the Judiciary and the Legacy of the 1982 Referendum
"...during many years
every minister, whatever his personal character may be, consented, willingly or
unwillingly, to manage Parliament in the only way in which the Parliament could
then be managed. It at length became as notorious that there was a market for
votes at the Treasury as that there was a market for cattle in Smithfield.
Numerous demagogues out of power declaimed against this vile traffic: but every
one of those demagogues, as soon as he was in power, found himself driven by a
kind of fatality to engage in that traffic, or at least to connive at it."
"All the four Judges of
the Court were on the bench. Wright... had been raised to this high place over
the heads of many abler and learned men solely on account of his unscrupulous
servility. Allibone was a Papist, and owed his situation to that dispensing
power, the legality of which was now in question. Holloway had hitherto been a
serviceable tool of the government. Even Powell, whose character for honesty
stood high, had borne a part in some proceedings which it is impossible to
defend... The government had required
from its law officers services so odious and disgraceful that all the ablest
jurists and advocates of the Tory party had, one after the other, refused to
comply, and had been dismissed from their employments."
- Lord Macaulay,
from The History of England: The
English Parliament during the decades after the Restoration of 1660, and the
King's Bench in 1688 under James II, at the trial of the Seven Bishops
The massacre of 53 Tamil political prisoners in
Welikade Jail was among the most dastardly crimes committed during the July
1983 violence for which the State was directly answerable. But it was a tragedy
for which the conditions were being laid over a period of time. The Attorney
General’s department and the Judiciary had played roles which indirectly
contributed to it.
The Press reported on 30th
May 1983 that Parliamentary Standing Orders providing for the removal of judges
by parliament were to be amended. Government sources had told the Press that
according to the constitution judges could be removed only for misconduct or
incapacity either by law or by Parliamentary Standing Orders. They added that
the absence of matching provisions has compelled Parliament to draft a new act
and standing orders.
The Bar Association of Sri
Lanka responded to this proposed amendment (Sun
2nd June) by pointing out that such provisions already existed.
According to the Constitution a judge of the Supreme Court or Court of Appeal
can be removed only by an order of the President made after an address to
Parliament supported by a majority of the total members of Parliament. The BASL
pointed out that Article 107(3) of the Constitution provided procedures for
address, investigation and proof of misbehaviour or incapacity. Investigation
and proof were thus crucial to the procedure, giving some protection even
against a government with a five-sixths majority in parliament. This majority
Jayewardene continued to enjoy after the dubious referendum of 1982. An
amendment diluting the provisions for investigation and proof would have
enabled the Government to appoint and remove judges at will. In fact, the whole
conduct of the Government since the promulgation of the new constitution in
September 1978 had sent a clear message to the judges to conform or face the
At the very time this
controversy flared up, a parliamentary select committee appointed on a motion
introduced by Gamini Dissanayake on 8th March 1983 was hearing a
petition made by K.C.E. de Alwis of the Special Presidential Commission against
Justices Wimalaratne and Colin-Thome of the Supreme Court. The story behind
this is to do with the UNP Government trying to stuff the judiciary with
In August 1978 Jayewardene
appointed a Special Presidential Commission (SPC) comprising Justices
Weeraratne and Sharvananda from the Supreme Court and a junior judge K.C.E. de
Alwis, to inquire into events that occurred between May 1970 and July 1977 –
the period of the rule of Mrs. Srimavo Bandaranaike’s SLFP-led government. This
was under the Special Presidential Commissions Law, No 7 of February 1978. The
legality of the SPC was challenged in court by Mrs. Bandaranaike. On 9th
November 1978, the Appeal Court ruled that the SPC had no jurisdiction to
inquire into, report on, or make recommendations in relation to Mrs.
Bandaranaike’s administration between 1970 and 1977 since it was a period prior
to the SPC law.
In a matter of days the
Parliament rushed through two bills giving the SPC retroactive jurisdiction and
giving Parliament the right to transfer jurisdiction over any category of cases
from the Court of Appeal to the Supreme Court. There was an interesting
circumstance behind this last apparently innocuous measure.
