By Laksiri Fernando –

Dr. Laksiri Fernando

There are possibilities that the debates on the new constitution making process becoming polarized on ‘unitary’ versus ‘federal’ lines. This is unfortunate because the ‘old distinctions’ between the two do not exist any longer. The distinctions or differences are within a broad spectrum of state or constitutional types, and not between the above binary categories. It is only at the two extreme points that ‘pure unitary’ or ‘pure federal’ states may exist, and even that only in theory, but not in practice.

Even in the case of Sri Lanka what exists is a ‘quasi unitary’ system and not an old type of ‘unitary state’ or a ‘unitary constitution.’ This became abundantly clear during the decision of the Supreme Court on the 13th Amendment. When the Amendment as a Bill was referred to the Supreme Court, a full bench of nine judges sat in judgement, and only five determined that it was not in contravention of the ‘unitary state.’ The opinion/s of the other four differed and they dissented.

Supreme Court Decision

Of course one can argue that the divisions/opinions of the judges were not purely on constitutional or legal grounds, judging from many (‘political’) judgements during and after that period. However, considering the main arguments of the petitioners, it is clear that the two main issues were about the ‘unitary character of the state’ and the ‘supremacy of Parliament,’ and therefore, the divided opinion reflects the ambiguity of these matters when the 13th Amendment was introduced. Let me quote the Supreme Court (majority) determination.

“The Unitary character of the State of which the characteristics are the supremacy of the Central Parliament and the absence of subsidiary sovereign bodies remains unaffected. The Provincial Councils do not exercise sovereign legislative power and are only subsidiary bodies exercising limited legislative power subordinate to that of Parliament. Parliament has not thereby abdicated or in any manner alienated its legislative power in favour of any newly created legislative authority. The concept of devolution is used to mean the delegation of Central Government power without the relinquishment of supremacy. Devolution may be legislative or administrative or both and should be distinguished from decentralization. The scheme of devolution set out in the Bills does not erode the sovereignty of the People and does not require the approval of the People at a Referendum.”

The majority view had taken the ‘supremacy of the central parliament’ and the ‘absence of subsidiary (yet) sovereign bodies’ as the main characteristics of a unitary state. To that extent they were correct in concluding that the ‘unitary character of the state remains unaffected.’ There is ‘further extent’ that they have not spelled out. That is that the provincial councils derive their authority also from the Constitution like the central Parliament. It is true that the provincial council system has not ‘altered’ the unitary character of the state, but ‘qualified’ it.

It is not mere unitary state that exist now, but ‘unitary state with devolution’ or with extensive devolution. That was the intention of the 13th Amendment, emulating the Indian system, although it has not been done harmoniously. That is why changes with clear clarifications are necessary in a New Constitution. The 13th Amendment has not gone to the extent of federalism or even quasi federalism. It remains as, one could say, ‘quasi unitary state.’

International Trends

How could we understand or interpret this quite a complex situation within the evolution of sates or constitutional systems in the world? When political scientists or constitutional lawyers defined ‘unitary’ or ‘federal’ states in early 20th century, there were only a limited number of states which were in existence. Others were vastly colonial territories. There was another category called ‘confederations.’ When the UN was formed in 1945, for example, there were only 51 member states but now 193 states. All these new states have written constitutions. Are they ‘unitary’ or ‘federal’? The demarcations are quite mixed except in few cases. Even the old states have evolved in mixed directions. The UK, Spain, France and even the US have become complex combinations. The former Soviet Union was always a strange animal (with an authoritarian underbelly) and difficult to strictly categorize into any of the above three: ‘confederal,’ ‘federal’ or ‘unitary.’ Even China today shows mixed characteristics.

Let me quote briefly from three sources, first theoretical, second case-study, and third comparative analysis, to explain the current thinking on the subject.

“States no longer feel that they have to make an exclusive choice between either unitary or federal systems. They sometimes devise hybrid combinations.”

