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| Sunday, 23 March 2003 |
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Ruling on the Referendum Proposal Extracts from the Judgement "I have now to consider the validity of the Referendum Proposal as set out in the impugned Proclamation. Section 2(2)(a) requires that a Proclamation 'shall specify the proposal to be put to the People at the Referendum in the form of a question which shall be answered by a 'Yes' or a 'No'..... "A Referendum is an electoral process that is little different to any nation-wide election, in respect of the enormous expenditure of public funds and the disruption of day-to-day life involved - including danger to life and limb, and damage to property. It cannot lightly be assumed that Parliament intended that process to be used except in a manner which would yield an intelligible, meaningful and useful result. "Article 3 defines the Sovereignty of the People as including the powers of government, and Article 4(a) defines one component of Sovereignty to be the legislative power, which shall be exercised by Parliament and by the People at a Referendum. A Referendum is, prima facie, an exercise of legislative power, and a Referendum under Article 85 is clearly a part of the legislative process. However, Article 86 is in wider terms, and a Referendum under that Article does not appear to be necessarily a part of the legislative process, although it may be a prelude to legislation. But even a Referendum under that Article would be a costly exercise in futility unless it yields a meaningful result, conveying the opinion of the People with a sufficient degree of clarity and precision as to constitute a mandate for future governmental action. "In my opinion, section 2(2)(a) permits submission for Referendum only of questions the answer to which - whether 'Yes' or 'No' - would convey clear, intelligible and meaningful information on issues relevant to future governmental action. "The impugned proposal must now be scrutinised. The answer 'No' would have been somewhat ambiguous, and could accurately have been given by three different groups of persons, those who thought that a new Constitution though needed, was not of national importance and necessity as other matters were more urgent and important, those who thought a new Constitution was not needed, but that the existing one needed amendment, and those who thought neither a new Constitution nor amendments were needed. "The answer 'Yes' would have been 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. Thus those in favour of a new unitary Constitution as well as those in favour of a new federal Constitution would vote 'Yes' and a majority 'Yes' vote would therefore fail to reveal what number of voters favoured each alternative. Furthermore, there would have been even more confusion on that issue, because some voters who preferred a unitary Constitution could also have accurately have voted 'No'. Hence on the issue 'unitary' or 'federal'? - the result would have been inconclusive and ambiguous. "There would have been similar divergent views on other issues: such as, Presidential Executive, or Parliamentary Executive? Elections according to Proportional Representation, or the old Constituency System, or some other system? Thus a 'Yes' vote would have lumped together, for example, those who desired a Federal system with a Parliamentary Executive elected on the Constituency system, as well as their most vigorous opponents who favoured a Unitary system with a Presidential Executive and elections by Proportional Representation. "There are other important aspects of a new Constitution: the sharing of governmental powers, judicial review of legislation and executive action, fundamental rights and their enforcement, appointments to high posts etc. "The purpose of a Referendum is to obtain the verdict of the People and a series of questions should (and could) have been so formulated that a majority 'Yes' vote would have clearly disclosed at least the main features which the majority of the electorate agreed should be incorporated in the new Constitution and so that a 'No' vote would have disclosed without ambiguity why a new Constitution was not desired. "I hold that the impugned proposal did not satisfy the requirements of section 2(2)(a) of the Referendum Act, and the Proclamation was therefore invalid, and section 45 did not apply to the protest march. "If, and to the extent that, that march and the intended rally were a peaceful protest against the Referendum and prorogation of Parliament, and a plea for the reconvening of Parliament and the restoration of democracy, they were a legitimate exercise of the freedoms of speech and expression, and of peaceful assembly, under Articles 14(1)(a) and (b). Although section 45 was not operative, yet those freedoms were subject to inherent and intrinsic limitations, in that they should not have been exercised on public streets and pavements so as to deny or infringe the rights of other users of such streets and pavements. There is no evidence of any such infringement or interference and whatever inconvenience was caused could probably have been avoided if the Police had allowed the march to proceed, and regulated and controlled its conduct using the powers conferred by sections 77 and 78 of the Police Ordinance, as indeed they do in regard to the many processions, peraheras, marches and walks which are a part of the Sri Lankan scene." |
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