About September 1978, when
Jayewardene’s new constitution came into force, the Supreme Court was
reconstituted. Twelve senior serving judges were thus excluded. Four of them
were demoted to the Court of Appeal and eight were altogether left out. The
members of the SPC received undue promotions. Weeraratne went up to the fifth
place of seniority in the Supreme Court from the eleventh place, and
Sharvananda from the fourteenth to the sixth, eventually becoming Chief
Justice. de Alwis was promoted over 18 High Court judges to the Court of
As we have said elsewhere, Jayewardene's government in several
instances extended abuses to which the 1972 Constitution, and the practices of
the previous United Front government, had set precedents. One instance of this
was Felix Dias Bandaranaike, who as justice minister in the UF government,
appointing a personal friend, party member and former MP to the Supreme Court
(see p. 26 of V.P. Vittachi sited below).
Mrs. Bandaranaike refused to
submit herself to the SPC. After ex parte
proceedings, the SPC on 25th September 1980 found her guilty of the
retroactive offence of ‘abuses and/or misuses of power.’ Just three weeks later
two resolutions were rushed through in Parliament to impose penalties on Mrs.
Bandaranaike for ill-defined offences with retroactive effect. She was expelled
from Parliament and deprived of her civic rights for 7 years. Amendments were
also introduced to the Election Act making it an offence for persons so
punished to canvass for any candidate at elections during the period of
disability. In such an event, the candidate too was to be disqualified.
Now we come to the origin of
K.C.E. de Alwis’ petition. It turns out that while the SPC was examining
charges against Mr. A.H.M. Fowzie, a former mayor of Colombo, de Alwis, one of
the commissioners, was having financial dealings with Fowzie. de Alwis had
acted as attorney for his son in the sale of a land and the rental of a house
to members of Fowzie’s family, with the consideration for the first being paid
by Fowzie. Then Felix Dias Bandaranaike, a former minister, who had also been
placed under civic disabilities for 7 years by the SPC, petitioned the Supreme Court
under Article 140 of the Constitution (as amended by the first amendment), for
a Writ of Quo Warranto and a Writ of Prohibition against K.C.E. de Alwis. This
was argued before a Supreme Court bench comprising Chief Justice Samarakoon,
Wimalaratne J. and Colin-Thome J. on 23rd and 24th
September 1982 and an Order was delivered on 18.10.82. By a majority decision
the Supreme Court found de Alwis guilty of ‘conduct unbecoming of a judicial
officer’, and held him to have become ‘unable to act and that he was
disentitled to hold office and function as a member of the SPC of Inquiry.’
This was a devastating
judgement on the SPC on the basis of whose findings Jayewardene had got his
most potent political opponents out of the way. de Alwis then in early 1983 petitioned
the President alleging that Justices Wimalaratne and Colin-Thome had been
biased against him and that there had been a ‘vicious conspiracy’ by Felix and
Fowzie to get him to enter into financial transactions with the latter. It was
this contemptible document that led to Gamini Dissanyake’s motion on behalf of
his master and the resulting Parliamentary Select Committee.
Justice Wimalaratne, who,
like the Chief Justice, was close to retirement, made an angry response: “I think a case has been made to review all
judgements by this judge [K.C.E. de Alwis] in his wayward career..." However, Justice Colin-Thome, being a Burgher
and having several more years to retirement, perhaps, felt more vulnerable and
appeared before the parliamentary select committee in what was not an edifying
The Select Committee, while
not upholding the personal allegations against the judges by de Alwis,
expressed reservations about the verdict and faulted the judges for not
allowing the Attorney General to address them on behalf of the State. (See V.P.
Vittachi’s ‘Sri Lanka: What Went Wrong’ for
more details on much of the foregoing.)
In Jayewardene’s quest to
become all-powerful, he tried to keep up an appearance of liberal democratic
norms. He had his A team to look after legislation, appointments and securing
compliance through gentlemanly persuasion. This group was from the upper class
with a veneer of liberal culture. The B team were the fixers openly associated
with gangs of hoodlums.
Despite all the battering
the Supreme Court was still not adequately, submissive it seemed. On 8th
June 1983 a three-judge bench comprising B.S.C. Ratwatte, Percy Colin-Thome and
J.F.A. Soza delivered a judgement in the case where Mrs. Vivienne
Goonerwardene, who and her husband Leslie had been senior members of the LSSP,
had complained of wrongful arrest and degrading treatment by the Kollupitiya
Police. The court conceded wrongful arrest, but held that the degrading
treatment alleged, had not been substantiated by the evidence. It was a minimal
On 11th June, the
UNP B-Team went into action. A large crowd arrived in vehicles with banners and
staged noisy protests outside the residences of the judges. The judges
telephoned the Police who failed to respond for a long time. Even the emergency
lines to Police HQ seemed to have gone dead just then. Jayewardene was then
abroad. Gentlemanly arm twisting of judges is one thing, but this brazen attack
on symbols of civilised society, was another. Protests started mounting. The
people were clear that JSS, the UNP trade union organised by Cyril Mathew,
provided the ruffians for the protest. As the result, witnesses were not
prepared to give evidence to the Police; evidence was given anonymously or in
confidence through third parties.
