DHARSHAN WEERASEKERA

The resolution converting Parliament to a Constitutional Assembly states that one of the reasons for a new Constitution is the need for a ‘Constitutional resolution of the National Issue.’[1]  To my knowledge no one has defined the ‘National Issue’.  But, there seems to be general agreement that it is the claim by certain Tamils that they are being oppressed by the Sinhalese, and they need a permanent solution to their ‘grievances.’[2]

Let us presume for a moment that the above is the ‘National Issue.’  What is the solution being suggested for it?  As far as I’m aware, the Government is entertaining only one possible solution, namely, some version or other of federalism.[3]  The reasoning behind this appears to be that if power is devolved so that Tamils have maximum control over their affairs, this will prevent them from craving secession.

In my view, federalism is not a good solution in situations of ethnic or communal disharmony, if the solution being sought is to prevent secession by giving minorities more power.  This view is based on two considerations:  one, theoretical considerations dealing with the purpose behind federalism as a form of government.

And two, practical considerations based on the Indian experience.  It is often suggested that India is a good example of a country where federalism has ‘worked,’ meaning, where federalism has kept the country intact by preventing attempts at secession by disgruntled minorities in the various provinces.

The article consists of two Parts.  In Part One, I define federalism, and draw the necessary inferences about the purpose behind that form of government.  In Part Two, I give my argument as to why federalism is unsuitable as a solution in situations of ethnic disharmony both on theoretical grounds, as well as practical considerations arising out of the Indian experience.

This article is intended for Sri Lankans who are looking for ways to counter the increasingly successful drive by Tamil separatists to get the international community to endorse or underwrite a division of the country by pressurizing the Government to make the necessary concessions.

As that veteran separatist R. Sampanthan said as far back as 2012:

‘The softening of our stance concerning certain issues, and the compromise we show in other issues, are diplomatic strategies to ensure that we do not alienate the international community.  They are not indications that we have abandoned our fundamental objectives….The current practices of the international community may give us an opportunity to achieve, without loss of life, the soaring ambitions we were unable to achieve by armed struggle.’[4]

The only way to counter the above strategy is to circumvent the Governments of the countries working against Sri Lanka at present, to speak to their citizens directly, explain the facts and circumstances behind what is happening in this country, and try and get them to pressure their respective Governments to ease up on this country.

That is obviously a tall order, since Sri Lankans do not at present have the organization or the resources to engage the public in those countries in a meaningful dialogue over the relevant issues.  Nevertheless, what has to be done has to be done.  The point is that the first step in this process is to compile the facts and the arguments, and have them ready.  This essay is intended to contribute to that effort.

PART ONE:  WHAT IS FEDERALISM AND WHAT IS THAT FORM OF GOVERNMENT INTENDED TO ACCOMPLISH?

In order to understand what federalism is, it is necessary to understand the difference between ‘federalism’ on the one hand, and ‘confederacy’ or ‘confederation’ on the other.  In order to explain these concepts, I shall rely on Black’s Law Dictionary, an authoritative dictionary, especially for practicing lawyers.

In order to discuss the purpose behind federalism, I shall draw on relevant sections of The Federalist Papers, universally regarded as the best commentary on the U. S. Constitution.

Generally speaking, United States is credited with inventing what we know today as federalism.

(The Federalist Papers were written by three of the most prominent of the American Founding Fathers—James Madison, Alexander Hamilton and John Jay.  If we start with the premise that, ‘Necessity is the mother of invention,’ and we accept that the Americans did in fact invent Federalism, we must suppose that the American Founding Fathers, more than anyone else, would know the purpose behind their invention.)

I shall start with the definitions.  Black’s Law Dictionary (4^th Edition) defines ‘Federal Government’ as follows:

‘The system of government administered in a State formed by a union or confederation of several independent or quasi independent States; also the composite State so formed.

