By Neville Ladduwahetty (Courtesy Himalayan Times)

October 12, 2017, 12:00 pm

The (Draft) Report of the Steering Committee of the Constitutional Assembly cites a statement made by President Sirisena during the Resolution to set up the Constitutional Assembly regarding Article 1 and 2 of the present Constitution which states: “… that whilst people in the south are fearful of the word “federal”, the people in the north are fearful of the word “unitary”. The report then attempts to define the English term “Unitary State” and concludes that it is not appropriate for Sri Lanka. What it considers appropriate is that Sri Lanka should be defined as a state that is “undivided and indivisible”.

The reason for “fear” in the south starts with Sri Lanka being defined as “undivided and indivisible”. Adding to the fear is that the report limits its definition only to a “Unitary State”, and avoids defining not only the two English words “undivided” and indivisible”, but also the reasons for why it finds them appropriate.

Despite the fact that attempts to define the structure of a state using words, especially regardless of which language is being used, is a foolhardy exercise and therefore should be avoided the reason for fear in the south is that if a state is defined as “undivided”, the possibility exists for it to be divided into parts. Furthermore, a state that is defined as “indivisible” means that the possibility exists for it to be divisible. Such fears do not exist when a state is defined as being “Unitary” because it means the state is a single unit that cannot be separated or divided; a fact that brings assurance of territorial integrity and hence security to the south. Therefore, the demand in the south for Sri Lanka to be defined as a “Unitary State” is understandable.

The vulnerability of definitions such as “indivisible” is evident from recent developments in Catalonia and Iraqi Kurdistan, not rumblings in Tamil Nadu. For, instance the Constitution of Spain defines Spain as “the common and indivisible homeland of all Spaniards”. This definition has not deterred the regional Parliament of Catalonia from holding a referendum to separate from the rest of Spain, despite insistent efforts by the Constitutional Court of Spain and the central government in Madrid declaring that the attempts by Catalonia were illegal per the Constitution.

Fears arising from the proposed definitions for Sri Lanka are exacerbated by attempts for “Maximum Devolution” included in Articles 1 and 2 of the report. Since the fear is that maximum devolution would inevitably lead to federalism, an attempt is made herein to explore whether the provisions in the report reach the threshold of a federal state or not.

OPERATION of UNITARY and FEDERAL STATES

The reason for “fear” in the south is that federalism is the path leading to separation. In a federal arrangement, the federal units such as provinces are independent and sovereign within their spheres of influence that are defined by the extent of devolved powers. This is not the case in a unitary state because the provinces to which powers are devolved are NOT independent sovereign units. Instead, they are not only subordinate to the powers of the central government but also where the sovereignty of all the People is inalienable.

The reason for the south to “fear” the word “federal” is because independent and sovereign provinces tend to encourage separation more than provinces that are parts of a whole unit as in the case of a unitary state. The inducement for separation is encouraged by two factors. Firstly, by the extent of powers devolved, and secondly, by the territorial size of the unit to which enhanced powers are devolved. Therefore, the temptation for separation is greater in the case of a province with maximum devolved powers than a district even with maximum devolution. Consequently, the skills of state craft needed to discourage separation and hold the country together would be greater in the case of a province with maximum devolution than with a district with maximum devolution.

The chapter in the report titled “Principles of Devolution” recognizes “The principle of subsidiarity (i.e. whatever could be handled by the lowest tier should be vested in it) has been generally accepted…”. Furthermore, it recognizes the province as the unit of devolution. Since an organizational structure to implement maximum devolved powers does not exist at the provincial level, and what currently exists and has always existed even in colonial days is only at the district level, the powers devolved must necessarily be limited by the capacities and capabilities of the districts to handle them. Based on the principle of subsidiarity, these structural limits should constrain the extent to which powers could be devolved. Whether such existential realities have been considered is not evident.

What the report addresses, instead, are efforts to make the central government fulfil subsidiary functions. This is achieved by weakening the centre and strengthening the provinces through processes such as weakening the role of the representative of the Executive President in the province – the Governor. Another way of weakening the centre is the dilution of the scope of the Concurrent List to the extent of making it ineffective or even eliminating it so that powers shared between the centre and the provinces are distinct within their respective spheres of influence.

