If Indian federal model is
insufficient to Sri Lanka , can Canadian Federalism be the alternate
as the resolution?
Noor Nizam, Sri Lanka Peace
Activist, Canada .
Senior leader C. Mahendran of the Communist Party of India should understand
that the Sri Lankan question includes the three communities/identities,
the Sinhalese, the Tamils and the Muslims. He is quite wrong when he
says to Tamilnet.com that the Sri Lankan question is confined only to
two identities, the Sinhalese and the Tamils. The Muslim identity is
as important as the other two.
The Canadian Federal model enables all three communities to function
within the parameters of the political aspiration and inspiration of
all communities in Sri Lanka .
A political analysis of Canadian Federalism under the microscope show
that it can work for Sri Lanka.
INTRODUCTION.
Canada is a difficult country to understand, and Canadians tell more
than one story about the Canadian nationhood. The Canadian nationalists
with an English ancestry do not tell the same story as the Canadian
nationalists with French ancestry, the Quebecois separatists. But both
disagree with the Aboriginal nationalists. There are also immigrants
and other groups who have their own histories. For some, the very existence
of different stories is indicative of a picture of madness or a sign
that Canada should be divided into two or more nations. Yet Canadians
have both different stories and the same story precisely because, Canadian
nationhood implies Canadian federalism. Canadian federalism recognizes
that citizens have both common identity and different identities.
Federalism has been defined in different ways by many academics and
political scientists such as William H. Riker, Steiner, Dyck and Mahler
as division of power at two levels of government, but the definition
that federalism is, “ it is a political system in which most or
all of the structural elements of the state… are duplicated at
two levels, with both sets of structures exercising effective control
over the same territory and population and neither set of structures
should be able to abolish the other’s jurisdiction over this territory
or population” (Stevenson 1989:8 Larry Johnston, p.262) seems to
be the federalism practiced in Canada.
Sri Lanka changing from Dunoughmore to Soulbury and a unitary to a
Republic constitution, this definition of federalism, for governance
is most acceptable to Sri Lanka . The country is still plagued by ethic
conflict demands for Liberal democracy and the satisfaction of accepting
Federalism as the solution, makes this definition more acceptable under
the circumstances.
INSIGHT TO CANADIAN FEDERALISM.
Canadian federalism clearly indicates that authority exists at more
than one level. This is seen in the constitutional independence at both
levels of the government, namely the federal and the provincial levels.
It makes one understand the notion of delegation. This is the authority
of the federal government (center) been transferred for political and
administrative purposes to the provincial or regional body of governance.
Yet, the federal government (center) maintains the right of authority
to take it back ( Lary and Johnston, p. 262).
In explaining this further, a look at the Canadian constitution, the
British North American Act, 1987 and certain subsequent amending acts
divides the powers between sovereign authority and the provincial authority
in such a way that the provinces have exclusive legislative control
over a list of enumerated subjects, and the sovereign authority has
exclusive legislative control over the rest which for greater clarity,
have been listed. The legislatures of the sovereign authority and provinces
are distinct in personnel from each other and neither has power to alter
the Constitution with regards to the distribution of powers is concerned.
That power is retained in parliament of the United Kingdom (W.P.M.Kennedy,
The Constitution of Canada, Chap. XX111).
However, the courts may intervene to declare the sovereign authority
or provincial laws not binding on the ground that they transgress the
area of operation or activity allotted to the respective legislatures
by Constitution. This is in fact federal principles at it’s best.
But certain exceptions of federal principles can be seen in the Canadian
federal system. The Executive of the sovereign authority has powers
to disallow any act passed by a provincial legislature, irrespective
of the fact whether the act deals with the subjects falling within the
legislative field exclusively assigned to the province or provinces.
The appointment of the Lieutenant-Governor, the formal head of the
provincial government is also executed by the sovereign authority. This
means that the sovereign authority can direct the Lieutenant Governor
to withhold his sanction of provincial bills and to reverse them for
consideration by the sovereign authority. By doing so, the sovereign
authority curtails the sanctioning of such reserved bills, if it so
thinks. With regards to the judiciary, all-important judicial appointments
are made by the Executive of the sovereign authority (E. Forsey, Canadian
Journal of Economics and Political Science.1938).
