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CONSENSUS ON UNITARY STATE & ABOLITION

OF PRESIDENTIALISM NECESSARY FOR A NEW


CONSTITUTION ASANGA WELIKALA

Image: The absence of a policy and strategy of political communication aimed at


sustaining public knowledge, engagement, and support for reform has led to the
danger of anti reform politics staging a come back.

27/10/2017

It is silly in the extreme to think that having the words unitary state in a piece
of paper called the constitution magically protects us from state failure.

In Sri Lanka, the significance of these old labels is about their use as discursive
weapons by ethnic-nationalist ideologues.
President and Prime Minister must now urgently focus on a negotiated solution
to the differences within the governing coalition.

An uninformed public, especially within the majority community, can easily be


misled by distortion and lies, or frightened into joining the opposition.

Nothing except the constraints of a good and strong political culture can present
a paper constitution from being violated.
Dr Asanga Welikala is a Lecturer in Public Law at the University of Edinburgh and
the Director of the Edinburgh Centre for Constitutional Law. He is also a Research
Associate of the Institute of Commonwealth Studies, University of London and is a
Research Fellow of the Centre for Policy Alternative (CPA), Sri Lanka. In an
interview with the Dailymirror Welikala shared his views on the current
constitution making process including the interim report, and explained from an
academic point of view the unitary versus federal state debate; whether Sri Lanka
is a secular state and why he stands against constitutionalizing economic, social
and cultural rights.

Q. There is much confusion as to what a unitary state and a federal state means.
Could you explain the distinct differences between the two?

Unitary v. federal is one of the ways in which constitutions are classified in


traditional political science and constitutional law. In this way a unitary state is
one in which ultimate power and authority are concentrated in the institutions of
the Central Government, whereas a federal state is one in which such powers are
divided and shared between state and sub-state institutions. There has never
been universal consensus about these definitions. Even at the time these
definitions were the dominant method of classification in political and legal
studies, no abstract definition was able to accurately capture the complexity and
variety of constitutional arrangements within countries.
I dont think its wise to fetishize theoretical categories, and I also dont think that
there is much practical use in these definitions anymore; partly because in
political and constitutional theory, these have been superseded by more
sophisticated categories and partly because in the practice of constitution-
making, especially in the last three decades. Hence many countries have evolved
complex, hybrid systems of Government in dealing with exactly the kind of
challenges of democracy and diversity that we are trying to address, that these
definitions have been rendered almost entirely obsolete. Simply put, these types
of classifications may still have a use, for example, in introducing students to basic
types of constitutions. But its both unnecessary and undesirable to treat them as
sacred in dealing with the task of constitution-making, and its silly in the extreme
to think that having the words unitary state in a piece of paper called the
constitution magically protects us from state failure.

The classic example is that of the United Kingdom, which many in Sri Lanka would
describe as a unitary state. Because of the doctrine of parliamentary sovereignty,
which theoretically concentrates ultimate power within the UK in the Parliament
at Westminster, many take it as an example of a unitary state. But that is only a
very small part of the story. Theoretically, the doctrine of parliamentary
sovereignty continues to be the cornerstone of the British system, because
without a written constitution, it needs some doctrine to formally denote where
ultimate power lies. And because sovereignty is vested in one central institution
(the UK Parliament), again theoretically, the UK is a unitary state.

However, devolution was introduced in 1998, and is a continuing process which


has made the UK not only an extraordinarily devolved state, but more devolved
than many federations. But even before devolution, the neat, formal, legal
definition of the unitary state never accurately described the actual political
practices by which the British constitution operated in reality. What many Sri
Lankan observers misunderstand or choose to misunderstand is the
relationship between the legal theory and the political practice of that
constitution, which is critical to understanding how it actually functions. Thus,
for example, the legal doctrine that the UK Parliament is sovereign means that it
could repeal the various Acts of Parliament by which it granted independence to
the colonies in the post-World War II period. Legal sovereignty permits this,
because it means the power to make or unmake any law whatsoever. But would
any such Act of the UK Parliament, repealing the independence of a former
colony, have any practical political effect whatsoever? It would be laughable to
even suggest this.

Dr. Asanga Welikala

Similarly, the formalistic focus on


parliamentary sovereignty and the unitary state fundamentally misapprehends
the position that they, in any real sense, describe the way that the extensively and
asymmetrically devolved British constitution functions. Since at least the 1970s,
the academic consensus among historians, sociologists, political scientists, and
lawyers has developed into the current constitutional self-understanding that the
UK isnt a unitary state, but a union state composed of several nations (England,
Scotland, Wales, and Northern Ireland). More recently, this has then evolved into
permitting referendums on secession by some of these nations. Recent events in
Spain and Catalonia demonstrate how unusual this is even by the standards of
European liberal democracies. In this context, it is possibly only in Sri Lanka that
commentators seriously contend that the old classification of the unitary state
can be used to definitely describe the UK.

