By Mahinda Pathirana –
When the Catalan regional autonomy, following the referendum that brought victory to the campaign for separation from Spain, declared unilateral independence from the latter some fortnight ago, Spain knew what to do next. The article 155, also called ‘nuclear option’ of the Spanish constitution states in unambiguous terms that; “If a self-governing community does not fulfil the obligations imposed upon it by the constitution or other laws, or acts in a way that is seriously prejudicial to the general interest of Spain, the government, after having lodged a complaint with the president of the self-governing community and failed to receive satisfaction therefore, may, following approval granted by the overall majority of the senate, take all measures necessary to compel the community to meet said obligations, or to protect the above mentioned general interest.” Has the proposed constitution for Sri Lanka a nuclear option?
The interim report of the steering committee of the constitutional assembly of Sri Lanka hopes, while proposing to set up 9 mutually exclusive power structure with the very high likeliness of those absolute units declaring independence, to insert a constitutional safeguards against such attempts. It says; “Sri Lanka should remain one undivided and indivisible country” (page 1) and additionally states that “No provincial council or other authority may declare any part of the territory of Sri Lanka to be a separate state or advocate or take steps towards the secession of any province or part thereof, from Sri Lanka” (page 5). Going back to the Spanish case, the Spanish constitutional court too, based on the clause stating that “on the indissoluble unity of the Spanish nation, the common and indivisible homeland of all Spaniards, ruled that the proposed referendum is a violation of the constitution of the country. But, the Catalan regional government did not heed the above judicial ruling, instead went ahead with the planned referendum for secession. What it means is, that a safeguard against separation, similar to the one to be included in the proposed new constitution for Sri Lanka, can easily be ignored by a regional autonomy, if it wishes. But, this is not the acute danger. In case, a provincial unit declares independence, the proposed constitution does not provide for direct rule, as is the case in the Catalan event. The interim report is sadly toothless in this regard. It implies that it can take preventive measures against the chronic illness, but once illness take over those measures, it cannot cure it.
This is not the case in the 78 constitution. It can both prevent and cure, deter and defeat. When Varatharaja Perumal, first Chief Minister of the North and East Provincial Council (NEPC), unilaterally declared independence for Ealam in March 1995, President Premadasa dissolved NEPC in July of the same year and took it under the central government. In the proposed interim report which provide the fundamental principles of the on-coming constitution, there is no such facility to do what former Premadasa did. Meanwhile, in sharp contrast to the current proposals, both the proposals of the People’s Alliance government of Chandrika Kumaratunga in 1995 and that of UNF of Ranil Wickremesinghe in 2003, however divisive and dangerous in their content with regard to devolution of power to the periphery, wanted to have central control either through a Governor or Commissioner. But, in the current proposal, the position shared by both government has been overturned and acceded to proposals made by the LTTE those days. In response to the above proposals, the LTTE insisted on the governor or commissioner to be completely under the control of the Chief Minister. The current proposals too, as is represented in the interim report of the constitutional assembly states that “the Steering Committee was of the view that the governor should act on the advice of the Board of Ministers other than where he/she is specifically authorised by the constitution.”
Who can guarantee that a situation similar to the one in Spanish Catalonia cannot take place in Sri Lanka? One should not go to Spain imagine that. And it has happened in this country itself in 1990. Especially in the backdrop of the proposed constitution saying that “Maximum devolution should be granted” (page 1) and that the devolved power being unable to be taken back unilaterally (page 8, 18), this is not wild imagination. Added to this, the Term “unitary” has been undermined not only by mentioning that particular word in Sinhalese in all the three linguistic versions of the constitution, so as to make it challengeable in front of the international law for lack of interpretation, but also placing the Tamil term Orumittha Nadu, leaned against the Sinhala term, only separated by a slash mark. Orumiththa Nadu means “a country that is formed by amalgamation.” It does not carry the meaning of the term ‘unitary.’ So, in the very outset itself, both terms give contradictory meanings and render a fixed legal determination impossible. Next, the concurrent list is to be completely abolished (page 5). This abolition alone is enough to create 9 absolute power units. When the glue that binds things together removed from under, the structure collapses. In my opinion, if this constitution sees the light of day, one has to completely forget the idea of a centre. There is no centre here, just a collection of 9 regions nominally put together by virtual central government with all the risks to secession.
*Mahinda Pathirana, Senior Lecturer, Sabaragamuwa University