Impact of constitutional reforms on territorial

integrity

By Neville Ladduwahetty-September 18, 2017, 9:06 pm

The "(Draft) Interim Report of the Steering Committee

of the Constitutional Assembly dated 6th September 2017" describes the territory
of Sri Lanka as consisting of provinces where powers of government are divided
between the centre and the provinces. Therefore, the comments below are
limited to Articles 1, 2, 3 and 4 that address the structure of the State, and to
"Principles of Devolution" to provinces. Threats to territorial integrity when
extensive devolved powers are granted to units such as Provinces that are
territorially large, are also addressed.

ISSUES RELATING TO ARTICLES 1 AND 2

"The classical definition of the English term "unitary state" has undergone
changes. In the United Kingdom, it is now possible for Northern Ireland and
Scotland to move away from the union. Therefore, the English term "Unitary
State" will not be appropriate for Sri Lanka".

"The Sinhala term "aekiyaraajyaya"(sic) best describes an undivided and

indivisible country. The Tamil language equivalent of this is "orumiththanadu". In
these circumstances, the following formulation may be considered:

Sri Lanka (Ceylon) is a free, sovereign and independent Republic which is an

aekiyarajyaya/orumiththanadu, consisting of the institutions of the Center and of
the Provinces which shall exercise power as laid down in the Constitution.

In this Article aekiyarajyaya/orumiththanadu means a State which is undivided

and indivisible".

COMMENT

The notion that "it is now possible for Northern Ireland and Scotland to move
away from the union" is dead wrong. Any such moves need the approval of the
Westminster Parliament. The reason why the United Kingdom is a Unitary State is
because powers devolved to Northern Ireland and Scotland are subordinate to
the powers of the Westminster Parliament. It is this distinguishing feature that
makes a State Unitary. Therefore, since devolved powers in Sri Lanka are also
subordinate to Parliament referring to Sri Lanka as a Unitary State is very
appropriate.

The features of a Unitary State was clearly stated by The Rt. Hon. Dominic Grieve
QC, Attorney General of UK, during the course of a speech delivered to BBP Law
School on October 25, 2012. He 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 Hopes 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 Parliaments power to legislate is not unconstrained. It cannot make or
unmake any law it wishes."

It is crystal clear that the very basis for drastically amending the structure of Sri
Lanka from a unitary state to a state that is "undivided" and "indivisible" because
"the English term "Unitary State" will not be appropriate for Sri Lanka" is seriously
flawed. This reflects poorly on the understanding of fundamentals on the part of
specialists who drafted the report. Furthermore, describing Sri Lanka as
"consisting of the institutions of the Center and of the Provinces" is a clear
indication of an arrangement that is federal from the very outset.

ARTICLE 3

The wording in the Draft Report is:

"In Sri Lanka sovereignty is in the People and is inalienable, and includes the
powers of government, fundamental rights and franchise".

If sovereignty is to be inalienable it has to reside in one place and in the case of

the U.K. it "remains with the United Kingdom Parliament" and as stated above the
Scottish Parliament does not enjoy the sovereignty of the Peoples of the United
Kingdom. Similarly, if sovereignty of the Peoples of Sri Lanka are inalienable it has
to be with the Parliament meaning that sovereignty cannot be shared; a
misunderstanding reflected in a recent Supreme Court determination.

Therefore, the clear distinction that makes a State unitary as opposed to any
other is that in a unitary state sovereignty cannot be divided and as long as long
as sovereignty remains with Parliament, laws made by other bodies should be
subordinate to Parliament.

ARTICLE 4

The Draft Report states:

"The legislative, executive and judicial power of the People shall be exercised as
provided for by the Constitution".

