{"id":70753,"date":"2017-10-17T15:42:32","date_gmt":"2017-10-17T22:42:32","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=70753"},"modified":"2017-10-17T15:42:32","modified_gmt":"2017-10-17T22:42:32","slug":"needed-responsible-govt-not-federalism","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2017\/10\/17\/needed-responsible-govt-not-federalism\/","title":{"rendered":"Needed: Responsible govt. not federalism"},"content":{"rendered":"

By Dr Kamal Wickremasinghe\u00a0Courtesy The Island<\/em><\/span><\/h2>\n

October 17, 2017, 8:28 pm<\/span><\/p>\n

The fundamentally flawed nature of the draft constitution to be debated in parliament makes a clause by clause analysis an exercise in futility. The basic problem, in a nutshell, is that the Steering Committee of the Constitutional Assembly (the committee) is asking the Sri Lankan nation to place its trust in a fully devolved political structure. The problem is that the idea of federalism the committee has adopted is founded on a model advocated by dishonest international forces with vested interests.<\/p>\n

A brief look into the committee\u2019s version of federalism points to a linguistics issue related to the discernment of the shades of meaning associated with the word federalism, cunningly exploited by neocolonialists to suit their needs. In a general sense, the draft constitution also demonstrates the critical effect language plays in constructing our understanding of the universe around us.<\/p>\n

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A study of the different forms of the international political organisation labelled \u2018federalism\u2019 in operation shows that the word federalism falls in to the category of words and phrases in the English language called contronyms. Words having contradictory meanings in different contexts. To cite a few examples, the word \u2018custom\u2019 can mean a common practice, or a special treatment; \u2018bound\u2019 can mean heading to a destination or restrained from movement. Sanction can mean to approve as well as to boycott, and \u2018trip\u2019, a journey, or a stumble.<\/p>\n

It appears that the word federalism similarly can mean \u2018a federal political order set up by constitutionally dividing powers of a sovereign, unitary state between largely self-governing small units\u2019 as well as \u2018a federal state created out of a group of smaller states who willingly accept the dominance of a central federal government\u2019. The multitude of micro states made (in the 20th century out of former colonies) fall in to the first category, whereas the often cited \u2018success stories\u2019 of federalism such as the US, Australia and Canada fall into the latter. Understanding this difference is central to seeing the dangers posed by the current constitution proposal.<\/p>\n

\"\"A review of the history and current practice of federalism in countries like the US, Australia and Canada shows that the particular brand of federalism practised in these countries is in fact, the opposite of the form the committee is recommending to Sri Lankans. The particular form of federalism in operation in these countries refers to a federal union in which the national Constitution gives the central government control over matters of common concern to the country as a whole, permitting the constituent regional political communities to regulate matters only of local concern. Such arrangements reflect the joining of regional, smaller groups involved for the common good, based on shared racial and nationalist sentimentsin the cases of the US and Australia.<\/p>\n

The committee has obviously adopted the contrary definition according to which federalism involves \u2018breaking up of a unitary state to grant substantial authority to a number of regional governments\u2019. They seem to believe that the devolution of power under such an \u2018expanded\u2019 arrangement (as compared to the current level of s13 devolution) is the cure for all national ills of Sri Lanka. In adopting this view, the committee has obviously fallen prey to the deceptive use of language by neocolonialist forces whopromote federalism \u2014 in the sense of diminution of states to smaller units \u2014 as panacea for ethnic problems faced by former colonies while they themselves are moving towards increased amalgamation.<\/p>\n

A historical, socio-political analysis of federalism of the kind found in the US and other former European colonised lands shows that the idea originated as a means to enable military functions associated with the colonialist territorial expansion and consolidation. In the case of the US, it was the battles for territory among a variety of groups from England, France, Spain, and the Netherlands who independently invaded eastern North America in the late 16th century, which later led to colonial moves of federalisation among \u2018like\u2019 groups to ward off the threat of war by rival colonial powers. The structure later evolved to broader \u2018federations\u2019 against native forces who posed a common threat to colonisers as well as to facilitate freer trade amongst the coloniser groups.<\/p>\n

