|Sunday, 18 January 2004|
Federalism: Myths and realities
by Rohan Edrisinha - Faculty of Law, University of Colombo and Centre for Policy Alternatives
Excerpts of a speech delivered at the Executive Seminar on Human Rights for senior officers of armed forces on Saturday, January 10.
The agreement reached between the Government of Sri Lanka and the LTTE to explore federalism and internal self determination within a united Sri Lanka as the basis of a political solution to the ethnic conflict in late 2002 raised hopes for a durable peace in the island. It helped allay the concerns of the skeptics that the LTTE was a maximalist organisation which was not interested in accommodation and compromise. The breakdown in the negotiations since April 2003 may have rekindled the views of the skeptics, but the constitutional debate in the country in the past one and a half years has focused on federalism which is in itself a significant development. Many of us have argued for years that a solution must be based on federal lines.
The evolution of Sri Lanka's ethnic conflict can be likened to a snowball rolling down a hill. At the beginning it is small, but as time passes, it develops a momentum of its own, becomes larger and more complex, absorbs other elements, thereby making it more difficult to respond to. Sri Lanka's ethnic conflict has evolved from one based on questions of representation, grievances based on discrimination and language to a demand for decentralisation to autonomy to devolution. More recently the focus has been on Tamil aspirations including nationhood, self determination and confederation. The response of Sri Lankan governments has often been too little too late. If the Bandaranaike-Chelvanayakam Pact had been implemented in 1957 we might have averted the bloody and traumatic civil war that has plagued this country for many years. The Draft Constitution of August 2000 might have actually constituted the basis for a political solution to the conflict if it were introduced in the early 1990s.
Furthermore every initiative that fails or is reneged upon, every set of talks and negotiations that collapses, creates its own dynamic of betrayal, distrust and suspicion that makes the next venture or round of talks that much more difficult. In terms of process, the next round of serious negotiations will, therefore, have to contend with the failed negotiations of 1994-5. In terms of substance, the failure of the Thirteenth Amendment to the Constitution will inevitably provoke a demand for cast iron guarantees to prevent cental encroachment on devolved powers in any future package of constitutional proposals. It seems likely that this will require moving beyond the frontiers of a unitary state.
One of the contentious issues that surfaced in the constitution reform project of 1995-2000 was the courageous decision of the drafters to delete the provision/label in the constitution that Sri Lanka is a unitary state. There remain widespread misconceptions about the terms "unitary" and "federal". The terms united and unitary are often used interchangeably particularly in the Sinhala language. Therefore, those who advocate a departure from the unitary model are perceived as advocates of division and secession. The fact that the campaign for federalism is identified so closely with Tamil political demands also exacerbates the problem.
Federalism in Ceylon's political discourse
It is significant to note that long before Tamil political leaders advocated federalism, the young S. W. R. D. Bandaranaike in the mid 1920s and the Kandyan Sinhalese representatives before the Donoughmore Commission in the late 1920s were advocates of a federal Sri Lanka. The Kandyan Sinhalese advocated a federal Ceylon with 3 provinces including a province for the north east. In fact it is possible to argue that it was the Kandyan Sinhalese and not the Ceylon Tamils who were not only the champions of a federal Ceylon, but also the merger of the north and east. The Kandyan Sinhalese in fact viewed themselves as a nation and many of the documents of the organisations they established to advance their interests used language and arguments similar to Tamil nationalists and Tamil political parties in the more recent past. In a memorandum to the Donoughmore Commission, the newly created Kandyan National Assembly consisting of many leaders who had moved away from the Ceylon National Congress, declared:
Ours is not a communal claim or a claim for the aggrandizement of a few: It is a claim of a nation to live its own life and realise its own destiny....We suggest the creation of a federal state as in the United States of America.... A federal system....will enable the respective nationals of the several states to prevent further inroads into their territories and to build up their own nationality.
