Leaning Towards Confederalism
EU Reaching Cul-De-Sac Due Brexit – Revival Of Confederalism Necessary
By Faizer Shaheid (faizer@live.com)-2017-10-25
It is primarily the demand of the Tamil National Alliance (TNA) to have a federal structure. Chief Minister of the Northern Province C.V. Wigneswaran had recently claimed that Sri Lankan politicians had made federalism sound like a dirty word. Thirty years ago, when Sri Lanka was coerced into signing the Indo-Sri Lanka Pact of 1987, it did sound like a dirty word to most people. However, over time Sri Lanka has become accustomed to the culture of Federalism.
Devolution to Federalism
Devolution of power is ingrained in many democratic systems worldwide. It is a conscious decision of a Government to devolve powers at subnational level to better administer a smaller constituency. This structure of Government empowers the Central Government to revoke powers as and when it pleases. Devolution of power has been a strong feature of Sri Lankan Government from the period of the kings. There had been Village Councils (Gam Sabha) set up in many parts of the country, and a similar system was continued during the British rule.
After the Donoughmore Constitution came to be, a more systematic form of devolution was established. The Urban Councils Ordinance came to be in 1939, which was followed by the Town Councils Ordinance in 1946 and the Municipal Councils Ordinance in 1947. This system of devolution is followed to this date. However, the structure transcended from mere devolution of power to Federalism in 1987 following the intervention of India.
A Federalist structure of Government means that the Central Government would collaborate with Provincial Governments in a single political structure. Power is thus shared proportionately between two Governments of the same country. The Sri Lankan Constitution contained three lists of powers, namely: the Provincial List, the Reserved List and the Concurrent List.
While the Provincial List contained powers purely controlled by the Province, the Reserved List contained powers solely under the purview of the Central Government. It was the Concurrent List that enabled the Central Government to share powers with the Provincial Council. This list included implementation of plans, education, agriculture, housing, health, irrigation, employment, tourism and environment among others.
Confederalism
Confederalism would be an extreme form of federalism.It would mean that a Provincial Government would be more powerful than the Central Government while being a part of the same country.
In such a structure, the Central Government would generally deal with national and international level matters. This includes defence, foreign affairs, internal trade and currency related matters. In all other intra-national matters, the Provincial Government will have more discretion than the Central Government. Some examples of confederalist countries are Belgium, Canada and Switzerland. United States of America also has quite the proclivity towards Confederalism. In fact, the modern USA was born after the Articles of Confederation were drawn up and signed in 1777.
An important feature of a federalist structure is the capability of the devolved powers to invoke its right of secession. Which means that should a State or a Province feel maligned within a country, it can declare secession.
New Constitution
The incumbent Prime Minister Ranil Wickremesinghe had stated in Parliament that the new Constitution would attempt to present optimum devolution within an undivided and indivisible country. This statement goes alongside that of President Maithripala Sirisena who said that while the people of the North were afraid of a unitary status, the people of the South were afraid of Federalism. Sirisena's statement tallies with that of Wigneswaran, except for the fact that their interpretation of 'Federalism' appears a little too mild.
Firstly, consider how the principle of subsidiarity would apply in a Sri Lankan context. It would mean that matters that are to be handled by a lower authority on the subject should be granted full authority to handle such tasks. The principle of subsidiarity has been successfully applied in other countries, but in Sri Lanka it raises a cause for concern considering the extent of power that is to be shared with the Provincial Councils.
Take for example, the application of framework legislation. The Steering Committee Report suggests that the Central Government should have authority to prescribe national standards in conducting elections and conducting other powers, but that it is purely at the discretion of the Provincial Councils whether or not to upgrade local authorities to that standard. National Policy cannot override Provincial Statutes.
