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Comparative Constitutional law

Federal
system

L. Jasu
2014/L/039
Dpt. Of Law

CONTENTS
1.
2.
3.
4.
5.
6.

Introduction
Nature of federalism and Unitary State
Comparison between different federal country
My proposal
Conclusion
References

Introduction
In nowadays world wide number of system for running of government structure as
efficiency. The following system can be identify as the those particular application of the
government system.
Unitary
Federal
The distinction between unitary and federal is depended on the devolution of the powers.
when the powers of the government centralized its can be called as the unitary state and
when the powers of the government decentralized or delegated to the subordinate body. It
can be labelled as a federal system.
According to article 2 of the Sri Lankan constitution 1 Sri Lanka is an unitary state Also this
was protected by Article 832.
According to the Sri Lankan current situation its speak about the debating topic of new
Constitutional mechanism. When trace back history of Sri Lanka conferred the emphasised
matter of the establishment of the federal system to the Sri Lanka. But this matter is
always controversial. there are number of golden opportunity for power sharing matter by
way of federal system and other mechanism missed in the previous years.
Examble- S.W.R Bandaranayake he was the person firstly advocated to Sri Lanka for federal
structure , Lenolard Woolf memorandum, Federal party ( S.J. Selvanayagam ) memorandum
these memorandum are revealed about the federalism. However these golden
opportunities had been not applied by the former Sri Lankan government by way of
opposed of the Sinhala majority.
In this scenario it can to be observed which system of government is suitable for Sri
Lankan situation and by way of adopting the particular system of government could be
relied on sustainable system or not? supra the many well known scholars and the people
tamil who are residing is Sri Lanka specially northern and east and some less number of
Sinhala people suggested that adoption of the federal system is the solution for the power
sharing matter and the ethnic problem.
Inoder to ascertain of the applicability of federal structure it wants to compare the federal
system which is running in nowadays to in world wide too for this instance the following
country taken to the comparison swiz Canada,u.s the above comparison show that
succesful power sharing devolution going in smoothly in aforesaid country by way of the
application of the federal system so in my point of you the following matter can be adopted
in the Sri Lankan government system for the power sharing devolution such as.

13th Amendment

1 Constitution of the Democratic Socialist Republic of Sri Lanka 1978 S1(The republic of Sri Lanka is a
Unitary state)
2 Constitution of the Democratic Socialist Republic of Sri Lanka 1978 S83( In Article 83 its says to Bill
for the amendment or for the repeal and the replacement of or which is inconsistent with
any of the provisions of Articles 1,2,3,6,7,8,9,10 and 11the government should take the
permissions from the people of the country by holding a referendum.)

The 13th Amendment in Sri Lanka was a significant move towards Constitutional reforms. It
was a product of the Indo-Sri Lanka accord of 1987 (1987 July 29 th). It largely drew on the
Indian federal set-up. As per the 13th Amendment, Sri Lanka would devolve some powers to
the provinces. In a manner similar to the Indian federal set-up, it had three lists which detail
power-sharing between the Central Government and the provinces. It also provided for
merger of the Northern and the Eastern provinces, and for certain financial provisions for
the provinces. The provinces will have an elected council, and a Chief Minister and
Ministers.
However 13th amendment did not become a solution for the ethnic problem. With the 13 th
amendment still Sri Lanka continue its unitary nature because provincial council is directly
controlled by president through the governor3 So this was a failure effort.
"Federalism is essentially a system of voluntary self-rule and shared rule. This is
implied in the derivation of the word federal, which comes from the Latin foedus,
meaning covenant. A covenant signifies a binding partnership among co-equals in
which the parties to the covenant retain their individual identity and integrity while
creating a new entity, such as a family or a body politic, that has its own identity and
integrity as well. A covenant also signifies a morally binding commitment in which the
partners behave toward each other in accord with the spirit of the law rather than merely
the letter of the law."

key characteristics
rule of law
democracy
subsidiarity
human rights
freedom
equality
The Federal System is not a monster that separates, divides and wrenches asunder peoples
and nations. In Sri Lanka, partly due to the Federal Partys visionless and unfortunate Tamil
version of the name Ilankai Thamil Arasu Kadchi (the Ceylon Tamil Kingdom Party) when it
split from the All Ceylon Tamil Congress and mostly due to mischievous racists elements
who actively promoted discrimination against the Tamils, the term federal system became
synonymous with separation and a symbol of threat to the territorial integrity of Sri Lanka.

