23 September, 2020

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Sri Lanka Is Already ‘Quasi Unitary’

By Laksiri Fernando

Dr. 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.

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Latest comments

  • 10
    1

    This is what happened in the past. Will history repeat?

    The 1972 Republican Constitution that Paved the Way for the 30 Year War in Sri Lanka

    The 1972 republican constitution of Sri Lanka, which for the first time constitutionalized a unitary Sinhala-Buddhist state, was enacted without the participation or mandate of Sri Lankan Tamils. Sri Lankan Tamils were not a party and never accepted the one-sided constitution Sri Lanka enacted in 1972. Not only their political opposition was brushed aside but even the judiciary also played a game against legal challenges. When C. Suntharalingam waged legal battles in the island against the 1972 constitution, the courts played a game by first telling that they could not take up the case until the constitution is declared and thereafter telling that they could not act as they were bound by the constitution.

    The 1972 Constitution abolished the Soulbury safeguards for minorities, entrenched Sinhala as the sole official language, conferred pre-eminence on Buddhism (as DS Senanayake had declined to), and made explicit the unitary character of the state (which the Soulbury Constitution remained silent on). The Constitution making process of ’72 ignored the moderate (non-federal) six point platform presented in Mr. Chelvanayagam’s letter to the PM, which was not even accorded the courtesy of a reply.

    There was yet another side of the legal battles in which the Privy Council that had some responsibility and Britain that was the root cause for the evil of the unitary state in the island, also have failed the Sri Lankan Tamils. Before the enactment of the 1972 Constitution, Sri Lanka abolished appeals to the “Privy Council”. The judges were required to take an oath of allegiance to the new constitution, and appeals to the Privy Council had been abolished. It was a perfect recipe for the dispossessed Tamil nation to resort to extra-constitutional actions.

    The Amirthalingam Trial-at-Bar involving the 1972 constitution in which 64 lawyers argued for Mr. A. Amirthalingam who was tried under Emergency Regulations by the Sri Lankan state, it was none other than Murugesu Thiruchelvam (Dr. Neelan Thiruchelvam’s father), who actually took up the argument that the 1972 constitution was invalid or could not be applied to Tamils.

    The Sinhalese leaders who called themselves moderate also changed their color. One such example is Dr. Colvin R. De Silva (a declared Marxist and a leader of the Lanka Sama Samaja Party) who once professed the famous dictum “one language two nations, two languages one nation” made the Tamil people second class citizens through the 1972 constitution of which he was the architect.

    This is what Dr. Colvin R. De Silva said in 1956,

    “if you mistreat them (Tamils), if you ill treat them…. if you oppress and harass them, in the process you may cause to emerge in Ceylon, from that particular racial stock with its own language and tradition, a new nationality to which we will have to concede more claims than it puts forward now… If we come to the stage where instead of parity, we through needless insularity, get into the position of suppressing the Tamil … federal demand… there may emerge separatism.” (Dr Colvin R. De Silva, Opposition Member of Parliament, Hansard, June 1956).

    The same Dr. Colvin R. De Silva after 15 years, accepted appointment as Minister of Constitutional Affairs in Mrs. Srimavo Bandaranaike’s government in 1970. Rejecting the proposal for a federal constitution, he urged the Sri Lanka Constituent Assembly on 15 March 1971:
    “Mr. Chairman, there is a Unitary Constitution in Sri Lanka. This has been there for a very long time… If we were to divide the country and unite once again we will face many problems as evidenced by our history.. .. I submit this proposal for a Unitary Constitution for approval by all sections of this Assembly”.

    The republican constitution enacted in 1972 was claimed as ‘autochthonous’ (meaning reversion to indigenous or native state). This claim is legally and factually false as there was no such ‘native state of Sri Lanka’ before the colonials arrived. There were in fact three states (Kingdoms) on the island – Kotte, Jaffna and Kandy, which were conquered by European invaders in the years 1505, 1621 and 1815, respectively. In fact, throughout the entire known history, this pear shaped island had never been a unitary state. It was always a Northern kingdom (Anuradapura) and a Southern kingdom (Rohana), or Kotte/Jaffna/Kandy (Ruhunu/ Pihiti/Maya) or the federal Provinces under the colonials. Even after the European colonialists (Portuguese, Dutch and British) arrived, until the British united the Tamil speaking North to the Sinhala speaking South in 1833 for their convenience in administration, the Tamil speaking areas remained a federal region.