In strict usage, there is a distinction between a confederation and a federal government.  The former term denotes a league or permanent alliance between several States, each of which retains its full dignity, organization, and sovereignty, though yielding to the central authority a controlling power for a few limited purposes, such as external and diplomatic relations.  In this case, the component States are the units, with respect to the confederation, and the central government acts upon them, not upon the individual citizens.  In a Federal Government, on the other hand, the allied States form a union—not, indeed, to such an extent as to destroy their separate organization or deprive them of quasi sovereignty with respect to the administration of their purely local concerns, but so that the central power is erected into a true State or Nation, possessing sovereignty both external and internal—while the administration of national affairs is directed and its effects felt, not by the separate States deliberating as units, but by the people of all, in their collective capacity, as citizens of the nation.’

The same dictionary defines Confederacy” as follows:

‘A league or agreement between two or more independent States whereby they unite for their mutual welfare and the furtherance of their common aims.  The term may apply to a union so formed for a temporary or limited purpose as in the case of an offensive and defensive alliance, but it is more commonly used to denote that species of political connection between two or more independent States by which a central government is created, invested with certain powers of sovereignty (mostly external), and acting upon the several component States as its units, which, however, retain their sovereign powers for domestic purposes and some others.’

Finally, that dictionary defines the word Confederation” as follows:

‘A league or compact for mutual support, particularly of princes, nations or States.  Such was the colonial government during the Revolution.’

From the above definitions one can isolate the essential difference between federalism and confederation, to wit:  in a federal system the power of the central government reaches to the individual citizens within each unit that makes up the union, whereas in a confederation that power reaches only to the Governments of the respective units. (Thus, in a confederation the units can secede easily, for instance by action of their respective governments, or by a referendum of just the inhabitants of the unit seeking secession.)

I shall now turn to The Federalist Papers.  To the best of my knowledge, the crucial discussion of federalism, in terms of why it was necessary for the Americans to devise that system as an alternative to confederation, occurs in Federalist 15, by Alexander Hamilton.  I am incapable of improving on Hamilton’s reasoning or his prose, so what I shall do is quote his passages at length, and then simply highlight the main point I wish to extract from them.

This is what Hamilton says about the reasons that made it necessary for Americans to generate a new Constitution:

‘The great and radical vice in the construction of the existing Confederation is in the principle of legislation for States or Governments, in their corporate or collective capacities, and as contradistinguished from the individuals of whom they consist.  Though this principle does not run through all the powers delegated to the Union, yet it pervades and governs those on which the efficacy of the rest depends.  Except as to the rule of apportionment, the United States have an indefinite discretion to make requisitions for men and money, but they have no authority to raise either by regulations extending to the individual citizens of America.  The consequence of this is that though in theory their resolutions concerning those objects are laws constitutionally binding on the members of the Union, yet in practice they are mere recommendations which the States observe or disregard at their option….

There is nothing absurd or impractical in the idea of a league or alliance between independent nations for certain defined purposes precisely stated in a treaty regulating all the details of time, place, circumstance, and quantity, leaving nothing to future discretion, and depending for its execution on the good faith of the parties.  Compacts of this kind exist among all civilized nations, subject to the usual vicissitudes of peace and war, of observance and nonobservance, as the interests or passions of the contracting parties dictate.  In the early part of the present century there was an epidemical rage in Europe for this species of compacts, from which the politicians of the times fondly hoped for benefits which were never realized.  With a view to establishing the equilibrium of power and the peace of that part of the world, all the resources of negotiations were exhausted, and triple and quadruple alliances were formed; but they were scarcely formed before they were broken, giving an instructive but afflicting lesson to mankind how little dependence is to be placed on treaties which have no other sanction than the obligations of good faith, and which oppose general considerations of peace and justice to the impulse of any immediate interest or passion.

