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| Saturday, 8 February 2003 |
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Considerations in finding a federal solution by D. L. Ubeywarna "Federal government is rare because its prerequisites are many" - K. C. Wheare At the end of the last two rounds of peace talks held in December and January, the Government was in agreement with the LTTE's proposal that the talks would focus, inter alia, on a federal structure. Since the Government of Sri Lanka and interested parties are preoccupied in searching for a model from international practices and also appreciative of views of the knowledgeable about the subject, it is our duty to express our views on theory and practice of some aspects of federalism, and its relevance or irrelevance to Sri Lanka, with alternative suggestions, if any. Although, the vacillation and the fear of forming a 'confederation' is no more, the true colour of a 'confederation' vis-a-vis, a 'federation' has to be understood so as to avoid any unwarranted future alignment towards a confederation. Quite opposed to a federation, subordination of the general government to the regional governments or (peripheral) 'states' is the underlying principle in a confederation: The United States of America (USA) not in the present constitution of 1787, but in the Articles of Confederation of 1777 was a classic example of confederation with dependence of the general government on the states. In a confederation, generally the regional or state governments operate directly upon the people and the general government operates only upon the regional governments. A federal state (like the USA, Australia, Canada, Switzerland) is defined as an association of states which has been formed for certain common purposes, but in which the member states retain a large measure of their original independence and yet the general government is 'not subordinate' to the regional governments or states. In a federal constitution, usually the regional governments are either "co-ordinate" (as in the case of the USA) or 'subordinate' to the general government (as in the case of South Africa). Thus for a federal state or a federal constitution to emerge, there should be a pre-existing association of states. In other words, in federalism, the prevalence of an association of several states is antecedent - a precondition. Factors, such as a sense of insecurity and the consequent need for common defence under one general government; a hope of economic advantage from union etc. lead several "states" to get together under a federal constitution and a federal system of government, with powers of the general government at the centre enumerated in the constitution and the individual states exercising residual powers. The rationale behind this federal principle of the individual units exercising the residual powers seems to be that, when previously sovereign states federate, they will wish to hand over to the new general government, certain limited specified and enumerated powers only and will wish to keep the rest for themselves. In the words of K.C. Wheare: 'They will not want to sign a blank cheque'. Division of powers can also be made by listing or enumerating powers of both general and regional governments and also by a concurrent list. In the (1978) constitution of Sri Lanka (13th amendment), provision has been made for 3 lists, namely Provincial Council List, Reserved List and Concurrent List. In the constitutional Bill dated 03.08.2000 of the PA Government, provision has been made for 2 lists, namely the Reserved List and the Regional List. The quasi-federal (1950) Constitution of India contains 3 Legislative Lists. The Indian Constitution empowers the Union, even to dissolve a state. K.C. Wheare, an authority on the subject, in his 'Federal government' - (fourth edition - Chapter III - P.35-52) while enumerating several prerequisites of federal government in the absence of which normally a federal government would not succeed in a country asserts that:" "Federal government is rare because its prerequisites are many" the prerequisites in brief are: 1. There should be previously existing independence states forming a union through an agreement among themselves. 2. Certain functions of general or national character are transferred to the federal centre. 3. A sense of military insecurity and the resultant need for common defence. 4. A desire to be independent of foreign power and realization that only through union could independence be secured. 5. An anticipation of economic advantage from union. 6. Prevalence of some political connection or association of the communities concerned prior to their federal union. eg. American States, Swiss Cantons etc. were in a loose confederation before they became federal. Canadian and Australian colonies were parts of the same empire before they became federal. 