The motivations of federalisation in Africa were similar. In their infamous \u2018Scramble for Africa\u2019 in the late 19th century, Britain, France, Germany, Belgium, Spain, Portugal, and Italy rivalled each other to expand invaded territories by drawing arbitrary boundaries. The new boundaries ignored the demographic, ethnographic and topographic factors upon which land had been partitioned historically. Such newly formed territories gradually developed in to European ethnic enclaves, with territorial conflict among them being a constant feature until they began settlement through Treaty, in the face of collective resistance from the natives.<\/p>\n

Federalism of this form was the European colonialists\u2019 answer to native resistance to foreign occupation of their land. A. V. Dicey \u2014 the committed supporter of British colonialism as well as the legal authority on English constitutional thought\u2014identifies, in his seminal work The Law of the Constitution (1889),\u2018such bonds as locality, history or race\u2019 as conditions vital for the formation of a federation.<\/p>\n

The federal system of government established in Australia by the 1901 constitution- referred to as the Commonwealth -also had its origins in the European idea of the nation-state. Giving effect to a British Act of Parliament passed in 1900, Australia became a nation on 1 January 1901, comprising the six convict colonies \u2013states \u2013 transferring some of their law-making powers to the new Australian Parliament. The machinery of government set up by the Australian Constitution differed from the American model in that the basic doctrines of the US Constitution \u2014 the separation of powers and legislatures of the delegates of the people \u2014 do not form prominent part of it. The stronger British influence on the Australian Constitution reflects the fact that the Australian colonisers were relatively more homogeneous unlike the American situation. The \u2018Commonwealth\u2019 essentially transformed a series of convict settlements with loyalties to the \u2018mother country\u2019 (Britain) to a federation with centralised power in Canberra.<\/p>\n

Current state of the centre-periphery relationship in Australian federalism<\/h3>\n

The key factor in evaluating the current constitutional proposal in Sri Lanka needs to concentrate on its central idea of \u2018expanded devolution\u2019 to the regions for which, the committee does not seem to see an alternative. The original colonial form of federalism alluded to above however, provides successful examples of regional units \u2018sacrificing\u2019 power and authority for the sake of common good of the state. The constitutional arrangements of Australia and their subsequent interpretations by the Australian High Court in particular, provide the best example of the concept of regions integrating for the common good.<\/p>\n

The Australian Constitution keeps formal distribution of powers between the central and state governments simple. Except for the list of \u2018defined powers\u2019 contained in s51 \u2014 including foreign affairs, defence and medical care \u2014 as areas in which the Australian Parliament can make laws, Australian Constitution leaves unspecified \u2018residual\u2019 powers the responsibility of state governments. These state issues in practice have been limited to the provision of community services such as schools, hospitals, criminal law, police and the roads.<\/p>\n

However, the Commonwealth, with the powers to override state laws, within the subject matters conferred on it by the constitution, is generally regarded as the more powerful partner in the federation. The Australian Constitution provides that in cases where a law of a State Parliament is inconsistent with valid Commonwealth law, the Commonwealth law operates and the State law would be invalid.<\/p>\n

The reach of Commonwealth power was consolidated through the decades, prompted initially by WWII and subsequently by post war reconstruction and nation building. More importantly perhaps, liberal interpretation of Commonwealth legislative and executive powers by the High Court of Australia \u2014 established in 1903 with the power to determine validity of laws under the constitution \u2014 has definitively widened the influence of the Commonwealth at the expense of the States, without any amendments to the words of the constitution. Important precedents include The Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Amalgamated Case) [(1920) 28 CLR 129], the Tasmanian Dam Case Commonwealth v Tasmania [(1983) 158 CLR1] and Work Choices Case (New South Wales v Commonwealth[(2006) 231 ALR 1].<\/p>\n