The federal system is an ideal one for countries that are multicultural. Some of the stable
democratic states in the world either have a federal structure or are states where the
central government has delegated considerable authority to self-governing regional
governments. France , though in principle a unitary state, is an excellent example of the
latter. Italy has twenty such regions of which five enjoy autonomous status. The Republic of
China has twenty-two provincial councils and five autonomous states apart from two special
administrative regions, Hong Kong

3 Art 154B (2) of the 13th amendment to the Sri Lankan constitution (The governor shall be
acted during the pleasure of the president)

While Spain has seventeen autonomous communities, Britain has in recent times
established a great deal of decentralization for Scotland and Wales . Other countries in
Europe that have federal systems are Austria , Belgium , Germany , Serbia and
Montenegro , and Switzerland . There are two principal communities in Belgium and the
federal system has proved quite a success in that country.In Sweden where they have a
Finnish minority in some districts, and wherever they constitute a considerable ratio of the
population, Swedish and Finnish languages and cultures enjoy parity of status. There are
full-fledged federal states on every continent. In Asia India, Pakistan and Malaysia are
federal states. Australia has six states and two territories
On the North American continent, all three countries are federally administered; Canada ,
USA and Mexico . In Canada both English and French are official languages, even though
only the province of Quebec is considered French and the rest English. Argentina , Brazil
and Venezuela are federal states in South America .

In my view the suitable federal structure to Sri


Lanka
In federal structure devolve to central to states so this mechanism not take in to the unitary
structure. There by in current situation how to build up the aim of federal structure in
question.
This memorandum gives the answer as follows,
In broadly Sri Lanka federal state system shall be divided in two body. First one is central
government other one is states governments. The spilt of the states is impressed by Swiss
federal model.
Therefore Two state shall empower by the constitution manner of power sharing. In
corresponded to the Swiss federal model mainly Swiss model shall be highlighted by this
memorandum.
The central government shall be known as NATIONAL CENTRAL GOVERNMENT or NATIONAL
STATE. States shall known as STATES. Specially to called CONTONS OF OUTONOMOUS
state government.

DELIMITATION COMMITTEE
In a federal system two government sector can be exercised power. In question how to the
cantons of autonomous can to be divided in the current unitary state.
This memorandum shall recognized to appoint the Independence commission for
delimitation territory for cantons of autonomous.
The member of this commission shall be 8 and president, prime mister, leader in
opposition, and others exist party can nominate each 2 person. But it must wanted one
person of that each person should be come from the minorities and the decision should be
taken in the way of unanimous and at least with in eight person four person from minorities
to take decision. It compel state Sinhala, Muslim, Tamil, Indian Tamil should represent in the
commission.
POWERS OF THE COMMISSION
However this commission enjoined this memorandum to when limit or put the boundary to
the district to form a state of autonomous which is prescribed by this memorandum after

when it will come into force where two or more cantons of autonomous desire to joint in
common interest it should be perform by this commission to put a boundary.
The contons of autonomous shall be prescribed by virtue of this memorandum.
1.
2.
3.
4.
5.

Anuradhapra, Puttalam, Krunegala, Gampaha


Polannaruwa, Ampara 1/3, Matale, Badlla, Kandy
Monarahala, Matara, Hambanthota, Rathnapura
Kegalla, Colombo, kalutara, Galle
Jaffna, mullaitivu, Kilinochi, Vavuniya This is come from northern province and
Trincomale, Batticaloa, sort of area which is the region under Tamil people residing of
Ampara as a one canton
6. In Ampara, Kalmunai to Akkaraipathu shall be gone to Tamil Muslim people as a one
canton
7. Nuwareliya for Indian Tamil people as a one canton
THE STRUCTRE OF CENTRAL GOVERNMENT
The unite of national state can be comprised two chamber.
1. House of National representative
2. Senate
3. These two chambers are empowered for the central government. House of National
representative consist with 190 members who will be appointed by a general election
under the proportional representation. The member of the senat is 35 and 28
appointed by a general election under the communal representation. 4 seats for
every single autonomous, 3 seats for the majority of the autonomous, 1 seats for the
minority within the autonomous. There are other 7 person who will come under the
national list, one person per a one autonomous, who will be the well educated person
in the country and will be appointed by the nomination of central government and
with the suggestions of the 28 senat members.
THE STRUCTURE OF CONTON AUTONOMOUS
Each canton can establish one chamber and shall be citeds CHEMBER OF CONTON and
shall constitute 100 members. The head of chamber shall be chief minister and each conton
has the power of AUTONOMY , SELF DETERMINATION , SELF RULE. But not right to
separate from federal structure.
DEVOLUTION OF POWER
The devolution of powers between central government and states of autonomous. The
following are those division of powers constructed by main three federal devolution.
Powers under the central government
1. National postal communicational service
2. National finance
3. International relationship
4. National citizenship
5. National formatting national policies
6. National technical and higher education
7. National arm forces
8. National economic
9. National transport
10.National legislature
11.National currency
12.National declaration of war
13.National emergency regulation and security