7. Geographical contiguity (subsequent possession and addition of far away Alaska and Hawaii states to the already existed 48 states by the USA is an exception to geographical contiguity). 8. Similarity of political institutions (in the independent states prior to the desire for union). Do we in Sri Lanka, have the aforesaid salient prerequisites or preconditions which seem always or usually needed for a (strict) federal system of government and a federal constitution? If not, is it a quasi - federal system that suits Sri Lanka in the present condition and with a view to transforming the present temporary cessation of hostilities to a long-term peace? However, on the other hand, the inappropriateness or irrelevance of a federal constitution and a federal system to this small country has already been discussed, inter alia, in a resourceful article of mine based on intensive research. Nevertheless, on the other hand, we cannot forget the peculiar circumstances under which the Government is balancing a difficult rope. The Government, inter alia, has made an unprecedented success in so far as the cessation of hostilities is concerned. The Government is negotiating with an atrocious terrorist movement which has been temporarily 'tamed' on a bilateral ceasefire agreement. In these circumstances, every one of us has a duty to see that the "peace process" will continue uninterrupted and bear fruit and eventually bring about permanent peace to Sri Lanka. Further at this stage, we cannot be so dishonest, moronic or mischievous as to forget the immense loss of life (apart from wealth and resources) from both sides during the 'holocaust' which prevailed for 19 years prior to 2002. The LTTE too on their part is said to have surrendered 'the separate state ideology' which they pursued till recently. In these circumstances, more than trying to find a model, we should have a clear vision as to the basic principles on which devolution of power should rest, so as to foster economic development in the regions: bring about national integration and unity; uplift the social & educational standard at the periphery; raise the quality of life and provide basic health and welfare facilities to the needy and provide all facilities honestly to implement Article 18 of the constitution as amended by Article 2 (b) of the 13th amendment, which says, inter alia, "Tamil shall also be an official language." Suggestions The North - East merger will create an unscrupulous dichotomy. Any system of government whether federal or else with substantial devolution of power to the periphery must encompass the whole island. North-East 'merger' is incompatible with federalism, in theory and practice" .... The size of the units concerned - in wealth, area and population - is therefore of prime importance. There must be some sort of reasonable balance which will ensure that all the units can maintain their independence within the sphere allotted to them and that no one can dominate the others. It must be the task of those who frame and work a federal government to see that no unit shall be too large and equally important, none too small" (- K.C. Wheare - ibid p. 51). Further, the probable plight of the 2/3rd of Muslims and Sinhalese taken together living in the Eastern Province does not permit a successful merger of the N & E covering an area of about 1/3rd of the island. The power of intervention - The central or the general government must have the power of dissolution of a regional (peripheral) unit. The powers of intervention in the affairs of the states given by the 'Quasi - federal Constitution' in India to the central government and Parliament in my opinion, prevented the emergence of dictators and dictatorships in some different states within Indian territory. Not only recently, in the distant past too, India made use of the powers of intervention and suspended state governments of Assam and Kerala in 1958 and 1959 respectively. As in the case of India, the centre (i.e. central government) in Sri Lanka must retain the power to dissolve a provincial or regional unit, if it goes pell-mell such as becoming a threat to High Security Zones, maintaining a surreptitious army, a clandestine naval force, printing money, formulating monetary policies etc. Secession of any regional or provincial unit and declaration of independence from the general government (probably by a referendum) must be made null and void by the constitution itself, thereby obstructing formation of a separate state. Only one constitution for the entire island must be made operative. Extreme care has to be taken to prevent any loophole in the 'ground-norm' of the nation which might in the ultimate analysis enable the LTTE to unilaterally secede and form the separate state which they could not form through