" SUITABILITY OF FEDERALISM TOSRILANKAPolitical Settlement Based on “Higher degree of autonomy and secureddevolution under the unitary nation” best idea for new SriLanka(Author)Department of Law Question: Department of Law, University of Jaffna Sri Lanka has decided to submit a proposal to thePublic hearing to the Constitutional Drafting and the students? committee who prepare theproposal request you to give your view, whether a Federal system is fitting to our country. Write an essay with the comparison of Constitutions of other countries and evaluate whether aFederal system would suit to our country. You might consider the following matters in writingthat essay. 1. Nature of State and Form of Government 2. Legislative, Executive and Judiciary 3. Power sharing, devolution and local governmentSupport your arguments with relevant provisions of statues, case laws and other publicationswhich you think necessary to support your essay. Comparative Constitutional LawAssignment 01 1 1 ederal cry is not a new phenomenon to SriLanka. It was originated by the Sinhalese in 1925 .When Tamils preferred a unitary system, the Sinhalaleaders propagated the concept of federal2 Fformula. Today, Tamils wants the federalism while Sinhalese look at it with suspicion that it3 may be ploy to separation . 4 5 6 In my point of view, whether it?s a unitary or federal or quasi-federal it?s not a matter. Astate of difficulty that needs to be resolved is, adopting a system which suits to our country with regard tothe nature of the state and form of government,in connection with the organs of governmentandconcerning the power sharing,power devolutionand local government. We should adopt an ownunique arrangement which exactly suits to our needs apart from the administrative convenience. It mustrelates to the diversity of people, regional variety and imbalances &historic and geographical necessity There is difficulties in defining the term unitary and federal precisely due to the degrees of“federalness”, for example; Switzerland is considered to be more federal than Canada as its devolved7 units have more autonomy than the provinces in Canada . Further, it?s a tough task to put Indianconstitution in the category of a true federation with regard to the incorporation of certain non-federal8 features . Indian federation is a union because it is indestructible and helps to maintain the unity of thecountry and it is known as the federal in form and unitary in spirit. 9 10 11 SriLanka is a Republic and a unitary state governed by a Semi-Presidential system . Theth executive presidential system amended through the 18 amendment which went towards the glorified12 th 13 14 dictatorship is quiet decreased after the latest (19 ) amendment .Whatsoever, the Article 3515 accurately depicts the immunity of the President; which is an enormous hindrance to the democraticgoal.16 SriLankan unitary system does not deprive to devolve its powers to the provincial councilsth 17 due to the 13 amendment . But the question to be analyzed is whether the devolution is effective or not.If not, by empowering the devolved units throughout the constitutional process, the intended goal can beachieved. 18 Although the President of SriLanka enjoys the executive power of people without any19 th 20 express limitation, this position underwent a change after the 13 amendment . The governor who was21 22 appointed by the president not only required to act as a delegate of the President but also act on the23 24 directions of the President . Further the Governor to act on the advice of the Board of Ministers and2 25 can act on his own judgement which is proved through the case of G.M.Premachandra v. Major26 Montague Jayawickrema .In Re the Thirteenth Amendment to the constitution and the Provincial27 Councils Bill Sharvananda C.J., held that Provincial councils are subject to the control of the Centre and28 are not sovereign bodies .As same as the executive powers, the legislative powers also not exclusively or independently29 30 vested in the Provincial Councils . Parliament and the President had utmost control over them and31 remained supreme. Even there are some weaknesses, Bribery Commissioner v. Ranasinghe proves the32 Parliament Sovereignty with regard to the Provincial Councils. th 33 The remarkable changes affected by the 13 amendment is conferring the variety of powers34 to the Provincial High courts. However, In Weragama v. Eksath Lanka Wathu Kamkaru Samithiya the35 writ jurisdiction of the Provincial High Court was questioned . In the same case court held that “there36 was nothing more than a re arrangement of the jurisdictions of the judiciary ”. It shows that the37 Provincial Councils do not have any control over the judiciary in the Province . 