There is also a proposal to abolish the Concurrent List, where the powers are shared between the Central Government and the Provincial Council. Which means, the powers will be segregated; the Central Government will have no authority to intervene on powers devolved to Provincial Councils. Meanwhile, the executive wing of the Provincial Councils is to be clipped.Which means that most powers of the Governor to monitor and maintain a check over Provincial Councils will be removed, and the Governor will only be a ceremonial figurehead thence forward.
There will be Provincial Public Service Commissions and the existing provision which was never implemented in relation to Police Commissions is expected to be carried through to the new Constitution. The Report of the Sub-Committee on National and Public Security, Public Order and Police and Law Enforcement recommends that a Provincial Police Force will be established.
Although it is prescribed that they shall all wear the same uniforms and insignia, their roles are vastly different.
State Lands are another topic of concern, as Provincial Councils now have powers of alienation and disposal of State Land. When the Central Government requires land for a purpose within its powers, they will have to consult the Provincial Council for permission. The Provincial Council is then required to comply, but if it does not comply, then the President must resolve the matter through arbitration.
Legislation is by far the biggest area of concern. The Central Government cannot legislate on Provincial powers, but if it had to legislate, the Provincial Councils would have to consent to the formation of such legislation. If a Statute of the Provincial Government appeared to be problematic under the present Constitution, the Governor has discretion not to grant assent to the legislation. The Governor at present has a check over the legislation of the Provincial Councils.
Nonetheless, the new Constitution states that any issue of Constitutionality can only be contested in a Constitutional Court. If the Governor refuses to grant assent, or recommends changes which the Provincial Council refuses to abide by, then the legislation shall pass after a reasonable period of time. Such is the validity of Provincial Legislation.
Steering Committee Report
The recent Report had addressed many things but also failed to address a few important areas. One such area is the extent of powers to be held by the Central Government and the Provincial Governments. Although all matters under the current Provincial List are expected to be retained, while the Concurrent List is expected to be split between the two tiers of Government, the matters have not been expressly specified nor even indicated in the reports.
The extent of Police powers, although extensively discussed in the Sub-Committee Reports, does not address the functions of the Provincial and National Police Commissions. However, it is expected that the powers and functions included in the Ninth Schedule of the present Constitution will be re-enacted with minor changes in the new Constitution. This would make a Provincial Police quite powerful.
Undivided and Indivisible
While the Government has addressed the concerns of Wigneswaran in the new Constitution by replacing the word 'Unitary' with 'Undivided and Indivisible', it raises a few controversies. The main controversy has been raised by nationalists, particularly former President Mahinda Rajapaksa, who claims that to replace the word would be to sacrifice the unitary status of the country.
Of course, the new Constitution proposes the inclusion of certain words which would prohibit any Provincial Council or other authority from declaring a separate State or advocating for secession. However, there are other concerns considering the extent of power given to the North and East.
Provincial Police Powers, Land Powers and Law Making Powers coupled with a much sought demand of the LTTE to unite the North and East as a single Province forms an imminent risk of secessions regardless of whether the Constitution claims otherwise. To secede under rules of self-determination would mean to do away with the Constitution anyway. This is the fear projected by nationalists, and to not have fear of this would be unwise. It is similar to standing in front a hungry lion and expecting it not to eat you.
Conclusion
This risk of secession, despite the express wordings in the Constitution, would make Sri Lanka have a penchant to lean on confederacy. In a confederation, the Central Government will have powers to rule on matters of defence, national economy related matters and foreign affairs mainly. While the roles of each Government, has not been expressly stated in the Steering Committee Report, the facts indicate a confederate attitude. Hence, Provincial Governments will have full authority to exercise their powers over other matters.
The most prominent aspect that is lacking in the Steering Committee Report is the right to secede. However, with the unification of the North and East, the Government appears to be toying with the idea of secession. Apart from the right to secede, the indicators are clearly pointing towards Confederalism.(Faizer@live.com)
(The writer is a Political Analyst and a researcher of laws. He holds a postgraduate degree in the field of human rights and democratization from the University of Colombo and an undergraduate degree in Law from the University of Northumbria, United Kingdom)