Herman Perera, the President
of the Bar Association who had protested, received a threatening post card. On
his appealing to Acting President Premadasa for police protection, the latter
replied that it must have been a practical joke. Chief Justice Samarakoon
himself gave the Police some names and other details for investigation. Of 10
vehicle numbers given, SSP Ignatius Canagaretnam of the CDB traced them all to
vehicles owned by Ceylon Nutritional Foods, the Tyre Corporation and the buses
among them to the CTB depots at Ratmalana, Kesbewa and Mattakuliya. All persons
questioned provided alibis.
The most remarkable incident
in the aftermath took place on 22nd June when the UNP sought a
diversion. A young man by the name of Lakshman Fernando, also known as Kalu
Lucky, went to the offices of the Island and
handed over two statements, one in English and the other in Sinhalese, taking
responsibility for having organised the demonstration, as a democratic protest against
the Vivienne Goonewardene verdict. The English draft copy had been typed on an
electric golf ball type-writer, then not commonly used, and had been corrected
by two different hands. The following day the JSS complained to the IGP that it
was being harassed by false and baseless complaints. The Attorney General,
Shiva Pasupathy, the Press reported, was unable to make a ruling on whether to
proceed against Kalu (Black) Lucky.
On 24th June, the
Sun found Lucky at the Pannipitiya
address he had given and he admitted that lawyers helped him to draft the
statement. But a Police team led by Malcolm Cruz sent to the address the same
day to question him said that they were unable to trace him. Further
investigations by the Press revealed that Kalu Lucky was a leading member of
the JVP in the 1971 rebellion (see Alles’s book – 29th suspect
before the Criminal Justice Commission and sentenced to 5 years RI). He had
subsequently joined the UNP and had campaigned for it. In 1983 he had a firm
involved in servicing ships at the Colombo Port. The JVP in the meantime
denounced him as a renegade.
Most interestingly, the Sun produced Kalu Lucky’s wedding
photographs, where the couple was flanked on either side by two ministers. They
were Justice Minister Nissanka Wijeratne and Youth Affairs Minister Ranil
Wickremasinghe. It was quite clear whose protégé Lucky was and who set him up
in the judges' episode. His role in the judges' affair was between his
appearances at the Gangodawila magistrate's court with seven others on charges
of having murdered one Premasiri. One appearance was on 25th May
1983 and the next was scheduled for 3rd August.
How Jayewardene used a
well-disposed judiciary is exemplified by one of his most undemocratic actions
– the Fourth Amendment of November 1982. According to constitutional
provisions, the life of the parliament in which the UNP commanded a five-sixths
majority was to end on 4th August 1983. The 4th Amendment
was one by which the Parliament extended its life a further six years ‘unless
This was just after
Jayewardene won the presidential election on 20th October 1982, the
advanced date being made possible by the 3rd Amendment of 27th
August 1982. This was when the SLFP was in disarray with Mrs. Bandaranaike
deprived of her civic rights. Further confusion had been created by a
suggestion by another presidential candidate, Dr. Colvin R. de Silva, that the
SLFP candidate, Hector Kobbekaduwe, would, if elected, be unseated, on grounds
of being the nominee of Mrs. Bandaranaike who had lost her civic rights and was
subject to disabilities. 80.2% of those in the register voted, of which
Jayewardene obtained 52.9% and Kobbekaduwe 39%.
At this stage Jayewardene
discovered the ‘Naxalite Plot’ and proposed a 4th Amendment to avoid
parliamentary elections altogether by going for a referendum – a simple
majority in the referendum was to enable the UNP’s five-sixths majority in
Parliament to continue for a further 6 years.
The 4th Amendment
was challenged in the Supreme Court by Felix Dias Bandaranaike and C.V.