38 39 There are countries like UK and India who successfully follows the unitary system, in40 41 respect of power devolution and with regard to the systematic administration . The pre-devolution42 unitary rule from Westminster of UK is an example for it. Wales has not have the legislative capacitywhile through the Scotland Act 1998, Scotland Parliament can make laws. Anyhow UK transferredcertain legislative and executive powers to theconstituents.On the other hand; high autonomy, clear-cut division of power, constitutional supremacy43 and provincial/regional representation at the central government are some key features of federal44 45 46 nation. Most of the federal countries like Australia, Canada and USA describes the state to beindissoluble.Federalism is pluralistic in character. The entity which enjoys the federal nature feels certaindegree of individuality or autonomy. So, there are believes that socio-ethnical or religious tensions can behandled through the federalism as it is a conflict-resolution. Bosnia is an empirical evidence to prove47 that . 48 Federal system mostly shares the sovereignty like in Northern Ireland and divide the powers49 among the co-equal bodies like United States . It?s an excellent method of curbing the power of whole50 people irrespective of majority and minority for which the Confederal Switzerland is a best example .Federalism promotes the participatory democracy. Whatsoever, federations has many challenges with3 regard to the dispute resolution, need for the human and economic resources will be high and should51 create a system which ensures the „unity in diversity? – which is in practice in India . 52 Bedrock of a good governance is power devolution, which makes the nation free fromcorruption (legislative, executive and administrative). Disposition of power may vary due to the freedomof political maturity, social needs and economic constraints.Empowerment of polity will be determinedonly by the power-sharing. Devolving powers to the subordinate must consist of sharing the executive,legislative and judicial powers, devolving the enforcement authority, granting financial autonomy andconsidering each and every problem of a particular community or specific entity. This will offer a widescope for political pluralism. Further, powers should be shared through the constitution to the subordinates and it must beentrenched in the constitutional process. If not, like in SriLanka; Central Government will curtail the53 devolved powers very easily with regard to the case ofSolaimuthu Rasu v. Stafford Estate . It vividlyportray the insecurity of the power devolution. Mere transfer of powers to the subordinate without anyenforcement mechanism and also confining it with the discretion of Centre won?t be a valid process ofdevolution.54 There are features to become as a federal nation . Concerning the SriLankan position willreveal the suitability of federalism to SriLanka. Firstly, identifying the polity. It means, individualshaving the same political ideology. In Lanka, it?s a major problem to define the polity because persons55 56 mingled together in everywhere in the land .Polities may be destroyed intentionally .Defining theterritorial divisions among the mingled polity will surely create a minority-minority issue rather than themajority-minority. Further, these kind of division may result in arm conflict, which is exactly an57 enormous issue in India . 58 There are 3 modes of distribution of power . Rather than adopting vertical (territorial59 distribution of power ) mode implementing the horizontal distribution may be the perfect method forcountry like SriLanka. “Horizontal mode represents the dispersal of power over specific subject matter toa body which will have authority over the entire country; Territory is not the essence of distribution;60 hence the functional element gains primacy ”.61 nd A longstanding autonomywhich Quebec enjoys is the 2 matter to be discussed in respectof the SriLankan positon concerning the suitability of federalism. Autonomy; Individuals should be4 governed by their own laws without obstruction. There won?t be any interference by the Centre to theCircumference (provinces) in respect of the matters entrenched to the Provinces/Regions. The ExecutivePresident of SriLanka enjoys over the Councils relates to his ability to bring the Provincial Council under62 “the direct rule” of the Centre . The President can hold the situation when administration of the63 Provincial Council (Governor/ Council) fails to act in accordance with the Constitution . I wonder that, instead of bringing the administration under the control of President whycannot he remove the Governor if the situation has arisen due to the omission of the64 Governor???President authorized by the Parliament to exercise the statute making process and to expend65 66 from the Provincial fund and also the financial instability of the Provincial Councils exactly questionsthe autonomy of