If the particular States in this country are disposed to stand in a similar relation to each other, and to drop the project of a general discretionary superintendence, the scheme would indeed be pernicious and would entail upon us all the mischiefs which have been enumerated under the first head; but it would have the merit of being, at least, consistent and practicable.  Abandoning all views towards a confederate government, this would bring us to a simple alliance offensive and defensive; and would place us in a situation to be alternate friends and enemies of each other, as our mutual jealousies and rivalships, nourished by the intrigues of foreign nations, should prescribe to us.

But if we are unwilling to be placed in this perilous situation; if we still will adhere to the design of a national government, or, which is the same thing, of a superintending power under the direction of a common council, we must resolve to incorporate into our plan whose ingredients which may be considered as forming the characteristic difference between a league and a government; we must extend the authority of the Union to the persons of the citizens—the only proper objects of government….

In our case the concurrence of thirteen distinct sovereign wills is requisite under the Confederation to the complete execution of every important measure that proceeds from the Union.  It has happened as was to have been foreseen.  The measures of the Union have not been executed; and the delinquencies of the States have step by step matured themselves to an extreme, which has, at length, arrested all the wheels of government and brought them to an awful stand.  Congress at this time scarcely possesses the means of keeping up the forms of administration, till the States can have time to agree upon a more substantial substitute for the present shadow of a federal government.  Things did not come to this desperate extremity at once.  The causes which have been specified produced at first only unequal and disproportionate degrees of compliance with the requisitions of the Union.  The greater deficiencies of some States furnished the pretext of example and the temptation of interest to the complying, or to the least delinquent States.  Why should we do more in proportion than those who are embarked with us in the same political voyage?  Why should we consent to bear more than our proper share of the common burden?  There were suggestions which human selfishness could not withstand, and which even speculative men, who looked forward to remote consequences, could not without hesitation combat.  Each State yielding to the persuasive voice of immediate interest of convenience has successively withdrawn its support, till the frail and tottering edifice seems ready to fall upon our heads and crush us beneath its ruins.’[5]

The pertinent detail I wish to extract from the above passages is this.  The original purpose of federalism was to combat the defects of confederation:  it was to address a situation where there was already a union of States, but each State had an excess of freedom, and there was a need to curtail or limit that freedom.

To summarize the discussion so far, the defining characteristic of federalism is that under it the power of the central government reaches to the individual citizens in the units that make up the union.  The purpose of federalism is to transform a loose union of States with excessive freedom, into a strong union, with each State having less freedom that it had previously.  To repeat, it is to curtail the freedom of each unit, rather than to grant, or to extend such freedom.

PART TWO:  FEDERALISM AND ETHNIC HARMONY

In this section, I take up the question:  ‘Is federalism a good solution in situations of ethnic disharmony?’  I argue that it isn’t, based on, one, theoretical considerations; and two, practical considerations arising from the Indian experience.

1. a) THEORETICAL CONSIDERATIONS

Let us first ask the question, ‘If federalism is imposed as a solution in a situation of ethnic or communal disharmony, how it is supposed to accomplish that goal?’  Presumably, the answer is that federalism will allow a devolution of power to different areas of the country where the different ethnic groups predominate, allowing them a greater say in their affairs, which in turn reduces the possibility of friction between those groups and groups that predominate in other units, thus ensuring overall harmony.

In other words, what federalism is supposed to do is to facilitate an increase of freedom to the different regions of the country.  Recall that, from the discussion in the previous section, we saw that federalism, as originally conceived by the Americans, was a devise to curtail or limit the freedom of the different units, in order to strengthen the center.  The units, meanwhile, were voluntarily relinquishing their freedom, or at any rate a portion of such freedom, by ratifying the federal constitution.

To turn to a situation where federalism is applied as a solution to ethnic disharmony, there, as I explained earlier, one is diffusing power from the center to the different units, or even creating units that did not exist before.  (For instance, if the units had existed in some nominal form, one would be empowering them with constitutional recognition, which means creating division, or potential for division, that did not exist previously).

