Non-constitutional requirements forsuccessful

implementation of federalism

*Will Sri Lanka Follow The Example Of Nepal?

The Long Term olution To Sri Lankas Ethnic Problem

November 6, 2017, 8:49 pm

By Prof. Shantha K. Hennayake
Department of Geography
University of Peradeniya

This indeed is the paradox of multinational federalism: while it provides

national minorities with a workable alternative of secession, it also helps to
make secession a more realistic alternative to federalism".
Second, federalism has not led to the disappearance of ethnonationalism in any
state; ethnonationalism is only contained and may be passing a dormant state
only to erupt at a later date as in the case of Yugoslavia and the former Soviet
Union. Third, without a qualitative change in political culture federalism cannot
resolve ethnonationalist problems. Thus, an imposed federalism without the
necessary political culture is bound to fail.

One of the strong arguments against federalisms ability resolve

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

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

2. Minority ethno-secessionism has not been resolved by introducing a federal

form of government in some states such as (India, Canada, and Spain)

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

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

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

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

Pointing out the potential of federalism to resolve ethnonationalist problems,

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

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

What are the non-constitutional requirements for the smooth practice of

Federalism?.

My initial reading of the federal systems around the world exposed me to a

wide variety of non-constitutional factors cross cutting culture, politics, law and
even simple common sense.

J. Bednar , an authority on federalism pointed out that federalism will be

successful only if two political conditions are met.

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

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

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

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

Another scholar A.N. Roy pointed out with respect to Indian federal experience
that "the success of federalism also depends on civil society and the political
culture" and thus "for a federal system to succeed, a climate of tolerance,
compromise, and the recognition and respect for diversities is imperative".

Radmila Nakaradha highlighted that federalism will not succeed in a violent

society. The problems that are likely to arise in a federal system need to be
resolved in a non-violent manner. Otherwise, the whole rationale for moving
into federalism is undermined.

Amidst all these scholarly pronouncements and predictions, I was fascinated by

the simple yet paramount concept of "enduring principle proposed by AR
Gitelson, a political scientist. Gitelson has basically summarized in simple to
understand language the fundamental non-constitutional requirements of
federalism which are found scattered in other writings.

These enduring principles were

1. the rule of law,

2. republicanism,

3. separation of powers,

4. checks and balances and

5. national supremacy.
Gitelsons simple but powerful argument is that the US political system,
characterized primarily by federalism is maintained through these enduring
principles. These principles are universal requirements of a democratic society,
irrespective of the form of government. Empirical evidence from around the
world shows that if these principles fall apart, so do the federal structures based
on them. The failure of federal states such as Soviet Union, Yugoslavia can be
directly attributed to the collapse of the above principles. In Sri Lanka too the
future of federalism will undoubtedly depend on the degree of adherence to
these principles.

Rule of Law.

Rule of law is fundamental to a civilized society. In a modern democratic

society, rule of law is essential for its smooth functioning irrespective of the
type of governmental system. The most basic principle of rule of law is that all
citizens respect the rule of law which applies equally to all.

In federal states, the constitution is supreme as it alone guides the two parallel
governments - the federal and regional. Further, the constitution reign supreme
in case of a disagreement or conflict between the two levels of government.
However, no federal constitution can anticipate all the potential problems
within a federal system and therefore the judiciary a Supreme Court - is
empowered to interpret the constitution in a federal state. Supreme Court
decisions are the final interpretations of the constitution. Federalism will
function and survive only under the conditions of unquestionable acceptance of
constitutional supremacy by all. If either government federal or regional
disrespects the constitution and the Supreme Court rulings, federalism will
disintegrate into total anarchy and renewed violence and chaos.

At the level of the civil society, people must not only uphold the laws of their
own region/province, but also the federal laws which are applicable throughout
the entire country. Federalism will degenerate if the people living in a regional
state/province defy the federal laws. Even a brilliantly crafted federal
constitution will not last a day if the society is not law abiding. Federalism could
be and should be maintained through consensus and rule of law and not
disagreements and violence.

Both the political and civil society in Sri Lanka does not have a respectable
record on upholding the rule of law and enforcement of equality of under the
law. Laws and even the constitution are violated with impunity by the political
and governmental leaders as well as the members of the civil society to protect
and sustain political power. Federalism cannot survive with these violations and
excesses. Thus, it is important that the leaders who are committed to introduce
federal system of government also emphasize on the need to reestablish rule of
law in the country and also practice it themselves first.

Republicanism

Republicanism is about upholding democratic principles of governance. It is not

paying lip service to a concept of "good governance". Republicanism starts with
the acceptance of the most basic assumption that government is of the people,
by the people and for the people. It has been argued that federalism to be the
most republican form of all systems of government. Federalism, is not a political
ideology or mechanism to justify authoritarianism, dictatorship, or defiance and
last of all terrorism either at the national or provincial level. Rule of law, free
and fair elections held regularly as stipulated not at the time of most politically
advantages to those in power, and democratic principles and human rights are
inseparable elements of the large system federalism. Federalism is not a license
for provincial tyrants to act undemocratically in the name of political autonomy
and/or self-determination of an ethnic group. The peace loving people who
desire, respect and uphold democratic rights should come first in any attempt to
formulate a federal structure. Sri Lankan federalism should not be
contemplated only as an opportunity to satisfy the political aspirations of Tamil
people as projected by the ITAK and TNA. It has to be seen as an opportunity for
all people, including the Tamils to fully participate in democratic politics and
decision making at all levels of governance. Whatever, the subsequent
justifications, the real origin of Tamil ethnonationalism which escalated to the
level of terrorism is precisely the lack of real opportunities for the Tamils to fully
and actively participate in national democracy and governance in the Sri Lankan
state. Both Sinhalese and Tamil political parties and the governments since 1948
are responsible for this utter failure. Federalism should reestablish
republicanism in this country both in Sinhalese and Tamil areas - in its true
sense of the word. Federalism without republicanism is as good and real as
present Soviet Union!

Separation of Powers

The concept of separation of powers legislative, executive and judicial - was introduced precisely to
prevent concentration of all three powers on a single individual, political party or a body. Separation
of powers is considered an essential requirement in any modern democracy to prevent corruption and
dictatorship or tyranny. Separation of powers is more important in federal system as the very purpose
of federalism could be defeated if the leaders become national or regional dictators.

In Sri Lanka, one of the arguments for the emergence of Tamil ethno- nationalism and its subsequent
intensification into terrorism is precisely the continuing over-centralization and over-concentration of
power in Colombo. As the Tamil demand for regional autonomy intensified so did the Colombos
effort towards centralization.

Posted by Thavam