{"id":52619,"date":"2016-03-04T18:40:43","date_gmt":"2016-03-05T00:40:43","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=52619"},"modified":"2016-03-04T11:36:28","modified_gmt":"2016-03-04T18:36:28","slug":"does-federalism-solve-the-national-issue","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2016\/03\/04\/does-federalism-solve-the-national-issue\/","title":{"rendered":"DOES FEDERALISM SOLVE THE \u2018NATIONAL ISSUE\u2019?"},"content":{"rendered":"

DHARSHAN WEERASEKERA<\/strong><\/em><\/span><\/h2>\n

The resolution converting Parliament to a Constitutional Assembly states that one of the reasons for a new Constitution is the need for a \u2018Constitutional resolution of the National Issue.\u2019[1]<\/a>\u00a0 To my knowledge no one has defined the \u2018National Issue\u2019.\u00a0 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 \u2018grievances.\u2019[2]<\/a><\/p>\n

Let us presume for a moment that the above is<\/em> the \u2018National Issue.\u2019\u00a0 What is the solution being suggested for it?\u00a0 As far as I\u2019m aware, the Government is entertaining only one possible solution, namely, some version or other of federalism.[3]<\/a>\u00a0 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.<\/p>\n

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.\u00a0 This view is based on two considerations:\u00a0 one, theoretical considerations dealing with the purpose behind federalism as a form of government.<\/p>\n

And two, practical considerations based on the Indian experience.\u00a0 It is often suggested that India is a good example of a country where federalism has \u2018worked,\u2019 meaning, where federalism has kept the country intact by preventing attempts at secession by disgruntled minorities in the various provinces.<\/p>\n

The article consists of two Parts.\u00a0 In Part One, I define federalism, and draw the necessary inferences about the purpose behind that form of government.\u00a0 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.<\/p>\n

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.<\/p>\n

As that veteran separatist R. Sampanthan said as far back as 2012:<\/p>\n

\u2018The 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.\u00a0 They are not indications that we have abandoned our fundamental objectives\u2026.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.\u2019[4]<\/a><\/p>\n

The only way to counter the above strategy is to circumvent the Governments<\/em> 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<\/em> to pressure their respective Governments to ease up on this country.<\/p>\n

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.\u00a0 Nevertheless, what has to be done has to be done.\u00a0 The point is that the first step in this process is to compile the facts and the arguments, and have them ready.\u00a0 This essay is intended to contribute to that effort.<\/p>\n

PART ONE:\u00a0 WHAT IS FEDERALISM AND WHAT IS THAT FORM OF GOVERNMENT INTENDED TO ACCOMPLISH?<\/strong><\/p>\n

In order to understand what federalism is, it is necessary to understand the difference between \u2018federalism\u2019 on the one hand, and \u2018confederacy\u2019 or \u2018confederation\u2019 on the other. \u00a0In order to explain these concepts, I shall rely on Black\u2019s Law Dictionary<\/em>, an authoritative dictionary, especially for practicing lawyers.<\/p>\n

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

Generally speaking, United States is credited with inventing what we know today as federalism.<\/p>\n

(The Federalist Papers<\/em> were written by three of the most prominent of the American Founding Fathers\u2014James Madison, Alexander Hamilton and John Jay.\u00a0 If we start with the premise that, \u2018Necessity is the mother of invention,\u2019 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.)<\/p>\n

I shall start with the definitions.\u00a0 Black\u2019s Law Dictionary<\/em> (4th<\/sup> Edition<\/em>) defines \u2018Federal Government\u2019 as follows:<\/p>\n

\u2018The 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.<\/p>\n

In strict usage, there is a distinction between a confederation and a federal government.\u00a0 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.\u00a0 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.\u00a0 In a Federal Government, on the other hand, the allied States form a union\u2014not, 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\u2014while 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.\u2019<\/p>\n

The same dictionary defines Confederacy\u201d as follows:<\/p>\n

\u2018A league or agreement between two or more independent States whereby they unite for their mutual welfare and the furtherance of their common aims.\u00a0 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.\u2019<\/p>\n

Finally, that dictionary defines the word Confederation\u201d as follows:<\/p>\n

\u2018A league or compact for mutual support, particularly of princes, nations or States.\u00a0 Such was the colonial government during the Revolution.\u2019<\/p>\n

From the above definitions one can isolate the essential difference between federalism and confederation, to wit:\u00a0 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.)<\/p>\n