terrorism. In the USA, the long controversy about the right of secession had to be finally settled by the Supreme Court which declared in 1868, that 'The constitution in all its provisions looks to an indestructible union composed of indestructible states' (Southern States, particularly South Carolina, which seceded from the union in 1860-61 did assert a right to nullify the laws of Congress if they thought the laws unsatisfactory, (from their point of view). The amendment of the new constitution, which may create a quasi-federal structure, should be made the sole responsibility of the general (central) government without any 'Veto' power by the regional or provincial units. No 'entrenched' provision such as Article 101 (2) of the Bill dated 3.8.2000 to repeal & replace the constitution drafted by the PA Government should be embodied in the new constitution to be drafted in the future. (Section 29 of the 1948 constitution too was regarded as an entrenched section precluding amendment and different procedure (Constituent Council) had to be adopted in the matter of enactment of the 1972 Constitution) on the "principle of constitutional autochthony". In a unitary state normally the amending procedure is less cumbersome in that there is no involvement or concurrence of any 'states or regional or provincial units. For example, the (present) 1978 constitution of Sri Lanka makes no involvement of the provincial councils and only a 2/3rd majority in Parliament is sufficient for amending or repealing the constitution in terms of Articles 82, 83 & 85 (1) and in certain circumstances with an approval at a referendum. Dicey asserts that: "A constitution containing a cumbersome procedure for its own amendment may in fact be very flexible if there is no effective opposition to the party in power" (A.V. Dicey, Law of the Constitution (10th edition page 127) President J. R. Jayewardene's government which had 5/6th majority in Parliament, amended the 1978 constitution 16 times. There was no numerically effective opposition to circumvent, (upholding Dicey's above proposition). But amendment of constitutions of some countries with federal structures may not be so easy due to special procedures and existence of bicameral legislatures. For example, in the USA, amendments must be proposed by two thirds of both Houses or by a convention summoned on the application of two thirds of the legislatures of the several states, and in Switzerland by a referendum, that is to say, by the reference of the proposal made by the two Houses to, and by the approval of a majority of the citizens voting and also of a majority of the cantons. At this stage of marching towards finding a political solution, the Government and the LTTE cannot afford to have conflicting aims. They should have only one common aim and formula to achieve, nurture and foster unity among all ethnic compositions living in Sri Lanka and the feeling of one nation endeavouring to live in harmony. The Government on its part has realized the responsibility cast on it to make the peace process a success. But the attitude and some actions of certain LTTE cadres has become the subject of animadversion. If both parties have accepted federal system on principle and if there is no intention to deviate from federalism, it is incumbent upon both parties to find suitable answers or solutions to innumerable questions (arising in the process). Federal constitutions and federal systems of government based on theoretical concepts of federalism emerged in the USA, Australia, Switzerland & Canada, while India, Brazil, Italy, Germany, Austria, South Africa, Nigeria, West Indies, Rhodesia etc. associated themselves with quasi-federal structures of some degree or the other. Moves are afoot in search of a suitable model for emulation. With that end in view, a delegation of parliamentarians too completed a study tour of 4 countries ie. Brazil, Italy, Australia, Germany, recently. They should have studied the Indian quasi-federal system, too. In my mind, we Sri Lanka must be in a position to formulate a system of our own, capable of regaining the lost heritage, traditional "values" and compassion to suit the cultural, economic, religious, ethnic and linguistic conditions prevailing in our country with the prime objective of attaining social and national integration based on mutual understanding, harmony and reciprocal good relations & brotherhood. ##################### A colourful celebration of peace by Talia Jayasekera Fans of art and its myriad colours would have definitely enjoyed the recent fare at the National Art Gallery. Beautiful pastel drawings depicting doves and people of the four races of our country, hung on either side. For those of us who do not have an artistic bone in our bodies, the posters displayed just might intrigue us enough to join a fancy art class.
