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THE REFERENDUM – An illegitimate alien mechanism

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Dr Nihal Jayawickrama, LL.B (Cey), Ph.D (Lond)

The 1978 Constitution introduced into the law-making process of Sri Lanka the concept of a “referendum”. It was hailed in some quarters as a return to basics. In the tradition of the Greek city states, actual decision-making was being restored to the people. 43 years later, what has it actually achieved? It has entrenched provisions which no legislature would have ever contemplated repealing: the prohibition of torture and the freedom of thought, conscience and religion. It has prevented Parliament from restoring to this country its original name – the Republic of Sri Lanka, by dropping that utterly unnecessary prefix borrowed from the Democratic Socialist Republic of North Korea. It has installed February 4, 1948 as our National Day – the day on which Ceylon received the gift of self-government and dominion status under the British monarchy, rather than May 22, 1972 – the day on which Sri Lanka unilaterally declared itself a Free, Sovereign and Independent Republic.

And, it requires a country-wide referendum to be held before a single note of music in our national anthem, set out in the Third Schedule, could be changed – say, from base to treble. More seriously, and most unfortunately, it was successfully invoked in 2018 to impede the JVP’s constitutional amendment which would have enabled the Ceremonial Head of State under the 19th Amendment to be elected by Parliament rather than at a country-wide, divisive, general election. What was most tragic was that the determination of the Supreme Court on that Bill was clearly erroneous in that it had failed to consider a previous relevant binding decision of a Full Court.

Localized single issues

A referendum (or a plebiscite as it is sometimes referred to) is a mechanism frequently resorted to now in Swiss Cantons, usually to seek community views on single issues such as whether Sunday shopping should be allowed, or liquor shops should be kept opened on the day of Sabbath. It is a democratic way of resolving simple single issues. It is not suitable for consulting the population on complex issues such as the text of a new Constitution. For example, in Canada in 1992, a package of very significant constitutional amendments designed to recognize and give effect to the multicultural character of that country, known as the Charlottetown Accord, which was agreed upon by all the First Ministers and territorial and aboriginal leaders, was rejected at a national referendum for widely divergent reasons which had no relevance whatsoever to the question at issue. Foremost among these reasons was the widespread unpopularity of the then Prime Minister of Canada.

So it was with the 2017 referendum in the United Kingdom on the question of leaving the European Union. The crippling consequences of Brexit were not explained to the electorate, and many in middle-England thought that an affirmative vote would mean the restoration of the British Empire! I was in both countries at the relevant times.

An alien concept

The referendum, as a mechanism of direct law-making is alien to this country and unfamiliar to most Sri Lankans. That was evident in the one and only referendum which was conducted in 1982 in the most bizarre circumstances. President Jayewardene first secured undated letters of resignation from all his Members of Parliament and Ministers. He then forwarded to the Supreme Court a Bill that would extend the life of Parliament for a further six years, and thereby deny the people their right to elect a new Parliament.  He certified the Bill as “urgent in the national interest” and required the Court’s decision within three days. He then submitted the Bill to Parliament and required it to be debated and voted on in a single day. The Fourth Amendment to the Constitution was next submitted for approval by the People at a referendum.

The reason he gave the country was that he had information that “a Naxalite group intended to establish a military government if a general election was held”.  The Bill he submitted to the “people” was either not read by “the people”, or was probably incomprehensible to many of those who did. In fact, it received two diametrically opposed interpretations by the Supreme Court, with the seven- Judge Bench returning a divided verdict of four to three. Nevertheless, it was approved by a majority of the “people” in what is now accepted as the first genuine mass rigging exercise in the country’s electoral history.

