoral system to enable the formation of a stable government that does not have to depend upon an "unreasonable" minority party like the SLMC for survival.

This will mean an all-out campaign for the Sinhala vote, which in turn implies playing down on the prospects for devolution and concessions to the minorities in a new Constitution. Kumaratunga made only a passing mention of these possibilities in a televised address to the nation giving reasons for the prorogation and the referendum.

Furthermore, it is also not clear yet how Kumaratunga, if she wins the referendum, will go about changing the Constitution. A referendum is not legally binding on Parliament. For it to be morally binding, Kumaratunga has to show that at least 65 per cent to 70 per cent of the respondents backed her at the referendum.

The new document then has to get a two-thirds vote in the House even after the referendum. Kumaratunga can circumvent this requirement by turning the present Parliament into a Constituent Assembly, where constitutional changes can be brought about by a simple majority. But that too will need a resolution to be passed by Parliament, where her P.A. coalition is in a minority. Any move to form a Constituent Assembly will also be opposed by the Opposition and civil society groups as being "extra-constitutional".

Kumaratunga has promised to have the new Constitution in place within a year, and called on all other parties to form a "broad alliance" with her government to help her achieve the goal. She also hinted at what the new Constitution might be, or at least what might form its basis, when she said that the 2000 Constitution Bill had everything that the Opposition wanted, including the abolition of the Executive Presidency and the setting up of independent commissions concerning elections, the judiciary and the public service.

BUT the Constitution may not be uppermost in her mind when Parliament reconvenes on September 7 at the end of the period of prorogation. The no-confidence motion remains pending before the House, and unless Kumaratunga wins new friends between now and then, it would once again challenge her government's existence, even if she emerges from the referendum victorious.

It was in 1982 that Sri Lanka's only previous referendum was held, when President Jayewardene used it to avoid holding elections and extend the life of Parliament by a full term. His successor, President Ranasinghe Premadasa, resorted to prorogation as a means to buy time to destroy an impeachment motion that was being planned against him. This is the first time that a referendum will be held while Parliament remains prorogued.

Had Kumaratunga sought such a referendum for a new Constitution two or three years ago, when the government was drafting the 2000 Constitution Bill, she might have won praise. But now, there is no getting rid of the nagging suspicion that the prorogation and the decision to hold a referendum were both moves by a cornered government to ensure its short-term survival.