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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)

In the recent Oslo declaration between the GOSL and the LTTE it was declared that the parties have, in their collective wisdom, agreed to charter a constitutional proposal based on the establishment of autonomous state structures, but within a unitary state. Such a constitutional structure would then be one that, through a constitutional process be legitimated as the third sovereign constitution for this island.

A constitution, by its very nature, provides a basic law upon which every law of the land derives its validity. While legitimating every law of the land, the constitution charters the legal relationship between the citizens and the state and the legal relationships between citizens intense. A future constitution for Sri Lanka must, as a first order for inclusion, contain the basic rights and duties between all people that inhabit this island and their relationships with the State.

Those laws which protect the rights of people - their fundamental rights and duties - must be stated in their widest amplitude. There must not be a differentiation between minority rights and majority rights, weighed and measured on fine scales like when selling precious metal in an oriental bazaar. There should be rights allowed to all equally.

And these should form some of the fundamental features or the basic structure of the new constitution. In the Oslo declaration it was conceded that the Tamil people have an inherent right to internal self-determination. In Public International Law the right to internal self determination is limited to the people's right to pursue their "political, economic, social and cultural development within the framework of an existing state" (Reference Re: Secession of Quebec - (1998) 161 D.L.R. (4th) at page 438). It was after a very careful perusal of the available authorities that the Supreme Court of Canada in the Quebec secession case made that observation.

The three paradigms for a Federal State

It appears from their joint statement that both the GOSL and the LTTE have agreed to establish a form of government containing a Federal arrangement within a Unitary State. Within the Commonwealth of Nations there are in fact three types of Federal States. First, a centripetal Federal State where the power is concentrated at the epicentre of the Federation - which is the body that comprises the Federal government. The Federated units of the Canadian Federation, the Provinces have much lesser power than the federal government at the epicentre - the Parliament in Ottawa.

Therefore a good example of a centripetal Federation is the Dominion of Canada. The Supreme court of Canada (ibid. at page 412) observed that "...on paper, the (Canadian) federal government retained sweeping powers which threatened to under mine the autonomy of the provinces". Second, there is the centrifugal Federal States where the power is greater in the Federated units that at the epicentre of the Federation. An example of this is The Commonwealth of Australia, where the Australian States have much greater plenary power than the government of the Commonwealth of Australia.

Third, the Federal structure of the Indian Union. Under the Indian Union the Constitution provides a mixture of a Federation and a Unitary State. It has been observed by leading Indian Academics, that the Indian Federal structure is a Federal system containing a large measure of unitary features. Basu, had described the features as a federal system with a Unitary bias, while Jain had described it as a Unitary system with a strong Federal bias.

The fact that the epicentre of the Federation in New Delhi has the power under the constitution to dismiss a State government and impose Presidential Rule is a feature that is not commonly associated with a Federation. The Indian Model is therefore is a constitutional cross-break between a Federation and a Unitary State. This model is most valuable if the avowed intention of the parties is to create an autonomous arrangement within a Unitary State.

Some basic features of a Federation

First, there is a division of legislative, executive and judicial powers between the epicentre of the Federation and the several Federated units. These powers determine the nature of the Federation. Namely to which one of the three above-mentioned categories does the Federation belong. Second, as the Sri Lankan position involves a movement from an unitary state into a federal state the division and allocation of powers would determine whether the resulting state establishes a centrifugal Federation or a centripetal Federation.

Here, what is referred to as the "Bean Bag" phenomena becomes operative. The unitary state is akin to a bean bag. In the creation of the Federation, a quantity of beans is siphoned out into several baskets. Each basket representing a federated unit. The quantity of beans siphoned out into each basket shall determine what quantity of beans shall remain in the oncefull and completed bean bag.

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