the subsidiary bodies (Provinces).67 “Provincial Councils are merely the subordinate body not more than that ”In my point, power-sharing should be a compact between the Centre and the Province whichmust get the concern from both while amending/repealing any provisions in respect of their functions.Withdrawing the powers unilaterally must be forbidden and powers must be devolved with greatersecurity and guarantee.The devolutionary process which facilitates the dispersal of governmental powers to theProvince within a unitary framework is my own preferential method rather than adopting a federalsystem. The empowerment of devolution of power will bring the government closer to the people.Concept of devolution signifies the real measure of power and responsibility, coupled with financialautonomy, to devolved units. The process of constructing devolved institutions and of prescribing how they are to workpresents opportunities, architectural imaginations, negotiations and compromise which are themselves68 valuable ”69 rd Power devolution with regard to the Local Government also must be discussed. It?s the 370 lowest level of government in SriLanka. Local authorities derived its powers from numerous Acts and71 Ordinances . However, Central Government has the supreme power over the Local government as theirpowers can be curtailed by the Centre. Centre is empowered to withdraw the powers of local bodies5 unilaterally. To facilitate this, the distribution of powers to the local bodies could be affected through theordinary law of the land.Ultimately central authority has the power to negate, reclaim or reorganize the transfer of72 powers .Amending or repealing the devolved provisions with the special majority would ideally73 represent the formal structural mechanism . Development of a healthy convention by the centralgovernment to abstain from interfering with the devolved units powers and functions, save in exceptional74 circumstances, is an informal mechanism . Historical game of the SriLankan Central Government is amending the amendments over a75 th night .I wonder why they do not alter the 13 amendment yet! These kind of foolish plays should berestricted by the supreme constitution hereafter.Unfortunately even a provision doesn?t speak about the76 sovereignty of our constitution .In my view, even SriLanka enjoys the Provincial Council system it?s not worthy enough dueto the utmost control by the Centre as I discussed above. So, the powers should be devolved with highsecurity. If the provinces go beyond their sphere of activity instead of the intervention of executive,judicial review can be the better solution. Ultra-virus of Councils can be take into account by theindependent judiciary. Autonomy can be protected by implementing the anti-majoritarian or countermajoritarian document; (provisions of the constitutions cannot be amended even by the special majority,repeal or amendment of the provisions cannot be held unless getting the consent from all of theprovinces.But addition of powers can be made).“The system of devolution does not present such a pathetic picture; instead, under thedevolutionary setup the devolved units must be guaranteed and made constitutionally competent to raisesufficient finances for the due discharge of its functions. Devolution should exclude the budgetary controlby the central body. The dividing line between „devolution? and „local government? depends on the scope77 of power, volume of functions, size of territories and degree of autonomy” .Implementation of new constitution is in process. “A key objective of the new Constitutionwill be ethnic amity and national reconciliation. A prerequisite in this regard would be inter-racial justiceand equality. In that context a suitable power sharing arrangement on pluralistic and egalitarian linesneeds to be established. More importantly this power sharing arrangement has to be endorsed by a vast78 majority cutting across race, religion and region” .6 What is required now is the creation of a just, egalitarian and plural society. There must beequitable power-sharing based on principles of devolution relating to the federal idea. Power must not beconfined to Colombo alone but shared with the periphery.The saying “Kolombata kiri, Gamata kekiri”should lose its potency and validity. Sri Lanka has to be re-invented as a country where all her children79 can live together in amity and fraternity . A new vision must be re-imagined in which no one will claim superior rights on the basis ofbelonging to the majority race or religion or claim exclusive rights to their historic habitat. Sri Lankabelongs to all its people from Paruthithurai to Devinuwara and Mannar to Mullaithivu. All peopleregardless of race, religion, caste or creed must have their say and a role to play in the brave newLanka/Ilankai that beckons us all!!! WORD COUNT 21937 "