Vivekanandan since it made mockery of the principle of elected government. In a
split decision of a seven-member bench, Chief Justice Neville Samarakoon and
Justices D. Wimalaratne and B.S.C. Ratwatte held the amendment to be
unconstitutional. The challenge failed by the other four deeming it
constitutional. They were R. Wanasundera, Victor Perera, J.G.T. Weeraratne and
S. Sharvananda. The last two had proved themselves in the SPC, and the last
became Chief Justice in late 1984.
The 4th Amendment
over extending the life of parliament was submitted to the Supreme Court by the
Attorney General Shiva Pasupathy in early November 1982. The AG maintained that
the Court had no jurisdiction over the Amendment if it had the backing of at
least two-thirds in the House and was approved at a referendum.
Chief Justice Neville
Samarakoon then asked why it was referred to the SC if the SC had no
jurisdiction over it.
The Attorney General replied
that such a reference was mandatory under Article 122 of the constitution.
CJ asked: “What do you want me to do?”
AG : “…to say that you have no jurisdiction.”
When one comes across such
an exchange in the highest court of the land over a major amendment to the
Constitution, it was a sign that a black comedy was being played out in the
affairs of the nation.
In challenging the 4th
Amendment S. Kanagaratnam appeared for C.V. Vivekanandan and Felix Dias
Bandaranaike (FDB) appeared for himself. A key point in FDB’s case was proviso
(a) to Article 75 which said: “Parliament shall not make any law
suspending the operation of the Constitution or any part thereof.” (Sun 4.11.82)
To an ordinary layman this
was a clear prohibition against not holding elections and extending the life of
parliament, as ought to be the case in any decent constitution. However, the
Supreme Court of the new era approved the Amendment by a majority of 4 against
FDB then came back with a
second challenge to the Amendment citing Article 123(3) of the Constitution: “If the Supreme Court entertains a doubt
regarding an urgent bill, then it shall be deemed to have been determined that
the bill is inconsistent with the Constitution.”
FDB argued that the narrow
majority by which the Supreme Court gave its approval entailed a doubt. This
turned out to be of no avail.
In presenting the 4th
Amendment to Parliament on 4th November, Prime Minister Premadasa
declared that “the Bill seeks to ensure a
prosperous and righteous society!”
It would have been a comedy
if not for the grave consequences for the nation.
On 3rd November
1982, the day before the 4th Amendment was presented to Parliament,
the Communist Party paper Aththa, the
only effective opposition daily, was sealed at 8:30 PM. The next issue had
already been printed, and its editorial was titled, ‘The dictatorship of J.R. Jayewardene is already here'.
The sealing of the Aththa was raised in parliament by
Sarath Muttetuwegama the next day. He pointed out that under the sealing order
made by the Competent Authority Douglas Liyanage acting for the Ministry of
State, no time limit had been given.
Anandatissa de Alwis, Minster of State, replied
that he would not enter into an argument on this matter, but would merely point
out that the Competent Authority has decided that this paper [Attha] violates security and causes
public disorder. This reply made a mockery of accountability before Parliament,
where ministers are answerable. It was as though Parliament had abdicated to shadowy
officials. As to Competent Authority Liyanage’s democratic credentials, he was
a leading figure in the coup attempt in 1962!
Prime Minister Premadasa
added his own argument: The Aththa
was sealed under Emergency Regulations, and since Muttetuwegama had voted for
the emergency, he has consented to the sealing of the paper!
The sealing of the Aththa, the passing of the 4th
Amendment, and the unprecedented repression that ensued and lasted until the
end of the Referendum, were orchestrated by the UNP in the most unscrupulous
manner. The pattern had a plan and organisation reminiscent of the manner in
which the July 1983 violence was staged.
There is little doubt that
Mr. Ranil Wickremasinghe had a major role as a hatchet man in this conspiracy.
The very first speech in parliament giving racy, but totally unsubstantiated,
details about the alleged ‘Naxalite Plot’
was made by Wickremasinghe, minister of education, on 28th October
1982. Such being his position in Jayewardene’s regime, it raises an interesting
question about what he was doing during the violence of July 1983.
The SLFP was then in
disarray with Mrs. Bandaranaike, owing to her ‘legal’ disability, unable to be
fully effective as leader. Being a party that was broadly Sinhalese
nationalist, which had no clear principles, ideas or vision, it was set to
crumble along personal differences. It appears to be the case that Ranil
Wickremasinghe picked up some gossip in the form of wild conjectures from his
classmate Anura Bandaranaike, who was evidently wary of his sister Chandrika
and her husband Vijaya Kumaratunge, whose inclinations were towards the Left.
