13th Amendment took the country to

the edge of the Unitary State

structure
Author and constitutional lawyer Canishka Witharana who
is involved in the legal work of nationalist groups, said in
an interview that attempts were underway to impose a
new constitution on federal lines in a deceptive manner.
Excerpts of the interview follow

How do you look at the current status of the constitution-

making process, ahead of plans for presenting a draft
report?

2017-05-16
The process is on. The Parliament started this process by
appointing the Constitutional Assembly. When the government
came up with the concept of Constitutional Assembly, I wrote an
article indicating the dangers of it. Generally, Constitutional
Assemblies derive power directly from the people. In this exercise,
the representatives of people assume powers to work out a
constitution deviating from the usual procedure laid down in the
existing system of government. Here, you do away with the
authority of the constitution in force to introduce a new
constitution. In 1972, we made what we call a constitutional
revolution through a Constitutional Assembly. The 1972
Constitution was born on our own soil. We broke away from British
sovereignty. The 1978 constitution was enacted only as an
amendment to the 1972 Constitution, so the constitutional link
was not disturbed. Now we dont need a constitutional break as
such. But, strangely, the original resolution on the

present Constitutional
Assembly was drafted to break the link with the existing (1978)
constitution. Then, you are not bound by the limitations or
restrictions of the present Constitution. Its like giving birth to a
new country with a new system of government, wiping out the
structure of the existing State. I think this was shrewdly done to
conveniently move from the Unitary to a Federal structure.
Fortunately, MP Dinesh Gunawardane intervened and led the joint
opposition to pressurize the Government to change the proposed
resolution to make the Constitutional Assembly (though called by
that name) to function as a Standing Committee of the
Parliament. So the initial resolution was amended. This significant
battle is not known to the public. Thereby the process was
brought within the powers of the Parliament. So the limitations of
the 1978 constitution are made applicable to the process. The
Constitutional Assembly consists of all the MPs.
A steering committee and six sub-committees were appointed
under the Constitutional Assembly. Sub-committees have already
presented their final reports to the Steering Committee. According
to the resolution, after considering the sub-committee reports, the
Steering Committee should submit its own report with a draft
constitution to the Constitutional Assembly. Instead, the Steering
Committee submitted the six sub-committee reports to the
Constitutional Assembly, though members of the JO objected to
the reports. This is a deviation from the resolution. Recently, it
was revealed that an interim report too had been prepared and
presented to the Steering Committee. According to the JO, no one
knows who prepared it. The focus of these reports is to end the
unitary state structure and create a federal state with virtually
independent and sovereign provincial territories and a weak
(nominal) centre.
"The Constitution is a document of the people. So, the
peoples thinking should necessarily be incorporated into
it"

Then, the government appointed the Public

Representation Committee to engage the general public
and seek their views. How accommodating is that?
The Constitution is a document of the people. So, the peoples
thinking should necessarily be incorporated into it. The resolution
has made it mandatory to get public viewing and at the same
time, to disclose proceedings of the sub-committees to people
through the media. The objective is to make this process
transparent.
However, none of this happened. There was no process outlined in
the resolution to ensure the participation of people. Then what
about the Lal Wijenayake committee? It is a committee appointed
outside the process as there is no provision in the resolution for it.
It is a deception. It is a committee appointed by the Cabinet. It
was not a process initiated by the Parliament. Therefore people
did not take this committee seriously. A survey revealed that most
people were unaware of it. As a result, public participation was
minimal. Only selected groups of people made representations.
There are many allegations against it. The report of the Lal
Wijenayake committee cannot be taken as a reflection of views
from a wide cross section of society on constitutional reforms.

Why do you say this?

Only about 2,500 made direct representations to it. We do not
know the methodology adopted in the sampling process. On the
other hand, no publicity was given to the proceedings of the sub-
committees. Now they have already finalized their respective
functions and submitted the final reports. However, the public is
still unaware of what happened in them. In this way, the
resolution of the Parliament has been seriously breached. It is
wrong to alienate people from the process of making a
constitution. It is a blatant violation of the right of people to
participate in the making of their constitution. Such violations
may make the entire process a nullity. Unfortunately, as
mentioned earlier, the preparation of reports was not transparent.

