By Neville Ladduwahetty
In the course of an interview Dr. Jayampathy Wickramaratne (Dr. JW), who is central to the ongoing Constitutional making process, is reported to have stated:
“We believe that we should not use labels. We are strongly for an undivided, indivisible country. Our position is that if a Provincial Council takes steps against the indivisibility of the country, the center must have the power to intervene. At the same time, we say the power to intervene must not be abused. There must be safeguards against the abuse of power. We are not for using labels such as Unitary or Federal. These concepts are also changing all over the world. Rather than having labels, what is important is to lay down the powers of the provinces and the central government”(Daily Mirror, October 18, 2016).”
The two issues central to Dr. JW’s comments in the interview are:
1. A strong undivided and indivisible country with the power to intervene.
2. To lay down the powers of the provinces and the government .
AN UNDIVIDED & INDIVISIBLE COUNTRY
Words such as unitary or federal may be less important than power arrangements between the centre and provinces if viewed from a narrow perspective of structural arrangements to govern a State. On the other hand, words such as unitary or federal matter very much if considered from the larger and broader perspective of political unity and territorial integrity. It is that broader perspective that makes words such as unitary matter more than being a mere word or a label.
It is this broader perspective that makes ‘provisions’ to prevent the division of the country through constitutional safeguards to intervene, inadequate. Apart from provisions to prevent division, the Constitution being a document that reflects the will of the peoples and not necessarily the will of ALL the peoples, should, in word and spirit, reflect the indivisibility of the state and its polity. This means the full scope and meaning of unitary in a Constitution must go beyond words and reflect the “basic character” of the state as being unitary.
The Constitution of a unitary state that reflects its “basic character” should guarantee that provisions in respect of the inalienability of the sovereignty of the people, which include powers of government, fundamental rights and franchise are primary and indivisible. Furthermore, since all the people within such a state are equally sovereign, the Constitution should guarantee the indivisibility of that sovereignty; a condition that could be fulfilled only within a territorially indivisible state. Defining the characteristics of sovereignty, Hans J. Morgenthau stated: “sovereignty over the same territory cannot reside simultaneously in two different authorities, sovereignty is indivisible” (Jens Bartelson, Republic of Letters, Vol. 2, Issue 2, March, 2011). This means that the self-determination of equally sovereign Peoples within a Unitary State should also be indivisible. It must then follow that units within such a State cannot make determinations independently of the rest.
Dr. JW hopes to provide for constitutional provisions to prevent Provincial Councils from attempting to divide the country. He also hopes to include provisions to intervene if a situation warrants such intervention and cautions that such powers should not be abused. However, it has to be acknowledged that the “Central control over regional governments is essential for the integrity of nations that have federal systems of government, and Article 356 was designed to preserve this integrity.” (Reddy and Joseph, EJCL, Vol. 8.1 March 2004).
Notwithstanding safeguards in the form of Article 356, the Indian experience in this regard has been problematic to the point that it has been a contentious issue from the very beginning, because of the potential for abuse. Consequently, Article 356 was reviewed by The Sarkaria Commission in 1987 followed by the involvement even of the Supreme Court of India. The reason being that Article 356 could be invoked during an emergency, and determining what constitutes an emergency, which although determined by a Parliamentary majority has led to abuse, because Parliamentary majorities are driven by political motivations and not by objective assessments of the integrity of the State.
Similar provisions for the Center to intervene in Provincial administrations are provided in Article 154K of the 13th Amendment of Sri Lanka’s Constitution. Since the exercise of Article 154K would depend on the subjective assessment “that a situation has arisen” in a Province, there may be occasions when the center may hesitate to take over the administration of a Province such as the Northern Province because of the politically contentious imperatives involved at the expense of the integrity of Sri Lanka. Therefore, instead of depending on constitutional provisions with the right to intervene, the Center should have the right to intervene, with Parliamentary approval, even at the risk of abuse because what is at stake is the integrity of the State. Since it is only a Constitution that is Unitary in word and spirit that could grant such a right, the forthcoming constitutional reforms should reflect its unitary character.
PROVINCES and CENTER
Citing the United Kingdom as an example of “the mother of all unitary states”, Dr. JW states: “If there is a referendum in Scotland and it decides to go away, England is not going to stop it. The Westminster Parliament is supreme. There is an MOU which binds the government of the UK and the devolved units” (Ibid). The notion of Dr. JW is that England is not going to stop Scotland from going away if Scotland decides to do so at a referendum would first need the consent of the UK Parliament, because of its supremacy as admitted by Dr. JW, and secondly, that because of this supremacy, a Bill passed by the Parliament of Scotland to hold a referendum is subordinate to the Parliament in UK. The provisions of the Scottish Act of 1998 and the MOU between the UK Parliament and devolved units do not permit such arbitrary and unilateral actions as alluded to by Dr. JW. Therefore, it cannot be taken for granted that England is not going to stop Scotland from going away because of the implications of such an act would have on the territorial formation of the United Kingdom. Furthermore, it is not possible to predict what the UK Parliament would do because relationships between the UK Parliament and the devolved units could undergo drastic transformations following Brexit.