Issue of legislative competence

A serious constitutional issue that arises is whether it was within the legislative competence of the National State Assembly to have introduced the requirement of a referendum into the law-making process of the Parliament it created under the 1978 Constitution?  The 1972 Constitution authorized the new National State Assembly which it established to amend any provision in that Constitution with a two-third majority.  Accordingly, in 1978, the National State Assembly, by a two-third majority, repealed and replaced that Constitution in its entirety.  In doing so, it provided that certain provisions in the new Constitution, which it adopted by a two-third majority, could be amended only by a two-third majority in Parliament followed by approval of the people at a referendum.  In other words, those provisions were to be unalterable by Parliament even with a two-third majority.

Could the National State Assembly have invested such a superior status to the law which it had made by a two-third majority that it would be unalterable by a similar majority?  If it could have, why is it not possible today for Parliament to pass an ordinary Bill by a simple majority of one, and state that law may only be amended or repealed by a two-third majority; or to take another example, to state that it may be repealed only by the affirmative votes of all the members of Parliament?  Is it even conceivable that Parliament could make a constitutional amendment by a two third majority and declare that amendment to be unalterable by that or any other Parliament ever thereafter?  The absurdity of such a provision is obvious.  The National State Assembly was a creature of statute, a legal persona.  It had no existence outside the provisions of the 1972 Constitution under which it was created.  Its law-making powers were explicitly defined. It was prohibited from abdicating, delegating, or in any manner alienating its legislative power. It was prohibited from setting up an authority with any legislative power other than the power to make subordinate laws. Therefore, it did not have the power to make a law that could not be amended or repealed by a legislature either by a simple or two-third majority.

(The writer, a distinguished legal academician, served as Attorney General (1970), Permanent Secretary Ministry of Justice ( 1970-77), has been a Research Fellow, King’s College, University of London (1977), Associate Professor of Law, University of Hong Kong (1985-1997), Professor of Human Rights, University of Saskatchewan (1992-93), served as Executive Director, Transparency International, Berlin (1997-2000) and is currently Rapporteur of the UN Judicial Integrity Group (of Chief Justices)



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Religious extremism set to gain from rising Israel-Iran hostilities

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The costs of extremism; the Twin Tower blasts of 9/11.

Many of the international pronouncements on the current dangerously escalating Israel-Iran hostilities could be seen as lacking in adequate balance and comprehensiveness. The majority of these reactions could be said to be failing in addressing the aspects of the conflict that matter most.

For example, there is the recent UN General Assembly resolution on the crisis which calls for an ‘immediate, unconditional and lasting ceasefire in the Gaza’ and which goes on to urge ‘Member States to take necessary steps to ensure Israel complies with its international legal obligations.’ An immediate and durable ceasefire is indeed the number one requirement in the Middle East today but could it be ‘unconditional’? Could it ignore the principal requirement of Israel’s security? These posers need to be addressed as well.

Besides, it is not only Israel that should be compelled to meet its ‘international legal obligations.’ All the states and actors that feature in the conflict need to be alerted to their ‘international legal obligations’. While it goes without saying that Israel must meet its international legal obligations fully, the same goes for Iran and all other Middle Eastern countries that enjoy UN membership and who are currently at odds with Israel. For instance, Israel is a UN member state that enjoys equal sovereignty with other states within the UN fold. No such state could seek to ‘bomb Israel out of existence’ for example.

As a significant ‘aside’ it needs to be mentioned that we in Sri Lanka should consider it appropriate to speak the truth in these matters rather than dabble in what is ‘politically correct’. It has been seen as ‘politically correct’ for Sri Lankan governments in particular to take up the cause of only the Palestinians over the decades without considering the legitimate needs of the Israelis. However, a lasting solution to the Middle East imbroglio is impossible to arrive at without taking into account the legitimate requirements of both sides to the conflict.

The G7, meanwhile, is right in stating that ‘Israel has a right to defend itself’, besides ‘reiterating our support for the security of Israel’ but it urges only ‘a de-escalation’ of hostilities and does not call for a ceasefire, which is of prime importance.