    The Unitary State was actually the creation of the British only in 1833. The Colebrooke commissioners presented the recommendations in 1832, suggesting the creation of one government with one centralized, unitary form of administration under a governor in Colombo. The British did this without the consent of the people, and in doing so ended the hopes for a North & East Tamil (from the Jaffna kingdom) or an Upcountry Sinhalese (from the Kandyan kingdom) as a distinct political entity, something that no conqueror had managed to do throughout the history of the island.

    Therefore the 1972 constitution’s claim as ‘autochthonous’ is false, it was clearly not based on indigenous or native state.

    Reacting to the 1972 Constitution, S.J.V. Chelvanayakam said,
    “The Constitution has given everything to the Sinhalese and has given nothing to the Tamils.”

    A couple of days before its proclamation in Colombo, the draft of the 1972 Constitution was burnt by the Ilangkai Thamizh Arasuk Kadchi (ITAK) leader SJV Chelvanayakam and others, including Mr. Amirthalingam, at the Arumuga Navalar Ashramam Hall at Neeraaviyadi in Jaffna in May 1972.

    To prove Tamil opinion rejecting the 1972 constitution, SJV Chelvanayakam resigned his parliamentary seat and won a by-election. The Tamil United Front (TUF) was also formed in May 1972. This became the TULF in May 1976. After leading the most favored Tamil political party and struggling for federal solution for more than 25 years that found no success with Sinhala leadership, SJV Chelvanayakam ultimately presided over the Vaddukkoaddai Resolution that called for Tamil independence (separate state) in 1976.

    The 1972 constitution made even the moderate Tamil political leaders to abandon the demand for federalism and to go for a separate state solution.

    By introducing the 1972 Republican Constitution, it was the Sinhalese leadership, and no one else, who are to blame for inspiring the Tamil regional majority to officially demand a separate Tamil state (Tamil Eelam) in 1977. This was further influenced by their denial of equal rights (it robbed the minorities of even the scanty safeguards against discrimination) under the law to the minorities, evidenced by their deliberate exclusion of the provisions of Section 29 of the Soulbury Constitution (introduced at independence in 1948).

    On the other hand, in 1972, dozens of Tamil youth were arrested and incarcerated for putting up black flags. Those arrests in 1972 did not help stabilize the situation but it created the Tamil militancy. It should be noted that in the same year 1972, the Tamil New Tigers (TNT) was formed by Prabhakaran. The 1972 constitution was the progenitor for the rise of all shades of armed Tamil militancy and the 30 year war.

    Will the Sri Lankan leaders take the above as a lesson and avoid such blunders or will history repeat?

    • 7
      1

      Anton Sundaralingam,
      You have put it nicely in a ‘nutshell’and called the bluff of the hardliners who want tamils to continue as second class citizens.
      Unless a secular constitution is enacted, strife will continue.
      But, the Buddhist-Sinhala mafia – now dominant in the “yahapalanaya state” – wont allow.

      • 1
        0

        justice

        “Unless a secular constitution is enacted, strife will continue. But, the Buddhist-Sinhala mafia – now dominant in the “yahapalanaya state” – wont allow.”

        The Tamils made the error of going for conventional warfare, when they shoulkd have stuck yo Guerrilla warfare. That is why the IPKF was not able tp defeat them.

        So, if the Tamils are interested in a secular eglataria society, they need to help their Para-Sinhala “brothers” clean up their junk, the Para-racists. How?

        Learn from the assassins of the Middle ages. They kept the trouble makers in Check. So, the new LTTE need to be the Eglartarian Tamil Assassins.