Although Article 3 states that sovereignty "includes powers of government,

fundamental rights and franchise" the version in the report cited above refers
ONLY to powers of government. It does not include fundamental rights and
franchise. This is vital because the 1978 Constitution spells out in detail the
manner in which the sovereignty of the People is exercised. By not doing so, the
Draft report is being evasive. Therefore, it is imperative that the Draft report
spells out how the sovereignty of the People is exercised because of its bearing on
how devolved powers are exercised. Furthermore, it is absolutely vital to
incorporate the wording that "at every Referendum by every citizen" who is
qualified to be an elector as in Article 4 of the 1978 Constitution to prevent
Referenda being held by a section of the citizenry.

PRINCIPLES of DEVOLUTION

The principle of devolution has to be viewed from the perspective of the structure
of the state that accepts the province as the unit of devolution. If Sri Lanka is to
remain a unitary state, all devolved powers would be subordinate to Parliament
and the President as the head of the Executive would be responsible for
implementing executive powers in the provinces through his agent the Governor.

On the other hand, if Sri Lanka is to consist of institutions at the center and the
provinces with each exercising their respective powers independent of each other
within an undivided and indivisible state where all devolved legislative and
executive powers are exercised by the province, the structure of the state would
be federal. This is reflected in paragraphs 4.2; 5.2(4); and 7.

4.2 states: "The Steering Committee is of the view that there should be a National
List (Reserved List) and a Provincial List. It was also decided to consider retaining a
Concurrent List specifying subject areas which are necessary to be retained in a
concurrent list. National List will include subjects which are necessary to ensure
Sovereignty, Territorial Integrity, Defense/National Security and Economic Unity
of Sri Lanka".

5.2(4) states: "The Province will retain the executive or administrative powers
(implementing powers) with regard to the said devolved powers".
7 states: "The Steering Committee was of the view that the Governor should act
on the advice of the Board of Ministers other than where he/she is specifically
authorized by the Constitution".

It is clear from the provisions cited above that the principle adopted is to separate
legislative and executive powers between the center and the province and make
the Governor an inconsequential figurehead thereby weakening the Executive
powers of the President. Such arrangements are typical of a federal framework.
However, the threat to territorial integrity arises when territorially large units
such as Provinces function within a federal framework.

PROVINCE as the UNIT of DEVOLUTION

The 1978 Constitution identified the territory of Sri Lanka in terms of the district.
Even during colonial days the district served as the operational administrative unit
despite the existence of provinces. The province as the unit of devolution came
into being with the Indo-Lanka Accord and the 13th Amendment for the sole
purpose of merging the norther and eastern provinces into a single political unit.
Although the Draft report identifies the province as the devolved unit its
executive powers would continue to be exercised at the district and divisional
levelsas it is currently under the 13th Amendment. It is this disconnect where the
province is the political unit and the district is the operational unit that makes the
operation of devolution ineffective; a fact recognized even in the 30/1 UNHRC
Resolution.

Over the years the province has served as an incubator for politicians aspiring to
be Members of Parliament. In the final analysis the province has been nothing but
a territorial unit for political power of the politician with the district continuing to
serve as the operational unit responsible for the delivery of goods and services to
the People.
THREATS to TERRITORIAL INTEGRITY

The province is a territorially large enough unit to tempt secession. When such a
unit is constitutionally granted expanded legislative and executive powers that
are distinct and independent of the center, the temptation for secession is even
greater. The recent Supreme Court ruling that a federal arrangement does not
amount to separation even though coupled with Constitutional guarantees that
the state is "undivided" and "indivisible", would not deter the pursuit of
secession.

There are similar legal safeguardsin the Spanish Constitution. For instance,
Section 2 states: "The Constitution is based on the indissoluble unit of the Spanish
Nation, the common and indivisible homeland of all Spaniards". However this
did not deter the regional Parliament of Catalonia to approve a law to allow a
vote on secession from Spain (Reuter, The Washington Post, September 8, 2017).
Despite efforts by the Constitutional Court of Spain and the Government declaring
that actions taken by Catalonia are illegal on grounds that the "Constitution states
that Spain is indivisible", Catalonia is planning to hold a referendum for
independence on Oct. 1, 2017.

