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Concept of power sharing and legitimacy of the state

V.T.Tamilmaran, 
Northeastern Herald,15 October 2002

“We see that every state is a sort of partnership, and that every partnership is formed in order to attain some good. (A)nd the highest, most authentic, good is the objective of the most authentic of all partnerships, the one that includes all others. This is the state: political partnership.” (Aristotle: Politics, Book-I) 

The problem with the State of Sri Lanka has been that it has never thought of forming a partnership with certain sections of the people belonging to different communities in this country. It raises a fundamental question as to the sovereignty and the legitimacy of the state. From time to time, many reasons and justifications have been given for this failure of state-making. Some of these reasons, wittingly or unwittingly, still remain forceful and seem entrenched in the minds of many. However, if one goes deeper into this issue one would find that the main, underlying cause for this political calamity is tied up with the misconception of the very idea of sov! ereignty of the state itself. What is sovereignty?

This is what the English constitutional expert A.V. Dicey says in his ‘Law of the Constitution’: “…Where as a merely legal conception, sovereignty is the power of law-making unrestricted by any legal limit, by contrast that body is politically sovereign or supreme in a state, the will of which is ultimately obeyed by the citizens of the state.” The unlimited law-making power of the sovereign is conferred upon it by the Constitution. The law thus made by the sovereign is applicable only to those within a particular territory. Why do those people of that particular territory agree to be bound by such law? This leads to the discussion on political sovereignty. What is political sovereignty? It is political power unrestrained by any higher political power. It is said that political power is interpersonal power over the conditions of life in a human community or society. This is similar to powers between human beings in any given context.

Power of one over another, or over others, is the ability within some determinable context to take decisions that affect that other’s (or others’) interests regardless of their consent or dissent. It gives only the reasons for the actions of the other(s). Accordingly, sovereign power is, then, territorial in character and is not subject to any limitation by higher or co-ordinate power. Some people prefer to give priority to legal sovereignty while others prefer political sovereignty. For example, theorists like Hobbes, Austin and Carl Schmitt ascribe primacy to political sovereignty. It means that one acquires power from the habitual obedience of others. Here, law depends on political authority. These scholars anxiously argue that nothing, which has supreme power can coexist with a rival supreme power in any stable way within a single legal and political order. As the doctrine of sovereignty was intended to promote unity within states it aimed at unifying territories as well. ! As such, there was only a muted concern over the idea of limited sovereignty.

However, in the middle of the last century scholars started challenging the belief in absolute sovereignty, saying it goes against the concept of limited sovereignty and that it had greatly facilitated the maintenance of colonialism with its legal justification. Here, political power was established over the people of a territory not with their consent but by sheer force. The phrase “ultimately obeyed” in the above-quoted Dicey’s definition of sovereignty hints that as long as the obedience of the people of a territory is guaranteed the means by which such obedience was sought and obtained becomes immaterial. This effectively says once control is established that is valid forever and power of the law-making authority that enjoys this control cannot be challenged on any grounds whatsoever. This is the typical colonial mindset, which the local ruling elite found as much convenient to use to tighten their grip over the people once they became rulers. This was the problem in so-ca! lled independence among many nations in the African and Asian continents. Unfortunately, in many of these countries, people were prevented from asking the question:

“Are we truly independent?” This was mainly due to the hurry in which they wanted to obtain and enjoy independence. On the other hand, the only concern of the new rulers seemed to be maintaining law and order throughout the territories based on the concept of (western) ‘nation state.’ An international lawyer is only too familiar with the method used for drawing boundaries demarcating territories of what would later become independent African states in the 1960s. These boundaries were determined on the unrolled maps read on the desk of the foreign offices in London and other colonial capitals. The beginning of the real challenge posed to colonialism in the name of political power - that it must come from the people with their consent - was the American war of independence. Once it is accepted that the political power must come from the people with their consent, then forging a state in accordance with the idea of the ‘nation state’ becomes impossible. Because, the idea of (western) ‘nation state’ in its classical sense gives prominence to one dominant ethnic group in controlling public life, organising the state according to its own ideals and making its culture a characteristic feature of the entire nation state.

Hence, the United States of America provides a political and legal framework that has endorsed the plural nature of the society and thereby sought to obtain the consent of the people. This is what is called as Constitution-making or negotiating a Constitution. Today’s constitutional lawyer would argue that constitutionalism is based upon the principle of limited sovereignty. There are certain values and principles behind every Constitution, which cannot be interfered with by any law made under the Constitution. Limited sovereignty poses the question of legitimacy in acquiring sovereign rights Closer home, India did not want to enjoy the assumed political power in the same form as it was handed over to it by its colonial masters and succeeded in negotiating a Constitution in 1950 by adopting the Republican Constitution. Political power was established over the territory with the consent of the people who preferred to stay within that territory. “We, the Peoples” became “We, the Nation.” Did any such negotiation take place in Ceylon/Sri Lanka? If so when did it happen? Was there any attempt made to include all the people of this country in the process of constitution-making? When was that nation-building process of “We, the People” becoming “We, the Nation” completed? Have all the sections of the community agreed for the unitary character of the state in the process of such negotiation?

Under the unitary state of Ceylon /Sri Lanka, one section of the community has felt strongly that it has been continuously alienated by the state through all its three organs - the legislature, executive and the judiciary. The legislature was the first in the blackballing game by introducing the Citizenship Act, followed by the Official Languages Act. Above all, did Section 29 remain a fundamental feature of the Soulbury Constitution?Section 29 of the Soulbury Constitution could not provide protection to any of the non-dominant groups and it cast doubts not only over the nature of the provision, but also over the attitude of the judiciary including that of the Privy Council. The executive played its role very destructively by promoting colonization, condoning occasional ethnic pogroms and adopting the standardization policy in university admissions.

If sovereignty of the state has really stemmed from the political power of all the people of the country how could these organs of the government have succeeded in alienating sections of the same people from enjoying equal rights with others in the country? The First Republican Constitution of 1972 and the Second of 1978 ridiculed the doctrine of sovereignty by adopting the Constitutions through Parliament - one of the organs of the government that was supposed to be created by the constitution itself. This was the classic case of servant determining powers of the master. Those who speak of state sovereignty, territorial integrity, and the unitary character of the Sri Lankan state today seem to conveniently forget that there was no political power sought and obtained by the state with the consent of all the people who chose to reside within the territory over which these powers were to be exercised. Would the very fact that the people within the territory of the Sri Lankan sta! te obeyed its will for some time (1948-72) be enough to legitimize the political power of the state?

If that is not so, what would happen to the political sovereignty of the state? Without this power can the state have any ‘legal sovereignty’ over the people within the territory? It is to be noted that from 1972 to date, ‘ultimately obeying’ the will of the state has been seriously challenged by the armed struggle of Tamils of this country. The fundamental problem of state sovereignty, legitimacy of the state and negotiating a Constitution remains as when it was in 1947. Constitutional pundits and powerful politicians, who spend much of their time in painfully arguing for maximum decentralization under the unitary state or for maximum possible devolution of powers without compromising the sovereignty and territorial integrity of the state, are still talking of governmental powers, assuming that the political power (political sovereignty) had been obtained with the consent of all the people who chose to reside within the territory of this country. Herein lies the fundamental fallacy. The fifth President of the U.S James Monroe, wrote as far back as in 1830: “A state’s sovereign and a state’s government must not be identical, if order and freedom and justice are to prevail.” In the days to come, are we going to talk of sovereign powers of all the people in the spirit of partnership for nation making or merely of governmental powers?

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