Examining the events that led to the passing of the13th Amendment revealed the following:

The Bill relating to the 13A was referred by the President to the Supreme Court under Article 121. Being an Amendment to the Constitution the ONLY determination the Supreme Court had to make was whether a Referendum by the People was needed or not as per Article 120.

The Supreme Court forwarded three separate determinations to Parliament. In addition to the details of the several arguments and determinations, the Chief Justice also forwarded a letter - a summary of the separate determinations. On November 10, 1987 the Speaker announced this summary of the Supreme Court determinations, to the Parliament. A debate followed and the Bill was passed and certified on November 14, 1987.

According to that summary, four Judges had determined that "the Bill nor any provisions of the Thirteenth Amendment to the Constitution requires approval by the People at a Referendum", four other Judges had determined that "the provisions of the Thirteenth Amendment to the Constitution Bill require approval by the People at a Referendum", while the ninth Judge had determined that "the provisions of Clause 154G (2)(b) and (3)(b) of the Thirteenth Amendment to the Constitution Bill requires approval by the People at a Referendum".

The absence of a clear and specific direction from the Supreme Court gave Parliament considerable latitude in options to be adopted. From the debates that followed it is evident that Parliament decided to delete Clauses (2)(b) and (3)(b), take a voice vote and pass the Bill. It was Hon. Montague Jayawickrama, Minister of Public Administration who moved for the following: "In page 7, leave out all the words in line 10" (refers to 2(b), HANSARD, Vol. 48, p. 1740) and "In page 7, leave out sub-clause (ii) of Clause (b)"(refers to (3)(b), Ibid, p. 1743). Thus Parliament simply deleted the clauses relating to a Referendum and passed the Bill.

Although the New Law Reports of [1987] 2 SRI L.R – PARTS 12 to 15 stated: "Referendum unnecessary except for Clause 154G(2)(b) and (3)(b) of Thirteenth Amendment", the Supreme Court did NOT make such a determination. The statement in the New Law Reports can only be attributed to the Editor.

The key determination was made by the ninth Judge, Justice Ranasinghe. During the course of his determination he stated: "…in the event of one or more Provincial Councils not agreeing either to an amendment or repeal of the said Chapter (XVIIA) or to the passing of such Bill, as the case may be. In each of these instances the manner and form for the process of amendment is as required by the provisions of Article 83, for the amendment of either that Article itself or any of the other Articles, viz: 1, 2, 3, 6, 7, 8, 9, 10, 11, 30(2) and 60(2), set out therein". Continuing, Justice Ranasinghe added: "The intention of the framers of the Constitution seems also to have been that, after the date on which the Constitution comes into operation, no provision was also to be entrenched in the Constitution without it being expressly approved by the People…Any attempt to have a new Article entrenched in the Constitution without reference to Article 83 and without having recourse to the special manner and form required by Article 83 would be tantamount to doing indirectly what cannot be done directly. Such a procedure is not permissible".

It is evident from the foregoing that the four Judges along with Justice Ranasinghe determined that the Bill attempted to entrench a new Article in the Constitution. The attempt by Parliament to "leave out" the need for a Referendum was to ignore the procedural requirement of a Referendum without revising those provisions in the Bill that mandated a Referendum. What has been overlooked is that it is the nature of the provisions in a Bill that necessitates the procedural requirements such as 2/3 approval, or 2/3 approval plus a Referendum. Leaving out the procedures without altering the substance of the provisions was improper and therefore should not be permitted. Therefore, the view held by some that it is valid for a procedure such as a Referendum to be left out without modifying the provisions is a seriously flawed argument. This, however, is what happened with the Bill in question. Furthermore, if the provisions of a Bill are altered in order to avoid the need for a Referendum, the revised Bill needs to be resubmitted to the Supreme Court to ascertain whether only a 2/3 approval would suffice for the Bill to be in conformance with the Constitution.

Although the Supreme Court failed to forward a clear and specific direction to Parliament there were justifiable grounds for the Court to conclude that a majority opinion in fact did exist in the several determinations. For instance, the determination by the four Judges that ALL the provisions in the Bill needed a Referendum INCLUDED the two subclauses 154G(2)(b) and 3(b). Therefore, it could be justifiably concluded that these four Judges together with Justice Ranasinghe determined that Article 154G(2)(b) and (3)(b) required a Referendum, thus making a majority of five.

During the confirmation hearings of Justice Sotamayor to the US Supreme Court, the debate that gripped the US was whether Law should be applied or interpreted. It is apparent that the four Judges who held that 13A did NOT require a Referendum were strictly applying the provisions in the Constitution, while the four Judges who held that a Referendum WAS NEEDED and the ninth Judge who held that some provisions needed a Referendum, evidently based their views on interpreting the law. It was interpreting the Law that made five Judges to conclude that either the whole Bill or part of the Bill impacted on the entrenched Articles in Article 83. Thus, five Judges interpreted the Law while four applied the Law. Notwithstanding the fact that the fate of many would depend on whether Law should be interpreted or applied blindly, at least in the instance of the 13A the fact that a majority view did exist cannot be overlooked.