The 1982 Referendum & July 1983

By Rajan Hoole –January 7, 2017

Dr. Rajan Hoole

Taming The Judiciary & The Legacy Of The 1982 Referendum – Part III

We pause here to describe the atmosphere of repression and insanity that prevailed during the run-up to the infamous Referendum which in many direct ways set the stage for July 1983 and for the JVP’s insurgency of 1987-90.

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 ref- erence 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 pro- hibition against not holding elections and ex- tending 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 in- consistent with the Constitution.”

FDB argued that the narrow majority by which the Supreme Court gave its approval en- tailed 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 man- ner in which the July 1983 violence was staged.

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