New Directions in Federalism

Tamils - a Trans State Nation..

"To us all towns are one, all men our kin.
Life's good comes not from others' gift, nor ill
Man's pains and pains' relief are from within.
Thus have we seen in visions of the wise !."
- Tamil Poem in Purananuru, circa 500 B.C

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New Directions in Federalism

Professor Gamini Laksman Peiris
Minister of Justice, Constitutional Affairs, Ethnic Affairs & National Integration
The Democratic Socialist Republic of Sri Lanka

We are happy to be here participating in your proceedings. Sri Lanka is not a federal state, but with many countries of the emerging world we are confronting a very complex problem. And I would summarize that problem in this way:

How do you reconcile ethnic and cultural diversity with the concept of mature and cohesive nationhood? Certainly in South Asia this is a perennial problem. In many of our countries there are people who speak different languages, profess different religions, come from different cultural backgrounds. How do you construct political and economic institutions which enable this range of diversity to be readily compatible with the perception of belonging to a single country, without any element of exclusion from decision-making processes?

I think that is a central challenge facing many of the countries of the developing world.
As the chairman pointed out, in Sri Lanka we are experimenting with certain ideas which will enable us to devolve substantial power to different regions in the country. The whole thrust of this is empowerment of people; making it possible for them to play a more active and vigorous role in the making of decisions which touch their daily lives.

How do you do this within the framework of a single state? In Sri Lanka, as we proceed with this initiative we find ourselves facing a particular problem.

We are told that if you look at the history of federalism in the world the typical model of federalism is that of regions coming together, regions that were earlier independent. But they come together for certain limited purposes. That has been the traditional pattern.

Now, Sri Lanka, by contrast, has always been a unitary state. Federalism has not at any time been part of the political experience of my country.

What we are now contemplating is the changing of that unitary structure to admit of a degree of power-sharing, which is generally associated with quasi-federal structures. Now the question that is asked is:

I need to tell you that one of the problems that we face here is an emotional problem. Not people being cerebral, reflective, thinking consciously about these matters, but an intuitive and emotional response to these very mixed and convoluted issues. The problem there is this:

Now it is a question of molding public opinion and convincing people that far from quasi-federal structures bringing about the break-up of a country, on the contrary, quasi-federal models have enabled countries, characterized by a large degree of diversity, to remain as single countries.

Look at Canada. Closer to my own country look at India, just across the Palk Straits. It is impossible to conceive a republic of India being one country if all power had been concentrated in the capital, New Delhi.

So it is the emergence and the consolidation of structures which have enabled people coming from a diversity of cultural backgrounds to feel at home in their respective nations. It is these mechanisms that have enabled the survival of these entities as unified countries. Now, that may be self-evident when you put the proposition in that way, but one has to overcome a high degree of emotion and convince people of the reality of that position.

In doing so I think we have to jettison labels; nomenclature is not the most important thing. There are many countries in the world which do not fall neatly into this category of unitary or federal. There are hybrid structures. So I do not think that we should be slaves to stereotypes or to labels.

Now, the big question that countries like Sri Lanka have to face in that regard is, how do you establish that division between the centre and the periphery? There are two competing models: symmetrical or asymmetrical. Of course, you have the centre, and then you have the provinces or the regions. Do you devolve powers to the regions on a uniform basis? Will every region be the recipient, the repository of the same degree of power? Or would you recognize nuances and gradations? Would you recognize quantitative and qualitative differences with regard to the distribution of powers among the different units that constitute the federation.

Now one argument is that you have to recognize the practicalities of the situation. In my own country most of the problems are in the northern and the eastern regions where the majority of the people speak the Tamil language. That is, those are regions dominated by a minority. There is a similar situation in Canada, in Spain, and in other countries. Do you then solve the problem in this way: a duopoly approach that greater powers need to be devolved to those regions where the most acute problems arise in every day experience?

Now, in Sri Lanka we have found that one of the reasons why that approach is difficult is a degree of emotional resistance. If the majority feel that some kind of completely special and disparate treatment is meted out to a particular region, which is inhabited by a group of people who belong to the racial minority, then psychologically there's a high degree of resistance to the adoption of those models and structures.

But whichever solution you adopt, symmetrical or asymmetrical, it is important to insist, in keeping with the contemporary Sri Lankan experience, that there must be power-sharing also at the centre.

