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The habit of getting it wrong by design; Demonising Constitutional changes the pot calling the kettl

14 January 2016 08:09 pm - 0     - {{hitsCtrl.values.hits}}

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Sri Lanka has a long history of its efforts to find a solution to the protracted ethnic problem and to the problems emanating from the much hated Executive Presidency and the Proportional Representation system introduced by the Second Republican Constitution of 1978. The interesting aspect of this history has been that when the ruling party of the day attempted to explore a solution to any of these problems the other main party smartly discovered a link between that effort and the LTTE or  Tamil Eelam. 

This time too when the new UNFGG Government is attempting to bring in a new Constitution, even before the government put forward a set of proposals for that purpose, the Opposition group led by former President Mahinda Rajapaksa has discovered that the government was planning going to do away with the unitary state of the country and the foremost place given to Buddhism in the existing Constitution. While the former president’s group found holes in the government’s plan the JanathaVimukthi Peramuna (JVP) demanded the government to place its proposals before the country first.

Although the critics of consecutive governments had been creating Eelam bogeys to get political mileage against the governments’ efforts to find solutions to these problems, they too had followed the same path when they came to power later. For instance, the two main political parties have been champions of the federal system of government at least once during their tenures in the past and each time, except in 2002, the main Opposition had made a big fuss about the government’s move. 

The first political party to embrace the federal system was the United National Party (UNP) which brought in the provincial council system following the Indo-Lanka Accord in 1987 amidst bloody islandwide protests against the move. The incumbent President J.R.Jayawaredene then, was so deceptive that he did not identify the country as a federal state with the introduction of more than one legislature in the name of provincial councils, while legal luminaries such as Professor C.G.Weeramanthri had pointed out that Sri Lanka had devolved more powers than federal Malaysia.



A coalition of political parties led by the Sri Lanka Freedom Party (SLFP) came to power in 1994, with Ms. Chandrika Kumaratunga at the helm. After an unsuccessful effort to bring peace to the country through talks with the LTTE, Kumaratunga’s government put forward in 1995 the famous “package”, a set of proposals drafted by the then Constitutional Affairs Minister Professor G.L.Peiris and Dr. Neelan Thiruchchelvam, an internationally acclaimed leader of the Tamil United Liberation Front (TULF).

The “package” did not speak about a unitary state; rather it proposed a “union of regions”but the leaders of the SLFP including those who are now shouting at the top of their voice about a unitary state have never regretted or repented the promise to devolve powers or the presenting of the “package”.

Then, after a long drawn and failed Parliamentary Select Committee (PSC) process for the resolution of the ethnic problem, Professor G.L.Peiris who headed the PSC presented the People’s Alliance (PA) government’s proposals on the issue in Parliament on October 24, 1997. The term “unitary state” was not been included in those proposals either.

Then again the SLFP led PA government presented a new draft Constitution in Parliament on August 3, 2000. The then President Chandrika Kumaratunga never tried to hide the fact that it was a federal Constitution and there had been no reports about her ministers opposing a single clause in it. The draft also proposed to continue the merger of the Northern and the Eastern Provinces for another 9 years.

The most open manifestation of a Sri Lankan government’s willingness to accept the federal form of governance was the agreement between United National Front (UNF) government and the LTTE made at the end of the third round of the Norway brokered talks between the two parties in the Norwegian capital Oslo in December 2002. Professor Peiris who had been championing the federal idea during the PA administration was also the leader of the government’s delegation for talks with the LTTE.

The LTTE withdrew from the negotiating table in April 21, 2003 and later presented a plan called “Interim Self-Governing Authority (ISGA)” in the late 2003s for the institution of an interim administration in the Northern and the Eastern Provinces. In spite of the plan being a veiled blueprint for a separate state in the two provinces, undermining the authority of the President, Parliament and the judiciary of the country, the UNF government and its peace delegation were prepared to restart the negotiations based on it. 

The UNP again underscored the need to adhere to the Oslo agreement on the federal solution in its manifesto released for the Parliamentary election in 2004.
Despite the bogeys occasionally created by both main parties on federalism, the division of the country and the abolition of the unitary state of the country, both parties have also been accepting the need for power devolution since late eighties while recognising the country’s unitary character at times while  embracing the federal system at another. However, it is not clear whether all leaders of these parties mean the same form of governance through federalism. Once I interviewed several leading politicians from various political parties for a feature article and obtained a definition from each of them on federalism which reminded me of the proverbial blind men describing the elephant by touching its various parts of its body.

It will be worthwhile here to pick out a few relevant sentences in this regard from an explanatory memorandum by Professor CG Weeramantri, the former vice-president of the International Court of Justice when the provincial council system was initially being discussed in 1986, with the Overseas Sri Lanka Organisation for National Unity (OSLONU) based in Melbourne, Australia, which was then headed by Weeramantri himself.  He said: “Whether a state is unitary or not is determined by realities of the distribution of power within itself, rather than the terms to describe it… “The term ‘unitary’ is used in constitutional law in contradiction to the term ‘federal’ which means an association of semi-autonomous units with a distribution of sovereign powers between the units and the centre…. “In a unitary state there is no division of sovereign legislative power. Various forms of state power can be delegated, with supervisory control being retained by the centre, as in the case of delegated legislation…. “The delegate can never legislate in its own right. 

“….provincial councils will have powers to enact legislation on subjects specified… “the arrangement  proposed is thus clearly a federal one, but even within the federal constitutional systems it is one which gives more power to the separate units than most of the other contemporary federal systems….. “Federalism can in other words range from the extreme of a nearly unitary state to that of a loose confederation of nearly autonomous units.
Does this mean that Sri Lanka ceased to be a unitary State from 1988 with the institution of provincial councils?
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