These features are the cause for the “fear” in the south. Furthermore, what is evident is that devolution is approached from a clearly political perspective and not from a perspective of how effectively devolution would work at the operational level; a need that was addressed in the UNHRC resolution 30/1.

INTENT of REPORT

Although some are under the flawed impression that the report is in fact the draft of a proposed Constitution, it is not so. Instead, it is essentially a discussion paper for Parliament to propose/add either fresh options or amendments to proposals in the draft report, during the three days allocated for debate. Some of the options likely to be presented are bound to vary from no devolution to maximum devolution with several others within this range. For instance, options could vary from abolishing the 13th Amendment to 13th Amendment minus police and land powers, to 13th Amendment with police and land powers, to 13th Amendment Plus meaning a second chamber to a federal framework on the lines suggested in the report. The option of maximum devolution to the district with serious and meaningful sharing of legislative and executive powers among the three major communities at the center may not be considered for lack of advocates despite its decided merits over all the options cited above. This would be another missed opportunity to secure the long term interests of Sri Lanka. However, what finally matters is the synthesis of all these and other options in the form of a Bill to repeal and replace the existing Constitution.

TRUST DEFICIT

Until such a Bill is tabled in Parliament no one would know the shape and form of the final Bill. Judging from recent despicable practices resorted to in the passage of Bills in violation of accepted and honoured Parliamentary practices, no one would know what amendments would be incorporated during the second and third readings of the Bill. Consequently, the shape and form of the Bill that would be finally voted on is bound to be vastly different to the version originally tabled. Furthermore, judging from recent practices, no time would be permitted to evaluate the implications of the final version.

The real fear in the country is whether the final version of the Bill that would be voted on would retain its unitary character and all that goes with a Unitary State, or make Sri Lanka a federal state. These doubts represent the trust deficit in the country. The question before Parliament and the public is how to respond to these challenges. Whether Parliament would be guided by principles such as country first or inducements offered to secure votes, is a further cause for the trust deficit in the country. This leaves only the people to protect the national interests at a referendum. Since dependence on the outcome of a referendum has its own inbuilt vulnerabilities, every effort should be made to campaign to oppose the Bill in whatever shape or form it is finally presented for a vote. Although such an approach may be seen as irresponsible, the pervading lack of trust due to the practices adopted leaves no option other than to cast a NO vote because the known is safer than the unknown.

CONCLUSION

The (Draft) Report of the Steering Committee of the Constitutional Assembly cites a statement by President Sirisena that the people in the south are fearful of the word “federal” and the people in the north are fearful of the word “unitary”. However, based on the contents in the report, the fear is only in the south because the report explores no other options other than to dismantle the existing characteristics of the Sri Lankan state that make it a “Unitary State”, and introduce what amounts to a federal framework starting with words such as “undivided” and “indivisible”. Consequently, there should be no cause for fear in the north.

The report is NOT a draft of the proposed constitution as misconceived by some. Instead, it is a discussion paper for debate in Parliament at which a variety of options would be presented for consideration prior to the presentation of a Bill to repeal and replace the constitution. These options are likely to range from abolishing the 13th Amendment, to 13th Amendment minus police and land powers, to full implementation of the 13th Amendment with police and land powers, to 13th Amendment Plus meaning a second chamber, to an arrangement amounting to a federal framework on lines in the Steering Committee report. The intention is for all these proposals to be synthesized into a Bill to repeal and replace the Constitution.

Until the Bill is tabled in Parliament most in Sri Lanka would not know the shape and form of the Bill. During the debates that would follow amendments would be presented at the second and third readings of the Bill. However, judging from practices adopted by the government recently in connection with other Bills there is no doubt that the final version of the Bill on which Parliament would be voting would be vastly different to the version initially tabled. This is the cause for the trust deficit. The question before Parliament and the public is how to respond to such challenges knowing full well that very little time would be allocated for a measured response. In this background there is a fear arising from a lack of trust that the government would resort to measures that would be detrimental to the core values and interests of the People. Under these circumstances, the only option is a defensive response in the form of opposing the Bill in its entirety in the hope that the status quo with all its warts and blemishes is safer than the unknown.