By Rusiripala Tennekoon –

It may be useful, particularly for those who are now discussing the present constitutional controversy, to recall an important episode from Sri Lanka’s constitutional history. The events surrounding the Fourth Amendment to the Constitution in 1982–83 unfolded broadly as follows:

The government of President JR Jayewardene first formulated the Fourth Amendment Bill, which sought to extend the life of the First Parliament beyond its existing term, thereby postponing the general election that would otherwise have been held.

The Bill was referred to the Supreme Court of Sri Lanka to determine whether it was consistent with the Constitution. By a 4–3 majority, the Court held that the proposed extension could proceed only if the constitutional requirements were satisfied—namely, approval by a two-thirds majority in Parliament and approval by the people at a referendum.

Parliamentary Approval – 5 November 1982

The Bill was subsequently presented to Parliament. President Jayewardene’s United National Party, having secured an unprecedented five-sixths majority at the 1977 General Election, possessed more than the required parliamentary strength. The Bill therefore obtained the necessary two-thirds majority.

The Referendum – 22 December 1982

Having cleared the parliamentary hurdle, the proposal was placed before the people at a national referendum. The referendum was approved, resulting in the postponement of the general election and the continuation of the existing Parliament.

There is, however, another dimension of this episode which I can recall from personal experience.

During this period, a number of individuals regarded by the government of the day as significant opponents were arrested or detained before the referendum. I too was, somewhat inadvertently, caught up in that atmosphere and was made to spend approximately a fortnight in Mahara Prison.

I mention this personal recollection not for any political advantage, but because it provides me with a first-hand memory of how constitutional changes of great consequence can become intertwined with the political circumstances prevailing at the time.

The lesson I draw from that history is simple: constitutional safeguards are not technical obstacles to be overcome merely because a government possesses the parliamentary numbers. They are safeguards intended to ensure that fundamental changes to the constitutional order receive the scrutiny of the courts, the approval of Parliament where required, and, where the Constitution so demands, the direct approval of the people.

That historical experience is therefore worth keeping in mind when considering any proposal today that has the potential to affect the constitutional structure, the independence of institutions, or the tenure and security of constitutional office-holders.