In Sri Lanka, the significance of these old labels isnt so much about what they
actually mean in theory, or what their practical use in constitution-making is, but
about their uses as discursive weapons by ethnic-nationalist ideologues. Such
people have dominated our political discourse on constitutional reform for far too
long.

Q . The interim report states that Sri Lanka will remain one undivided and
indivisible country. Prof. G.L. Pieris in a recent interview with the Daily Mirror
referring to this said that it is also the definition of a Federal State and therefore
exercises deception. Is this a legitimate claim?

No, in the sense that I cant see an intention to deceive the public in the Interim
Report. Some of its proposals may be convoluted and unclear, and possibly even
ultimately unworkable, but that isnt deception. Prof.Peiris however is absolutely
correct in asserting that federal states are mostly undivided and indivisible
countries. There is nothing about federalism that denotes the disintegration of a
country. Often, pluralistic polities comparable to Sri Lanka federalise in order to
preserve the unity of the country, and to prevent breakup. Its only in very rare
cases that countries would allow regions to secede, and whether or not a state
gives its regions a right of secession has often nothing to do with whether the
state in question is federal or not.

Q. The JHU in its observations of the draft interim report have said that both
constitutionally and legally Sri Lanka is a Secular State. Do you agree?

No. A secular state in my understanding is one in which the state is neutral in


respect of religion. That isnt the case in Sri Lanka since the 1972 Constitution,
which gives a foremost place to Buddhism and places a duty on the state to
protect and foster the Buddha Sasana, while guaranteeing the freedom of religion
of others. Whatever its, therefore, Sri Lanka isnt a secular state.
Q.What are the advantages of having a second chamber?

There are three principal reasons why I support a second chamber. Firstly, it can
act as a brake on precipitate legislation or other over-hasty action by a first
chamber dominated by a parliamentary majority controlled by the executive.
Secondly, and depending on how it is composed, a second chamber can improve
the quality of deliberation in the legislative process by including within its
membership those with technical expertise and professional experience. Finally,
in a future constitution that devolves further powers to the Provinces, the second
chamber is the forum for the representation of Provincial views in the law-making
process of the centre. In this sense, it acts as a unifying institution that balances
autonomy with interdependence.

Q. What are the areas that the interim report has ignored or hasnt addressed
adequately?

The Interim Report is the product of a particular kind of political process, and as
such it isnt by nature the kind of document that would have been produced by a
group of constitutional experts. But that is how the current process has been
designed, and we have to expect a measure of disorganisation, unevenness, and
even incoherence. And this need not be a bad thing. A messy political
compromise that can work, in my view, is infinitely preferable to a more elegant
expert-produced document. It is in this sense that I see the greatest weakness of
the Interim Report as political and not technical, because it hasnt produced a
common consensus between the two major parties on fundamental substantive
matters like the unitary state or the abolition of presidentialism. Without that
core consensus, I cant see how we can progress to the next stage of drafting a
Constitution Bill.

Q. The interim report states that the Constitution should be the supreme law of
the land. Even the current constitution is supposed to be the supreme law of the
land. But there are several provisions that undermine this supremacy especially
Article 16. Do you think that the new constitution that is envisaged would be
truly supreme?
If you want to entrench the principle of constitutional supremacy, you have to
state that expressly in the constitution and remove anomalous provisions like the
current Article 16 which allow laws inconsistent with the constitution to remain in
force. There seems to be no major disagreement regarding this.

Q. In other words, though there is opposition to reform the Muslim Marriage


and Divorce Act (MMDA) it will be struck down by courts if constitutional
supremacy is upheld. What are your comments on this?

If in the future there is no provision like the current Article 16 which protects
certain categories of laws that are inconsistent with the constitution to continue
in force, then the courts would have to hold that those laws are unconstitutional.
Whether or not they can be struck down by the courts depends on whether a
future constitution goes further and confers that specific power on the courts.
Again, it appears that there are no major disagreements about giving the courts in
the future the power to strike down primary legislation inconsistent with the
constitution.

However, it would be important to keep in mind that while a procedure for


judicial review of legislation may sometimes succeed as a convenient shortcut in
getting rid of undesirable laws, that would not be the end of the matter. The
legislation that is struck down can be replaced, sometimes in a form that could be
worse than the original. The need therefore for social and political activism that
leads to change through legislation rather than judicial action remains as strong as
ever. Legislative change is a difficult, often frustrating, and long-term project. But
its always the more durable method of social change.

Q. Now that the interim report is submitted what are the next steps that should
be followed?
I would stress that the President and Prime Minister must now urgently focus on a
negotiated solution to the differences within the governing coalition, especially on
the issue of the executive presidency. Without that consensus between the two
leaders most responsible to the public for carrying out the twin-mandates for
yahapalanaya in January and August 2015, it is difficult to see how a constitution
can be drafted.
Q. How hopeful are you of winning a possible referendum?