VK was also potentially more enlightened on the Tamil issue. Anura’s faction
were either unconvincing, lacklustre or pro-UNP during the presidential
election campaign and then the crucial Referendum issue.
Speaking about the Naxalite
Plot which supposedly was to have been hatched if Hector Kobbekaduwe had won
the presidential stakes on 20th October, Wickremasinghe’s speech
alleged the following: The pledge by Kobbekaduwe to restore Mrs. Bandaranaike’s
civic rights and make her president was not be honoured. Vijaya Kumaratunge
would have taken over as Prime Minister in place of Maitripala Senanayake whom
he had backed for that post before the elections. There were to be no
ministers, but only secretaries. Prasanna Dahanayake who was discharged from
the Army for alleged subversive links was to be made defence secretary. Former
Air Force chief Harry Gunatilleke was to become co-ordinating secretary defence,
who had also submitted a report to Anuruddha Ratwatte about the need to remove
many unreliable pilots. The Communist Party cadre it was said, were urging that
arms be taken away from unreliable units in the security forces. A section of
the SLFP, including Mrs. Bandaranaike, was to be eliminated.
On 3rd November, Jayewardene issued a slightly more restrained communiqué about the Naxalite Plot about which, he said, he had heard on 21st October. The plan he said was to assassinate him, a few ministers, Anura Bandaranaike and the service chiefs. Mrs. Bandaranaike was to be imprisoned. The danger in holding the general elections that were due, he said, was that a large number of political hooligans would enter parliament, wreck the democratic process, and strengthen themselves to form their Naxalite government at the next general election!
The plot was becoming more
and more blood curdling. It was the same day that the Aththa was sealed and the next day the 4th Amendment
went before parliament. To an objection raised by Lakshman Jayakody MP, that
these allegations were absurd, Gamini Dissanayake, Minister of Mahaveli, Lands
and Land Development, put on a good court room performance, naming some of the
Naxalites: “…the leader of the Naxalites
is Vijaya Kumaratunge, the husband of the leader’s daughter (Chandrika). His
assistant is her daughter herself. Then there are other groups of people who
conducted the last election campaign and who were plotting before the election
results were out to assassinate the President. If you want to find out who the
Naxalites are, look at your own house!”
The Sunday Times, then under direct government control, referred to the
speeches in the Hansard above (4th November and 28th
October) and published on 14th November a list of eight key
Naxalites with their photographs. They were in order: 1. Vijaya Kumaratunge, 2.
Chandrika Kumaratunge, 3. Ratnasiri Wickremanayake, 4. Hector Kobbekaduwa, 5.
T.B. Illangaratne, 6. K.P. Silva (General Secretary, Communist Party), 7.
G.S.P. Ranaweera (Editor, Aththa) and
8. Jinadasa Niyathapala.
Along with this drama, the
most active SLFPers were detained to prevent their campaigning against the
extension of parliament by the Referendum. According to the Sunday Observer of 14.11.82 the ‘Violence Plotters’ were arrested on the
Attorney General’s advice. According to the Forward
(CP paper), the SLFP General Secretary, Ratnasiri Wickremanayake was detained
incommunicado at Rock House, Mutwal.
On 29th November,
the Attorney General filed indictments at the High Court against Wickremanayake
and 10 other SLFPers. They were accused of a ‘conspiracy to cause damage to public and private buildings and
property, and engineer acts of violence.’ And when, according to the AG,
did they intend doing such things? – Way back in October 1980 as a protest
against the stripping of Mrs. Bandaranaike’s civic rights! Legal history was
being made. You could be hauled up before court today if someone remembered
that you had intended robbing a bank two years ago, which in fact you never
Vijaya Kumaratunge, who was
then not well, was arrested on 19th November and held in army
custody. It required an appeal court order for him to see a doctor of his
On the other hand, the Government
was going full-steam ahead on a McCarthyite binge. Its media were full of a
Naxalite conspiracy and a Red menace. Even sadder still, an influential section
of the so-called Independent Press, far from protesting at the repression,
joined the McCarthyite chorus. Today they may be found among the prominent
advocates of media freedom, who have conveniently forgotten their betrayal of
the Aththa and the Saturday Review.