Thus, if the original purpose of federalism was to curtail or limit the power and freedom of peripheral units in order to create a stronger center, such a system, theoretically at least, is unsuitable as a solution to ethnic or communal disharmony, which entails empowering the peripheral units at the expense of the center, the precise opposite of the original purpose.

1. B) THE CASE OF INDIA

The Indian Constitution is often held up as a model that Sri Lanka ought to follow, and indeed in a number of key areas we have done so.  For instance, the entire section on ‘Directive Principles’ is a replication of the corresponding section in the Indian Constitution.  Meanwhile, the 13^th Amendment follows the Indian example of demarcating the powers of the central government and the provinces according to lists.

The 6^th Amendment, which contains provisions to prevent or discourage secession follows very closely the Indian Unlawful Activities Prevention Act of 1963.  Finally, the Fundamental Rights section of the Sri Lanka Constitution also follows the Indian model closely.  So, Sri Lanka has already borrowed heavily from the Indian model.  The question is whether we should go even further, and fully replicate Indian federal system.

There’s no question that India, perhaps more than any other country, has the greatest number of religious, linguistic, and other communal groups.  There’s also little dispute that, in spite of deep-seated differences, (erupting at times in communal riots) India has remained a single nation, and it is reasonable to suppose that some element in the Indian Constitution has contributed to this situation.

In my view, federalism is not, and cannot be, the aforesaid element, and it would be a grave mistake for Sri Lanka to replicate the Indian model in this respect, in the belief that devolving power to the minorities is somehow a panacea to ethnic or communal disharmony.  In order to establish my claims with respect to this matter, it is necessary to establish three points.

First, the Indian system is indisputably federal—not quasi-federal, as some academics would have it, not cooperative federal (Modi’s phrase)[6] or some such thing, but federal plain and simple.  Second, the intention behind adopting the said system was to derive the benefit traditionally associated with federalism, namely, a strong central government.

Third, to the extent that there has been ethnic or communal harmony in India, sufficient to keep India intact as a single nation, it is not the result of federalism, but other factors, such as the Unlawful Activities Prevention Act of 1963 and its amendments, and more important, the fundamental rights section of the Constitution.

In support of the first point above, I shall cite former Chief Justice of India H. M. Sikri from his celebrated ruling in Keshavananda Bharati vs. State of Kerala.  That case is often described as ‘The case that saved Indian democracy,’[7] and Justice Sikri’s 700-page judgment is rightly recognized as one of the finest commentaries on the Indian Constitution.  His assessment of the form of government set up under the Indian Constitution can therefore be taken as definitive.

In support of the second point, I shall cite two observations of Jawaharlal Nehru.  Nehru is considered by many to be the architect of modern India.  He is without question the preeminent political figure in that country at the relevant times when the Constitution was being drafted.  His observations can therefore taken as authoritative, if not definitive, on the political intention behind relevant aspects of the Constitution.

In support of the third point, I shall cite two pieces of evidence:  one, a section of the Unlawful Activities Prevention Act of 1963 (as amended) and draw the relevant inferences; and two, sections of Justice Sikri’s judgment in the Keshavananda case where he interprets the relative importance of Fundamental Rights and Directive Principles in the Indian Constitution, and draw the relevant inferences.

First, here is Justice Sikri on the system of government set up under the Indian Constitution:

‘Our Constitution is Federal in character and not unitary….According to Dicey, a Federal State derives its existence from the Constitution.  A Federal State derives its authority from the Constitution, just as a corporation derives its existence from the grant by which it is created.  Hence, every power, executive, legislative, or judicial, whether it belongs to the Nation or the individual States, is subordinate to and controlled by the Constitution.’[8]

Justice Sikri’s observation above is self-explanatory and does not require any commentary on my part.  I shall only highlight the following two points:  first, Justice Sikri unequivocally says that the Indian system is federal; and two, a federal system is understood as one where all powers, including that of the States, is subordinate to the Constitution, which is to say the central government.