There is much reference to the 13th Amendment as the

basis for the new constitution. How do you see it?
It is a drastic amendment made to the 1978 constitution. It
changed the structure of the constitution and the government. I
see four contributing factors for this amendment. First there was
international pressure pushing our government to devolve power.
Secondly, against the backdrop of international pressure, the then
government became weak. Thirdly, the government was placed
under siege by the pressure of racist separatists, the LTTE. The
separatist movement was backed by sections of the international
community. Fourthly, there was no participation of people or
consensus reached with the people in making the constitutional
amendment. Instead people were opposed to it. Their views and
voices were capriciously suppressed by the Government. It was
an arbitrary amendment made under intimidation and against the
will of the people. Therefore the constitutional validity of the 13th
Amendment is questionable.
"The Unitary structure of the State is held in 13A as long
as the office of the Executive President survives"

The same conditions are before us again today. The only

difference is that in 1987, the separatist movement was an illegal
terrorist group. Today the same elements operate as political
forces. Victor Koppe, a lawyer appeared for the LTTE in the
General Court of the European Union to have the LTTE de-
proscribed, submitting that the LTTE, in furthering its political
goals, would focus solely on political means. He further said the
LTTE had been reformed into a transitional political network, with
no clear hierarchy or overall leadership. It meant they have not
deviated from their separatist agenda. The Tamil National Alliance
(TNA) and the Tamil diaspora has taken over that role.
The 13th Amendment has taken the country to the edge of the
Unitary State structure.
In line with the SC judges who dissented against the 13th
Amendment, a federal structure has already been created by it.
However, what is clear here is that we cannot build on nor extend
the 13A without falling into the trap of federalism. The Unitary
structure of the State is held in 13A as long as the office of the
Executive President survives. Therefore, if one wants to abolish
the Executive Presidential system, the 13A should also be
abolished in order to secure the Unitary State.
How appropriate is power devolution for Sri Lanka in that
context?
We have to look at it from different points of view; historical,
psychological, geographical and economic consequences.
Devolution divides the people and resources of the country.
According to Prof. Buddadasa Hewavitharana, devolution defeats
social efficiency and distributional equity. It is a disparity
widening mechanism, he says. When we consider our
geographical location, our country has been continuously
confronted with international interference and invasions. Our
strategic location as the gate to Asia is an invaluable asset for the
superpowers trying to dominate the Indian Ocean and exploit its
valuable but untouched resources. The solidarity of the people is
the major obstacle for these western imperialists. For thousands
of years, we have built our own sociological systems to defend
and develop our country. This was through integration and
solidarity. We have evolved into a unique civilization through the
influence of Buddhism. If one wants to capture the land, this
unique civilization will be destroyed. That destruction could be
conveniently done by creating a system of Government with a
weak centre and extremely devolved peripheral units of
government. Cultural values and symbols will be destroyed.
Chances for a strong leadership are to be curtailed.With such
malicious intentions, the vicious West invests a great deal on
racist separatist political movements, advocating devolution and
federalism.