Among the more sophisticated
operators was Migara of the Weekend (Sun). In his column of 24th October, he attributed the
SLFP’s defeat at the presidential election to its disorganised campaign: ‘Hector Kobbekaduwe was a poor national
figure who had not been in active politics since the party’s defeat in 1977.
The more popular figure was Anura Bandaranaike who came late in the campaign
and whose speeches were more favourable to the UNP than to the party he
represented. The rest on whom Hector Kobbekaduwe relied, like Vijaya
Kumaratunge, D.M. Jayaratne and Tennyson Edirisooriya were not persons who
commanded respect at national level."
He said that Kobbekaduwe put
up a creditable performance getting 39% of the vote, adding that he lost due to
Mrs. Bandaranaike not being in the campaign, Anura Bandaranaike and loyalists
not being interested in campaigning and the defection of party stalwarts.
Migara also added that Jayewardene had always stood for a national government
[and even once for socialism!], and when the SLFP did not join him, he made
sure that it stayed divided.
Migara wrote again on
14th November ’82 on the subject of Jayewardene always wanting a
national government: “President
Jayewardene has been given an overwhelming mandate to preside over the destiny
of Sri Lanka for another seven years. Should this not be the time to bring all
patriotic forces together?”
There is a shift from the
earlier piece which implicitly admitted that Jayewardene had won obtaining 53%
of the votes cast (43% of the registered vote) only by decimating the
opposition and preventing it from coalescing around Mrs. Bandaranaike by unfair
means. In the second quotation, it has been elevated to an ‘overwhelming
mandate.’ The next shift was calculatedly mean. On 28th November ’82
Migara wrote about the role of the ‘Aththa’: “The Communist Party was openly anti-Mrs.Bandaranaike. They went flat
out towards the latter stages of the [presidential] campaign to ensure a
victory for the SLFP. They undoubtedly won the SLFP the bulk of their votes in
the North and South…the orders from [the] Kremlin (Moscow) appear to be that
the Communist Party should give all assistance to the SLFP sans
Mrs.Bandaranaike to defeat Jayewardene at the polls.”
The title of the piece was ‘Foreign Powers Vie for Lanka.’ In one
fell swoop Migara had tried to give
substance to the ‘Naxalite Plot’ which he knew to be eyewash, and justified the
sealing of the Aththa by associating
it with, as it were, the Red Menace. The entire media and the resources of big
business were at Jayewardene’s disposal to spew their vituperations either in
polished Migara style or in a more
unrestrained style as in the Sunday Times
which was under government control.
Still Jayewardene did not
take chances. During polling on 22nd December, the violence,
intimidation and fraud were such that in Mrs. Bandaranaike’s family electorate
of Attanagala, where family members were always returned with overwhelming
majorities, the government won 67% of the votes polled and where two months
earlier the SLFP presidential candidate had won 55%. Dr. Colvin R.de Silva of
the LSSP called the Referendum, “a
display of organised violence to cover organised mass impersonation.” The
Government secured a continuation of its five-sixths majority in parliament
through obtaining 54.7% of votes polled at the referendum (38% of the
registered vote). The emergency continued to be in force until the poll ended.
The ease with which the UNP
was allowed to get away with the fraud cost the country dearly. By its very
success, the Government drove the small but effective opposition underground,
outside the democratic process. In the Tamil areas the Government’s conduct
during the emergency eroded hope of reaching a solution through the democratic
process and the situation continued to deteriorate while the Government made
threatening noises. The first media strike against the Gandhiyam was made on 28th
November 1982 with very disturbing overtones, at the height of the McCarthyite
putsch in the South. We will refer to this later (Sect. 8.2).
On 28th October,
Jayewardene had obtained undated resignation letters from all his MPs on
cyclostyled forms on which they had to sign, and the same day Ranil
Wickremasinghe opened the Naxalite bash in Parliament. The party became so
tightly controlled by a group around Jayewardene, that other aspirants had to
wait and literally resort to threats, elimination or both to assert themselves
after things moved into a flux in late 1987. The legacy of the Referendum
exercise left impaired the institutions of the Judiciary and the Attorney
General’s department, long beyond the UNP’s hold on power. The Army and Police,
instead of being forces which upheld the law impartially, were made to function
as private gangs of those in power, when they were called upon to detain and
harass opposition figures on the basis of fiction concocted by the executive.