Children are Ambassadors for Peace, was the poster competition organised by the National Council of the YMCAs of Sri Lanka in collaboration with the Y's Men International (Sri Lanka region). The event was significant because it tried to unite children from all corners of Sri Lanka to express their feelings and aspirations on peace and involve them in conflict resolution as 'Peace Makers'. Peace has really made a change, in the lives of the public. People are doing more to help sustain this (spirit). Clearly this is what the members of the YMCA has in mind when they recently organised the all island 'Peace Poster Competition' at the National Art Gallery. The competition has children participating, regardless of race, religion and culture, with contributions of vividly painted posters, all declaring the theme of peace. "The YMCA tries to promote peace through this annual poster competition", says Assistant Executive Secretary for Youth Rallies Mr. Felician Franks. "This competition is a part of our peace programs, conducted by the YMCA. Children need to know the value of peace and that is why we chose the theme in accordance with the country's current situation". "Children taking part in this competition get a chance to show off their artistic talents for a good cause. We have also found that after this competition, most of them seek out the YMCA in their districts and join in on the peace activities", he said. "Also all children participating in this programme will be provided with a helpful leaflet on their active participation in the Peace process", he explained. "A committee was formed between the YMCA and Y's Men Intentional to choose the theme and the criteria for the poster. Of course, we realised that with children, you cannot lay down too many rules. So we chose this theme and the size of the poster and let them do the rest", said Mr. Franks. "This same committee chose the winners. Ms Mary Alles Fernando was the main driving force behind this group. She helped us a lot during the competition". "Under our many peace programs, we have something called the Peace, Reconciliation and Reconstruction Program (PRR). where children from all over the country are shown ways to recover from the conflict. Also we have a 'Love and Affection camp, in association with Osaka YMCA's, for children in the North-East, who have been orphaned by the war. These programs have a positive impact and mobilise children", he said. Children from various schools, island-wide, who attended the exhibition, were awe struck by the heights of creativity visible in all posters. Hard work and perseverance shone in posters contributed by schools as far as Kegalle, Pesalai, Jaffna and Mannar. "We received more than 250 posters from children all over the country and we divided them into two age groups - 13 and 15. We selected 3 children from each of these groups as well as another 20 children for 'Merit Prizes'. We even had a special prize for the youngest participant who is only 5 years old!", he said. "The first, second and third places receive cash prizes of Rs. 5,000, Rs. 4,000, Rs. 3,000 respectively. Merit winners receive Rs. 250". A winning poster showed pure white doves flying high over war torn Sri Lanka, carrying children from various ethnicities upon them backs. While another showed youngsters merching forward with the Sri Lanka flag, promoting a united country. The competition culminated with an award ceremony for the three most exceptional paintings, in each group, as well as prizes for fifty other deserving young artists. The Under 13 prize went to D. Jayakodi of Kandy while the Under 15 prize went to N. Dhakshamani of Jaffna. It is unusual to see the art world and reality collude in such a worthy cause. It is even more delightful to know that children are the driving force behind this colourful journey. Attempts such as this show that lofty adults are finally seeing the advantages of looking at peace through the eyes of the children. Young ones may stand only knee-high, but their opinions are nonetheless advanced. Peace will bring them a future full of prosperity, so it is only right that their priority is sustaining it in any way possible. ##################### The 25th death anniversary of G. G. Ponnambalam, Q.C. The Tamils' 'first Messiah' by Prof. C. Suriyakumaran A quarter century after the death of a public figure is perhaps, in tradition as also in necessity, time indeed to take G. G. Ponnambalam out of the maelstrom of contemporary politics and place him - well, ill or both - in the more historical contexts of evolution of our country's own ways and destinies. The heightened goings on, for a permanent peace following the grossest of tragedies that the country has witnessed over five decades, perhaps makes this placing of G. G.'s, now long past role, more than ordinarily apposite.
