Non-Constitutional requirements for successful implementation of federalism
The first part of this article by Shantha K. Hennayake, Fulbright Research Scholar, University of California, Los Angeles, was published on Saturday.
Another scholar A. N. Roy pointed out with respect to Indian federal experience that ‘the success of federalism also depends on civil society and the political culture’ and thus ‘for a federal system to succeed, a climate of tolerance, compromise, and the recognition and respect for diversities is imperative’.
Radmila Naradha highlighted that federalism will not succeed in a violent society. The problems that are likely to arise in a federal system need to be resolved in a non-violent manner. Otherwise, the whole rationale for moving into federalism is undermined.
Amidst all these scholarly pronouncements and predictions, I was fascinated by the simple yet paramount concept of ‘enduring principle proposed by AR Gitelson, a political scientist. Gitelson has basically summarized in simple to understand language the fundamental non-constitutional requirements of federalism which are found scattered in other writings.
These enduring principles were
1. the rule of law,
3. separation of powers,
4. checks and balances and
5. national supremacy.
Gitelson’s simple but powerful argument is that the US political system, characterized primarily by federalism is maintained through these enduring principles. These principles are universal requirements of a democratic society, irrespective of the form of government. Empirical evidence from around the world shows that if these principles fall apart, so do the federal structures based on them. The failure of federal states such as Soviet Union, Yugoslavia can be directly attributed to the collapse of the above principles. In Sri Lanka too the future of federalism will undoubtedly depend on the degree of adherence to these principles.
Rule of Law
Rule of law is fundamental to civilized society. In a modern democratic society, rule of law is essential for its smooth functioning irrespective of the type of governmental system. The most basic principle of rule of law is that all citizens respect the rule of law which applies equally to all.
In federal states, the constitution is supreme as it alone guides the two parallel governments - the federal and regional. Further, the constitution reign supreme in case of a disagreement or conflict between the two levels of government . However, no federal constitution can anticipate all the potential problems within a federal system and therefore the judiciary `F1 a Supreme Court - is empowered to interpret the constitution in a federal state. Supreme Court decisions are the final interpretations of the constitution. Federalism will function and survive only under the conditions of unquestionable acceptance of constitutional supremacy. If either government `F1 federal or regional `F1 disrespects the constitution and the Supreme Court rulings , federalism will disintegrate.
At the level of the civil society, people must not only uphold the laws of their own region/province, but also the federal law which is applicable throughout the entire country. Federalism will degenerate if the people living in a regional state/province defy the federal laws. A brilliantly crafted federal constitution will not last a day if the society is not law abiding. Federalism could be and should be maintained through consensus and rule of law and not disagreements and violence.
Both the political and civil society in Sri Lanka does not have a respectable record on upholding the rule of law. Laws and even the constitution are violated with impunity by the political leaders as well as the members of the civil society to protect and sustain political power. Federalism cannot survive with these violations and excesses. Thus, it is important that the leaders who are committed to introduce federal system of government also emphasize on the need to reestablish rule of law in the country.
Republicanism is about upholding democratic principles. Republicanism starts with the acceptance of the most basic assumption that government is of the people, by the people and for the people. It has been argued that federalism to be the most republican form government. Federalism, is not a political ideology or mechanism to justify authoritarianism, dictatorship, or defiance and last of all terrorism either at the national or provincial level. Rule of law, free and fair elections and democratic principles and human rights are inseparable elements of the large system federalism.
Federalism is not a license for provincial tyrants to act undemocratically in the name of political autonomy and self-determination of an ethnic group.
The peace loving people who desire, respect and uphold democratic rights should come first in any attempt to formulate a federal structure. Sri Lankan federalism should not be contemplated only as a opportunity to satisfy the political aspirations of Tamil people as projected by the LTTE. It has to be seen as an opportunity for all people, including the Tamils to fully participate in democratic politics and decision making. Whatever, the subsequent justifications, the real origin of Tamil ethnonationalism which escalated to the level of terrorism is precisely the lack of real opportunities for the Tamil to fully and actively participate in Sri Lankan democracy and governance. Federalism should reestablish republicanism in this country `F1 both in Sinhalese and Tamil areas - in its true sense of the word. Federalism without republicanism is as good and real as ‘present Soviet Union’!