The High Court\u2019s landmark majority decision in the Amalgamated Case resolved the inherent tension between the concepts of \u2018responsible government\u2019 and federalism by emphasising the former and disregarding the latter, based on common sovereignty and the \u2018unification\u2019 of the Australian people by the constitution. Common and indivisible sovereignty and responsible government. In effect, the Court overturned the state\u2019s residual powers doctrine and replaced it with an expansive interpretation of Commonwealth powers.<\/p>\n

Currently, responsible government \u2014 shaped by party discipline and parliamentary dominance \u2014 is the core feature of the Australian polity. Federation in Australia is now seen as the means through which the political accountability of government to the people was maximised with the federal division of power left largely to the workings of the political process. Judicial intercession is warranted only in extraordinary circumstances. The legal profession unhappily views this trend as a continued expansion of the powers of the national government to the diminishment of those of the states, but the High Court has showed reluctance to develop a constitutional jurisprudence of federalism.<\/p>\n

Centre-periphery relations in America<\/h3>\n

America presents a mixed picture of centre-periphery relations, emanating from the diverse origins of the original coloniser populations who were suspicious of each other and a strong central government empowered with taxation. During the early years of America, the states strongly disfavoured the concept of a strong central government. Such suspicion arose from the different European origins of the colonists. As a result, the Articles of Confederation ratified in 1781 \u2014 the forerunner to the constitution \u2014 conferred few powers on the national government, expressly retaining the states\u2019, \u2018sovereignty, freedom and independence\u2019. The states kept all power, including powers to tax and regulate commerce denying the central government with revenue. In 1787, a Constitutional Convention had to be convened for the purpose of remedying the problems caused by the Articles of Confederation. A settlement on a strengthened central government, with executive, legislative, and judicial branches resulted from this process.<\/p>\n

Federalism did not ease America\u2019s sectional tensions. The Southern states maintained the claim that individual states were sovereign from the federal government, including the right to secede from the union if they disagreed with its policies. Abraham Lincoln disagreed however, and a serious of compromises with the southern states in the first half of the 19th century failed to prevent the Civil War. The outcome of the Civil War settled once and for all that the ultimate sovereign power of America was vested in the national government.<\/p>\n

Further concessions to states\u2019 rights failed to dismantle apartheid in the South. Southern separatism was subdued only by further assertions of central power\u2014starting with the Supreme Court decision of 1954 on desegregation of schools\u2014nominally altering the racist policies of the South. In recent years, States\u2019 Rights campaigners have begun opposing the growth of the federal government and its recognition of social changes, based mostly on religious and social issues such as legalised abortion and \u2018Obamacare\u2019, which they see as cases of the federal government forcing states to adopt nationwide laws. Since about 2000, partisan appointments of judges to the Supreme Court have been instrumental in broadening the concept of state sovereignty and to restrict the power of the federal government in a number of domestic policy areas.<\/p>\n

Lessons from American and Australian federalism<\/h3>\n

Socially and culturally, the contemporary 50 \u2018United States\u2019 representing keen territorial diversity has become an integrated society, due not to its constitutional arrangements, but due to unhindered interregional migration, assimilation and economic dynamism. The practical impact of the highly touted \u2018checks and balances\u2019 and \u2018separation of powers\u2019 in the American constitution are in substantial indeed, due to all such divisions being part of the same government, governed by the same set of rulers. The average municipal election in the US engages less than a third of the local electorate, and the smaller the community, the smaller the level of participation. Apart from ultra-conservative groups with extreme nationalist agendas, the states couldn\u2019t care less about independence. The low levels of effective devolution have not impacted on national unity.<\/p>\n

Australia is broadly similar in not succumbing to upheaval caused by declining share of states\u2019 (provincial) rights. In addition, Australia has built a successful multicultural society by sticking to central, uncompromising policies such as the primacy of English as the national language and other measures aimed at forming a unified society in a generation or two.<\/p>\n