It is only an enduring ceasefire that could lay the basis for a cessation of hostilities which could in turn pave the way for the provision of UN humanitarian assistance to the people of the Gaza uninterruptedly for the foreseeable future. There is no getting away from the need for a durable downing of arms which could engender the environment required for negotiations between the warring parties.

Meanwhile, some 22 Muslim majority countries have ‘warned that continued escalation threatens to ignite a broader regional conflict that could destabilize the Middle East’ and called ‘for a return to negotiations as the only solution regarding Iran’s nuclear program.’ This statement addresses some important issues in the crisis but one hopes that the pronouncement went on to call for negotiations that would take up the root causes for the conflict as well and pointed to ways that could address them. For instance, there is no getting away from the ‘Two State Solution’ that envisages peaceful coexistence between the principal warring parties.

The ‘Two State Solution’ has been discredited by sections of the world community but it outlines the most sensible solution to the conflict. As matters stand, the current escalating hostilities, if left unchecked, could not only lead to a wider regional war of attrition but bring about the annihilation of entire populations. There is no alternative to comprehensive negotiations that take on the issues head on.

Besides, all who matter in the current discourse on the crisis need to alert themselves to the dangers of appealing to the religious identities of communities and social groups. When such appeals are made religious passions are stirred, which in turn activate extremist religious outfits that operate outside the bounds of the law and prove difficult to rein-in. This was essentially how ‘9/11’ came about. Accordingly, speaking with a sense of responsibility proves crucial.

In fact, it could be argued that a continuation of the present hostilities would only benefit the above outfits with a destructive mindset. Therefore, comprehensive and constructive negotiations are of the first importance.

The above conditions should ideally be observed by both parties to the conflict. Israel, no less than the Islamic and Arab world, needs to adhere to them. Israeli Prime Minister Netanyahu has no choice but to say ‘No’ to extremists within his cabinet and to ‘show them the door’, inasmuch as hot-headed extremists in the Islamic and Arab world need to be opposed and alienated by the relevant governments.

Meanwhile, the US is on a duplicitous course in the Middle East. Whereas it has no choice but to rein-in Israel and convince it of the need to negotiate an end to the conflict, it is choosing to turn a blind eye to Israel’s military excesses and other irregularities that are blighting the Gazans and the ordinary people of Iran. It ought to be plain to the Trump administration that it is promoting a barbaric war of attrition by continuing to provide Israel with the most lethal weaponry. Currently, it is anybody’s guess as to what the US policy on the Middle East is.

The Islamic and Arab world, on the other hand, should come to understand the imperatives for a defusing of tensions in the region. Decades of conflict and war ought to have made it clear that the suffering of the populations concerned would not draw to a close minus a negotiated peace that ensures the wellbeing of all sections concerned.

As pointed out, the security of Israel needs to be guaranteed by those quarters opposing it. This will require the adoption of a conciliatory attitude towards Israel by state and non-state actors who have thus far been hostile towards it. There needs to be a steady build-up of goodwill on both sides of the divide. If this is fully realized by the Arab world a negotiated solution will be a realistic proposition in the Middle East.

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She deserves the crown

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We had no luck coming our way at the Miss World 2025 contest – not even our immediate neighbour, India – but I’m glad that Miss Thailand was crowned Miss World 2025 as Thailand happens to be my second home … been to Amazing Thailand many times, courtesy of the Tourism Authority of Thailand.

In fact, even before the Miss World 2025 grand finale, which was held at the beautiful venue of the HITEX Exhibition Centre, in Hyderabad, Telangana, India, my colleagues at office all predicted that Miss Thailand, Opal Suchata Chuangsri, would emerge as the winner.

Yes, indeed, Miss Thailand not only won the hearts of millions but also became the first ever Thai to claim this much sought-after title.

Prior to winning the title of Miss World 2025, Opal Suchata was Thailand’s representative at Miss Universe 2024 and took home the third runner-up title.

Her Miss Universe crown, unfortunately, was subsequently forfeited, due to a contract breach, but she did not let that demotivate her, though, and went on to compete and win the title of Miss World Thailand 2025.

