Mr. Dayan Jayatilleka in his excellent, analytical reply to the TULF Leader Mr. Anandasangaree (a man whom many Sri Lankan’s revere for his integrity, courage and abilities) has succinctly summarised the current position as regards the vexed matter of Unitary vs Federal. Says he: "Federalism is neither desirable for S. Lanka at the present stage of history, nor is it remotely feasible". As to its future feasibility one cannot make predictions now, considering the events in Western Iran and Kosovo engineered by the Western powers in furtherance of an Agenda to break up developing countries for easier economic exploitation. But as regards the current non-desirability of Federalism, many would agree with DJ’s view. Federalism for S. Lanka has decidedly inherent perils. Others such as M/s Niville Laduwahetty, S. L. Gunasekera, ‘Fox Watch’, and Nalin Swaris too have pointed this out. Since the APRC is to finalise its recommendations in the near future, it becomes necessary to highlight the dangers inherent in Federalism.

In doing so, one can do little better than summarise the contents or the speech made by the eminent Constitutional Lawyer Mr. H. L. de Silva, PC, at the Lalith Athulathmudali Oration on 2.11.05, which was published in The Island. H.L’s dissection of the Federal Monster is summarised briefly here. For convenience I have classified its contents broadly under the following headings:

(A) Legal aspects. (B) Specific Dangers. (C) Precautionary Measures.

A) Legal Aspects:

1) Sovereignty is in the people under our Constitution in all its plenitude, without reduction or diminution. The people cannot validly deprive themselves or future generations or these powers.

2) Based on the above Premise, even a Referendum is questionable.

3) Sovereignty can therefore be subverted only by subjugation or by violence against the legal order.

4) A legal potential arises for a Federal unit to form a Territorial Nucleus for a separate State. (More of this in "Specific Dangers" below.

HL. pointed out that Mr. Athulathmudali also had foreseen the perils of Federalism and of the Indo-S. Lanka Pact and had highlighted these at that time.

It is the future generations that would face the full consequences of the India-SL Pact, I might add.

B) Specific Dangers: For convenience I classify H.L’s Analysis under the following headings, namely: (1) International Dangers, and (2) Other Overall Dangers.

a) International Dangers/Consequences:

1) The process of forming territorial units is a process of "Ghettoisation which, if combined with their factors (eg, the ISGA) - can lead initially to Confederation. Quebec is cited as an example.

2) If a Territorial Entity purports to secede (as did occur with the ODI Declaration by the N-E Prov. Council Chief Minister, Perumal in 1987) there would be a strong potential for the International Community (IC) to legitimise and recognise such entity as a Separate State. Kosovo is a glaring example, I might add.

3) A Question would arise as to what constitutes Secession? Here, the perils of Federalism are clearly seen. While ODI (open secession) would obviously constitute secession, other lesser political developments could/would be considered as equal to secession, eg, some constitutional breakdown, non-compliance with constitutional/legal requirements (CFA violations etc). These could/would open the doors to International/IC recognition of the recalcitrant entity.

4) Significantly, it is the real politic issues of the recognising state, and not, repeat NOT, the political, moral or other principles/conditions etc of the federal state that would constitute the determinants of recognition. This would be a fundamentally amoral exercise says HL.

5) The absence of binding rules of principle, and of prohibitory rules that preclude recognition, have grave consequences for economically and militarily weak States when confronted with separatist attempts.

(b) Other Overall Dangers: HL cites two very specific perils here, viz

1) The ‘Domino Effect’. Ethnic Fedaralism can lead to like demands by other ethnic groups. India had to enact special laws to curb such centrifugal tendencies. HL surmises a unitary centre is essential.

2) A very grave peril is that in a Federal State, in the event of a successful secession, the seceding entity will, on the Legal Principle of "Uti Possidetis ea Possideatis" inherit as its International Boundaries, the internal boundaries it had as a Federal Entity.

I may supplement HL’s point here by inviting one to ponder the effects that one particular term of the many prejudicial Terms in the UNP-LTTE CFA of Feb. 2002, could have had in relation to this Legal Principle, had the LTTE succeeded in secession, vis a vis the term in the CFA that for the first time recognised in writing an "LTTE controlled territory". HL cites Quebec as a possible ‘possideatis’ example.

C) Precautionary Measures: Under this heading (on my classification), HL lists certain basic safeguards that must be taken as regards any future Constitutional amendments that may be contemplated. These are:

1) Safeguards against Constitutional breakdown. Some provisions on the lines of Article 154L of the 13th Amendment is required.

HL comments that this safeguard "was recklessly jettisoned in the Constitutional Proposals of 1995-2000". My personal doubt as to HL’s assertion here is whether this safeguard was "recklessly" done away with, or deliberately jettisoned by the framers of those proposals. India, HL points out, has extraordinary provisions for Central control in necessary instances, so that India "is not in truth a typical Federation". I believe the USA too has strong Central control, with the Federal Govt possessing overriding Military and Police powers over the individual States. So strong Central control is a ‘sine qua non’.

2) Article 157A of the 13th Amendment which prohibits secession must remain an essential part of, and not be derogated from any future scheme of constitutional change. Here again, HL points out it was significant that the 1995-2000 Draft which provided more devolved powers to the "Regional" units, contained no provision prohibiting secession. May I add that everyone knows who was responsible for that treacherous draft.

That summarises HL’s Cautionary observations on the perils of Federalism. Beyond these specifics, we might note some general comments HL makes, viz:

The Federalist demand is nothing less than an attempt for a Separate State under a Federalist cloak, as envisaged in 1947 by the ITAK on Chelvanayakam’s Dictum of "a little now, more later." For an ethnic problem like ours, Federalism is not a Panacea. If a Federal State fails, the chances of a Federal Unit seceding successfully are greater than in a Unitary State.

"Peace at any cost ignores the distinction between "Peace & Appeasement". ‘Peace’ is a just, fair settlement for all Parties. ‘Appeasement’ is often an unprincipled surrender of Rights/Powers to satiate often unjust demands. (May I add that we saw this type of treacherous Appeasement via the CFA & the then Govt’s pro-LTTE actions in 2001-2004). Defeatist propaganda (like "an unwinnable war") saps the national will to resist evil forces, resulting in subjugation. These observations of HL (both the Specifics & the General given above) need to be carefully considered in future APRC discussions. HL’s Legal Analysis, and Dayan Jayatilleke’s political Analysis (in his reply to Mr. Anandasangari referred to right at the beginning) are definitive and cannot be wished away. The APRC Chairman Dr. Tissa Vitharana’s First Summation allegedly of the APRC’s Consensus (the so-called Majority Report) appeared to me (and many others too perhaps) as an attempt to "pass off" his and his LSSP’s stand on Constitutional Reforms which all know is Federalism. So, much caution by all APRC Parties is required.

A few of my own comments - Sri Lanka is too small a country for Federal systems. Federalism is an emergent political arrangement (eg, USA, India Germany) and not one to be artificially imposed. The latter tends to break down in due course (eg, Yugoslavia, "Czechoslovakia, Malaya-Singapore, Pakistan-East Bengal). Ample Devolution is possible within a unitary State.