Mistakenly Understanding The Meaning And Significance Of Unitary State
by H. L. de Silva
The insistent demand by certain “activists, academics, writers and clergy” that there should be no reference to or description of the Constitution as being unitary, appears to me, to arise from a mistaken understanding as to its meaning and significance, having regard to constitutional developments over the years, especially in regard to the concept of sovereignty. The typology unitary/federal is no longer considered helpful having regard to intermediate degrees of centralization and decentralization which are considered a necessity in contemporary systems of government and administration.
It is seldom noticed that in our own constitution the word “unitary” occurs in Article 2, which simply declares that: “The Republic of Sri Lanka is a Unitary State”. This provision does not purport to describe the nature of the Constitution or to give a general description of the basic law that is applied within the State. So long as the territorial integrity of the State remains undiminished and no portion of it forms a second territorial unit or entity that is independent of the reminder State, and if the Country is not partitioned into several units to form a confederation or form several independent States and the territory specified in Article 5 remains a single unit, the statement in Article 2 is perfectly accurate and states the obvious.
What then is the purpose of retaining it and not deleting it, if it is considered innocuous or harmless? Whatever may have been the reason for introducing it in the first place, its deletion in to-day’s context would give rise to many misgivings grounded on the apprehended repercussions of the new provisions (as, for instance the enhanced degree of devolution and so on) in regard to the likelihood of secession.
There is and has been for sometime, a perceived risk or danger of a unilateral declaration of secession and a pervasive environment of separatism exists in certain parts of the Country. Are they paranoid fears which are unwarranted? The Vaddukpddai Resolution of 1976 calling for the establishment of the separate State of Tamil Eelam in which leading Tamil political parties joined together stands unrevoked even three decades after it was passed, the feeble call in Oslo for ” the exploration of a federal framework” has been ignored and the response to it was the ISGA which covertly provided for a separate State under the control of the LTTE in embryonic form , and the renewed demands for the merger of the Northern and Eastern Provinces are relevant on this question. The Government can ignore this cumulative evidence only at its peril.
Although a declaration of the kind found in Article 2 has limited value, it is nevertheless an interpretative guide (along with Articles 3 & 4) that would inhibit constructions in furtherance of separatism even in less turbulent times. Although the term “unitary state” is commonly used to distinguish a Constitution that is not federal in character, the typology is not found by constitutional purists to be an accurate or precise description having regard to the internal arrangements for the exercise of powers of government, by authorities established for territorial units of jurisdiction within the State.
These territorial divisions may be established for the purpose of decentralizing or devolving powers of government with varying degrees of autonomy, but the State would nevertheless remain a Unitary State. So the description of the Sate as a Unitary State is not an impediment or a legal bar to power sharing, decentralization or devolution that are often regarded as a characteristic of a federal structure of government and from this point of view, Article 2 may be considered to be of limited value in inhibiting such developments.
The provision in the Constitution which arguably contrasts or distinguishes the present Constitution from one that is federal in character is Article 3 which reads thus:
“3. In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise”.
When taken in conjunction with Article 4 paragraphs (a), (b) and (c )
This provision signifies that (1) supreme power is vested in the People of Sri Lanka (meaning all the People of Sri Lanka and not in a section thereof, however described) and (2) that the sovereign power that is reposed in them is legally not subject to any external power seeking to override it which makes it independent and (3) that such sovereign power is not capable of being alienated, divested or transferred to any other body. This is the heart of the Constitution – the norm above all other norms. No one has suggested a deletion of this provision and its linkage with Article 4
The Constitution in its operational sphere is seen in Article 4 Having regard to the physical impossibility of all the People being engaged in the actual tasks of performing governmental functions, it is provided in paragraphs (a) (b) and (c) of Article 4 that the organs or agents therein described are all organs or agents established at the Centre and have an Island-wide territorial jurisdiction. There could be (and ordinarily it would be convenient to have) authorities or agents vested with certain of these powers and functions but they would be subordinate and not co-ordinate with the Centre.