The Government in turn became a nervous and
paranoid government unable to observe prudent limits in dealing with the Tamil
problem, or with any show of opposition. Despite the police agencies being very
busy, the actual and potential strength of an underground opposition was
difficult to gauge. Such a government was set to make the miscalculations,
which led to the July 1983 holocaust, and an intensification of the Tamil
insurgency and then the JVP insurgency of 1987.
It was during this period
that Kumaratunge made his mark as a political organiser, enabling Kobbekaduwe
to obtain an unexpectedly high 39% of the vote despite inactivity and sabotage
by prominent members of the SLFP. It is also notable that he was classified
Naxalite No.1 by Gamini Dissanayake and eliminated from the Referendum
campaign. Although he later left the SLFP and formed a new party, Kumaratunge
was subsequently to play a role, that was far from being that of a minor
As a further irony, Naxalite
No.2, Chandrika Kumaratunge, became President in 1994 while Ranil
Wickremasinghe became opposition leader. Those who were looking for a Naxalite
president were disappointed. The Press, however, kept blaming her for her
‘confrontational’ approach to Wickremasinghe! Another legacy, the Sri Lankan
Press became perhaps the most chronically dishonest in any democratic country.
They had to go on covering up for how they behaved in 1982 and 1983, and for
the sequel of intense tragedy to all of which they lent their complicity.
Dr. Colvin R. de Silva’s 1972 Constitution must seem paradoxical in
retrospect. He made Parliament all-powerful by removing constitutional and
legal restraints on its power. Using its untrammelled legislative power, the
Parliament divested itself of its executive power and vested it with the new
presidency of 1978. This was made amply clear when Jayewardene possessed
himself of undated resignation letters from his UNP MPs. By 1982, Jayewardene
doubted his legitimacy to such an extent that he would not trust his own MPs,
some of whom may have felt uncomfortable about the Referendum.
What the Parliament could do under the 1978 Constitution, was to refuse
to pass legislation as Jayewardene wanted, or even impeach the President.
Later, as president, Premadasa showed how difficult impeachment was. Even with
a reduced majority in Parliament and a narrow support base, Premadasa survived
attempted impeachment using all his manipulative powers as president (see Sect.
What Jayewardene and Premadasa did for their survival was to corrupt
Parliament so thoroughly that except in externals, it became a different
phenomenon from what it was under the Soulbury Constitution. In the old days
MPs were modestly remunerated, they travelled by train, and often became poorer
for taking to politics. Under Jayewardene's system, to become an MP was to
strike a gold mine. Salaries and perks were increased enormously, including
duty-free cars. So high were the stakes that elections came to resemble a
Another source of corruption was the tendency to increase the number of
ministers to an astronomical number, without precedent anywhere else in the
world. Premadasa started by reducing the number of ministers from levels
maintained by Jayewardene, but reverted back to former levels as the price for
staving off impeachment. How endemic this tendency is can be seen from the
example of President Kumaratunge. During her first term (1994-2000), she made
reformist noises and started with a cabinet of just over 20. However, during
her second term where she felt her support to be more shaky, the number was
increased to more than 40.
Thus among the 125 MPs supporting Premadasa in Parliament, 90 or so
were either cabinet ministers or state ministers. In Kumaratunge’s second term,
it was about 80 out of 115 MPs supporting her in Parliament (the total in
Parliament being 225 MPs). In normal parliamentary practice, the back-benchers
(government MPs who were not ministers) kept a check on ministers and raised
questions, ensuring less corruption and better government. In what we have
today, back-benchers have been reduced to an ineffective minority. The system
has become in effect one of bribery all but in name.
This arrangement cannot admit any national planning or identification
of national priorities. The people themselves tend to lose track of who is in
charge of what. We have scores of ministers making policy decisions based on
their private contacts, often foreigners, foreign firms and their agents. When
an arrangement is purposefully geared towards maximizing corruption, it is
inevitable that it is how things go.
If the rhetoric of the authors of the 1972 Constitution pointed to the
apogee of a planned economy, that of the authors of the 1978 Constitution has
resulted in anarchy. Wheeling and dealing has become a substitute for
governance. Parliament has been rendered a white elephant that is too heavy a
burden for this poor country.
If one takes away the rhetoric of development aired in the 1970s by the
constitution framers of the Left and the Right, the results suggest that we
were better off under the old Soulbury Constitution. It was trim and
unpretentious, and more suitable a receptacle for democracy. A perpetuation of
the 1978 arrangement would lead to the people becoming more cynical and losing
all confidence in democracy.