There is nothing to stop similar measures being adopted in Sri Lanka. Words such
as "undivided" and "indivisible" are not a deterrence to separation. Starting with
the proposed Constitution for a federal arrangement, the next claim would be for
the right of self-determination, ending up with resolutions, marches and
referenda for separation, despite the illegality. This makes the province a real and
living threat to Sri Lankas territorial integrity. Therefore, since depending on
limiting devolved powers as the only safeguard to guarantee territorial integrity is
no match for people power, there is a pressing need to explore an alternative.

AN ALTERNATIVE
The unit that would assure territorial integrity of Sri Lanka is the district and as
stated in Article 5 of the 1978 Constitution the territory of Sri Lanka would consist
of 25 administrative districts. However, a further safeguard should be that no two
or more districts could merge. It is to these 25 districts that legislative powers
should be devolved with its related executive powers being exercised by an
administrative specialist such as the District Secretaries responsible to the
Executive President. This arrangement should be supplemented with
arrangements at the center for ALL communities to participate in exercising the
sovereign powers of the People.

By way of a suggested arrangement for the center, if elected minority members of

Parliament cannot be accommodated in the Executive Branch due to ideological
or other reasons, arrangements should be explored for willing members of
minority communities to be accommodated through the National List into the
Cabinet, while reasonable proportion of other elected minority members are
accommodated as Chairpersons in Sectoral Oversight Committees with privileges
similar to that of Cabinet Ministers so that ALL communities are represented in
both branches of government. Whether it is the arrangement suggested or
another alternative, the need of the hour is to explore arrangements at the center
that could be coupled with the district as the devolved unit within a unitary state.

CONCLUSION

The Draft report essentially consists of suggestions. As such it is indicative of the

direction of the proposed Constitution. I have attempted to address a few key
issues in the Draft report relating to the structure of the state and to devolution.
The proposals clearly attempt to replace the unitary character of Sri Lanka on
grounds that it is "inappropriate for Sri Lanka", with a federal arrangement that
recognizes the territory of Sri Lanka as consisting of provinces to which power is
devolved through a veil of words such as "undivided" and "indivisible" to conceal
threats to territorial integrity.
The political establishment and the public need to realize that constitutions are
no barrier to the breakup of states. What prevents the breakup of states is the
size of the internal units into which the territory of the state is subdivided. Spain
is currently experiencing this problem with Catalonia made up of 4 of the 50
Provinces of Spain wanting to be independent.

The province as a devolved unit was a product of the Indo-Lanka Accord to merge
the northern and eastern provinces into a single political unit. However, merged
or not,large units such as Provinces with extensive devolved powers have the
potential to separate. As long as the potential to separate exists, every effort
would be made to prevent separation. This would leave the national question
unresolved. An alternative that would ensure territorial integrity and address the
national question would be to devolve power to the district and explore
arrangements for all communities to share legislative and executive powers at the
center as suggested above, within a Unitary State.

Such a bold alternative would be rejected by many on grounds that it is too

radical and too late in the day, not to mention the blowback from the
International Community, to even consider it. However, the reality is that the
choice is between keeping the national question simmering and unresolved, or
accommodating minority aspirations at the center and preserving the territorial
integrity of Sri Lanka; a condition that is central to the very existence of the Sri
Lankan nation.

A clear lesson of what follows separation is evident in the partition of the Indian
subcontinent into India and Pakistan, the effects of which has been insecurity for
both ever since. Sri Lanka should avoid such a fate by first campaigning to defeat
the forthcoming constitutional reforms because a province with extensive powers
tempts and facilitates separation, and later for a political party to seek a mandate
to make the district the devolved unit with arrangements at the center for ALL
communities to share political power. It is a matter of deep regret that thus far
the merits of such a pragmatic alternative have not captured the imagination of
the political establishment, despite it being the right solution for Sri Lanka.

Neville Ladduwahetty
Posted by Thavam