The decision to insert the unitary label into the First Republican Constitution seems almost perverse in that it was a direct affront to Tamil aspirations at the time. The Tamil political leadership attempted to address the Tamil people's grievances through the Bandaranaike-Chelvanayakam and Senanayake-Chelvanayakam Pacts both of which included substantial devolution of power. The Federal Party, the main Tamil party at the time, campaigned at the 1970 General Election on a platform of Federalism. Its manifesto declared,
The Tamil-speaking people of Ceylon also believe that the Federal-type of Constitution that would enable them to look after their own affairs alone would safeguard them from total extinction. Only under such a Constitution could the Tamil speaking people of this country live in dignity and with our birthright to independence as equals with our Sinhala brethren.
Significantly the manifesto included a categorical assertion against separation.
It is our firm conviction that division of the country in any form would be beneficial neither to the country nor the Tamil speaking people. Hence we appeal to the Tamil-speaking people not to lend their support to any political movement that advocates the bifurcation of the country.
There was no overwhelming need to introduce the unitary label. The Soulbury Constitution contained no label, which is the practice in most constitutions in the democratic world. It amounted to a slap in the face of the Tamil political leadership.
Myth about establishing federalism
A myth about federalism is that a federal form of government is always established by previously independent or sovereign states coming together to constitute a new state. This myth coupled with the provision that Sri Lanka shall be a Union of Regions has unfortunately created the impression that under the Legal Draft of January 1996 or the Draft Constitution of 2000, Sri Lanka will be divided into quasi-independent regions which will thereafter enter into a federal arrangement. There is therefore an implicit division of the country or at least an implied recognition of independent regions. Constitutional scholars recognise that there are two methods by which a federal form of government may be established. The more common method known as Integrative Federalism is where previously independent states integrate to form a new political entity. The second method known as Devolutionary Federalism is where a country with a previously unitary form of government opts to change to a federal system. As Patrick Peters of the University of Leuven, Belgium, has explained.
Integrative Federalism refers to a constitutional order that strives at unity in diversity among previously independent or confederally related component entities. Devolutionary Federalism on the contrary refers to a constitutional order that redistributes the powers of a previously unitary state among its component entities, these entities obtain an autonomous status within their fields of responsibility. The principal goals to organise diversity within unity.
Belgium, Spain and Nigeria are examples of countries which have adopted Devolutionary Federalism and moved from unitary to federal forms of government. The South African Constitution of 1996 has moved in that direction too.
A state has no right to secede in the United States, Canada and most countries with federal forms of government. It is absurd to argue that in all countries with federal forms of government the states regions delegated powers to the centre. Delegation implies that the powers given can unilaterally be rescinded. This is not the case in most 'federal states.'
The preamble to the Australian Constitution describes the federation as 'indissoluble.' After the American Civil War, the Supreme Court declared that 'the Constitution in all its provisions, looks to an indestructible union composed of indestructible states.'
While the Canadian Constitution like the American, is silent on the issue of secession, constitutional scholars are in general agreement that unilateral secession of a province would not be constitutionally valid. This position has been confirmed by the Canadian Supreme Court in its determination on the Reference on the Secession of Quebec.
In its landmark decision, the Supreme Court of Canada held that even if a majority of the people of Quebec voted 'Yes' in a referendum on secession, this would not entitle the province of Quebec to secede inilaterally.
The Constitutions of some former communist countries in Central and Eastern Europe which had a nominal commitment to a federal form of government, did contain a nominal commitment to the right to secede.
Federal constitutions may or may not include the right of a state to secede. Delegation of power from either the centre to the states or the states to the centre, is incompatible with basic principles of federalism. Federal forms of government require power sharing which cannot be amended or withdrawn unilaterally, in short, power sharing with greater security and guarantees.
It is clear that
a) A State with a unitary form of government can through the introduction of devolution of power change to a state with a federal form of government.
b) Though the draft constitution of August 2000 abandoned the label 'unitary' it did not introduce a federal form of government as a number of basic federal features have not been incorporated in the document.
Lessons from South Africa
The issues of Federalism and devolution of power featured prominently in the South African constitutional debate which preceded the adoption of the Final Constitution in May 1996. Like in Sri Lanka, Federalism was a dirty word, but for different reasons.