The biggest issue, however, is that the constitutional steering committee in Sri Lanka appears to have been oblivious to the wider geopolitical context of devolution and federalism advocated by neo-colonial forces. Intervention of former coloniser countries on post-colonial nation states troubled by ethnic conflict through the UN, bipartisan pressure and through the NGOs financed by them, has led to many recent cases of state disintegration and the formation of new ones. This trend reversed the pattern in the number of states born in the 19th Century when empires were built by integrating formerly independent countries. The growth of small states created from the disintegration of existing states occurred on a fixed landmass, not accompanied by any need to accommodate increasing population numbers.<\/p>\n

The downward trend in state size over the 20th century is most visible in the African continent where the states are youngest and smallest. The world-wide effect of the dissolution of the communist multinational federations in 1991 proved strong evidence that in many states, federalism was introduced as a prelude for the dissolution of the state. In the case of poorer former colonies, often coercion is used to achieve their objective of allowing regions to govern themselves, or risk international isolation and worse. Such evidence proves that federalisation is a tactical manoeuvre of neocolonialists against the unitary state, presented as a measure that would discourage secessionism by giving substantial rights to the linguistic nations or regional groups who complain of discriminated by the unitary state.<\/p>\n

Those who offer federalism as a solution to Sri Lanka\u2019s ethnic complaints need, first of all, to recognise that the concept involves more than simply \u2018fracturing\u2019 a unitary sovereign state, as the US and Australian examples offer. Secondly, they need to appreciate that the promise and practice of federalism (of the kind they seem to have in mind) are frequently at odds. A federally devolved republic does not have better capacity than a unitary state to equip citizens or their elected officials with physical or mental resources to more efficient resolving of conflicts.<\/p>\n

In dealing with ideologically based attempts at devolution, it needs to be recognised that it is a bankrupt idea. Encouraging the formation of ethnically or language based enclaves as a means of appeasingminority political groups that do not share a strong commitment to a national cause (along the lines outlined by Dicey) will inevitably lead to disintegration of the state.<\/p>\n

Another key factor that has escaped comment or consideration is the uniquely small territorial dimensions of Sri Lanka as a contiguous national land mass of just 65,610 km\u00b2. This factor was overlooked by India when they offered the \u2018solution\u2019 of 13, based on their experience on a land mass that is exactly 50 times as large! Theory and evidence indicate that size of a territory, defined as a governed by a single political unit is intimately linked to long-term equilibrium combinations of size and political institutions. And Sri Lanka hardly lends itself for division into smaller units.<\/p>\n

It needs to be recognised that national reconciliation in Sri Lanka is hindered by the missing vital ingredient of commitment among political classes to build a strong state with the economic wherewithal to provide all citizens decent health, education and defence against foreign domination \u2014 without discrimination along ethnic or other grounds \u2014 rather than lack of regional autonomy. Sri Lanka\u2019s political system is currently dominated by the majority community politicians motivated by power, specifically the perks that come with power, and minority politicians who seem to thrive on exploiting acrimony (based on exaggerated claims of unfair treatment) to achieve same ends. Further devolution of power in such circumstances can only lead to disaster in the form of secession.<\/p>\n

In conclusion, it must be remembered that when, on 1 March 1990, the provincial administration of EPRLF Chief Minister Varadaraja Perumal declareda free and sovereign Democratic Republic of Elam, the Sri Lankan government had the powers to dissolve the provincial council and impose direct rule. The current proposal leaves no such options, and seems to suggest prayers to our political masters of America to save us.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Dr Kamal Wickremasinghe\u00a0Courtesy The Island October 17, 2017, 8:28 pm The fundamentally flawed nature of the draft constitution to be debated in parliament makes a clause by clause analysis an exercise in futility. The basic problem, in a nutshell, is that the Steering Committee of the Constitutional Assembly (the committee) is asking the Sri […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[100],"tags":[],"class_list":["post-70753","post","type-post","status-publish","format-standard","hentry","category-new-constitution"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/70753","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=70753"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/70753\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=70753"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=70753"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=70753"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}