By Amila Wijesinghe, LLB (Hons), LLM (Public International Law), BPTC Candidate (Nottingham Law School)

The interim report of the new Constitution presented by the Steering Committee of the Constitutional Assembly has been the subject of much controversy in the last few days. Whilst President Sirisena has insisted that there is nothing in the draft that would diminish the unitary status of the country, there has been an outcry from several parties that were concerned by parts of the report that seem inimical to this unitary status. The controversy that this report has attracted was demonstrated at the Central Provisional Council when it was set alight by members of the National Freedom Front during the council session.

Unitary vs Federal

In any state, governance is distributed between the centralised decision making body and local government. In a unitary system, the central government may decide which powers to devolve to the local bodies in the interests of an efficient administration of the localities. The local level governments can enjoy significant amounts of autonomy under this system, but the distinction lies in the fact that the central body retains constitutional authority. In a federal system this authority is shared with the provincial entities. They share decision making powers in a manner that means that sovereignty is not exclusive the central government, but shared with the regional subsidiary bodies. The provincial governments would be subsidiary entities that wield constitutional authority over a broad range of issues making them sovereign in many respects.

Contradictions in the government’s claims

There seems to be some contradiction between the government’s assertions and the suggestions contained within the report. The current Constitution is explicit in Article 2 that ‘The Republic of Sri Lanka is a Unitary State’.

The interim report on the other hand, rather arbitrarily declares that the English word ‘unitary’ is inappropriate for Sri Lanka. Part of its justification seems to be that ‘it is now possible for Northern Ireland and Scotland to move away from the Union’. Whilst Scotland did indeed hold a referendum in 2014 (and there are currently calls for a second), it was not the result of any change to the word unitary. The UK is unitary and its parliament holds constitutional powers, with devolved powers given to Scotland, Wales and Northern Ireland. Under ordinary circumstances, Scotland’s powers are limited and they would not have been able to legitimately enact legislation affecting the Union to such a degree. However, the referendum was a result of mutual agreement by the Scottish and UK parliaments following the Edinburgh Agreement signed by the two governments, which temporarily lifted the restrictions on the Scottish parliament’s power to hold a referendum through a section 30 order (under section 30 of the Scotland Act 1998). Essentially, it had nothing to do with any change to the meaning of the word unitary.

After deciding on such questionable grounds that the term unitary state is now somehow obsolete, the report goes on to claim that the Sinhala term ‘aekiya raajyaya’ (which has so far been known to

translate as unitary) should now translate to ‘undivided and indivisible’. So, in a rather extraordinary move, the report has done away with the word unitary altogether and changed the meaning of ‘aekiya raajyaya’. It goes on to suggest that the Constitution word this as:

‘Sri Lanka (Ceylon) is a free, sovereign and independent Republic which is an aekiya raajyaya / orumiththa nadu, consisting of the institutions of the Centre and of the Provinces which shall exercise power as laid down in the Constitution. In this Article aekiya raajyaya / orumiththa nadu means a State which is undivided and indivisible’

The interpretation of this would seem that even though most Sri Lankans would assume the inclusion of ‘aekiya raajyaya’ to refer to the unitary status of the country, neither the English, Sinhala nor Tamil versions of the Constitution would support that, if this new Constitution is adopted. This seems like a rather disingenuous form of wordplay. They seem to have taken out the English word unitary and included the Sinhala and Tamil phrases hoping that pro-federalists would be satisfied by the fact that the word unitary was removed, and that anti-federal/pro-unitary citizens would be lulled into the belief that the country’s unitary status was preserved as an ‘aekiya raajyaya’.

Does the interim report’s proposals preclude federalism?

The current government has repeatedly claimed that the report does not infringe on the country’s unitary status and does not allow any form of federalism. However, as discussed above, it has gone out of its way to exclude the term unitary and replace it with ‘undivided and indivisible’. It also states that ‘There shall be specific provisions included in the Constitution to prevent secession (division of the country)’. What this provision would suggest is that division of the country refers to secession. In section II which contains the principles of devolution, part 2.2 specifically states the phrase ‘undivided and indivisible’ as relating to the safeguards against secession. So, when referring to the country being ‘undivided and indivisible’, this would seem to refer to the prevention of secession, and there is nowhere in the report that explicitly denies federalism. Indivisible and federal are not necessarily incompatible concepts. The pledge of allegiance of the United States, a well-known example of federalism, describes itself as ‘one Nation, under God, indivisible.’ This pledge is repeated in congress, government meetings and schools all around the US, showing that the term indivisible is not necessarily at odds with federalism.

Does the report take a more federal approach?

Very few (if any) states can claim to be entirely unitary. It tends to be the case that powers are decentralised to some extent and most countries will lie somewhere in between the spectrum, with unitary and federal ideals at both ends. In fact, Sri Lanka is arguably already somewhat semi-federal to some degree, as the 13th amendment devolves much centralised powers (with some limitations) in a way which mirrors some quasi-federal features. Semantics aside, the devolution of power is not necessarily against a unitary state, as it often forms an essential part of a unitary state’s governance at the local level, and what matters more is the substance of the Constitution – regardless of what the state may be called.

Part 7 of the second section of the report, recommends curtailing the powers of the Governor, which has previously been seen as a safeguard to protect the country’s unitary status as an appointee by the President. The report advocates that the governor’s role, which would previously have included certain powers and executive authority, be reduced to a ceremonial one.

As another example, an identifying characteristic of a federalised state is that it’s Constitution will guarantee significant powers to the intermediate governmental bodies of the provinces and they are

often represented at the national legislature through a second chamber (such as a senate or upper house). These will often be a deciding factor for any amendment to the constitution as their consent will be necessary for the ratification of any such changes. Interestingly enough, part VI of the report calls for the establishment of a second chamber, with 45 of the 55 members drawn from the Provincial Councils. This chamber would be able to refer ordinary legislation back to Parliament for reconsideration, be able to exercise oversight, and ‘No Constitutional Amendment shall be enacted into law unless passed by both Parliament and the Second Chamber, with special (2/3) majorities.’

This article does not intend to comment on the merits of federal versus unitary forms of governance, nor is it intended to advocate for either. However, the interim report’s duplicitous approach at the very least calls into question the motives of the current government and the assertions about the issue that they have made so far. The Constitution should represent the people, and any changes must always be done in a transparent and open manner.