Now the situation is complicated in a country like my own where the minorities do not live exclusively in a particular part of the country. They do live in the northern and the eastern provinces, but then there are large numbers of Tamil-speaking people who live in the capital city and its environs. So a viable structure cannot consist simply of the devolution of power to regions. You have to look at the problem of power-sharing at the centre and develop appropriate mechanisms to accomplish that objective.

In so doing you must achieve clarity. I think clarity is very important indeed. In Sri Lanka we have adopted this experience. We have established a clear-cut distinction between the powers that are retained by the centre in the form of a reserve list, and the powers that are devolved to the periphery, namely the devolved list. We have done away with the concept of a concurrent list consisting of shared competencies, because that leads to ambiguity, endless debate, which cannot be resolved in any satisfactory manner. So we do not have a no man's land. There's a clear-cut distinction between powers which belong to the centre and the powers which are devolved to the periphery.

Then another requirement of such a structure is that of effectiveness. You must ensure that the centre has the powers which it needs with regard to defence, for example, foreign policy, the national budget -- and other powers are devolved to the periphery. It is also important to insist that the provinces must have the resources, the wherewithal that they need to discharge their functions. Otherwise, the structures may be near perfect in theory, but they will not work on the ground if the units, if the regions do not possess sufficient resources to discharge their functions adequately. For similar reasons, the provinces must also be adequately equipped in terms of personnel.

Then there's this one other element that I need to refer to. These problems in our part of the world cannot be analyzed solely in terms of majority versus minority. What imparts a particularly complex dimension is the minority versus minority aspect. In Sri Lanka there are two minorities: there are the Tamils; there are the Muslims. So if in the northern and the eastern regions you devolve very substantial powers to the Tamil-speaking minority then the Muslims ask that their own fundamental rights be suitably entrenched by constitutional arrangements to prevent the Muslims from being overwhelmed by the Tamil community. So that is a dimension that we need to bear in mind.

The structures that we evolve must also contain suitable mechanisms for the resolution of problems which may arise between the centre and the regions on the one hand, and among the regions on the other hand. In Sri Lanka we have chosen the method of a chief ministers' conference as one of the mechanisms for resolving disputes as and when they arise, before they become very aggravated or exacerbated.

It is also important, I think, to make the point that in our part of the world, certainly in South Asia, we have a serious problem of political polarisation. The disappearance of middle ground. People are not willing to compromise. Some of these issues are tarnished with emotion. In that kind of situation we have made provision in our constitutional arrangements for the regional governments to consist not only of the party that has been successful at the polls, but proportionately the party in opposition will be entitled to a number of seats in the board of ministers of the region.

So we have departed from the traditional principle of winner takes all. We have made it possible for the party in opposition also to make a constructive input into the making and the implementation of policy and we think that that is a constructive contribution to diminishing the tradition of political confrontation and polarisation which is the bane of the political culture of a great part of the sub-continent.

Now, the final point I would like to make, Mr. Chairman, is this: that these structures may be desirable, but they will be successful only in an environment that is pervaded by respect for pluralism. So one is to take into account the ethos of society as a whole.

There must be a high degree of public awareness of the value systems that are sought to be embodied in the constitutional arrangements. You need a vigorous press. You need trade unions. Political parties. You need democracy within political parties. You need certain regulatory mechanisms with regard to the finances of political parties. There must be access to justice. The ombudsman or the equivalent of the ombudsman must have a significant role to play.

So some degree of egalitarianism is necessary in order to make a success of some of these principles, so one is to have a holistic conception of human development, and the political and economic structures that come into being must reflect that commitment to pluralism, secularism, and the functioning of representative democracy.

So within the short period allocated to me, 15 minutes, I have tried to give you an insight into the complexity of the problems in my country and some of the approaches that we are currently adopting to achieve a resolution of these problems.

We do not believe that war is the answer. Sri Lanka is not the only country that has faced problems of this kind and the lesson that we can learn from the progress of human civilization is that matters like this have to do with the anxieties, the apprehensions, the hopes and the aspirations of human beings � and these problems can be resolved only at the political level by means of the kinds of proposals directed towards the empowerment of people and the creation of autonomous units.

That, I think, is the way to go and I think that is basically the lesson to be learned from the Sri Lankan experience. We would like to look at what has happened in other countries. Not to reinvent the wheel, but to adapt the solutions that have been adopted elsewhere to suit the combination of circumstances that exists in my own country.

Thank you very much indeed.