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  – By Kelum Bandara Courtesy The Daily Mirror

 

How do you look at the current status of the constitution-making process, ahead of plans for presenting a draft report?

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 don’t 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. It’s 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 people’s 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 people’s 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”