This raises the question whether the powers to restrain and to over
rule, empowered in the Executive under the federal government of Canada,
which is constitutional, and are unrestricted in law falls within the
purview of federalism. The Executive of the sovereign authority could
prevent a provincial legislature from making laws upon its own allotted
subjects, if the Executive would disagree to approve the policy involved
in the laws. These extend to financial legislations as well as to others.
The Executive of the sovereign authority could thus prevent a province
from raising revenue or spending money if it disapproved of its financial
legislation.
This is a powerful instrument for centralizing and unifying the government.
It may be realistic that the sovereign authority’s parliament cannot
itself legislate upon provincial subjects, but it can prevent the provincial
legislature from doing so. In this respect the Canadian Constitution
differs from that of the United States and South Africa , where, not
only may the executive of the Union veto provincial ordinances but the
parliament of the Union can itself also legislate upon provincial matters.
CANADIAN FEDERALISM.
Therefore the federal principle is not totally dissected, from the
Canadian Constitution. It always finds a place in the constitution and
that too a very important place. Thus Canadian federalism can be looked
as leaning towards Unitarianism too. But if we confine ourselves to
the strict law of constitution, it is hard to know whether we could
call it a federal constitution with considerable unitary modifications,
or a unitary constitution with considerable federal modifications. Can
it be then said that the Canadian Constitution is a “quasi-federal
constitution”. It is interesting therefore to note that the powers
to over rule and restrain are not completely inactive in the constitution,
rather the Executive of the sovereign authority uses them sparingly.
Frequent use of these powers may lead to unpopularity among the citizens
or people of Canada . Canadians wish to be left alone in the exercise
of their provincial powers. As a result, the legal powers, which might
turn Canada into a unitary state, have been subordinated to federal
principles in practice.
Canadian federalism also enlightens the fact that, what is necessary
for the federal principle is not merely that the general government,
like the regional governments, should operate directly upon the people,
but further, that each government should be limited to its own sphere
and within that sphere, should be independent of each other.(Freeman,
History Federal Government in Greece and Italy, p. 12;, Kennedy, Constitution
of Canada, eg. Pp. 407-8;) This has been greatly expressed in the governance
practices of the provincial government of Ontario in recent times. The
issues being the health care, immigration and child welfare and benefits.
Canadian federalism in recent years, and throughout most of its history,
has been characterized by conflict and controversy regarding the division
of powers. A matter of interest is that, Federal and provincial governments
have sought to expand their de facto, and also sometimes de jure, the
recognized area of legislative power at one another’s expense.
They have frequently accused governments at the other levels of making
unlawful and unwarrantable intrusion on the powers guaranteed to them
by Constitution. Private interests have often challenged the actions
of governments by arguing that such actions violated the constitutional
division of powers. They have also attempted to encourage the expansion
of government activity without much regard for whether the jurisdictions
of other levels of government were being encroached upon. The intervention
of the judiciary to define the scope of legislative powers confided
to one or the other level of government has been a common phenomena.
This shows that for Canadians, the division of power is an important
subject, in good governance of Canadian federalism. (Garth Stevenson,
“The Division of Powers,” vol. 61 of the Research Studies
for Royal Commission on the Economic Union and Development Prospects
for Canada . (Toronto: University of Toronto Press, 1985)).
NEED FOR SRI LANKA .
On the contrary, Sri Lanka being a unitary Republic State , has been
for long years struggling politically, to resolve an issue of “division
of power” demanded by ethnic conflicts. It has indeed become an
important subject to the nation in recent times. A federal Sri Lanka
was envisaged as far back as the 1920’s, but remained a distant
reality. Sri Lanka is a multiethnic, multi religious, multicultural
society. Of the approximately 18 million population 77.2 % are Singhalese,
6.1 % are Tamils, 4.8 % Tamils of Indian origin, 8.9 % Muslims and 3.0
% belonging to other ethnic groups. Of the Singhalese the majority are
Buddhist and remainder Christian. The Tamils are either Hindu or Christian
and Muslims profess Islam.
Although at the time of independence Ceylonese raised a collective
voice for liberation from British, a series of subsequent events lead
to a deterioration of ties between the Sinhalese and Tamil leaders.