I shall now turn to two observations of Mr. Nehru’s.  The first is from a speech in 1945, that is, prior to Partition, and the second from 1947, that is, when the Constitution was being written.  (What I’m trying to show is that devolution of power for purposes of addressing the communal problem was entertained only prior to Partition, and that once Partition was a fact, the imperative was for a strong center.)

First, here’s Nehru speaking in Lahore, in 1945:

‘All the present communal troubles in India are due to separate electorates.  They can go only by our consent and not by force.  In the present historical background, safeguards will have to be provided for the protection of minority interests.  Such safeguards are essential features of every democratic system of government.  But here in India, the process is reversed.  Here, landlords and capitalists want safeguards.  This is absurd.

My solution to the communal problem is that there would be semi-independent autonomous provinces with all possible protection to the minorities—cultural, linguistic and religious.  The Muslims should not forget that the Congress has conceded separation by its Bombay resolution of 1942 to any territorial unit provided it is sought by a clear and definite majority.’[9]

Here, meanwhile, is Nehru writing to the President of the Constituent Assembly (he was writing in his capacity as Chairman of the Union Constitutional Committee, the official body advising the Constituent Assembly):

‘The severe limitation on the scope of central authority in the Cabinet Mission’s plan was a compromise accepted by the Assembly much, we think, against its judgment of the administrative needs of the country, in order to accommodate the Muslim League.  Now that partition is a settled fact, we are unanimously of the view that it would be injurious to the interests of the country to provide for a weak central authority which would be incapable of ensuring peace or coordinating vital matters of common concern and of speaking effectively for the whole country in the international sphere.  At the same time, we are quite clear in our minds that there are many matters on which authority must lie solely with the Units and that to frame a constitution on the basis of a unitary State would be a retrograde step, both politically an administratively.  We have accordingly come to the conclusion—a conclusion which was also reached by the Union Constitution Committee—that the soundest framework for our constitution is a federation with a strong Centre.  In the matter of distributing powers between the Centre and the Units, we think that the most satisfactory arrangement if to draw up three exhaustive lists on the lines of the Government of India Act of 1935, viz., the federal, the provincial and the concurrent.’[10]

The import of the above passages is clear.  The first set shows that, prior to Partition, Nehru’s view (and we can safely presume Nehru’s view was the consensus among the key Constitution-makers at the time) was that the solution to the communal problem was maximum devolution, and he was willing to go so far as to accept semi-independent autonomous provinces that could secede by referendum.

The second passage shows the shift in position after Partition.  Here, the emphasis is on a strong center.  It is true Nehru appreciates the importance of leaving certain powers with the provinces, but he indicates that this is in recognition of existing political and administrative realities.  In any event, there’s no indication that, at this stage, he saw devolution of powers as a means of ensuring communal harmony.

In fact, the indication is that he saw communal harmony being brought about, if at all, through the agency of the strong center, since he says that one of the primary purposes behind the need for a strong center is for ‘ensuring peace,’  and ‘coordinating vital matters of common concern.’  ‘Peace’ in this context obviously includes domestic peace; and communal harmony, which invariably requires among other things coordinating matters of common concern, is an integral part of domestic peace.

If we consider Justice Sikri’s and Mr. Nehru’s observations together, Justice Sikri is identifying, in a legal sense, the form of government imposed on India, while Mr. Nehru is giving the political reasons for imposing that form of government. From both, one thing is abundantly clear:  the Indian Constitution requires, and in fact is predicated on, the existence of a strong center.

I shall now turn to my final point, namely, to the extent India has managed to remain intact as a single nation, it is not the result of cooperative federalism, but other factors, in particular such as the Unlawful Activities Prevention Act (UAPA), and more important, fundamental rights.  My argument is indirect and circumstantial, and involves drawing reasonable inferences from relevant facts,

I’ll first turn to the UAPA.  The key provision in the said Act says:

‘Unlawful activity in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise),

1. Which is intended, or supports any claim to bring about, on any ground whatsoever, the cession of a part of the territory of India, or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession

1. Which disclaims, question, disrupts or is intended to disrupt the sovereignty and territorial integrity of India

• ‘Cession of a part of the territory of India’ includes admission of the claim of any foreign country to any such place.

