Taming 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 consequences.
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 political commissars.
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 Appeal.
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 scene.
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 judgement.
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 sooner dissolved.’
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 3.
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 did.
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 choice.
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 political figure.
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. 18.4).
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 mini-civil war.
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.