Coming from a family that was in the hospitality industry, her upbringing, in this kind of environment, made her aware of her culture and helped her with her communication skills at a very young age. They say she is very fluent in Thai, English, and Chinese.

Obviously, her achievements at the Miss World 2025 contest is going to bring the 22-year-old beauty immense happiness but I couldn’t believe that this lovely girl, at 16, had surgery to remove a benign breast lump, and that made her launch the ‘Opal For Her’ campaign to promote breast health awareness and early detection of breast cancer, which also became the topic of her ‘Beauty with Purpose’ at the Miss World 2025 contest.

Opal Suchata intends to leverage her Miss World title to advocate for other women’s health issues, as well, and sponsor a number of charitable causes, specifically in women’s health.

Her victory, she says, is not just a personal achievement but a reflection of the dreams and aspirations of young girls around the world who want to be seen, heard, and create change.

What’s more, with interests in psychology and anthropology, Opal Suchata aspires to become an ambassador for Thailand, aiming to represent her country on international platforms and contribute to peace-building efforts.

She believes that regardless of age or title, everyone has a role to play in inspiring others and making a positive impact.

And, what’s more, beyond pageantry, Opal Suchata is an animal lover, caring for 16 cats and five dogs, making her a certified “fur mom.”

She also possesses a special musical ability—she can play the ukulele backwards.

Opal Suchata is already a star with many expressing admiration for her grace, leadership, and passion for making a difference in the world.

And there is also a possibility of this head-turner, from Thailand, entering the Bollywood film industry, after completing her reign as Miss World, as she has also expressed interest in this field.

She says she would love the opportunity and praised the Indian film indstry.

She akso shared her positive experience during her visit to India and her appreciation for the Telangana government.

Congratulations Opal Suchata Chuangsri from Amazing Thailand. You certainly deserve the title Miss World 2025.

What is important is that the Miss World event is among the four globally recognised beauty pageants … yes, the four major international beauty pageants for woment. The other three are Miss Universe, Miss Earth and Miss International.

Unfortunately, in our scene, you get beauty pageants popping up like mushrooms and, I would say, most of them are a waste of money and time for the participants.

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Wonders of Coconut Oil…

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This week I thought of working on some beauty tips, using coconut oil, which is freely available, and quite affordable, as well.

Let’s start with Coconut Oil as a Moisturiser…

First, make sure your skin is clean and dry before applying the coconut oil. This will allow the oil to penetrate the skin more effectively.

Next, take a small amount of coconut oil and warm it up in your hands by rubbing them together. This will help to melt the oil and make it easier to apply.

Gently massage the oil onto your face and body, focusing on dry areas or areas that need extra hydration.

Allow the oil to absorb into your skin for a few minutes before getting dressed.

Start with a small amount and add more if needed.

* Acne and Blemishes:

Apply a small amount to the affected area and gently massage it in. Leave it on overnight and rinse off in the morning. Remember to patch test before applying it to your entire face to ensure you don’t have any adverse reactions.

* Skin Irritations:

If you’re dealing with skin irritations, coconut oil may be just what you need to find relief. Coconut oil has natural anti-inflammatory properties that can help soothe and calm irritated skin.

Simply apply a thin layer of coconut oil to the affected area and gently massage it in. You can repeat this process as needed throughout the day to keep your skin calm and comfortable.

* Makeup Remover:

To use coconut oil as a makeup remover, simply apply a small amount onto a cotton pad or your fingertips and gently massage it onto your face, in circular motions. The oil will break down the makeup, including waterproof mascara and long-wearing foundation, making it easy to wipe away.

Not only does coconut oil remove makeup, but it also nourishes and hydrates the skin, leaving it feeling soft and smooth. Plus, its antibacterial properties can help prevent breakouts and soothe any existing skin irritations, so give coconut oil a try and experience its natural makeup removing abilities, and also say goodbye to acne and blemishes!

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