Theory, practice and history
by Asanga Welikala, Centre for Policy Alternatives, Colombo, June 2016
Concluding Remarks
In the years after the brutal denouement of the civil war, there was no progress
with regard to reforms towards a reconciliatory and inclusive constitutional
settlement for Sri Lanka. If anything, the post-war realignment of politics was in
the opposite direction, further entrenching the political and legal discourses of
unitarism and away from pluralism. While the democratic environment has
improved significantly since the regime change of 2015, it would be reckless to
assume that the majoritarian conception of the Sri Lankan unitary state has
changed in any significant way even where there is evidence of widespread
support for enhancing the quality and extent of devolution (PRC 2016: Chs.8, 9).
At a multiparty conference on a new devolution settlement for Sri Lanka held in
January 2016 in Scotland, the constitutional self-classification of the state under
the new constitution was extensively discussed, including some of the important
theoretical distinctions discussed in this paper, in particular the difference
between the formal and substantive conceptions of unitarism. This arose in the
political context noted at the outset, where for the purposes of a successful
constitutional referendum at the end of the current process, an express reference
to the unitary state in the new constitution may not be avoided. If the conclusion
was that this was politically unavoidable, then it would be vital to ensure that the
constitutional reference to the unitary state be purely or as close to formal and
symbolic as possible, and not constitute a substantive obstruction to maximal or
at least meaningful devolution. It would also be important if this approach were
adopted to constitutionalise interpretative instructions to the courts so as to
ensure that substantive unitarism is not introduced by a side-wind and denude
devolution in the future as in the past (vide the Thirteenth Amendment Case).
Another view was that if the majority community’s commitment to the unitary
state stemmed from a fear of a division of the country, then such guarantees
could be explicitly provided without a need to mention the unitary state, or
alternatively, that the unitary state could be narrowly and expressly defined to
mean the unity and territorial integrity of the state only, rather than substantive
centralisation (these options have been recommended by the PRC as well: 24-
25).
The participants discussed the need to transcend the formalistic unitary/federal
dichotomy that has bedevilled Sri Lankan constitutional politics and poisoned
relationships between communities. One way of doing this, it was felt, was to
have constitutional silence on the self-description of the state. Another approach
was to begin by focusing on the substantive framework of devolution within a
united and indivisible state, and only then and if necessary, consider how to
‘label’ it. It was also noted that formulations from previous exercises (e.g., the
Constitution Bill of 2000, options produced by the All Party Representative
Committee, etc.) could be usefully revisited. A novel idea was the option of
creating a neologistic term in Sinhala, Tamil, and English to capture the idea of a
devolved but indivisible state, through which to avoid using loaded and
historically divisive terms like ‘unitary state’ and ‘federal state’.
It is hoped that the theoretical elucidation of the unitary state in this paper
would help current constitution-makers avoid false choices. Acknowledging the
resilience of the unitary state and the political difficulties involved in going
beyond it, however, is not the same thing as avoiding any exercise of political
leadership and constitutional imagination in relation to the question, especially
in the context of the historic constitutional moment that we are presently in.