UNITARY STATE VERSUS SUBSIDIARITY

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By 2017-11-11

By Lakshman I. Keerthisinghe

Unitary State is defined as a state or country that is governed constitutionally as one single unit, with one constitutionally created legislature.

- English Wiktionary

Subsidiarity is a principle which in its most basic formulation holds that social and political issues should be dealt with at the most immediate (or local) level that is consistent with their resolution.

- Wikepedia

There has been much discussion on the unitary character of Sri Lanka and the effect of subsidiarity which may result in a federal character as envisaged to be introduced by the ongoing constitution making process in Sri Lanka. In this regard the decision of the Supreme Court becomes relevant. The Supreme Court in re the 13th Amendment to the Constitution and the Provincial Councils Bill S.C. 7/87 (Spl) to S.C. 48/87 (Spl). S.D. No. 1/87 and S.D. No. 2/87 in a majority decision stated, "The Unitary character of the State of which the characteristics are the supremacy of the Central Parliament and the absence of subsidiary sovereign bodies remains unaffected. The Provincial Councils do not exercise sovereign legislative power and are only subsidiary bodies exercising limited legislative power subordinate to that of Parliament. Parliament has not thereby abdicated or in any manner alienated its legislative power in favour of any newly created legislative authority. The concept of devolution is used to mean the delegation of Central Government power without the relinquishment of supremacy. Devolution may be legislative or administrative or both and should be distinguished from decentralization. The scheme of devolution set out in the Bills does not erode the sovereignty of the people and does not require the approval of the people at a referendum."

'Unitary' versus 'federal'

It is apparent that the debates on the new Constitution making process have focused on 'unitary' versus 'federal' concepts. The federal concept has arisen due to the principle of subsidiarity recommended in the Steering Committee Report on the Constitution.

The Supreme Court decision quoted above had considered the two main issues which were the 'unitary character of the state' and the 'supremacy of Parliament,' both of which are affected by the recommendations of the Steering Committee report. The majority view of the Supreme Court had been the existence of the 'supremacy of the central Parliament' and the 'absence of subsidiary sovereign bodies' as the main characteristics of a unitary state. To that extent the Supreme Court is correct in concluding that the 'unitary character of the state remains unaffected by the 13th Amendment.'

The Interim Report of the Steering Committee of the Constitutional Assembly dated 21 September 2017 states under 'Issues': "The President whilst speaking on the Resolution to set up the Constitutional Assembly, stated that whilst people in the South were fearful of the word "federal," people in the North were fearful of the word "unitary." A Constitution is not a document that people should fear. The classical definition of the English term "unitary state" has undergone change. In the United Kingdom, it is now possible for Northern Ireland and Scotland to move away from the union. Therefore, the English term "Unitary State" will not be appropriate for Sri Lanka.

The Sinhala term aekiyaraajyaya best describes an undivided and indivisible country. The Tamil language equivalent of this is orumiththanadu, but the Tamil word orumiththanadu according to some critics means a union of regions thus giving rise to the fear that this word has been surreptitiously introduced even to the English version with the hidden intention of introducing a federal character into the new Constitution. If according to the President people of the North fear the English word 'Unitary State' what is there to prevent them from fearing the Sinhala term aekiyaraajyaya. As stated at the outset the definition of the English word 'Unitary state' is well established and legally accepted in case law thus making it impossible to define it ambiguously to be even remotely construed to suggest a federal character.

Principle of subsidiarity

Then the Interim Report of the Steering Committee under "Principles of Devolution' states 'the Principle of Subsidiarity is to apply to the new Constitution.' This principle of subsidiarity, as defined in the Report is 'whatever could be handled by the lowest tier should be vested in it. More power and authority are to be devolved to the local authorities. This principle should be a guide in deciding on the allocation of subjects and functions between the three tiers of government. The new Constitution should recognize the Northern and Eastern Provinces as a single province." These provisions if enacted in the new Constitution would result in an abdication of powers of Parliament thereby affecting its supremacy.

In conclusion it must be stated that devolution of police and land powers to the provinces is not conducive for the security of Sri Lanka and should therefore be avoided.

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