It is really Articles 3 & 4 which seek to distinguish the present Constitution from one which is a federal structure. So by omitting the reference to the unitary state one does not advance the federal project or promote power sharing. Nor would its deletion help in providing greater protection for minority interests. Article 2 of itself would not be an impediment to federalism, whatever be the meanings and connotations that have in practice come to be associated with the concept of the Unitary State and the conventional mode of classifying constitutions. The establishment of a multiplicity of authorities or bodies in peripheral territorial units within the Country would not of itself lead to federalism provided they are constitutionally and legally made subordinate and subject to reasonable controls by the Centre and if they do not transcend or exceed the limits imposed on the grant of powers of government.
The incessant tirades against the Unitary State which avowed federalists and crypto-federalists, under the cloak of devolution of powers, have launched against the Unitary concept in recent times are misconceived and are unlikely to find favour with the majority, so long as there are no convincing arguments or credible evidence from which one can conclude that the doctrinaire solution of federalism would result in an end to separatism which in the last analysis is the essence of the so-called ethnic problem in Sri Lanka. Nor would it provide a remedy for perceived grievances of the minorities or fulfill their undefined aspirations in their infinite variety.
The proclamation in Article 2 that Sri Lanka s a unitary state has, together with Articles 3 & 4, the conjoint effect of ensuring that the operation of its constitutional provisions do not lead to the establishment of a separate state and does not signify much more than that. The enhanced measures of devolution currently being considered by the APRC may provide an adequate basis for the solution of the problems without tampering with the provision that the Republic of Sri Lanka is a unitary state for the reasons stated here.
madurainews.com said,
September 26, 2007 @ 6:05 pm
Sick of this Unitary Talk.
Treat Tamil as equal you are and let them live in their mother land with dignity and sovereignty.
Navaratnam said,
September 26, 2007 @ 7:29 pm
You are pretty old Mr. Silva, its high time you give up politics and happily live with your spouse and measure your blood pressure and transfer the country to young Sri Lankans in the age of BARACK OBAMA..
A.Rajasingam said,
September 26, 2007 @ 10:14 pm
Before determining the significance of the Unitary State and in terms of reality, it is vital to compare the US constitution or the Canadian constitution. Of the latter two Canadian constitution seems to fit into our country to meet the aspirations of all communities without any discriminations whatsoever. Though Article 2 declares that: “The Republic of Sri Lanka is a Unitary State” it is reinforced by paragraphs (a), (b) and (c ) of Article 4 by stating that (1) supreme power is vested in the People of Sri Lanka (meaning all the People of Sri Lanka and not in a section thereof, however described), (2) that the sovereign power that is reposed in them is legally not subject to any external power seeking to override it which makes it independent and (3) that such sovereign power is not capable of being alienated, divested or transferred to any other body. This is the heart of the Constitution – the norm above all other norms. No one has suggested a deletion of this provision and its linkage with Article 4. What we want to know whether the supreme power is vested in all the people or in the majority Sinhala people. What happened to the supreme power of the minority Tamils. Further, the inalienable sovereignty in the people specified in Article 3 has become meaningless when a section of the people has revolted at present. Those paragraphs have become shaky when the Indo-Sri Lanka Peace Accord was signed though it was signed by the Heads of Two countries when, in fact, it was dictated by India at that time. Where is the element of effective control in the Vanni region to assert to assert the so-called sovereignty? Is it in the effective control of the Sri Lanka government. There is a de fact government going on whether recognized or not, and it has posed a threat to the sovereignty of Sri Lanka. Had there been a federal constitution on the Canadian model there would have been an effective control over the entire Sri Lanka. Even the Tamils would oppose the division of the country had there been a federal form of government.