Separation of Powers
The concept of separation of powers `F1 legislative, executive and judicial - was introduced precisely to prevent concentration of all three powers on a single individual or a body. Separation of powers is considered an essential requirement in any modern democracy to prevent corruption and dictatorship or tyranny.
Separation of powers is more important in federal system as the very purpose of federalism could be defeated if the national leaders become dictators.
In Sri Lanka, one of the arguments for the emergence of Tamil ethno nationalism and its subsequent intensification into terrorism is precisely the continuing over-centralization and over-concentration of power in Colombo. As the Tamil demand for regional autonomy intensified so did the Colombo’s effort towards centralization.
The intended federal structure for Sri Lanka should strongly adhere to the principle of separation of powers both at the national and regional level.
The creation of a regional tyranny is not a solution to the ills of a national tyranny. Authoritarianism is not acceptable either as an end in itself or as a mean to an end, no matter how laudable the end is. Thus from the point of view of the life and welfare of the ordinary citizens of this country, Sinhalese, Tamils, Muslims and others, separation of powers must be reestablished both in Colombo and Mullaitivu. Federalism is for the benefit of the people, not for the survival of the leaders.
Checks and Balances
Checks and balances are mechanisms to ensure that separation of powers will prevail and that no one branch of government will exercise its power in excess or encroach into the domain of others. The present constitution is poor with respect to checks and balances between the legislature and the executive and it is even poor in practice especially when the President, Prime Minister and the Cabinet are from same party.
The lack of checks and balances in Sri Lankan government, led one of its former presidents to say that only thing he cannot do is to turn man a woman and vice versa. So is the concentration of power.
The concept of checks and balances cannot exist within an extremely authoritarian organization like LTTE. Thus, checks and balances is a set of rules that both Colombo and Mullaitivu need to learn and practice if they want federalism to succeed in Sri Lanka. A future federal structure needs to create the three separate branches of government in the first place and then to introduce stronger checks and balances so that the three branches of the government will not work for self interest but for the interests of the people they represent.
In all federal states in the world, national supremacy - acceptance of the supremacy of the federal state is accepted an essential requirement both in political and civil society. This is the difference between the confederacy and federalism where the regional states assume supremacy in the former.
Although both federal and state government derives their authority and legitimacy from the constitutions originally and independently, the federal government is seen supreme as it has powers over all the provinces in the nationally important issues such as the national security of the state, defense and international policy.
Citizens of the federal states such as United States of America, Australia and India consider themselves to be first the citizens of these respective states and then the citizens of their respective regional states.
This dual identity which is sometimes identified as nested identity, should not pose a contradiction and in fact the two identities should reinforce each other. National supremacy is not seen as a threat to the regional statehood and assertion of regional state identity is not seen as a threat to the national supremacy. After all federal government is not a government of others. It too is constituted by the elected representatives of the regional states.
In Sri Lanka the majority Sinhalese have been traditionally identifying themselves with the whole of Sri Lanka while the majority of the Tamils, as a result of over 25 years of anti-Sri Lankan Tamil ethnonationalist ideology have begun to identify only with ‘Tamil Eelam’. For many Tamils, the Tamil identity and Sri Lankan identity are mutually exclusive and contradictory.
A concerted effort has to be made to reestablish national supremacy in the minds of Tamils in general and the LTTE in particular and activities that undermine the Sri Lankan state should be terminated. Tamil ethnonationalists have to unlearn and unteach anti-Sri Lankaneness and the Sinhalese have to unlearn and unteach that Sinhalese are the only legitimate owners of Sri Lanka. Both have to learn to accommodate the other in civil as well as political society from now on.