G. G. Ponnambalam, was born at the beginning of the 20th century, died on 9th February 1977, a full 75 years at the time, having witnessed an entire sea change in the Tamil historical scene, in which he had come to play such a dominant part. It was a time, when he broke into the political firmament of a well nigh bleak prospect in the political fortunes of the Tamil people. The brothers, Ponnambalam Ramanathan and Arunachalam had had their says, but in quite different circumstances, when the Sinhalese as much as the Tamils were still subjects of their British overlords with yet the reality for the Tamils of political rejection by the former emerging, given the impending inception of progressive autonomous rule granted by their colonial masters, accounting thus for the deep confrontation between both in the later years. It was thus a barren political phenomenon for the Tamils in the ensuing years. In this setting, a young, dashing political figure emerged in the person of Ponnambalam, elected with great acclaim in the 30s as member of the State Council. In one of his early acts, he conceived and founded the All Ceylon Tamil Congress in 1944 which, together with his roles in the State Council, he used to telling effect. Around him were also stalwarts S. J. V. Chelvanayakam, E. M. V. Naganathan and others - along with Proctor S. Sivasubramaniam, at whose home they regularly met in their deliberations. It was a time when other political parties, particularly the Muslim, quickly established rapport with him in what seemed a new hope and promise for all - the minorities and the majority. The flagmast, and his party's programme, essentially issued from his State Council speech of 1939 on demand for "balanced representation", as sensible means to both minority safeguard and continuing participation by the entire country in central government. One must repeat a thousand times that at no stage was his demand for so called Fifty - Fifty representation, as foisted on him by apparently negative Sinhala forces - a pre-cursor of extremist postures that were to remain with us and, perhaps do so even now. The "Balanced Representation" formula was simply for an arrangement where in his words, 'No single community may impose its will on the other'. It could be on 50; 50, 60; 40, or whatever it was that assured the goal. He made this the central platform of his urging before the Soulbury Commission that was soon to give full independence to the country. The Sinhala psyche of the Brown Sahib, as they seemed to see themselves, as successors to the colonial white masters, seemed to have come into play in its fullest, and with all pressures contrived and brought in to play, the Soulbury Commission rejected the 'Formula' that would have saved the blood, sweat and tears that followed in the decades up to our year of grace 2002. A weak Section 29, was recommenced to provide that no acts discriminatory to the minorities may be adopted, even this, years later to be eliminated in a revised constitution. It is notable during these years that both G. G. Ponnambalam and S. J. V Chelvanayakam who later founded the Federal Party, continued to work then, and after their parting of the ways within an entirely unitary country concept, the latter giving it up only after cumulatively the sabotage of the Bandaranaike - Chelvanayakam pact, the first 'holocaust' of '58, the security forces repressions of the 60s in the North and the final Holocaust of '83. With the Soulbury Constitution a fact of life now, G. G. Ponnambalam genuinely felt, whatever future history was to tell, that an experiment in participation with the majority government may help. Unfortunately and again, the majority were not ready to see deeper, beyond what a cynic remarked, the "Thapal Manthiri" concept, which, virtually, was all that was given, notwithstanding Ponnambalam's own portfolio at the time. It was a tribute to the role of G. G. Ponnambalam that at the 'final call' the statue later erected in the centre of Jaffna honoured both these leaders, each in this time, on the political road to solution. What will future history say? Perhaps I should best recall a sentence that I spoke in an address that I was requested to deliver at the Gamini Dissanayake 50th anniversary meeting that had been convened with a resplendent audience of over a thousand. "We were always quick to mourn the deaths that rained on our people from both sides, blaming everybody else but ourselves. Yet we have never mourned enough that other tragedy that we have not yet exerted ourselves to find our own home grown solution. The only time someone tried to do this, he was soon murdered for his trouble!" Strangely, it is these that the three-G.G., S. J. V. and S. W. R. D. - left us, to which in some ways we have returned. We are at this point, come full circle again. In the words of a recent percipient Sinhala commentator, the ghosts of Ponnambalam, Chelvanayakam and S. W. R. D. Bandaranaike must truly be hovering at the talks at Nakorn Pathom in Thailand. The finale has still to come, and we have many precious lessons to learn if we do not want many more miles to travel, and learn many times more again. At this time then, on the quarter century of Ponnambalam's death, it is fitting that we shall recall their "First Messiah", as I have said, of our new hope and expectancy, in a oneness of purpose, and singular goal, of freedom for all and unity for our future generations. ##################### War and peace Battles and wars were bitterly fought To the warring parties at last sanity brought - Mohamad Khaleel |
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