I shall now turn to The Federalist Papers<\/em>.\u00a0 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.\u00a0 I am incapable of improving on Hamilton\u2019s 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.<\/p>\n

This is what Hamilton says about the reasons that made it necessary for Americans to generate a new Constitution:<\/p>\n

\u2018The great and radical vice in the construction of the existing Confederation is in the principle of legislation for States or Governments<\/em>, in their corporate or collective capacities<\/em>, and as contradistinguished from the individuals<\/em> of whom they consist.\u00a0 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.\u00a0 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.\u00a0 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\u2026.<\/p>\n

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.\u00a0 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.\u00a0 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.\u00a0 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.<\/p>\n

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<\/em>, 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.\u00a0 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.<\/p>\n

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\u2014the only proper objects of government\u2026.<\/p>\n

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.\u00a0 It has happened as was to have been foreseen.\u00a0 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.\u00a0 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.\u00a0 Things did not come to this desperate extremity at once.\u00a0 The causes which have been specified produced at first only unequal and disproportionate degrees of compliance with the requisitions of the Union.\u00a0 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.\u00a0 Why should we do more in proportion than those who are embarked with us in the same political voyage?\u00a0 Why should we consent to bear more than our proper share of the common burden?\u00a0 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.\u00a0 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.\u2019[5]<\/a><\/p>\n

The pertinent detail I wish to extract from the above passages is this.\u00a0 The original purpose of federalism was to combat the defects<\/em> of confederation:\u00a0 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.<\/p>\n

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.\u00a0 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.\u00a0 To repeat, it is to curtail<\/em> the freedom of each unit, rather than to grant, or to extend such freedom.<\/p>\n

PART TWO:\u00a0 FEDERALISM AND ETHNIC HARMONY<\/strong><\/p>\n

In this section, I take up the question:\u00a0 \u2018Is federalism a good solution in situations of ethnic disharmony?\u2019\u00a0 I argue that it isn\u2019t, based on, one, theoretical considerations; and two, practical considerations arising from the Indian experience.<\/p>\n

    \n
  1. a) THEORETICAL CONSIDERATIONS<\/strong><\/li>\n<\/ol>\n

    Let us first ask the question, \u2018If federalism is imposed as a solution in a situation of ethnic or communal disharmony, how it is supposed to accomplish that goal?\u2019\u00a0 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.<\/p>\n

    In other words, what federalism is supposed to do is to facilitate an increase of freedom to the different regions of the country.\u00a0 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.\u00a0 The units, meanwhile, were voluntarily relinquishing their freedom, or at any rate a portion of such freedom, by ratifying the federal constitution.<\/p>\n

    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.\u00a0 (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).<\/p>\n

    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.<\/p>\n

      \n
    1. B) THE CASE OF INDIA<\/strong><\/li>\n<\/ol>\n

      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.\u00a0 For instance, the entire section on \u2018Directive Principles\u2019 is a replication of the corresponding section in the Indian Constitution.\u00a0 Meanwhile, the 13th<\/sup> Amendment follows the Indian example of demarcating the powers of the central government and the provinces according to lists.<\/p>\n

      The 6th<\/sup> Amendment, which contains provisions to prevent or discourage secession follows very closely the Indian Unlawful Activities Prevention Act of 1963.\u00a0 Finally, the Fundamental Rights section of the Sri Lanka Constitution also follows the Indian model closely.\u00a0 So, Sri Lanka has already borrowed heavily from the Indian model.\u00a0 The question is whether we should go even further, and fully replicate Indian federal system.<\/p>\n

      There\u2019s no question that India, perhaps more than any other country, has the greatest number of religious, linguistic, and other communal groups.\u00a0 There\u2019s 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.<\/p>\n

      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.\u00a0 In order to establish my claims with respect to this matter, it is necessary to establish three points.<\/p>\n

      First, the Indian system is indisputably federal\u2014not quasi-federal, as some academics would have it, not cooperative federal (Modi\u2019s phrase)[6]<\/a> or some such thing, but federal<\/em> plain and simple.\u00a0 Second, the intention behind adopting the said system was to derive the benefit traditionally associated with federalism, namely, a strong central government.<\/p>\n

      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.<\/p>\n

      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<\/em>.\u00a0 That case is often described as \u2018The case that saved Indian democracy,\u2019[7]<\/a> and Justice Sikri\u2019s 700-page judgment is rightly recognized as one of the finest commentaries on the Indian Constitution.\u00a0 His assessment of the form of government set up under the Indian Constitution can therefore be taken as definitive.<\/p>\n