The Rt. Hon. Dominic Grieve QC, Attorney General of UK, during the course of a speech delivered to BPP Law School on October 25, 2012 stated: “There is no more critical distinction in the constitutional law of the United Kingdom than that between, on the one hand, laws made by the sovereign parliament (which the Parliament of the United Kingdom is) and laws made by a body to which decision making powers have been delegated by law, which is not sovereign. Lord Hope’s judgment draws the distinction with great care. He said:
“The Scottish Parliament does not enjoy the sovereignty of the Crown in Parliament that as Lord Bingham said in Jackson is the bedrock of the British constitution. Sovereignty remains with the United Kingdom Parliament. The Scottish Parliament’s power to legislate is not unconstrained. It cannot make or unmake any law it wishes.”
These statements clearly demonstrate that whether to stop or not to stop Scotland from holding a referendum in order to “go away”, is entirely at the discretion of the UK Parliament and not a decision that Scotland is entitled to take unilaterally. How many of the devolved units would stay with the UK government following Brexit is uncertain. However many devolved units remain within UK, a fact that one could be certain of is that they would be subordinate to the supremacy of the UK Parliament. Constitutional reforms in Sri Lanka should contain similar provisions if the State is to remain Unitary in word and spirit.
During the course of the interview cited above, Dr. Jayampathy Wickramaratne who is central to the constitutional reform processes, is reported to have stated: “We believe that we should not use labels. We are strongly for an undivided, indivisible country. Our position is that if a Provincial Council takes steps against the indivisibility of the country, the center must have the power to intervene. At the same time, we say the power to intervene must not be abused”.
The experience of other countries that have provisions to intervene, as in the Indian Constitution’s Article 356, is that abuse is inevitable because decisions to intervene are made by Parliaments that invariably are driven by political compulsions. Such provisions have troubled India from the very beginning and continue to do so, giving cause to appoint the Sakaria Commission in 1987, and going even beyond to involve India’s Supreme Court to determine the right matrix of circumstances that should justify intervention. Countries such as India and the United States contain provisions to intervene because such States are Federal and not Unitary.
In the case of Sri Lanka in the present context, Governments are bound to hesitate to intervene in the Northern Province however justified the circumstances could be, because of the political imperatives involved both nationally and internationally. Therefore, constitutional provisions to prevent the division of the country would only be on paper, while in substance they would be totally ineffective. Even current provisions as in Article 154K would also be ineffective because of the need to interpret what circumstances could lead to a conclusion that “a situation has arisen” to justify intervention. Therefore, instead of depending on constitutional provisions to warrant intervention, it is only a Constitution that is Unitary in word and spirit where central power is supreme and intervention is a right, albeit with Parliamentary approval, in order to restore national unity and guarantee territorial integrity, particularly in the context of continual security related threats.
The claim by Dr. JW that England “is not going to stop” if Scotland decides to “go away” following a referendum, is his opinion to which he is entitled. However, the reality is that Scotland would need the consent of the UK Parliament to hold such a referendum. The current relationship between UK Parliament and Scotland is governed by the Scottish Act of 1998 and MOUs. These arrangements do not permit unilateral and arbitrary actions by Scotland or any of the other devolved units because of the supremacy of the UK Parliament; a fact stated by the Attorney General of UK cited above. However, it is relevant to note that although the territorial formation of UK is bound to undergo dramatic transformations following Brexit, what remains would indubitably remain steadfastly Unitary.
The thrust of the ongoing efforts at constitution making in Sri Lanka are aimed at strengthening the devolved units and weakening the center. Consequently, what one could expect from the current exercise is for Sri Lanka to be Unitary in name, but operationally Federal. Compulsions for such efforts are driven by the need to address issues that are of interest primarily to the Tamil leadership and to their international backers, at the expense of deep seated interests of the majority and the nation.
This approach is deeply flawed because it comes at the cost of skewing the fundamental concept of the equality of sovereignty of ALL in favour of minority interests. This must then mean that some are exceptional, and more equal than others. Furthermore, it violates the concept of the indivisibility of sovereignty as expressed by Hans J. Morgenthau when he stated: “sovereignty over the same territory cannot reside simultaneously in two different authorities, sovereignty is indivisible”.
Foremost among majority interests is that the Constitution should reflect the “basic character” of the State. Therefore, for the Constitution to be an instrument that reflects the will of the majority of equally sovereign Peoples, it should embody basic characteristics such as its indivisibility in respect of its unitary character, its territorial integrity and its civilizational values inspired by Buddhism, that have served as the bedrock of the Sri Lankan State for millennia, until the advent of colonialism. This trinity should be reflected in the constitutional reforms.
During the colonial period the civilizational values that had sustained and nurtured generations of Sri Lankans were progressively dismantled, and measures were adopted to deliberately institutionalize the division of the society. Since independence, attempts to govern Sri Lanka have been influenced by colonial experiences of adversarial politics. Even current attempts at constitution making are based on colonial ideologies that divide societies and territories. These ideologies only serve the geostrategic interests of the neo-colonials, and not even minority interests in the long run.
What would serve the Sri Lankan nation as a whole are arrangements that foster the unity and territorial integrity of the Nation and State; a task that could be achieved by exploring arrangements for all communities to engage in the processes of governance at all levels stating with the center. It is a matter of deep regret that hitherto such a process has not been given the serious attention it deserves, as an alternative to the process currently being pursued.
October 31, 2016