The above is stated in the ‘Introduction to Politics’ by Robert Garner, Peter Ferdinand and Stephanie Lawson (Oxford University Press, 2012, p. 193). Even when Duncan Watts was trying to analyse government and politics in the US and UK which were traditionally called ‘federal’ and ‘unitary’ respectively (Understanding US/UK Government and Politics, Manchester University Press, 2003, p. 169), he said the following.

“It is important not to emphasise unduly the formal differences between unitary and federal systems, for in practice the distinctions are less clear cut than at first appears.”

Most important perhaps are the conclusions arrived at by analysing quite a number of countries and theories, and one of the contributors (John Loughlin) highlighting three salient points of the contemporary nation-states (Daniele Caramani, Ed., Comparative Politics, Oxford, 2014, p. 182).

1. The nation-state is the quintessentially modern form of political organization with distinctive features of territorial organization.
2. Claims that it is disappearing have been exaggerated.
3. The classical distinction between ‘federal’ and ‘unitary’ state is giving way to more complex forms of the nation-state.

Catuskoti Reasoning

It is possible for some people to reject the above conclusions or observations as Western theories. On the contrary, the Buddhist concept of Catuskoti is more helpful in understanding the evolving complexities of the nation-state than the binary debates on ‘unitary vs. federal’ theories. As Nyanaponika Thera explained (The Heat of Meditation and Other Writings, 2008, p. 74):

“Today with the discovery of many-valued logic and the consequent realization that Aristotelian logic is only one of many possible systems, the significance of this Buddhist logic of four alternatives (catuskoti) could be better understood. Briefly, this is a two-valued logic of four alternatives unlike Aristotelian logic, which is a two-valued logic of two alternatives.”

What does this mean in respect of what we are talking about as the nature of the states or constitutions? It means that ‘black and white’ distinctions between ‘unitary and federal’ are obsolete, or mistaken from the beginning. The reality is more complex. If I may translate one of Nyanaponika Thera’s examples into our political problem: ‘according to the Aristotelian (or formal) logic or reasoning, if a constitutional system is not unitary it is federal.’ However, ‘according to catuskoti, or four alternative reasoning (1) it can be unitary in main dimensions (2) it can be federal in the same manner, or (3) it can also be unitary in some dimensions but federal in other dimensions or (4) the state can be neither unitary nor federal. It is also clear from this reasoning that there can even be several other combinations in between.

Dialectical reasoning also leads us to the same conclusions, going beyond the simplistic arguments or binary reasoning about ‘unitary vs. federal’ debate.

Conclusion

Our empirical evidence show, although I have not exhausted all, that with the 13th Amendment, our state system has transformed relatively into a new form. The Supreme Court’s majority determination also noted that ‘devolution should be distinguished from decentralization.’ Decentralization is primarily a device in a unitary state, but devolution moves beyond its parameters. It was an understatement for the SC however to say that ‘devolution may be legislative or administrative.’ More correct is to say ‘legislative or executive or both.’ What the SC did not particularly spell out was the fact that provincial councils also derive their powers and legitimacy from the Constitution, without altering the supremacy of Parliament. Parliament retains the powers to legislate on national policies and the provincial councils are obliged to follow. In a small and a developing country like Sri Lanka this overarching policy determination is important through consensus and agreements. Cooperate devolution similar to cooperate federalism might be the best.

It is well known that devolution in Sri Lanka was intended to be modeled on the basis of the Indian system which is called ‘quasi federalism.’ However, this attempt was not a complete success under the presidential system, and for other reasons. India is not Unitary but a Union. Sri Lanka has not gone to that extent. Sri Lanka has retained its character as ‘unitary’ at least nominally and some people seems to be obsessed with this characterization. The present Article 2 says:

“The Republic of Sri Lanka is a Unitary State.”

But more correct is to say:

The Republic of Sri Lanka is a Unitary State with Extensive Devolution.