Whenever the discourse on Constitution-making came to fore during the past two decades, the bone of contention was the nature of the state with the Tamils wanting a federal mode of governance and the Sinhalese insisting on a unitary state. However, even after more than thirty years since the ethnic problem took a violent turn, both the Sinhalese and the Tamils are fighting over ethnological terms such as federalism, unitary state and right to self-determination.
With Prime Minister Ranil Wickremesinghe who is also the Chairman of the Steering Committee set-up under the Constitutional Assembly presenting an Interim Report of his committee in the Parliament on September 21, the terminological war with special emphasis on nature of the state has again become the main subject discussed in the political arena and media.
This time, while almost all Sinhalese nationalists are insisting that the country’s unitary state that has been incorporated in the Constitution must be preserved, Dr. Gunadasa Amarasekara, a strong and strident Sinhalese nationalist, has come up with a different stance in an article published in the Daily Mirror on Wednesday. The essence of his article was that despite almost all other Sinhalese nationalists stressing the need to retain the current nature of the State, Sri Lanka is already a federal state. He stressed that the 13th Amendment to the Constitution which brought in this federal structure into the country should be revoked.
Almost all political parties in the country or the leaders of them had at least once in their history been supportive of the federal system though they call others traitors for doing the same
However, the Article 2 of the second Republican Constitution of 1978 stipulates, “The Republic of Sri Lanka is a Unitary State.” The Article was not amended when the 13th Amendment was introduced under the Indo-Lanka Accord of 1987 in order to create provincial councils with powers to make statutes or provincial laws. In order to prove his point that Sri Lanka is a federal state, Dr. Amarasekara quotes an opinion by Dr. Shirani Bandaranayake, the 43rd Chief Justice of Sri Lanka who was impeached in 2013 by the Rajapaksa Government. She had expressed this view when the Supreme Court judgment on the 13th Amendment was publicised in 1987.
“Secondly, Article 154, G (B) clearly points out that in a conflict between the statute of provincial councils and an existing law with regard to a matter on the Provincial Council List, the existing law shall remain suspended and operative within the province so long as that statute is in force.
“Moreover, this leads to the further argument that the provisions of the 13th Amendment are contravening Article 2 of the 1978 Constitution. Article 2 precisely announces that Sri Lanka is a unitary state, and in the present circumstances, one could argue that provincial councils, which are empowered to make statutes on par with laws made by the parliament, and to enact statutes that can suspend and render inoperative laws made by parliament. This has made the country federal in nature,” Dr. Bandaranayake had stated.
Even after more than thirty years since the ethnic problem took a violent turn, both the Sinhalese and the Tamils are fighting over ethnological terms such as federalism, unitary state and right to self-determination.
Interestingly, this power of the provincial councils that ‘can suspend and render inoperative laws made by the parliament’ contributed to her ouster from the post of Chief Justice and ironically she happened to appear for this provincial council power against which she had expressed her opinion. When the Divineguma Bill was referred to the Supreme Court for its perusal in 2012, the court ruled that it had to be approved by all provincial councils. In the light of the already-soured relationship between Chief Justice Bandaranayake and Rajapaksa, this was viewed as a hostile act and led the regime to take action for her impeachment.
Dr. Amarasekara has also quoted eminent legal expert on Constitutional affairs, H.L.de Silva, as saying that the position of Sri Lanka was ‘not substantially different from the kind of federal system that prevails in India’ after the enactment of the 13th Amendment.
The same point had been more graphically-argued by late Professor Christopher Weeramantry in a paper submitted in 1986 when the provincial council system was under discussion between the leaders of Sri Lanka and India. Professor Weeramantry who later served as the Vice President of the International Court of Justice in Hague argued in his paper that with the devolution of power to the periphery, those peripheral institutions get the power to make laws on subjects devolved to them. His definition was that if there were only one legislature in a country, it would be a unitary state and would be federal when it has more than one legislature.
He had further contended that in spite of the fact that States in Malaysia did not have powers as the powers that were proposed then to be given to the Sri Lankan provincial councils, Malaysia was considered to be a country with a federal form of governance whereas Sri Lanka was not. All these arguments imply that despite the Sri Lankan Constitution describes Sri Lanka as a Unitary State, practically it is not so.
It was on this basis that the Sri Lanka Freedom Party (SLFP), Janatha Vimukthi Peramuna (JVP), Mahajana Eksath Peramuna (MEP) and other opposition political parties vied against the provincial council system initially. However, with their insistence that the term ‘unitary state’ be retained in the proposed Constitution as well indicates that they are now of the view that Sri Lanka is still a unitary state in spite of provincial councils having been instituted under the 13th Amendment.
Besides, almost all political parties in the country or the leaders of them had at least once in their history been supportive of the federal system though they call others traitors for doing the same. JVP might be the first to suggest self-rule for minorities in its policy declaration which was first published in 1977 and still recognised by the party as its official policy document. Wimal Weerawansa and other NFF leaders who were also the members of the JVP had never criticised this policy.
The first government to suggest the removal of the term ‘unitary state’ from the Constitution was the one led by President Chandrika Kumaratunga. The proposals for Constitutional reforms prepared by that government in 1995 and popularly called ‘package’ described Sri Lanka as “a union of regions.” And interestingly, they were drafted by the then Constitutional Affairs Minister Professor G.L. Peiris, a bigwig of the joint opposition now, together with Dr. Neelan Thruchchelvam, a Constitutional expert and leader of the Tamil United Liberation Front (TULF) then.
Again, the same government presented a new draft Constitution in August 2000 on the same basis of power devolution with a temporary amalgamation of the Northern and Eastern provinces. This draft too was prepared by Minister G.L. Peiris. Present leaders of the joint opposition including those of the MEP were to vote for that proposed Constitution.
The United National Party (UNP), the members of which set fire to the copies of the draft inside the parliament, agreed with the LTTE to explore a solution to the ethnic problem within the framework of federalism during their third round of peace talks in Norwegian Capital Oslo in November/December, 2002. Unlike the UNP, President Kumaratunga welcomed this agreement. It was again Professor G.L. Peiris who led the government’s team negotiating with the LTTE.
How can federalism then, be anathema to any political party or a leader of it?