      In support of the second point, I shall cite two observations of Jawaharlal Nehru.\u00a0 Nehru is considered by many to be the architect of modern India.\u00a0 He is without question the preeminent political figure in that country at the relevant times when the Constitution was being drafted.\u00a0 His observations can therefore taken as authoritative, if not definitive, on the political<\/em> intention behind relevant aspects of the Constitution.<\/p>\n

      In support of the third point, I shall cite two pieces of evidence:\u00a0 one, a section of the Unlawful Activities Prevention Act of 1963 (as amended) and draw the relevant inferences; and two, sections of Justice Sikri\u2019s judgment in the Keshavananda case<\/em> where he interprets the relative importance of Fundamental Rights and Directive Principles in the Indian Constitution, and draw the relevant inferences.<\/p>\n

      First, here is Justice Sikri on the system of government set up under the Indian Constitution:<\/p>\n

      \u2018Our Constitution is Federal in character and not unitary\u2026.According to Dicey, a Federal State derives its existence from the Constitution.\u00a0 A Federal State derives its authority from the Constitution, just as a corporation derives its existence from the grant by which it is created.\u00a0 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.\u2019[8]<\/a><\/p>\n

      Justice Sikri\u2019s observation above is self-explanatory and does not require any commentary on my part.\u00a0 I shall only highlight the following two points:\u00a0 first, Justice Sikri unequivocally says that the Indian system is federal<\/em>; and two, a federal system is understood as one where all powers, including that of the States, is subordinate<\/em> to the Constitution, which is to say the central government.<\/p>\n

      I shall now turn to two observations of Mr. Nehru\u2019s.\u00a0 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.\u00a0 (What I\u2019m 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.)<\/p>\n

      First, here\u2019s Nehru speaking in Lahore, in 1945:<\/p>\n

      \u2018All the present communal troubles in India are due to separate electorates.\u00a0 They can go only by our consent and not by force.\u00a0 In the present historical background, safeguards will have to be provided for the protection of minority interests.\u00a0 Such safeguards are essential features of every democratic system of government.\u00a0 But here in India, the process is reversed.\u00a0 Here, landlords and capitalists want safeguards.\u00a0 This is absurd.<\/p>\n

      My solution to the communal problem is that there would be semi-independent autonomous provinces with all possible protection to the minorities\u2014cultural, linguistic and religious.\u00a0 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.\u2019[9]<\/a><\/p>\n

      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):<\/p>\n

      \u2018The severe limitation on the scope of central authority in the Cabinet Mission\u2019s 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.\u00a0 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.\u00a0 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.\u00a0 We have accordingly come to the conclusion\u2014a conclusion which was also reached by the Union Constitution Committee\u2014that the soundest framework for our constitution is a federation with a strong Centre.\u00a0 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.\u2019[10]<\/a><\/p>\n

      The import of the above passages is clear.\u00a0 The first set shows that, prior to Partition, Nehru\u2019s view (and we can safely presume Nehru\u2019s 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.<\/p>\n

      The second passage shows the shift in position after Partition.\u00a0 Here, the emphasis is on a strong center.\u00a0 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.\u00a0 In any event, there\u2019s no indication that, at this stage, he saw devolution of powers as a means of ensuring communal harmony.<\/p>\n

      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 \u2018ensuring peace,\u2019\u00a0 and \u2018coordinating vital matters of common concern.\u2019\u00a0 \u2018Peace\u2019 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.<\/p>\n

      If we consider Justice Sikri\u2019s and Mr. Nehru\u2019s 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:\u00a0 the Indian Constitution requires, and in fact is predicated on, the existence of a strong center.<\/p>\n

      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<\/em>, but other factors, in particular such as the Unlawful Activities Prevention Act (UAPA), and more important, fundamental rights.\u00a0 My argument is indirect and circumstantial, and involves drawing reasonable inferences from relevant facts,<\/p>\n

      I\u2019ll first turn to the UAPA.\u00a0 The key provision in the said Act says:<\/p>\n

      \u2018Unlawful 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),<\/p>\n

        \n
      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<\/li>\n<\/ol>\n
          \n
        1. Which disclaims, question, disrupts or is intended to disrupt the sovereignty and territorial integrity of India<\/li>\n<\/ol>\n