One such development was transformation of the electoral system from
communal to a territorial one thereby putting the majority community
in a politically advantageous position. Some of the other political
and constitutional developments that contributed to the deterioration
of ties were the Official Languages Act of 1956, land colonization schemes
for Sinhalese in the North and East of the country and education policies
introducing quotas which restricted access to education and employment
opportunities for minorities. Some of the remedies that were attempted
at were the Special provisions acts of 1956 offering equal rights to
the ethnic languages at national level, the Bandaranaike-Chelvanayagm
(1957) and the Dudly-Chelvanayagm (1965) pacts focusing on devolution
of power to the regions, the 13th., amendment to the constitution in
1987, all of which never became a political reality.
With the Tamil youth taking to arms struggle and violence since 1973
to win their demands, as a result of the above failures, the Peoples
Alliance government embarked on resolving the political crisis. Proposals
to reform the constitution were undertaken during the period 1994-2000.
One of the highlights of this reform was the introduction of Sri Lanka
as an “indissoluble Union of Regions” and subsequently as
consisting of the center and regions.(devolution proposals of 1996,
Govt. of Sri Lanka). Amidst political bickering by the United National
Party and other groups supporting it, these proposals were completely
abandoned.
The failed attempts at devolution of power within a unitary constitution
have only strengthened the belief among those advocating the division
of power that meaningful power sharing is only possible within a federal
framework. The arguments for and against a federal Sri Lanka are by
no means unique. Rather they are based largely on the fundamentals of
federalism. Proponents of federal idea advance the cause on the division
of sovereignty, accommodation of diversity, power sharing associated
with federalism while its opponents use the pathology of federalism,
among many others to prove their point.
CANADIAN FEDERALISM CAN WORK FOR SRI LANKA .
Meaning full division of power at this point in time for Sri Lanka
is necessary for two reasons; firstly as a means of reducing the existing
autocratic nature of the State and secondly as a means of addressing
the present conflict. With a peace truce ineffective between the Liberation
Tigers of Tamil Eelam (the ruthless terrorist group in Sri Lanka leading
the arms struggle) and the UPFA - coalition government and peace negotiations
not in process, and Norway left out as the facilitator, both leadership
have to explore a solution founded on the principle of internal self-determination
based on a Federal structure within a united Sri Lanka. It is here that
Canadian Federalism becomes a reality. The salient features of Canadian
Federalism of dividing power between the sovereign authority, the central
government applied to Sri Lanka and the provinces – the regions
(North & East) populated by the minorities applied to Sri Lanka
, arguments a positive format of liberal democratic governance as a
means of political compromise. Therefore a federal constitution is expected
to take the highly concentrated powers away from the center. In the
present governing structure, the central government is all-powerful
and all powers devolved could be exercised by the center. Adding to
this highly centralized nature of authority and power is the executive
presidential system. As in the Canadian Federal model, a federal framework
can reduce much of the autocratic nature of the center and provide for
a reasonable distribution of powers between the center and the periphery
or the territories dominated by the minorities, both the Tamils and
the Muslims. A major compromise will be the powers needed by the judiciary
to intervene under the federal system to define the scope of legislative
powers confided to one or other level of government within such a federal
system that may be applied to Sri Lanka as a solution. Canadian federalism
enjoys this constitutional mechanism. Thus Canadian federalism has all
the features that best suite the system of government that fits well
for Sri Lanka , in the present context of the conflict resolution and
peace negotiations.
The acknowledgement of the parties to the conflict, that a political
system based on a federal structure within a united Sri Lanka would
benefit very much from a system of Canadian federalism. Canadian federalism
can therefore work for Sri Lanka .
References:
Bandaranaike,Chelvanayagm Pact. Sri Lanka . 1957
Forsey E. Canadian Journal of Economics and Political Science, Canada.1938.
Freeman. History Federal Governments in Greece & Italy : Canada
.
Lary and Johnston . Politics - An introduction to the modern democratic
State, Canada, Broadview Press. 1955.
Kenned. The Constitution of Canada .
Stevenson, Gath . The Division of Power. Vol. 61, Canada , Toronto University
Press, 1985.
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