The federal government and provincial or regional governments should learn to respect each other and work in collaboration. Federalism should not be seen as a zero sum game where the success of one level of government is seen as a loss for the other. In fact, successful federalism is found where the federal and regional governments cooperate with each other. For example, many of the programs in the US, Australia, Canada, Switzerland are implemented through effective collaboration of federal, State and local governments all work together very closely.
Future Viability of Federalism in Sri Lanka
One of the prominent scholars on federalism `F1 Will Kymlicka in answering the question ‘Is federalism a viable solution to secession’ concludes as follows:
However, we shouldn’t be overly optimistic about the extent to which federalism provides a viable long-term alternative to secession. It is wrong I think to suppose that federalism provides a tried and true formula for the successful and enduring accommodation of national differences. It provides at best a hope for such an accommodation, but to make it work requires an enormous degree of ingenuity and good will and indeed good luck. " A well-designed federal system may defer secession- perhaps into the indefinite future. But secession will remain a live option in the hearts and minds of national minorities. Indeed, it is likely to form the benchmark against which federal systems are measured.
I am in full agreement with Kymlicka
Sri Lanka too needs the ingenuity, good will and of course the good luck to successfully implement federalism. .
LTTE behavior during both pre and post MOU indicates that federal formula is being contemplated only as a means to a secessionist end by the LTTE. LTTE strategy, other than cessation of hostilities against the government and the Sinhalese, remains unchanged even during the post MOU period. There are hardly any signs of moving toward democracy, respecting human rights and demilitarization. On the government’s side, the Prime Minister and the Cabinet who lead the peace negotiations are not working together with the executive president the Opposition whose support is required to adopt the federal constitution.
Ingenuity is a scarce commodity in Sri Lankan politics. Long lack of ingenuity in Sri Lankan political establishment clearly reflect in the continuing prevalence of poverty, erosion of democracy, breakdown of order and increase in violence in society. The present Prime Minister has shown some ingenuity in getting LTTE to commit to cessation of hostilities which has now continued unabated for over 20 months. However, submissive and apologetic approach of the government to LTTE’s violation of both the MOU and the sovereignty of Sri Lanka cannot be taken as ingenious as it first sanctions the violation of democratic and basic human rights of people, especially Tamils living in the LTTE areas, and second it amounts to a deliberate compromise of the safety of the people and national security of the country.
Good luck has to come from three different levels. First, Good luck is with Sri Lankan side as India is decidedly against secession in Sri Lanka of course for reasons of Indian national security and internal political stability. Second, Sri Lanka is lucky once again as the international community led by the United States are putting pressure on LTTE, specially after 9/11 incident, to give up terrorism and join the mainstream democratic politics while opposing the creation of a separate state within Sri Lanka. Third level is the Sri Lankan society itself. Unfortunately here the good luck is not with us yet as the real intentions of the major stakeholders on the federal initiative do not appear to be genuine. The LTTE appears to be interested in consolidating its military and administrative power in the areas under its control. The government is playing a game of appeasing the LTTE just to save the MOU and does not show any serious commitment to work with other political parties to build a national consensus `F1 an essential requirement in adopting a federal constitution. The opposition political parties are trying to undermine the UNF’s peace effort solely for the purpose of coming to power- a pathologically detrimental behavior of Sri Lankan oppositions since independence.
The majority of the citizens while selfishly enjoying the peace brought about by the cessation of hostilities seem to be indifferent to the possible outcome of the negotiations. They, as in the past, have put the political party ahead of the country and thus polarized along party issues aimed at power and not national issues aimed at solving the ethnonationalist crisis. For good luck to be with us, the Sri Lankan citizens of all ethnic groups and their leaders need to be more civic minded, law abiding and responsible and most of all democratic.
The present negotiations could produce an excellent federal constitution (on paper). However, if the goal is a working federal government which can bring a lasting solution to the ethnonationalist problem, a lot more has to be done by all from the peace negotiators to the ordinary citizen in the street or village. A fundamental transformation of the Sri Lankan society into a new paradigm of politics in which democracy, human rights, rule of law, provincial rights and national supremacy are respected is essential.
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