By Prof. Shantha K. Hennayake Department of Geography University of Peradeniya-Courtesy The Island

November 6, 2017, 8:49 pm

This indeed is the paradox of multinational federalism: while it provides national minorities with a workable alternative of secession, it also helps to make secession a more realistic alternative to federalism”.

Second, federalism has not led to the disappearance of ethnonationalism in any state; ethnonationalism is only contained and may be passing a dormant state only to erupt at a later date as in the case of Yugoslavia and the former Soviet Union. Third, without a qualitative change in political culture federalism cannot resolve ethnonationalist problems. Thus, an imposed federalism without the necessary political culture is bound to fail.

One of the strong arguments against federalism’s ability resolve ethnonationalism is the intensity of pre-federal ethno-political sentiments; higher the intensity, lesser the ability to resolve it through federalism. A prominent scholar on federalism, Paul Gilbert, elaborated that the pre-federal stage politics of minority ethnic groups claiming ethnonationalist sovereignty could jeopardize the federal solution. He argues that “Nationalist cases based either upon alleged will of the people or upon supposed cultural distinctness are both to be mistrusted” . The ability of federalism to resolve ethnonationalism “led by heresthetic politicians attempting to change political institutions for their own self interests” also will not be successful as pointed out by a political scientist, Keith Dowding. John Agnew , a prominent political geographer has pointed out that in the recent past federalism has faced high incidence (e.g. USSR and Yugoslavia) of failures or to be in perpetual crisis (e.g Canada and Spain). Another political geographer, Graham Smith, also questioning the ability of federalism to resolve ethnonationalist crisis, argues that “federal systems that have continued to prosper, such as Switzerland, may owe their good fortune less to federalism than to the fact that divisions are overlapping rather than territorial. P. Spencer and H. Woolman, two political scientists argues that federalism could “reinforces the very divisions it seeks to manage and … for elites to use local power bases, constructed and articulated in nationalist terms, to press for more and more power, even at the risk of pulling the system apart”. The pessimism towards federalism’s ability to solve ethnonationalist crisis emanate from, according to Specer and Williams, the fact that “most fundamentally, even the most diverse forms of federalism are after all grounded in a recognition of the temporal and logical priority of the national”.

The main argument against federalism as a solution to ethnonationalist problem in modern state can be summarized as follows.

1. Some of the most successful federal states (The US and Australia) did not emerge to cater to ethno-territorial secessionist demands of minority ethnic groups.

2. Minority ethno-secessionism has not been resolved by introducing a federal form of government in some states such as (India, Canada, and Spain)

3. Having a federal system per se will not resolve secessionist problem. It is the political commitment of all parties to uphold federalism that is essential.

4. Democracy and rule of law in both the political and civil society must accompany federalism, if it is to be successful.

5. Federalism should not be sought for vested interests but for its intrinsic objective of maintaining uniqueness within the larger state.

6. Defining federal units can create entirely new and perhaps more substantial problems and conflicts than earlier.

Pointing out the potential of federalism to resolve ethnonationalist problems, Kimlicka argues that “while there are some circumstances where federalism is relevant, these very same circumstances make it likely that federalism will simply be a stepping-stone to either secession or a much looser form of confederation. In general, it seems to me unlikely that federalism can provide an enduring solution to the challenges of ethnocultural pluralism. It may restrain these challenges for a period of time, but federal systems which are designed to accommodate self-governing ethnocultural groups are likely to be plagued by deadlock and instability. … where federalism is needed to keep a country together, the odds that country will remain together over the long-term are not great. Federalism may be the best available response to ethnocultural pluralism, but the best may not be good enough”.

This is exactly the point I am trying to make here in relation to the present effort of introducing or imposing as some argue, a federal constitution in Sri Lanka. Federalism, more to the point, a federal constitution alone may not be good enough. The package to resolve Sri Lankan ethno-secessionist problem should extend beyond a good federal constitution. The package must include a fundamental metamorphism in both the political and civil society from their present level of expedient extremist ethnocentric politics into democratic politics where the welfare of the people and the country is given primacy. Thus, it is of paramount importance that the current discourse on federalism also emphasize non-constitutional requirements needed for smooth practice of federalism.

What are the non-constitutional requirements for the smooth practice of Federalism?.

My initial reading of the federal systems around the world exposed me to a wide variety of non-constitutional factors cross cutting culture, politics, law and even simple common sense.

J. Bednar , an authority on federalism pointed out that federalism will be successful only if two political conditions are met.

1. National forces must be structurally restrained from infringing on regions and

2. Regional temptations to renege on federal state should be curbed by independent judiciary.

Forsyth Murray, another scholar on federalism pointed out that federalism will not be successful on its own but it is contingent upon the wide range of conditions such as “the depth of ethnic passion; the number of competing groups in question; their relative size and strength; the depth of economic and education disparities between them; the presence of a will to unite; the reality of concrete benefits to be derived from unity; the readiness to distribute the benefits of union equitably; the political tradition of people concerned; the presence or absence of democracy at local level; the links between the groups within and beyond the borders of the state; the external situation in general”. It becomes obvious that many socio-political issues beyond the purview of a constitution have to be tackled first to make federalism successful. Having a federal constitution first will automatically create these non-constitutional requirements of federalism is not only wishful thinking but also dead wrong. Jojislav Koslunica , the President of the Federal Republic of Yugoslavia stressed the importance of commitment and cohabitation of the two conflicting parties to make federalism successful.

Stressing the point that civil society is a crucial determinant of the success or failure of the federal formula, Radmila Nakaradha argues “success in resolving ethnic conflicts requires a double operation. Firstly, there should be intervention into the social infrastructure and civil society. .. The second operation is to establish the decisive balance between individual and collective rights, freedom and self-determination…” Jonathan Fox, a scholar on federalism also pointed out the role of civil society accountability as an important requirement in successful governance and federalism.

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 Nakaradha 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,

2. republicanism,

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 a 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 – 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 by all. If either government – federal or regional – disrespects the constitution and the Supreme Court rulings, federalism will disintegrate into total anarchy and renewed violence and chaos.

At the level of the civil society, people must not only uphold the laws of their own region/province, but also the federal laws which are applicable throughout the entire country. Federalism will degenerate if the people living in a regional state/province defy the federal laws. Even 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 and enforcement of equality of under the law. Laws and even the constitution are violated with impunity by the political and governmental 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 and also practice it themselves first.

Republicanism

Republicanism is about upholding democratic principles of governance. It is not paying lip service to a concept of “good governance”. 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 of all systems of 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 held regularly as stipulated not at the time of most politically advantages to those in power, 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/or 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 an opportunity to satisfy the political aspirations of Tamil people as projected by the ITAK and TNA. It has to be seen as an opportunity for all people, including the Tamils to fully participate in democratic politics and decision making at all levels of governance. 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 Tamils to fully and actively participate in national democracy and governance in the Sri Lankan state. Both Sinhalese and Tamil political parties and the governments since 1948 are responsible for this utter failure. Federalism should reestablish republicanism in this country – 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 – legislative, executive and judicial – was introduced precisely to prevent concentration of all three powers on a single individual, political party 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 leaders become national or regional 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.