Then, how could Sri Lanka achieve reconciliation among

different communities?
For over 2,500 years we have developed our own constitutional
theories and principles. We had sound practical machinery to
make and implement a constitutional contract between the State
and the People. The people effectively participated in the
decision-making process. These systems are unknown to western
political scientists. Unfortunately those engaged in the making of
the constitution seem to know nothing about our indigenous
thinking or administrative systems. The best testimonies of their
poor knowledge are the sub-committee reports and the interim
report presented to the steering committee. They are to create a
constitution on pro-western principles. In this way, the ulterior
motives of the western superpowers could be fulfilled. The
constitutional structure proposed in these reports is an extremely
irreversible federal State, opening doors for secession to establish
separate states in the future. Finally, sovereignty would not be
shared by the people but by the international forces behind this
conspiracy. Will it be a constitutional invasion?
We say Buddhism is to be given the foremost place in the
constitution. This is a unique constitutional principle with a
purpose. That principle alone shall safeguard the rights and
interests of all communities and maintain the equality and
solidarity of the people. I have written a book demonstrating the
function of Article 9. The foremost place should be given to the
process of the making of the constitution, too. Therefore,
Bhikkhus should necessarily participate in the constitution-making
process. But we see no Bhikkhu involved in it. Without their
participation the native thinking cannot be manifested in the
constitution. Therefore, the type of devolution proposed in the
sub-committee reports and the interim reports are detrimental
and should be rejected.
"The 1978 constitution was enacted only as an
amendment to the 1972 Constitution, so the constitutional
link was not disturbed"
The TNA always argues that the Sinhalese are the majority
and their opinion always prevails, leaving aside that of the
minorities. So, they ask for a separate structure to look
after their affairs. How do you see it?
The underlying argument in your question is a myth. People who
know nothing about our civilization formulate this argument by
importing untested and hypothetical constitutional and political
theories from the West. It is a question formulated in the west to
be voiced through their agents racist separatists here to
destroy the country by implanting poisonous and baseless
ideologies in the minds of the people with the malicious intention
of upsetting the harmony among people. This is to fulfill the
economic and political interests of the West.
One way to answer this is by questioning what law is made in this
country that discriminates against Tamils? What executive powers
give authority to treat Tamils differently? Which judicial decisions
recognize racial discrimination? The answers are in the negative.
The reality is the opposite. Tamil is constitutionally recognized
both as an official and national language. Tamil is given special
privilege over Sinhala to be used as the language of
administration in the Northern and Eastern Provinces and in that
case in the entire country. In Sri Lanka, no discrimination is
permitted on any ground whatsoever. All are treated equal. What
evidence is there of discriminatory practices of Sinhalese against
Tamils in the present context? Just after the defeat of the brutal
LTTE, the Government took special measures to accelerate the
process of restoration and development in the North and East.
Much of the resources and finances were diverted to affected
areas. Neither the Sinhalese nor Tamils are racist. But a handful of
Tamil separatists appear as racist leaders. They survive on the
plight of poor Tamils and do nothing to elevate their condition. As
said earlier, racism is artificially promoted and funded by the West
to create turmoil here. The Sinhalese should come forward to save
the Tamils from being victimized by so-called Tamil leaders
advocating separatism and federalism.
The other way to answer it is through the historical theory of
integration. According to Dr. Harischandra Wijethunga, influence
of Buddhism led three different communities, pre-Aryan, Aryan
and Dravidian to integrate into one Aryan-Buddhist community
called the Sinhalese. What is important to note here is the
process of integration that continued until the arrival of Western
powers who introduced laws to divide and rule the people. In that
sense, irrespective of individual communal identities, everyone
became members of one family and were treated equally. To mix
with and reach out to other ethnic or religious groups are unique
abilities of the Sinhalese.
How do you interpret the term reconciliation then?
The western concept of reconciliation has no room here. To
reconcile, there should be divisions. These western concepts are
just tools to create conflicts and wars. We see no communal
divisions here. All racist leaders serve the same master. They try
to create conflicts between Sinhalese, Tamils and Muslims. Finally,
with the assistance of the Government, separatists are compiling
a constitution for division. It will be an irreversible process. At the
end, the country would revert back to the pre-2009 situation, a
state of war. As usual, westerners would come forward with
another set of theories to resolve it. They would in fact add fuel to
the fire. They do not want to resolve conflicts. The mission of
present constitutional reformists would then be accomplished and
rewarded. People would eternally suffer. Imperialists would
achieve their economic and political goals through this disaster.
How are you going to thwart the current process of
constitution-making?
The simple answer is to educate the people on our history by
rejecting distorted and fabricated historical accounts of
separatists and racists who promote divisions and communal
disharmony. We must enlighten all communities on the value of
living in solidarity. Organize the people to stand against
separatism and reject constitutional reforms leading to
federalism. Politicians and members of the legislature should be
forced to terminate the present process.
The solution is somewhere else. The constitutional process must
be replaced by an accelerated economic development process.
Recently, a group of youth in the North protested in front of the
Northern Provincial Council, demanding a solution for
unemployment. The message is clear. The problems of the North
and South are similar. What people need is not self-determination
or devolution leading to federalism. They simply want to
overcome the menace of poverty and discontent and live with
dignity.
"What is important to note here is the process of
integration that continued until the arrival of Western
powers who introduced laws to divide and rule the
people"
Posted by Thavam