The African National Congress was concerned that the advent of democracy in South Africa should not merely include the capture of a formal, nominal kind of power. It believed that the power should be real and substantial, and include the power to transform society by effecting radical change. Since Federalism entails the division of power and the granting of autonomy to provinces, the ANC felt that a federal form of government would impose unacceptable limits on the central government thereby preventing the adoption of measures to erase the legacy of years of apartheid.
The Nationalist Party of F.W. de Klerk, the Inkatha Freedom Party of Mangosuthu Buthelezi and the liberal, Democratic Party, lobbied strongly in favour of a federal form of government.
The final version of the Constitution due to steadfast ANC opposition rejects Federalism, but introduces substantial devolution of power which includes more federal features than the Sri Lankan legal draft on devolution. The Constitution does not refer to either of the labels, Federal or Unitary.
It does provide, however, for a clear division of powers between the centre and the provinces, a National Council of Provinces which provides for the 9 provinces to be represented in the bi-cameral central Parliament, and for the provinces to be consulted before constitutional amendments are introduced. The supremacy of the Constitution is unequivocally recognised as a basic value of the document. All law and conduct inconsistent with it is void.
Myth about labels
Another myth promoted by the opponents of the provisions of devolution in the Draft Constitution is that a Constitution must bear either the label 'unitary' of 'federal' and that most countries bear the unitary label. This is completely false. Many countries which have unitary and federal forms of government do not refer to these words in their constitutions. Sri Lanka did not have either label until 1972.
The following countries do not use either label"
South Africa, the Philippines, Singapore, Thailand, Brunei, the People's Republic of China, the Republic of Korea, Japan, France, the United Kingdom, Italy, Norway, Spain, India, Nepal, the United States of America.
The Indonesian Constitution contains a provision that the 'state shall be unitarian.'
Australia, Belgium, Germany, Switzerland, Canada, Pakistan, Russia and Malaysia have provisions in their constitutions which refer to the words 'federal' or 'federation.'
It is clear therefore, that labels are not necessary. Most countries do not use either label in their constitutions. What is more important is the nature of the State and the extent of the autonomy and powers devolved to the units. In the Sri Lankan context, the deletion, of the unitary label does not necessarily mean that the constitution is converted automatically into a federal constitution. The insertion of a federal label does not necessarily mean that the constitution is ipso facto federal. Labels do not matter, division of power does. Whether a country is unitary or federal depends on how power is divided or shared.
Need for a new initiative
Sri Lanka's ethnic conflict has evolved and snowballed into a complex political challenge that requires an imaginative and creative solution. A political solution must include fundamental constitutional reform. This, in turn, should include the adoption of a federal constitution. This need not require the insertion of a federal label,but should include the basic features of federalism described above. A federal constitution recognises unity in diversity, pluralism and autonomy within a framework of a united country. It also avoids a concentration of power in a single political institution thereby acting as a check on authoritarianism. While it is obviously a more complex system of government, it may, in the Sri Lankan context, if it is not too little too late, offer the only basis for a political solution to the ethnic conflict, a solution based on justice, peace and dignity.
Since a political solution will also have to recognise the claim to internal self-determination, it is likely that a federalism plus constitutional solution will be necessary. Sri Lankans may have to contemplate asymmetrical federalism where perhaps the north east is considered distinct and where additional powers are granted to that region, like, for example, in Quebec, Canada. It may be desirable to reduce the number of units in other parts of the country so that Sri Lanka has a federal Constitution with three or five regions.
The debate has, in a sense, just begun. The first step is to have a clear understanding as to what federalism is, and is not, at a constitutional or legal level. It involves more than that however. The Federal Idea embraces both self rule and shared rule and is based on the notion of power sharing and partnership.
The breakdown in the negotiations in April 2003 could indicate that both the Government and the LTTE, though formally committed to exploring a federal solution, still possess attitudes and mindsets which have failed to internalize the essence of the federal idea.
Produced by Lake House