Prof. N.A.de S. Amaratunga   PhD, DSc 

One of the leaders of the Samagi Jana Balavegaya has proposed that the present government, instead of wasting time over drafting a new Constitution and trying to reinvent the wheel. should adopt the draft Constitution that the ‘yahapalana’ government put together which, he says, could not be taken forward as the government was dissolved in a coup hatched by the opposition. The ‘yahapalana’ government was engaged in the game of appearing to bring forth a brand new constitution with features included mainly to appease the minorities and western countries. People remember the play of words they resorted to with hybrid type of new language being created which described the nature of the state as ekeeya/irimittanadu”, a combination of a Sinhala word and a Tamil word to hoodwink both Sinhalese and Tamil communities. Imagine having Tamil words in the Sinhala version of the Constitution of the country. UNP/SJB has still not realized that one of the reasons why they lost all the elections was this type of duplicitous evil deeds they attempted to deceive the people. Remember what they did to get the elections postponed !

Though the ‘yahapalana’ government took upon themselves to make a new constitution for the country, they had not asked in their election manifesto or campaign a mandate from the people to do that. Obviously they were doing the bidding of the Tamil separatists and Western powers who had helped them to come to power. UNHRC Resolution 30/1 which had been cosponsored by ‘yahapalana’  government had recomended a new constitution to address the aspirations of all communities. No wonder it was going to be as close to a federal constitution as possible. It was unitary by name only and even that only in the Sinhala version of the constitution. In a constitution with devolved powers the strength of the link between the centre and the periphery determines whether or not a country is federal. The existing Constitution barely escapes being labeled as federal by virtue of the control the president has over the governor and the delegated executive powers the latter has within the province.

The constitution that was proposed by the ‘yahapalana’ government dismantles all the links between the centre and the periphery. The executive powers of the governor are transferred to a board of ministers of the provincial council. These powers are delegated to the governor by the president and therefore under his control. In this sense the governor is the representative of the president in the provincial council.  Sovereignty of the people is reposed in the president by the  people’s franchise and therefore he must have executive authority over the whole country. If on the other hand his powers are irrevocably transferred to other units of power the single sovereignty would be non-existent. Such an arrangement would be federal irrespective of whatever terminology is used to describe it.

Further the constitution constructed by ‘yahapalana’  proposes to devolve to the provinces all powers and functions that can be carried out at the level of province on the basis of the principle of  Subsidiarity”. It is on a similar conceptual framework that the separatists have been agitating for an independent state in the Northern and Eastern provinces since 1972. Subsidiarity in the constitution and political sphere is defined as the principle that a central authority should have a subsidiary function, performing only those tasks which cannot be performed at a more local level”. It is obvious that this principle would have implications on the single sovereignty as it erodes the executive power at the centre and is more suitable for federal states.

The yahapalana constitution proposed the establishment of a second chamber with wide powers, composed of provincial representatives. The parliament will not be able to legislate national policies and standards unless the second chamber consents. For instance the parliament will not be able to approve the construction of a dam across a river in a certain province if  a PC located  downstream does not consent which could easily happen as the latter may hold the view, whether right or wrong, that it would be deprived of an adequate supply of water.

The 13^th Amendment which brought in devolution of power had utilized three  lists to separate the powers into three categories, one which was the concern of the central government, two which mentioned the powers devolved to the PCs and three, the concurrent list, which contained the powers to be considered by both the government and the PCs. ‘Yahapalana’ constitution proposes to transfer all the powers in the Concurrent list to the provincial councils. In addition certain matters coming under the central government eg state land is to be transferred to the PCs. In such an arrangement it will be almost impossible for the central government to take over any land. Further the Governor of the PC is made into a figure head who cannot communicate with the centre even in an emergency. 

Time given to the governors and the president to either assent or go to courts regarding any act passed by the PCs is just two weeks. If they fail to respond the act becomes law by default. In India the central government has powers to veto decisions of state governments but in Sri Lanka even now the president cannot veto acts passed by PCs and if the ‘yahapalana’ constitution is adopted PCs would have powers to pass laws inimical to the rest of the country and the president or the central government will not be able to do anything about it.

Another controversial feature in the ‘yahapalana’ constitution is the electoral system. The proportional system that has been suggested ensures disproportionate representation of minority communities and it also includes multi-member electorates in the North giving it greater representation. These electoral policies could enable the minorities to hold the upper-hand in the government affairs and render the majority less powerful.

Once these powers are devolved and  become part of the law of the country the parliament cannot change them even by a 2/3^rd  majority unless all the PCs agree ! If this is not ethnic federalism what is? It is relevant to state here that ethnic federalism has failed everywhere it has been tried (Liam D Anderson, 2016).

Prof. N.A.de S. Amaratunga   PhD, DSc