• ‘Secession of a part of the territory of India from the Union’ includes the assertion of any claim to determine whether such part will remain a part of the territory of India’[11]

The Indian Parliament has amended the said Act five times since 1963, the last in 2008, each time making the Act stronger.  My point is this:  If Federalism alone is sufficient to hold India together, then why did India need something like the Unlawful Activities Prevention Act to protect itself?  And why has it been necessary to strengthen that Act eight times since its inception?

I’ll now turn to fundamental rights.  My argument regarding this matter is briefly this.  According to the ruling in the Keshavananda case, (and the reasoning in that ruling has been consistently upheld by the Indian Supreme Court since then), where there is a clash between Fundamental Rights and Directive Principles, Fundamental Rights are to invariably prevail.

(Fundamental Rights are individual rights, while Directive Principles are principles intended to guide the State when formulating policy, and in general focused on addressing the grievances of groups of people as groups.  For instance, so-called ‘economic rights’ come under Directive Principles.)

What I’m interested in here is to isolate the Court’s reasoning as to why Fundamental Rights always trump Directive Principles.  In my view, from the said reasoning it is possible to draw an inference as to what the Indian Constitution’s position is with respect to the issue of devolution also.

I shall begin by briefly summarizing the background as well as the facts of the Keshavananda case for those readers who may be relatively unfamiliar with it.  From the time of independence, various States within the Indian polity had enacted legislation to enforce Directive Principles, which invariably led to clashes with Fundamental Rights.

For example, where some law was passed to help improve the economic lot of a particular group, it often clashed with the individual rights of persons who did not derive benefits under the law in question or were inconvenienced by it.  Under the Indian Constitution, (as indeed under the Sri Lanka Constitution) Directive Principles are not justiciable.  So, whenever a law to promote Directive Principles was challenged in the courts, the general position of the courts was that fundamental rights should prevail.

This situation continued for a number of years, until in late 60’s the Indian Parliament decided to amend the Constitution in order to make Directive Principles justiciable.  This is what led to Keshavananda’s case.  The text of the Constitution does not impose any restriction or qualification on the power of Parliament to amend the Constitution, and the issue in the case was whether Parliament could introduce amendments to facilitate directive principles, where those amendments clashed with fundamental rights.

The court ruled that Parliament does not have the power to introduce amendments that contravened the fundamental rights section of the Constitution, because it would contravene the basic structure of the Constitution, which is to say, contravene the purpose for which the Constitution had been enacted.

This is how Justice Sikri starts his argument:

‘I must interpret 368 in the setting of our Constitution, in the background of our history and in light of our aspirations and hopes, and other circumstances.  No other Constitution in the world combines under its wings such diverse peoples, now numbering more than 550 millions, with different languages and religions, and in different stages of economic development, into one nation, and no other nation is faced with such vast socio-economic problems.[12]

I need hardly observe that I am not interpreting an ordinary statute but a Constitution which apart from setting up a machinery of government has a grand and noble vision.  The vision was put in words in the Preamble, and carried out in part by conferring fundamental rights on the People.  The vision was directed to be further carried out by the application of Directive Principles.’[13]

Here is Justice Sikri discussing the place of fundamental rights in relation to the purpose of the Indian Constitution:

‘One of the well-recognized rules of construction is the rule in Haydon’s case.  What is the mischief that the Constitution-makers intended to remedy?  What was the purpose intended to be achieved by the Constitution?  To answer this question it is necessary to make a brief survey of our Nationalist Movement ever since 1885 and the objectives sought to be achieved by that Movement.[14]