        The Assassins (from Arabic: حشّاشين‎ Ḥashshāshīn[1]) is the name used to refer to the medieval Nizari Ismailis. Often characterized as a secret order led by a mysterious “Old Man of the Mountain,” the Nizari Ismailis were an Islamic sect that formed in the late 11th century from a split within Ismailism, itself a branch of Shia Islam. In time, the Nizaris began to pose a military threat to Sunni Seljuq authority within their territories by capturing and inhabiting many unconnected mountain fortresses throughout Persia (and later also Syria) under the leadership of Hassan-i Sabbah (who is typically regarded as the founder of the Assassins), therefore founding the so-called Nizari Ismaili state. While “Assassins” typically refers to the entire medieval Nizari sect, in fact only a class of acolytes known as the fida’i actually engaged in assassination work. Lacking their own army, the Nizari relied on these trained warriors to carry out espionage and assassinations of key enemy figures, and over the course of 300 years successfully killed two caliphs, and many viziers, sultans and Crusader leaders.[2] Under leadership of Imam Rukn-ud-Din Khurshah, the Nizari state declined internally, and was eventually destroyed as the Imam surrendered the castles to the invading Mongols. Sources on the history and thought of the Ismailis in this period are therefore lacking and the majority extant are written by their detractors. Long after their near-eradication, mentions of Assassins were preserved within European sources such as the writings of Marco Polo, where they are depicted as trained killers, responsible for the systematic elimination of opposing figures.

        Ever since, the word “assassin” has been used to describe a hired or professional killer, paving the way for the related term “assassination”, which denotes any action involving murder of a high-profile target for political reasons.

        The Black Tigers can be put to good use. Time to nip them in the bud.

        https://en.wikipedia.org/wiki/Assassins

    • 2
      1

      He He He

      The same Dr.Colvin [Edited out] said at his death bed

      …..make peace with Tamils

      Again Big Nose J R said at his last interview

      …. if he has power today he will fight for the rights of Tamils …..

      Cheers

    • 1
      0

      Dr. Laksiri Fernando

      RE: Sri Lanka Is Already ‘Quasi Unitary’

      Sri Lanka Common Sense Phamplet? Any progress?

      Getting tired of reading Thomas Paine. It is becoming a pain.

    • 1
      0

      Good analysis Anton Sunderalingam.

      To answer your question “Will the Sri Lankan leaders take the above as a lesson and avoid such blunders or will history repeat?” Knowing the general intellect of the average politician of Sri Lanka and given the lack of any intellect within the present crop of politicians, I alas, have no doubt in predicting that history will repeat itself.

      One correction to the statement “The Unitary State was actually the creation of the British only in 1833.” The country was indeed unified during the time of Duttagamini and later disintegrated.

    • 2
      1

      British imperialism colonised many parts of the worldIt and boasted that ” the sun never set in it’s empire” but had to abandon it’s colonial possessions in haste due to the Second World War after unifying them for it’s own administrative purposes to exploit.
      The consequence of that is what follows in Asia and Africa today including Lanka.
      It was the British who imposed a constitution on Ceylon as it was then known.
      The natives of the country never understood the perfidious intent of that, because their collaborative leaders instead of telling the Brirish to scram and get the hell out, deceived their people from devising their own constitution like any other people with a sense of self respect.
      Had that happened the perfidious Soulbury constitution would not have buried their souls in 1948, Lanka could have
      been an envy for not only it’s big neighbour but also for Singapore and Malaysia.

    • 3
      1

      For those who ask why the Sri Lankan Tamils were fighting for a separate state, Anton Sundaralingam’s comment gives a very clear answer.

      MP Dinesh Gunawardena and all those who were asking about foremost place for Buddhism and unitary state should ask themselves what the country gained by introducing them in the 1972 constitution. It only created a war that destroyed the country and its people for 30 long years.

      It is not the matter of winning the war, what created the war and how much destruction it caused, how much it cost in terms of lives is what we should ask.

      Will the Sinhalese and Tamil politicians create a similar situation again is a big question. Unlike in the past, now we have an additional factor, the Tamil Diaspora and the West to interfere and therefore it is not a domestic issue anymore. Maithree-Ranil and Sambandan-Sumandiran seems to be very moderate and accommodating but what about others.

      Will there be a solution to the burning national question or will there be another call for separation and the country ending up like ‘Kosovo’, ‘South Sudan’, ‘East Timor’ and ‘Montenegro’, the nations that have come into being in recent years following the United Nations` intervention and referendums.

    • 2
      0

      I did not read the lengthy article and nor have I read the comments of many. But what bothers me for a long time now – why people can t agree with the kind of adminsitration that Germany, Switzerland run.

      Can anybody you guys explain me why do the srilankens disagree with Federalism – that is well practised in SWitzerland, Germany or other europeans countries ?