This isnt a question I am competent to answer. But if the question is; should
there be a referendum on a new constitution; then my answer is unequivocally
yes. That is what was promised; that is what should be delivered. If yahapalanaya
leaders get into the habit of breaking promises, then that would be a major
breach of the electorates trust. And the fact that they have conducted an ill-
disciplined, remote, and opaque process, which has enabled anti-reform forces to
increasingly dominate the political narrative, is no ones fault, but their own. With
leadership, commitment, planning, and some very hard work, however, there is
still time and space to address these problems, to rejuvenate the modernising
project of the yahapalanaya coalition, and re-galvanise the progressive and
pluralistic majority that made the change of 2015 possible.

Q. Are there effective safeguards to prevent a new constitution being


implemented without the proper process being followed?

Nothing except the constraints of a good and strong political culture can ever stop
a paper constitution from being violated. Those who think written constitutions,
bills of rights, activist judiciaries, and innumerable independent commissions are
the only means of doing so are terribly mistaken. These are all necessary and
important institutional devices, but the crucial factor in trying to improve the
culture of Government and politics towards one which respects the dictates of
the constitution is the commitment of politicians, whom we elect. If our civic
consciousness is so eroded that we keep electing crooks and thugs, then it is
logical that we get corruption and violence in return, not a constitutional
Government.

And that is also why the yahapalanaya dispensation, elected on the hope of
restoring some semblance of morality and right conduct to our culture of politics,
has a special duty to ensure they behave themselves properly. That hope,
admittedly, is fast being dissipated, but the democratic alternatives are so
appalling that we have no choice, but to apply continuous pressure on the current
Government to make a recommitment to the values on which they were elected.
Otherwise, on the back of public disillusionment and cynicism, we may soon
return to the reactionary authoritarianism, communal divisions, and international
pariah status of the past.

Q. What are the modern trends in constitution making which Sri Lanka could
follow and benefit from?

There are many, but one thing to stress is the absolutely critical role of political
communication, which has been one of the most fundamental weaknesses in the
Governments conduct of the process from the beginning.
The absence of a policy and strategy of political communication aimed at
sustaining public knowledge, engagement, and support for reform after the high
point in 2015 is now showing signs of bearing bitter fruit. An uninformed public,
especially within the majority community, can easily be misled by distortion and
lies, or frightened into opposition.

These tactics are now openly adopted by the increasingly organised opposition to
reform. An unengaged public have no means of making sense of complicated
changes to complex constitutional concepts e.g., the proposals about the
unitary state and devolution and thus to exercise their own judgement as
citizens. And the Government has failed to engage and keep on-board one of the
most important social institutions of public opinion formation among the
Sinhalese; the Buddhist clerical hierarchy. There is no point in blaming the media,
when its the Governments own deficiencies that have seen it losing control of
both the narrative and the process.

Q. You have been an opponent of constitutionalizing ESC rights when many


advocate for their inclusion in the new constitution. Why do you oppose
constitutionalizing these rights?
I have four major reasons for opposing the inclusion of justiciable socioeconomic
rights in a future constitutional bill of rights.

Firstly, I dont think its desirable to enshrine one particular conception of the
ideal society in the constitution and thereby place it beyond the normal
democratic process. Health, education, housing, the environment, and other such
socioeconomic issues are all policy matters that are the subject of legitimate
disagreement, and on which the electorate have the right to choose as well as
change their minds, on the basis of competing policies on offer by political
parties.

Secondly, making socio-economic rights justiciable invites a massive expansion of


the judiciary into the political sphere, and into matters that should be debated
and decided in democratically elected legislatures. The judicialisation of politics
tends to empower an elite caste of lawyers and judges, whereas in a republican
democracy, citizens in society should make these decisions for themselves
through representative institutions.

Thirdly, proponents of socio-economic rights who are pursuing the global agenda
of human rights ignore the socio-political character of our society in which the
neoliberal policies they abhor have very little prospect of success. One of the
explanations for the great strides in the advancement of socioe-conomic indices
that Sri Lanka has historically made lies in the fact that, as an electoral democracy
since 1931, there is no democratic incentive whatsoever for politicians to roll back
the state, so much so that even badly needed reforms in the publicly-fund health
and education sectors are repeatedly derailed. A socio-political consensus about
the welfare-state that is so well entrenched in time and space requires no further
constitutional protection.

Fourthly, and by contrast, what is clear from the proven authoritarian tendency
of the post-colonial and especially the republican Sri Lankan state is that this is a
state that requires effective limitations on its demonstrated and potential
capacity to violate the basic freedoms of the individual. Among other reforms
which crucially includes the complete abolition of executive presidentialism, this
requires a more robust bill of rights that widens and deepens constitutional
commitments to civil and political rights, including through reaffirming the
judiciarys traditional role in a liberal democracy of acting as the guardian of these
freedoms. That is the sole and genuine purpose towards which attention must be
directed as we design a new bill of rights.
(Courtesy of the Daily Mirror.
Posted by Thavam