The objectives underlying our Constitution began to take shape as a result of forces that operated in the national struggle during the British rule where the British resorted to arbitrary acts of oppression such as brutal assaults on satyagrahis, internment, deportation, detention without trial and muzzling of the press.  The harshness with which the executive operated its repressive measures strengthened the demand for Constitutional guarantees of fundamental rights.’[15]

Finally, here is the crux of the argument with respect to the primacy of fundamental rights over directive principles:

‘We are unable to agree with the contention that in order to build a Welfare State it is necessary to destroy some of the human freedoms.  That, at any rate is not the perspective of our Constitution.  Our Constitution envisages that the States should without delay make available to all the citizens of this country the real benefits of those freedoms in a democratic way.  Human freedoms are lost gradually and imperceptibly and their destruction is generally followed by authoritarian rule.  That is what history has taught us.  Struggle between liberty and power is eternal.  Vigilance is the price that we like every other democratic society have to pay to safeguard the democratic values enshrined in our Constitution.  Even the best of governments are not averse to have more and more power to carry out their plans and programs which they may sincerely believe to be in the public interest.  But a freedom once lost is hardly ever regained except by revolution.  Every encroachment on freedoms sets a pattern for further encroachments.  Our Constitutional plan is to eradicate poverty without destruction of individual freedoms.’[16]

To summarize Justice Sikri’s argument:  Fundamental Rights are things from which all India citizens derive an equal and personal benefit.  Therefore, Fundamental Rights are the things that can, if anything can, appeal to Indians across the board and unify them despite their differences.  Fundamental Rights, to repeat, are supposed to be the glue that, in a manner of speaking, holds India together.

Directive Principles are things from which groups of persons derive benefits as groups.

In trying to pursue Directive Principles and improve the lot of one group, the State can violate the rights of members of other groups even though the State may sincerely think what it is doing is in the public interest.  On those occasions, the only protection for individuals is Fundamental Rights.

Therefore, if and when Fundamental Rights and Directive Principles clash, the former must always prevail, because otherwise, the very purpose of the Indian Constitution—i.e. to fuse the various ethnic and communal groups into a single nation—is completely undermined.

Let us now turn to the issue of devolution of power for purposes of promoting or maintaining communal harmony.  A moment’s reflection will show the reader that devolution for the said purpose is in principle an attempt to address the grievances of groups as groups.

As I have explained above, the inherent logic of the Constitution (and I believe we can take Justice Sikri’s interpretation of the structure of the Indian Constitution as definitive) is that the glue that is supposed to hold the different groups together is Fundamental Rights, which is to say individual rights.

If that is the case, it is illogical to suppose that the structure of the Constitution, to the extent it has helped promote or maintain communal harmony, has done so through devolution, i.e. a practice of catering to the concerns of groups as groups.  On the contrary, it is reasonable to suppose that, to the extent the structure of the Constitution has facilitated communal harmony, it has done so through Fundamental Rights.

Summary

If we understand by federalism” the concept defined in dictionaries and commented on in authoritative texts, then, based on theoretical considerations, that concept is unsuitable as a solution to ethnic or communal disharmony.

If it is contended that India is a particularly good example of a country where federalism has purportedly ‘worked’ and kept the nation intact by helping combat ethnic or communal disharmony, reflection on certain facts of Modern Indian history, along with what appears to be the structure of the Indian Constitution, show that not to be the case.

CONCLUSIONS

If Sri Lanka adopts a new Constitution and it includes a section on full devolution of powers that amounts to setting up a federal system (even though it may not be called by that name) then at a minimum the following safeguards must be included.

First, provisions such as those found in the 6^th Amendment, or more stringent provisions such as found in the Indian Unlawful Activities Prevention Act, that can help identify and punish separatists must also be adopted.  These provisions should include interpretation clauses that define the terms ‘federal,’ ‘unitary’ ‘confederation’ and so on, so that it is easy to catch separatists who try to play semantic games in order to escape detection.