THE POWES OF THE STATES AUTONOMOUS


1.
2.
3.
4.
5.

Local transport
Local culture
Local postal and communication service
Local public health, agriculture, education, citizenship
Local police power, lands, legislature, economic

Concurrent powers
1.
2.
3.
4.
5.
6.
7.
8.
9.

Transportation
Taxation
Spend money for general welfare
Legislature
Agriculture
Education
Citizenship
Finance
Postal and communication service

EXECUTIVE POWER
National executive power shall be exercised by president as prescribed in 19 th amendment
of 1978 and cantons executive power shall be exercise by chief minister and body of
executive.
LEGISLATIVE POWER
National legislature power vested with central government has the power to create
legislation for whole nation in order to public policy. So superior legislation power vested
with the central government. At the same time cantons of autonomous also has the
legislation power but it is subject to central government legislation jurisdiction. So cantons
legislation is not superior it compel to followed the instruction of the central government.
But it not construct that in always central government obstruct the power of canton. But for
example when emergency regulation proclaimed the comprehensive legislation hand over
to central government.
When central government want establish or create the law they want to get at least 25
members support from senat it wanted.
No only law shall be passed which is inconsistence to minority safe guard. If any
circumstance arise and dispute can be taken to the account under the independence of
judiciary judicial review supreme court.

JUDICIARY POWER
Supreme shall be exercise judicial review. When any conflict between central government to
canton of autonomous and conflict states those dispute shall be handled by supreme court.
Each autonomous has separate court system. The court system includes
1. District court ( lesser criminal and civil power )
2. Appeal courts
In a federal system supreme court vested with independence judiciary. ( Any one cant
involve to both central and autonomous )
The responsible of final jurisdiction of the autonomous are vested to supreme court

Federal supreme court


Autonomous one Appeal court criminal Civil Administrative
District one by oneCriminal civil Administrative
INDEPENDENCE OF JUDICIARY COMMISSION
Independence judiciary commission will be appointed by the constitutional council by virtue
of 19th amendment.
By virtue of 19th amendment constitutional council can be form and perform.

PUBLIC SERVICE COMMISSION


1. Will be appointed by the constitutional council
2. Every autonomous should have one public service commission
3. Every appointed made by public service commission

Conclusions
Federal structure may be a desirable solution in promoting a culture of peace in Sri Lanka,
but it will be successful only in an environment that is pervaded by respect for pluralism. So
one is to take into account the ethos of society as a whole. There must be a high degree of
public awareness of the value systems that are sought to be embodied in the constitutional
arrangements. Some degree of egalitarianism is necessary in order to make a success of
some of these principles, so one is to have a holistic conception of human development,
and the political and economic structures that come into being must reflect that
commitment to pluralism, secularism, and the functioning of representative democracy.
Developing a federal governance model to Sri Lanka situation has many difficulties. Not
only intensity of the ethnic conflict and the history of the problem, there are major current
problems such as the inability of demarcation of geographical boundaries along ethnic or
religious lines, strong polarized society along ideological and ethic differences and violent
dominant issues.

REFERENCES
Constitution of the Democratic Socialist Republic of Sri Lanka 1978

http://www.forumfed.org/en/where/canada.php
Theories of Federalism
by Wayne Norman (Editor)
Federalism: Origin, Operation, Significance (Hardcover)
by William H. Riker
Power sharing in Sri Lanka. Constitutional and political documents 1926-2008 ( Tamilmaran)
Ceylon daily News