'13th Amendment is irredeemable' - Constitutional expert

Dr. Jayampathy Wickramaratne is a President's Counsel who served as a Consultant to the Ministry of Justice and Constitutional Affairs from 1996 to 2001. In 2004, he was made a Senior Advisor to the Ministry of Constitutional Affairs and also functioned as a member of the Presidential Advisory Committee on Constitutional Affairs. He played a prominent role in drafting the People's Alliance Government’s 1997 proposals for constitutional reform and devolution as well as the Draft Constitution Bill presented in 2000.

In conversation with the JDS, Dr.Wickramaratne shared his views, hopes and fears about the current and future politics of Sri Lanka. "At the moment we are witnessing a revival of Sinhala nationalism as a result of the war victory. The way these sentiments are being expressed can have an extremely negative impact on the Tamil society" he said.

Excerpts from his interview follow:

JDS: The renewed discussions on the long forgotten 13th Amendment seems to have taken the stage again. But as far as the Sinhala polity in concerned the whole devolution discourse has mostly revolved around the same topic, without making any substantial progress for almost two decades. What are your reflections on this?

Dr.Jayampathy Wickramaratne: First of all we should not forget the fact that the 13th amendment to the Sri Lankan constitution is something that has not been implemented for over two decades, despite it has being a part of the constitution. No government has demonstrated sufficient willingness to practically implement it. The bitter truth is that the provincial councils which were established under the 13 amendment to exercise the devolved political power have been ultimately turned into a extended arm of the central government. It has no authority whatsoever to exercise any powers that has been conferred to them by the relevant constitutional amendment. Frankly speaking, each and every dot and comma in the amendment have been used against the very spirit of the amendment i.e. to reduce and weaken the political powers of the provincial units. The provincial governors - who are in fact appointed by the Executive President himself - and the central government have become the biggest obstacles to the free functioning of these provincial units. Even some of the chief ministers of the provinces who are willing to practice a certain degree of freedom, have come under great pressure to accept the status quo and to back down.

On the other hand, the provincial councils themselves have showed some hesitation to execute the powers bestowed on them by the 13th amendment due to central government's reluctance to send a clear signal on these matters. For example, so far, the government hasn't showed any genuine interest in holding elections to the Northern Provincial Council. I don't understand why the government is hesitating to hold elections in the North, since they have already conducted the regional council elections in the province.

JDS: As far as the 13th Amendment is concerned, what is your impression of the stand taken by the Tamil National Alliance (TNA)?

JW: The issue that is of paramount importance is to have a broader discussion to decide how the national question should be resolved. As we know, initially certain attempts were made to build up a mutual understanding between the government and the TNA. But the TNA insisted that it was meaningless to proceed any further unless the government is prepared to agree to the basic points put forward by them. But I think later they changed their position and showed more flexibility, perhaps due to the pressure from India or some other reason. However, as we know, during the post 13th amendment period many other useful proposals have also come out, such as Mangala Munasinghe  Committee report [1], 1997 devolution package [2], 2000 August Draft Constitution Bill [3],  APRC Expert Panel 'majority' report [4], 2007 final report of All Party Representative Committee (APRC) [5] etc. Now they have proposed to consider the possibility of at least using some of these documents as the basis for negotiations. When you compare this with the earlier position held by the TNA, I think they have showed a considerable amount of flexibility. But still the government has not responded positively.

JDS: You say that in a certain sense, the TNA has bend over backwards to find a solution. But on the contrary, in a collective memorandum submitted to the TNA by a highly influential group of Tamil civil society members in last December, it has been clearly stated that "any solution to the ethnic problem should proceed from a recognition of Tamils as a nation entitled to the right to self determination." In such a context, do you believe that TNA's flexibility is a true reflection of the collective Tamil sentiments as a whole?

JW: Now, the danger I see here is quite serious. If the southern Sinhala polity fails to facilitate the TNA's position and reach an agreement, we don't know how the Tamil society would respond. I honesty fear when I think whether we are on the verge of repeating the same mistakes of the '80s. Just imagine what will happen if Sambanthan and others get outflanked by a more radical and militant tendency that would emerge within or without the TNA as a result of this current political stand-off? The responsibility lies in the hands of the of the Southern polity to prevent any such development. And the only way to ensure that would not happen is to pave the way to find a just solution.

By and large, the decades-old grievances of the Tamil people have neither been recognized nor addressed to date. 13th Amendment cannot be considered as the only viable solution to the present crisis. There are a number of inherent weaknesses and inadequacies in it that cannot be rectified. We need a solution which can go beyond the limits set by the 13th Amendment. That's why the 2000 August Draft Constitution Bill contained a proposal in it to devolve power further. It in fact proposed a semi federal form of government. I don't think the 13th Amendment can be redeemed. My belief is that we need to change it completely. Today even the Tamil people expect a solution that goes well beyond the 13th Amendment. 

I am a person who signed the APRC Expert Panel 'majority' report. I strongly believe that without a genuine devolution of power, this problem can never be solved. Moreover, I don't think a Senate - as suggested by some sections in the government - can be a viable alternative or a substitute to a solution based on a broader power sharing model. 

JDS: The fate of the All Party Representative Committee  is not different from the fate of many other similar initiatives taken in the past. As it has been pointed out by many, the President himself changed some of the content in the report by abusing his executive powers and immunity. But given the fact that neither the civil society nor the political parties raised a considerable opposition or challenge to such arbitrary moves, how do you see the future?

JW: The political parties in the south should be held responsible for the prevailing uncertainty. They weren't interested at all about the APRC Expert Panel 'majority' report. Even the 2010 APRC report compiled under the chairmanship of Professor Tissa Vitharana was not so bad. It too provided an opening for a serious discussion. Sadly though, the very government which established the All Party Representative Committee did not bother even to consider their recommendations. The Presidential Secretariat itself is behaving as if they haven't received any such reports. After all the bitter experience we have been through, the vocal opponents of these reports, who are also prominent coalition partners of the current government - parties such as National Heritage Party (JHU) - still ask : 'ethnic problem? what ethnic problem?'. 

The biggest problem is the ambiguous position held by the main party in the ruling coalition - the Sri Lanka Freedom Party (SLFP). In 1987, when the 13th Amendment was introduced, they campaigned against it. After 1993, under the leadership of Chandrika Bandaranayake, they changed their position to some extent. But still it isn't clear where they exactly stand on this issue. I cannot actually see that the current leadership of the SLFP is genuinely committed to finding a solution based on the fundamentals of power sharing.


1. A cross-party parliamentary select committee formed in August 1991 to come up with a solution to the ethnic conflict, under the chairmanship of SLFP parliamentarian Mangala Moonasinghe. The forty-five member select commitee released its' report in November 1993.

2. The drfat constitution published by Sri Lanka's Ministry of Justice, Constitutional Affairs and National Integration in October 1997. The document was titled "The Government's Proposal for Constitutional Reform.'

3. The draft Constitution Bill presnted to the Parliament in August 2000, but withdrew due lack of support.

4. In 2006 the president of Sri Lanka appointed a 17 member Panel of Experts to advise the All Party Representative Committee (APRC) established to find political solution to the ethnic conflict. In December 2006, a report endorsed by a majority of 11 members of the Experts Panel was released, which became widely known as the APRC Majority Report (also known as Report of Sub Committee 'A') .

5. The APRC was established in 2006. After a long, dragged-out process a final report was submitted to the President in August 2007. The report which was prepared after 63 sittings over a period of one and a half years was kept away from the general public until it was presented to the Parliament in July 2010.

Photo courtesy: CJPD



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