16 October 2017

Sri Lanka’s New Constitution is not going to be Unitary or Federal but Confederal

To understand the danger of what those drafting the new constitution is plotting to do, it is important to understand the features that make a Unitary, Federal & Confederal Constitutions. The countries that initially had confederacies abandoned them in view of its weaknesses and impending dangers. Why is Sri Lanka then walking into a future of chaos and instability and to satisfy whose wishes? 

Features of a Unitary Form of Government
·      All powers centralized in Central Government.
·      Local government system prevails where powers are delegated with strict central control/supervision
·      Unitary systems does not have list of distribution of powers in the constitution
·      Unitary systems are more responsible than federations as Centre is the sole responsible entity for the entire nation
·      France, Japan, China, Italy and Britain are unitary states.

Features of a Federal Form of Government
·      Dual system – Central Government at one level and State/Province at another.
·      Power is distributed between the centre & provinces except for subjects that have common interest which is in the charge of the central government (foreign affairs, defence, currency & coinage, etc)
·      One constitution prevails for both Central and Provincial Governments. All laws created by the provinces are subordinate laws and valid within the authority conferred by the constitution. If they go beyond limits the centre can deem it a violation
·      Central government can reach direct to the citizens in a State or Province
·      Fundamental rights of the citizens of a country is granted by the Central Government not State governments.
·      Only the federal government can negotiate treaties with other countries. State & local authorities cannot.
·      Under a federal set up unilateral secession is impossible while under confederalism unilateral secession is possible.

Features of a Confederal form of Government
·      Union of independent and sovereign States
·      formed with an intention to create independent and sovereign States
·      In a confederacy the Central Government can only reach upto the Governments of the confederation. The central government cannot directly reach the citizens.
·      The states of a confederation retain all the powers of an independent nation ex: right to maintain a military force, print money, and make treaties with other national powers.
·      can have their own currency
·      can have own military
·      can enter trade agreements with external sources
·      government of a confederation can withdraw from the Union
·      US, Germany were confederal before they adopted federal systems

Sri Lanka’s unitary constitution as established in the 1972 and 1978 constitutions changed in 1987 to a quasi-federal model with the signing of the Indo-Lanka Peace Accord and the 13th amendment creating 9 provincial councils.

Presently Sri Lanka follows a Quasi-Federal model following the 13a as there is a distribution of powers to the provincial councils though these are under control of the Centre.

A Quasi-Federal constitution has elements of Unitary & Federal features (India’s constitution is one such) However key elements to be noted is that there is single citizenship, a single judicial system where the Supreme Court is the highest court, powers are vested with the Centre, states have only powers that the Centre gives which the Centre can take back, the States do not have separate constitutions and their powers are derived from the Constitution relevant to the entire country, states do not have independent sources of income, and even the administration is under purview of the Centre.

Demands by Tamil parties showcase Confederal features & not Federal  

In Federal systems, States/Provinces cannot seek referendums but Confederacies can. In 2008 Sivajilingam sought a referendum at a Pongu Thamizh event in Australia. TNA leaders have made similar demands.

TNA/ITAK uses phrases ‘United Sri Lanka’ ‘co-existence’ ‘collaboration’ which are terms used when US experimented with confederacy. In a confederacy states are bound together based on mutual cooperation. The moment that ceases they can decide to separate from the union.  

The Northern Provincial Council demands direct foreign aid and direct diplomatic relations. ITAk leaders constant reference to bogus Tamil province/Sinhala province, demands for mono-language and religious rights are all aligned to confederate secession objectives.

It was because of the quasi-federal system that the Centre was able to annul the merged NE PC and take it under the direct control of the Centre when Varatharaja Perumal declared unilateral declaration of independence while in 2006 the merger of NE was declared illegal. The new constitution is proposing to not only allow two or more provinces to merge but says any powers devolved by the Centre is permanent and cannot be taken back by the Centre. This is virtually giving 9 provinces carte blanche autonomy.

What makes present Constitutional Proposals Confederal

·      If as per proposed recommendations powers devolved to the provinces cannot be taken back or revoked

·      Why should key elements in the present constitution like the name ‘Republic of Sri Lanka’ and ‘Unitary State’ be changed? Why should colonial words which have no roots in the history of the country like ‘Ceylon’ be inserted as a replacement? When there is a translation for ‘Unitary’ in Tamil why is another word which connotes ‘United’ and ‘Orumiththa nadu’ in Tamil being inserted. United falls into the category of a confederal system!

·      If ‘maximum devolution’ is giving control of even the local government authorities to the provincial councils directly instead of the Centre this too is not a federal feature but a confederal feature. In a federal system the Centre should be able to directly reach the citizens not go through a provincial council.

·      In a federal system there is only ONE COURT and that is the Supreme Court therefore by introducing a new Constitutional Court which is above the Supreme Court and cannot be challenged by the Supreme Court, this too is not a feature of a federal government

·      In both a Unitary and even Federal system the Centre decides national policies and not the states or provincial councils. Therefore, the proposed constitution that says the Centre’s National Policies cannot override statues enacted by the Provincial Councils means that the Centre has no control over the Provinces and what they enact. This is clearly a feature of a Confederal system. It is further proved by the proposal that the Centre has to even seek permission to use land for national projects from the provincial councils and the National Land Commission created to oversee disputes has cases channeled not to the Supreme Court but the new Constitutional Court that the new constitution is proposing to create.

The most shocking feature that completely proves beyond doubt that the proposed new constitution is neither unitary nor federal but confederal is the provision to claim that whatever is devolved to the provinces cannot be taken back, the Governor the nominee of the country’s President cannot dissolve the province and the removal of the concurrent list that has given the list of shared powers between the Centre & the Provinces which also ignoring the 2006 Supreme Court verdict to enable two or more provinces to merge.

The other laughable feature is that the proposals claim to abolish the Executive Presidency by removing the right of the People to vote for a President and enable the Parliament to vote for the President among them!

Why did America abandon its Confederate constitution that bound 13 states? The Central Government was designed to be very very weak (same case being proposed for Sri Lanka) The power to the states to operate independently from the Central Government often conflicted with the nation’s best interest (exactly what would happen to Sri Lanka when provinces begin directly dealing with foreign countries many of whom do not deal unless there is a political advantage to them & the chaos that might result thereafter). Rivalries emerged between the 13 states (same likely to happen in Sri Lanka especially if foreign countries begin funding rebels to attack other provinces in a bid to merge and expand the province!) The Central Government couldn’t collect taxes to fund its activities which greatly impeded national security requirements like maintaining the nation’s defense (a scenario that will certainly arise in Sri Lanka). The 13 states conducted their own foreign policies (same is going to happen in Sri Lanka and imagine the status quo if that happens) The 13 states had their own money systems – there was no common currency which made trade between the states extremely difficult (imagine such a scenario in Sri Lanka – we know LTTE had their own currency & TNA is LTTE’s political agent).

The above reasons were why the US abandoned its confederate constitution and formulated the present one.

Sri Lanka is trying to apply a failed system to a small island whereby creating 9 mini semi-autonomous provinces of which in one province will hold the Centre and questions the conflict that the Centre and Provincial Government may have in time to come!

Given that Sri Lanka is a small island 5 if the 9 provinces have direct access to the coast and they will have both advantage and disadvantage as a result none of which the Centre will have control over thereby further weakening the county’s national security, sovereignty and even territorial integrity.

Clearly by looking at the proposed recommendations of the new constitution it is easy to establish that it is neither unitary nor federal but confederal which immediately should suffice as reason to reject it in toto.

Shenali D Waduge