The failure to find a durable solution to the present problem revolving round the devolution of power in its true perspective so that the Tamils enjoy their rights with honour and dignity, led to the unwanted civil war which had cost 70,000 lives in addition to the abduction, extortion. A close examination of the Canadian constitution reveals how even the minority Quebecans are guaranteed their basic rights. The Charter of Rights and Freedoms is a part of the Canadian constitution. There is a division of heads of powers between the Federal Parliament and the Provincial Legislature and if there is any conflict the Supreme Court determines by the use of the doctrine of Paramountcy. Such a method shall be an adequate basis for the solution of the problems. In what way is Sri Lanka superior than Canada. Why can’t we follow the Canadian model and avoid shedding blood. I think those Articles 2, 3 and 4 should be replaced with one Article to the effect that “This is the constitution of United Sri Lanka” without using “Unitary” or “Federal”.
Caeser said,
September 27, 2007 @ 2:47 am
Mr. Navaratnam,
So you mean to say only those who support Federalism or simply Tamil Homeland theory only are Young and others are too Old and out dated. I advise you leave this land first of all to Tamil Nadu to claim your homeland, not in SINHALE!
dias said,
September 29, 2007 @ 12:58 am
There are 2 good reasons not to use the term “unitary” to characterize any new arrangement:
1. It has become a dirty word in Sri Lanka
2. It is offensive to Tamils
There are 2 good reasons not to use the term “federal” to characterize any new arrangement:
1. It has become a dirty word in Sri Lanka
2. It is offensive to Sinhalese
Those who insist on using either of the words are simply being selfish with little consideration to the other side’s sensitivities. A person of the caliber H. L. de Silva should keep this in mind.
Our focus during these trying times should be to discover mutually congenial solutions and not ones that are one-sided. This requires us to look at issues from the other’s point of view. For way too long the Sinhalese as well as the Tamils have operated only from a self-serving place. If we are to ever have convergence, we have little choice but become flexible.
As for an alternate name, I propose that we not use any labels until time we decide what we want inside the bottle. And only upon agreeing on a solution, brand it with a term mutually acceptable.
A. Theva Rajan, New Zealand said,
October 1, 2007 @ 7:04 pm
Mr. H.L. de Silva is a legal lumimnary. He argues human rights cases professionally for a living. But in practice, he opposes any rights to Tamils. He is one with insular outlook. I remember him telling an audience in Colombo some years back that devolution should never go beyond the powers of a Town Council. He is opposed to even Simhalese enjoying devolved powers in a democracy. He has been the team leader in almost all cases for the side that challenged the rights and / or equality of Tamils..Very recently he said Federalism is impractical in war torn Sri Lanka where Sinhalese and Tamils are mutually suspicious Very true indeed. But how can they live in peace in a Unitary State
with Sinhala hegemony? So, unconsciously he has hinted at separation as the only means for peace i Sri Lanka. His legal acumen fails to hide his inherent conviction that bares his Tamilophobia..
Vinasithamby said,
October 1, 2007 @ 10:51 pm
Mr.Rajasingam had comented correctly to Silva.
Silva is basically a communalist,so he is trying interpret law to favour his ideas and convictions.He himself admit that sovereignty is in the people and is inalienable.This is
what LTTE is telling that sovereignty opf Tamil people is
in the hands of the Tamil people and it is inalienable.Tamil people from 1948 voted for seperation or Federalism.If you act against the wish of Tamil people
you are alienating the sovereignty of the Tamil speaking peolpe.Soveriegnty is not only in the hands of the Sihalese
people but also in the hands of the Tamil people.This isa
basic mathematics and basic law in constitutions.Tamil people have the basic right of self determination,then why you are presenting all these arguments.As because you have framed a constituions against the will of the Tamil people,you are arguing that Tamil people should not against a constitution that work against the aspirations of the Tamil people.This constitution cannot be ammended by anyone other tha Pirabaharan.Please notethat “political
power grows out from the barrel of a gun”.Constitution of Sri Lanka can be amended by revolutins only and that is what happening in Sri Lanka to day.If you understand this
basic character of the civilizations you will keep your mouth shut and allow the poor Sinhalese people understand the basics rathe than complcating legal interpretations which are not sincere and fair to rule a country.