      May be PINGONAs the majority of Srilanka may feel federalism can only lead to separate the island into small states. In Germany, each and every provinces have their own adminstration- So is the nature for the Swiss too. The central govt and cabinet take their own decisions for the entire country – keeping it an unitary state. That is the same with CH too. In Switzerland, they have even smaller electorates (Cantons,Bezierks) that take their admistrative actions independently.

    • 0
      0

      Sri Lanka belongs to the Sinhala Buddhist culture for the simple reason being that it is the people from this cultural background that defended this country from foreign invaders.

      If any other culture says the country is equally also belongs to them, then they should first prove it! You see, a culture that has been established for thousands of years in country consequently leaves large number of relics physically, and cultural-vise it also under goes many changes. So why not then, when the Tamil separatists carve out all those relics in the North-East which is precisely where a large number of relics can be found, and find out to whom they used belong and to which time-frame that they existed? Even Prabhakarana did not do it while he had all the military power. Why?

      The answer is simple. This whole idea of a “Nijabima’ is nothing but a perpetuated lie that was created by the elite “Vellalar” Tamils, with the help of British and later with the help of the US, because they saw the power once they had was beginning to lose around the second world war era. The precise origin of this bloody war is nothing but this perpetuated lie of the “Vellalar” cast. They used the other Tamil people’s lives (they don’t give a damn about the normal Tamils,because “Vellalar” consider themselves to be of royalty) as a means of gaining the political power that they lost. This is the only truth.

      So, coming back to the point. It was this whole idea that the Sri Lanka Belongs to the Sinhala Buddhist culture that was misrepresented, again by “Vellalar” from the Tamil’s end, that created the necessary conditions for this bloody war. Accepting this fact, that this country belongs to Sinhala Buddhist culture does not mean any individual from another culture are considered second class citizens. This is a lie.

      Tell me, just because you were a Tamil, what is the “injustice” the “Vellalar” say that was done to you by us Sinhalese?

  • 2
    2

    Cool Bro,
    This is something that we Thamizh and Singhalam should think about D

  • 3
    0

    A very enlightening article on the topic by this learned professor. I don’t know why politicians cling to words such as ‘unitary’ and ‘federal’ without fully understanding the significance of those terms!
    Hybrid seems to be the order of the day. So, it maybe best for the country to have something hybrid of unitary and federal characteristics in the new constitution. What matters is the content and not the name! The content should bring a sense of satisfaction to all communities living in the country and that is the only way to build reconciliation.
    Sengodan. M

  • 1
    1

    Vellala Sambandan doesn’t want Army Camps, nor does he want Soldiers in his Homeland.

    There goes Federalism and the Good Professor can tell you why..

    Thamizas as Siva calls them, have nearly 2 Million now in the West, who are sloshed with the Dosh.

    Most in Wellala gardens can join them . The rest can call JJ to settle in the mega Eelaam.

    Whabis have their brethren all around Palestine and Malaysia, and Indonsesia and Pakistan.

    This is in case the Global Warming gobbles up our little Island..

    It is the Sinhala Buddhists , the majority of whom , in fact to the tune of 80% of the total who are Dalits , and their future generations, are the ones who have only Srianka to call their own and live in..

    What is needed for them is to safeguard what they have .

    Starting with saving the brave Soldiers who liberated the country from Tamil Terrorists going to Jail, and losing their jobs, and pensions .

    That is number one priority as the scene is being set to bring the White Judges ASAP, and cull the the Armed Forces.

    LTTE sponsor Norway has sent their special Emissary after an absence of 10 years to meet the ex ex President , Batalanda Ranil , Mangalan and the hired President.

    That is not a good sign.

    My new year plea to all Lankans in and out of Srialnaka, who love the freedom and peace which we enjoyed after Nanthikadal, is to rally behind Venerable Nalaka thero, who is fighting a lone battle to save the brave Soldiers.

    Not the Nayanaponika Thero whom the good Professor is offering..

  • 1
    0

    Anton Sunderalingam.

    Just to buttress your excellent exposition.
    The Kodeeswaran case was the principal issue which made the framers of the 1972 Republican constitution to knock down Section 29 of the Soulbury Constitution-Minority Safeguards clause!
    Of-course its Architect Dr.Colvin R.De SILVA,has now been confined to the dustbin of History!

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