Second, the new Constitution should allow for maximum powers of judicial review, which means that an obnoxious provision such as Article 80(3) which limits judicial review of legislation to only one week after the proposed Bill is placed on the Order Paper of Parliament, is never again entertained.  The courts must have full power to review legislation after it is passed, and at any time when a citizen, with good reason, considers that such legislation violates the Constitution.

The above will ensure that the Tamils, once they gain control over the North and the East (by way of the federal arrangement) will not pass subsidiary legislation limiting the access to those areas to the Sinhalese, who might choose to move to those areas and settle down, exercising among other things their fundamental right to freedom of movement.

Dharshan Weerasekera is an Attorney-at-Law.  He is the author of two books:  The UN’s Relentless Pursuit of Sri Lanka (2013), and, The UN’s Subversion of International Law:  The Sri Lanka Story (2015)

[1] Resolution for Appointment of the Constitutional Assembly, Order Paper of Parliament, 26 January 2016, www.parliament.lk

[2] For instance, Prime Minister Mr. Ranil Wickremasinghe, while on a visit to Japan in October 2015, gave an important speech at the National Diet of Japan, where he indicated that the main purpose behind the new Constitution is to solve perceived disharmony and disunity among the country’s ethnic, linguistic and religious groups.  He said, inter alia: Our political goals include a new Constitution….But what is most important to us is to incorporate a political settlement to the outstanding issues relating to national unity, ethnicity and religion.  We have already started informal discussions with the Tamil National Alliance and other parties on a political solution.  (Memorial Speech by Ranil Wickremesinghe at the National Diet of Japan, 6^th October 2015, www.mea.gov.lk).

[3] There are two reasons for this conclusion:  first, the Tamil National Alliance (TNA), the Government’s main negotiating partner over ethnic issues, particularly where they relate to Tamils, has called for a federal solution; and second, India, whose views Sri Lanka can ill-afford to ignore, has also called for or indicated that they want a federal solution.  With respect to the first, the TNA Election Manifesto for the Parliamentary elections that were held in August 2015 says, inter alia:  Power sharing arrangements must continue to be established as it existed earlier in the unit of a merged Northern and Eastern Provinces based on a federal structure.”  (Our Stand on a Political Solution,” TNA Election Manifesto, 26 July 2015, www.colombotelegraph.com).  With respect to the second, when Prime Minster of India Mr. Narendra Modi visited Sri Lanka in mid-2015, among other things he addressed the Sri Lanka Parliament.   In that speech, he dropped the following rather telling hint:  I am a strong believer in Cooperative Federalism.” (Full text of Modi’s speech in Parliament, 13^th March 2015, www.sundaytimes.lk)

[4] ‘Text of Presidential Address by R. Sampanthan at the 14^th National Convention of ITAK in Batticaloa,’ www.dbsjayaraj.com, 27 May 2012

[5] All references are to, James Madison, Alexander Hamilton and John Jay, The Federalist Papers, (ed. Isaac Kramnick), Penguin, London, 1987, pgs. 147-151

[6] See Modi’s remark at the Sri Lanka Parliament, footnote 3 of the present essay

[7] The case that saved Indian Democracy,” Arvind P. Datar, The Hindu, 24 April 2013, www.thehindu.com

[8] Keshavananda Bharati vs. State of Kerala, 24 April 1971, www.indiankanoon.org,  Paragraph 518

[9] The absurdity of Partition,”  Address at Press Conference, Lahore, 1945, Selected Works of Jawaharlal Nehru (ed. S. Gopal), Vol. 14, Jawaharlal Nehru Memorial Fund, 1981, p. 51

[10] Letter to the President, Constituent Assembly of India, 5 July 1947, Selected Works of Jawaharlal Nehru, Second Series, (ed. S. Gopal), Vol. 3, Jawaharlal Nehru Memorial Fund, 1984, p. 54

[11] Section 2(f)

[12] Keshavananda, Paragraph

[13] Ibid, paragraph 15

[14] Ibid, paragraph 683

[15] Ibid, paragraph 684

[16] Ibid, paragraph 705