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By Dr. Lakshman Marasinghe,

Emeritus Professor of Law, University of Windsor, Windsor, Ontario, Canada.
Visiting Professor of Law, University of Colombo, Attorney-at-Law and Barrister-at-Law, Inner Temple

That will determine how strong the federated units are, and how strong the epicentre of the Federation is. This will in turn determine whether it will be a centripetal or a centrifugal federation.

Third, the powers that the epicentre and the units finally receive are regarded as co-ordinate powers and not delegated powers. The powers of the Provinces presently constituted are delegated powers in some and some are subordinate powers. That is why we at the present moment in Sri Lanka have only a devolution of powers within a Unitary State and not a Federation.

In the case of a Federation, the powers being co-ordinate, neither the Federal Parliament at the epicentre of the Federation nor the Federated units at the periphery have any power to interfere with each other through legislation. Neither of these entities have the competency to change the constitution on a way that the established Federal structure may be changed.

The Federal structure therefore becomes a basic structure of the constitution, and therefore becomes unrepealable and unamendable using any known constitutional device. Once the Federation is established under the constitution, the federation is subordinate only to the constitution. Each Federal entity is independent and functions as such within the powers vested in each such entity under the constitution. However if there arises a conflict between Federal powers and Federated powers then, and then alone, the federal claim in the conflict shall prevail.

This is only applicable where the conflict arises as a result of a clear overlap between the federal powers and the federated powers. This is necessary because the Federal parliament at the epicentre, when it legislates, do so for the whole of the Federation and not for any particular unit. And in the overlap, it is thought that it would be beneficial to allow the Federal powers to prevail over the federated powers.

Fourth, federalism becomes necessary where different groups of citizens, identified by whatever criteria, have differing needs to be fulfilled. Therefore, federal constitutions are commonly asymmetrical, providing different powers to the several federated units that form the federation.

Fifth, the co-ordinate nature of the relationship between the epicentre of the federation and the federated units makes both the Federal Parliament at the epicentre and legislatures in the federated units incompetent to make any changes to the federal structure, including the various powers given to each of these bodies, under the constitution. Nothing short of the formation of a new federation could change the structure and the powers of an established federation.

In this light the Scottish Assembly established under the Scotland Act of 1998 and the Welsh Assembly established under the Government of Wales Act of 1998, do not form co-ordinate bodies, but subordinate bodies. These statutes are repealable and therefore do not bind successive parliaments.

Sixth, in a perfect federation a balance of powers may be struck between the powers of the federal parliament, and that of the federated units. But this is often difficult to achieve. Therefore in order to maintain a close and symbiotic relationship between the two levels of government, sometimes if my be necessary to establish what is called a "constitutional embrace." In order to achieve this state of constitutional bliss it may be propitious to divide laws affecting the Federation into four categories.

In the first two categories are laws which may be passed by the Federal Parliament, where some of them are designated to be executed by the Federal executive and others by the executives of the federated units. The next two categories form those laws which are passed by the legislatures of the Federated units, where some of these could only be executed by the executive machinery of the federated units and some others by the executive of the Federal government.

This establishes an inter-dependency between the Federal government and the governments of the federated units, thus keeping each other bound through the establishment of a symbiotic relationship.

Some concluding thoughts

The framing of a constitution is a task fraught with a number of difficulties. Therefore it is important that a constitution should not be the result of the collective thoughts and endeavours of a majority, or of a minority. It should involve the whole of the population of a country. And their collective thoughts should be largely adumbrated in the constitution. Within a constitution, it would be a mistake to provide Fundamental Rights to groups of people, as previous constitutions of Sri Lanka had done.

These rights must be guaranteed to all persons, equally. There should not be stated minority rights, leaving what is not stated to be interpreted as those applicable to all. In fact, a constitution should not declare minority rights. It must declare rights. A constitution provides a framework within which both constitutional powers and subordinate legislative powers may be exercised. The constitution must recognize the needs of the country without paying undue attention to constitutional or political labels.

Let the labels fall once the needs get stated within the constitution. The "constitutional embrace" earlier mentioned creates an interdependency between the two units. Interdependency helps to work out a functioning autonomous state. It does so because each unit of the federation remains aware of the existence of the other elements of the federal equation. And there by each one of the component units that form the federation remains aware of the other's needs and concerns upon a continuing basis. Isolationism within a federation defeats the underlying reasons for its formation.

Therefore, before autonomous states are established, particularly within a unitary state, it is important that each of us recognize the needs, aspirations fears and common concerns of all others, and based upon a thorough understanding of these, proceed to answer them within the body of the resulting compact. This may be the last opportunity that Sri Lanka may have for forging a sustainable peace based upon a constitution accepted and subscribed to all who live upon this land. This opportunity should be used with great care and skill displaying maturity and statesmanship.

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