By Mass L. Usuf –
The Interim Report dated 21 September 2017 of the Steering Committee of the Constitutional Assembly of Sri Lanka in relation the unitary character of the State mentions:
“…. Therefore, the English term “Unitary State” will not be appropriate for Sri Lanka. The Sinhala term ‘Aekiya Raajyaya’ best describes an undivided and indivisible country. The Tamil language equivalent of this is ‘Orumiththa Nadu’”.
The proposal is to remove the English expression ‘unitary State’ in the present constitution and replace it with the above Sinhala term and its Tamil language equivalent. A very pertinent question automatically arises. What would be the status accorded by the courts to the previous judicial interpretations to the word ‘unitary’? In the realm of judicial precedence, the persuasive value of stare decisis may prima facie become void in view of the substitutes ‘Aekiya Raajyaya’ and ‘Orumiththa Nadu’’. In fact, the wealth of legal interpretations from foreign jurisdictions on the term ‘unitary’ will also be lost stunting the growth of our constitutional jurisprudence. The local courts may have to develop a new wave of interpretations to give meaning to these terminologies. Where will all these lead to is an open-ended question?
Generally, devolution of power from the center to the periphery, in simple terms, takes place to facilitate the implementation of the national policies of a government and the administration of its affairs in the far regions and rural areas. This is a phenomenon that is necessitated in countries with a vast geographical embrace or a large population or due to political exigencies. Canada, the United States, Brazil and Australia are examples of large federations. Switzerland has a federal system based on its three language groups, German, French and Italian. It recognizes all three as official languages. A mechanism of this nature, in a democracy, also facilitates the active participation and representation of the citizens in the affairs of the government and matters connected to their areas. The unitary nature of the central government is preserved by its overriding powers over the sub level regional institutions. The character of government classified as Federal is different in that greater autonomy passes from the Center to the regions. This can be in varying degrees including constitutional limitations on the centre.
The first post-independence autochthonous constitution of Sri Lanka (1972) in Article (2) states that the Republic of Sri Lanka is a unitary state. The 1978 Constitution of the Democratic Socialist Republic of Sri Lanka also in Article (2) refers to the Republic of Sri Lanka as a unitary state. This unitary character of the State was dented to some extent by the 1987 Indo-Sri Lanka Accord. The consequence of which as history has it, was the Thirteenth amendment to the Constitution and the Provincial Councils Act No 42 of 1987.
From Protection To Nationalism
The Tamilian sense of a distinct identity became expressive from almost the time when Universal Franchise was granted to Sri Lanka in 1931. They were unwilling to be treated as a minority by the dominant Sinhala majority. Sadly, the distrust between these two communities continues unabated.
History has it that despite non-violent Gandhi type protests by the Tamils, the Sinhala Only Act was passed in Parliament in June 1956. Shortly thereafter in August 1956 at a national convention in Trincomalee, the Federal Party reiterated its demand for federal union of Ceylon. “…. it was through the blunder of the latter (Sinhala majority leadership) that a movement whereby the Tamils at first sought purely to protect themselves became transformed into a nationalist movement.” (A.J. Wilson, ‘Sri Lankan Tamil Nationalism’, Page 83).
As we all know, the Tamil struggle for language parity was later achieved under the Indo-Sri Lanka Accord in 1987, when President J.R. Jayewardene agreed to legislate making both Sinhala and Tamil as official languages.
The country is today in another decisive moment of constitutional history in the making. In this background, extending the debate to federalism is a predictable sequence. Political expediency demarcated by clear ethnic consideration have already seen the creation (by imposition) of the Provincial Councils and devolution of powers. This may be viewed by the sceptics as progressing towards achieving the goal of self-rule, at least partially. In the absence of the North and East political equation and Tamil nationalism, there would not have been a secessionist war, no Indo-Sri Lanka Accord, no thirteenth amendment, no Provincial Council Act. The reality is that all of these have become part of this conundrum. It may look funny but as a balancing exercise, President Jayewardene introduced devolution to all the other seven provinces too, in addition, to the Northern and Eastern provinces. Even though it was not desired by the seven provinces.
The Sinhala majority is cautiously messaging the Tamil nationalists that a separate Tamil land is not a feasible proposition. On the other hand, the Sinhala nationalists must appreciate that the divide created by the actions of their predecessor ethno-nationalist politicians has to be bridged. Today, this sentiment amongst the Sinhalese has in fact, proliferated. In their minds, no avenue leading to a separation in the future should be left unaddressed. Not only that, even any semblance of an idea pointing towards separation should be avoided emphatically. However, they also must accept that this country belongs to the Sinhalese, Tamils, Muslims, Burghers etc.
Elaborating on federalism, the doyen of Indian constitutional law H.M. Seervai, says,
“In order to be called federal, it is not necessary that a Constitution should adopt the federal principle completely. It is enough if the federal principle is the predominant principle in the Constitution.”
The proposed constitution should not be superintended to legally weaken the spirit and essence of a united, undivided and indivisible Sri Lanka. Furthermore, the provision relating to the devolution of powers should not be kneaded in a manner to impress a federalist character. Such may be considered as acts of gross dishonesty. It is said that an often-quoted statement of Mr. S.J.V. Chelvanayakam was “a little now and more later”. The conspicuity of the apprehension on the side of the Sinhala nationalists is therefore, compelling. They suspect a gradual movement towards separation being nigh. More so, when it comes to ‘Aekiya Raajyaya’ and ‘Orumiththa Nadu’’ being bandied about. Why complicate a simple term ‘unitary state’ with newer classification?
Look at this simple example in Article 5 of the Italian constitution, which reads:
“The Republic is one and indivisible.”
Our drafters of the Constitution can derive some inspiration from Dr. Ambedkar, the father of the Indian Constitution. He said: The Drafting Committee wanted to make it clear that though India was to be a federation, the federation was not the result of an agreement by the States to join in a federation, and that the federation not being the result of an agreement, no State has the right to secede from it. The federation is a Union because it is indestructible. Though the country and the people may be divided into different states for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source. …..The Drafting Committee thought that it was better to make it clear at the outset rather than to leave it to speculation or to dispute. (Khanna, H R, Making of India’s Constitution, EBC, pp20-21).
The Sri Lankan Amphibian
Professor Madabhushi Sridhar in ‘Evolution and Philosophy behind the Indian Constitution’ referring to the unique characteristics of the Indian Constitution states: “It is certainly federal in so far as it assigns different, distinct and independent legislative fields to the Union and State governments, and in so far as it has in-built mechanism of converting the federation into a unitary system, it is typically Indian model.
In State of Rajasthan v. Union of India (Supreme Court) Chief Justice MH Beg had held: “A conspectus of the provisions of our Constitution will indicate that, whatever appearance of a federal structure our Constitution may have, its operations are certainly, judged both by the contents of power which a number of its provisions carry with them and the use that has been made of them, more unitary than federal.” He further held that the Central Government is “amphibian”, in the sense that it can move either on the federal or unitary plane, according to the needs of the situation and circumstances of a case. (1977 AIR 1361, 1978 SCR (1)1).
In Re the Thirteenth Amendment, “….The essence of a Unitary State is that the sovereignty is undivided, in other words, that the powers of the central government are unrestricted. The two essential qualities of a Unitary State are (1) the supremacy of the central Parliament and (2) the absence of subsidiary sovereign bodies. It does not mean the absence of subsidiary law-making bodies, but it does mean that, they may exist and can be abolished at the discretion of the central authority.” (1987) 2 SLR 312 at 319).
Can our draftsmen develop a Sri Lankan ‘amphibian’?