Extending the Life of Parliament at Any Cost

By Prof. Rajiva Wijesinha | Published: 2:00 AM Mar 9 2021
Columns Extending the Life of Parliament at Any Cost

By Prof. Rajiva Wijesinha

When the Referendum Bill came before the Supreme Court the Attorney General, was Siva Pasupathy, an obsequious man enjoyed high status under JR and did his pernicious bidding faithfully, but later turned into an inveterate foe of successive Sri Lankan Governments and a passionate supporter of the terrorist movement.

He argued that the Court had no jurisdiction with regard to the Bill since the Constitution laid down that ‘where the Cabinet of Ministers certifies that a Bill, which is described in its long title as being for the amendment of any provisions of the Constitution ; or for the repeal and replacement of the Constitution, intended to be passed with the special majority required by Article 83 and submitted to the People by Referendum, the Supreme Court shall have and exercise no jurisdiction in respect of such Bill’. 

This led to some sarcasms from the Chief Justice, JR’s handpicked Neville Samarakoon, who was now beginning to understand the pernicious nature of the Government he served. Indeed he was now on a trajectory that led to the Government bringing a motion to impeach him a year or so later. But on this occasion, though there were cogent arguments against the Bill, particularly by Felix Dias Bandaranaike, the Court finally ruled that ‘The majority of this Court is of the view that the period of the first Parliament may be extended as proposed by the draft Bill which is described in its long title as being for the amendment of the Constitution and is intended to be passed with the-special majority required by Article 83 and submitted to the People by Referendum. In, view of this decision this Court in terms of Article 120 Proviso (b) states that it does not have and exercise any further jurisdiction in respect of the said Bill’.

Neville Samarakoon was probably in the majority, along with the slavish judges who had sat on the Presidential Commission of Inquiry. But the judgment added that ‘Three members of this Court are not in agreement with the above views.‘ which prompted a further challenge from Felix on the grounds that this suggested doubt on the part of the Court. He made some forceful arguments but they were rejected and the delays that should have flowed from his application were avoided. 

But I note that his assertion that ‘in view of, the fact that the Court had divided four; three in its determination, it should be presumed that the Court entertained a doubt, as referred to in Article 123(3) of the Constitution.’ was disposed of in a very strange way. The claim of the judges who heard his appeal was that ‘With respect to the alleged second error it must be stated that neither the majority nor the minority had any doubt that the Bill was inconsistent with the Constitution. The difference of opinion was grounded on the question whether the period of the first Parliament could be extended as proposed by the draft Bill. Hence arguments based on the supposition of the existence of such doubt are irrelevant.’

The Bill was inconsistent

This is most revealing in that it grants the Bill was inconsistent, but nothing was done to avert the inconsistency. And since it seemed three judges did not think the life of the first Parliament could be extended, it is strange that the judgment claimed Felix’s argument was irrelevant. 

Interestingly, the provision on which Felix had relied, Article 123 (2) (3) was removed in the Constitutional amendments Ranil and his lackey Jayampathy Wickremaratne pushed through in 2015. But I did not understand the significance of this then, so this was not one of the provisions I tried to amend on that occasion.

So, the Bill was passed and the Government then went into overdrive to ensure it won the Referendum. Richard de Zoysa told me how Lalith Athulathmudali had told him what instructions JR had given the parliamentary group, and it seems many of what could be called the UNP old guard were horrified. But none of them had the guts to come out against the measure.

I know this for Chanaka Amaratunga did speak out, and I went with him to meet several people who were upset. But none of them, A C Gooneratne who was Chairman of the UNP for instance, or Rukman Senanayake, would challenge JR in public. Only Hugh Fernando of former UNP Cabinet Ministers objected publicly, and we later asked him to be President of the Council for Liberal Democracy, the organisation Chanaka used to canvass against the Referendum from the perspective of Dudley Senanayake who had asserted that the right to vote was inalienable.

No stopping the juggernaut

But there was no stopping the Government juggernaut. The day before the 4th amendment was put to Parliament, 4 November, the Communist Party paper Aththa, the only effective opposition daily at the time, was sealed. The Competent Authority who gave the order for this was Douglas Liyanage, the 1st accused in the 1962 coup case. And his Minister, the supposedly decent Anandatissa de Alwis, would not respond when Sarath Muttetuwegama raised the issue in Parliament but simply said that the Competent Authority has decided the Aththa ‘violates security and causes public disorder’.

In this sorry dance of what was ultimately death for the nation, Ranil Wickremesinghe played a major role. He had always been very bitter about the Bandaranaike’s, and had indeed acted as JR’s hatchet man to denigrate them.

In 1982, the great enemy was Vijaya Kumaratunga who had shown himself an effective campaigner, and was also widely loved by the people. So, he had to be neutralised, for which purpose JR invented a plot that had to be investigated. Vijaya was thus thrown into jail for the duration of the referendum campaign, to be released immediately afterwards. The report produced by Tyrrell Goonetilleke, the senior police officer entrusted with the investigation, indicated that there was little evidence but declared that this was only to be expected when what was described as a coup was planned for after an Election had been won – for the claim was that Vijaya had declared there would be bloodshed after Kobbekaduwa won the Election, at which point obviously there was no need for a coup.

It was Ranil who highlighted the ‘Naxalite Plot’, even before the Referendum Bill came before Parliament.  He declared then that Kobbekaduwa would not have restored Sirimavo’s Civic Rights. The plan was to make Vijaya Kumaratunga Prime Minister and in fact some members of the SLFP, including Sirimavo, were to be eliminated.

Hooligans would enter Parliament

The day the Aththa was sealed JR himself picked up the story, claiming the plot was to assassinate him and some Ministers and also Anura Bandaranaike, though Sirimavo was only going to be imprisoned. This was his argument for not having an Election, that what he termed hooligans would enter Parliament and wreck the democratic process.

Gamini Dissanayake, who was then firmly under JR’s thumb, also got in on the act and claimed that “the leader of the Naxalites is Vijaya Kumaratunga’ and his assistant Chandrika. Meanwhile, the Sunday Times, which was then fully controlled by the Government, with the easily intimidated Rita Sebastian as its editor, published a list of eight Naxalites, namely, in order, 1. Vijaya Kumaratunga, 2. Chandrika Kumaratunga, 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. And Ratnasiri was then detained incommunicado at an army establishment, while after Vijaya was arrested in the middle of November he too was kept in army custody though he was not well. He had to go to the Appeal Court to see a doctor.

JR’s Naxalites, a term coined for rural guerilla groups in India, were indicted by Shiva Pasupathy, accused of a ‘conspiracy to cause damage to public and private buildings and property, and engineer acts of violence.’ The absurdity of all this was underlined by Rajan Hoole, of the Jaffna University Teachers for Human Rights, who wrote a comprehensive account of what took place, declaring that Pasupathy claimed this was planned ‘way back in October 1980 as a protest against the stripping of Sirimavo’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.’

And in those days of little overt opposition, it was left to a few brave souls in various institutions, such as a multi-denominational religious group called ‘The Voice of the Clergy’, the Civil Rights Movement and the Council for Liberal Democracy to battle vainly against the juggernaut.

https://www.lawnet.gov.lk/wp-content/uploads/2016/11/048-SLLR-SLLR-1982-2-BANDARANAIKE-v.-ATTORNEY-GENERAL.pdf

By Prof. Rajiva Wijesinha | Published: 2:00 AM Mar 9 2021

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