August Ruling: Advocating a federal form of government is not advocating separatism
by Rajan Philips-August 19, 2017
On August 4, the Supreme Court dismissed a petition seeking a court order that the Ilankai Thamizh Arasu Kadchi (ITAK, historically called the Federal Party, in English) is in violation of the Constitution insofar as one of its aims and objectives in advocating a federal form of government is the establishment of a separate state within the territory of Sri Lanka. Three Judges who heard the petition disagreed. In what some newspapers have described as a landmark ruling, Chief Justice Priyasath Dep, Justice Upali Abeyratne and Justice Anil Gooneratne declared that advocating federalism within the existing constitution is not advocating separatism. Although much of the contentions in the case would appear to have centered on the translation of terms (the Sanskrit and Tamil translations of the English term – federalism), the ruling is indeed landmark for at least three reasons.
First, the ruling adopts a flexible approach recognizing the overlapping features of unitary and federal constitutions as opposed to rigidly insisting on the immutability of a unitary constitution. As the Court elaborated, "there could be unitary states with features or attributes of a federal state and vice versa. In a unitary state, if more powers are given to the units it could be considered a federal state. Similarly, in a federal state, if the Center is powerful and the power is concentrated in the Centre it could be considered a unitary state. Therefore, sharing of sovereignty, devolution of power and decentralisation will pave the way for a federal Qform of government within a unitary state." The Justices even offered an example of devolving power to provinces without contravening the constitution: the Thirteenth Amendment.
Second, the ruling must put to rest the baseless accusations and canards that the ITAK is doing something illegal in advocating federalism. The Supreme Court has now confirmed the obvious: federalism is not illegal.But not being illegal does not make federalism politically attractive, or even viable in the short term. For now, it is sufficient to take note that the Supreme Court has ruled that it is constitutional to have "a federal form of government within a unitary state." The ruling also constrains the ITAK, or any other organization, to work within the existing unitary state and not outside it. But the existing unitary state is not immutable, but flexible. And the Thirteenth Amendment is here to stay as reaffirmed now by the Supreme Court.
The third reason is more symbolic than substantial, but no less significant. Anecdotally, it used to be known in Tamil circles that Tamil lawyers and litigants often preferred to have their civil and criminal cases heard by Sinhalese judges as opposed to Tamil judges. Greater objectivity and fairness, the reasoning went,could be expected from the former, free from the peninsular parochialism and prejudices that may come into play with the latter. On the role of the judiciary on political and constitutional matters, however, Tamil notables took somewhat of a schizophrenic position after seeing appellate reversals of favourable original court decisions in constitutional matters: to wit, the citizenship of the Tamils of Indian origin (the Kodakan Pillai case of the early 1950s), and the linguistic status of Tamil public servants (the famous Kodeswaran case of the 1960s). More recent instances include the injudicious reasoning by dissenting Supreme Court judges in the 13th Amendment constitutional case, and the North-East merger case in which the principle of ‘equal protection of the law’ was cavalierly turned on its head.
It is against this backdrop, that the ruling of Chief Justice Priyasath Dep, Justice Upali Abeyratne and Justice Anil Gooneratne could be seen as a welcome sign for the future. In fairness, judicial prejudices are not peculiar to Sri Lanka. Historically, judiciary in every society has been a major bulwark of social conservatism, economic inequality and political exclusion that victimized peasants, workers, minorities and, most of all, women in every social class or stratum. It has taken more than a century of struggle, education, and the exposure to and experiencing of the ‘other’, to progressively change societies and along with them their judges, though not all of them and not everywhere.
Sri Lanka has takeQn half a century to barely start putting its share of baleful genies in the bottles of its history. One would hope there will be no reopening of them and the evolution in judicial thinking will continue in a positive direction. But the danger of the re-releasing of evil genies and the risks of cultural and political recessions will never go away permanently. Just watch the United States of America and its unfolding cultural and political chaos as its sociopathic president goes crazier and crazier from one day to another. The former Vice President Al Gore has given a one word advice to Donald Trump: Resign!
What’s in a name: Unitary or Federal?
Thirty years ago, writing in November 1987 (Lanka Guardian Vol. 10, No. 13) during the Thirteenth Amendment controversy, Dr. Colvin R de Silva anticipated the 2017 August Supreme Court ruling and elaborated on the overlapping between unitary and federal constitutions. "There is no model," he wrote, "laid up in heaven, so to speak, from which any deviation will deprive a constitution of its unitary character. It is the same with federal constitutions. Thus, there can be unitary constitutions which have strong ‘federal’ features, as also federal constitutions with strong unitary features."
He went on to emphasize that "the unity of a country is not determined by its state-form. The federal form is often claimed to carry this danger; although, historically, the federal form of state has always been the means of holding together in a single state units which would otherwise be separate states." The Comparative Political Scientist Alfred Stepan (Columbia University) made the same point in 1999, and used as a specific example the experience of Sri Lanka: "a territorially multilingual and multinational unitary state that feared "the slippery slope" of federalism, could not cope with its ethnic divisions and plunged headlong into a bloody civil war that has lasted more than fifteen years."
More pertinently, Dr. Colvin’s "holding-together" phrase is the term in political literature for one of two ways in which federal or quasi federal systems come into being. The other is "coming-together", in which separate jurisdictional units – provinces or states, come together to set up a federal form of government. The United States, Switzerland, Australia are classic examples of the coming-together type of federal systems. The often cited holding-together examples are India, Belgium and Spain, where pre-existing unitary state formations devolve power to their sub-national units while retaining their strong unitary features. Brexit or not, Britain is seemingly on course to becoming another ‘holding-together example.’
To the two models, Stepan has added a third one: "putting-together" federalism; and he includes the former USSR as an example where, in his view, a multinational state was coercively created out of pre-existing independent states. This is debatable, although now purely academic if not nerdy, because what was there before the USSR, were not independent states, but the Tsarist Empire and, what Lenin called, ‘internal colQnialism’.
As models go, Sri Lanka, if it were to execute the Supreme Court license to achieve "a federal form of government within a unitary state," would fall into the holding-together category. But, as I noted earlier, a political proposition merely because it is legal does not become immediately viable. Federalism is still the ‘F’ word in many Sri Lankan political quarters, and even those who are less uninformed will not yield more than an inch beyond the 13th Amendment. But 13A + One Inch is certainly better than 13A Minus. The latter was a serious consideration during the last years of the Rajapaksa government along with the push to even repeal the amendment.
As things are, the arrogance of the Rajapaksas has given way to the ineptitude of good governance. While the present government has made ambitious starts on many fronts, it has achieved little or nothing on any one of them. The constitutional file is no exception and despite loads of effort by expert foot-soldiers, the political leadership has shown no evidence of strategic thinking or even serious purpose. The government is also hamstrung by the bond scandal and penthouse peccadillos and has lost the moral standing to advocate a major constitutional overhaul. And with chronic disunity within the unity government, the prospects of reaching consensus on controversial changes and securing the requisite two-thirds majority are becoming increasingly bleak. Nonetheless, the August 4 Supreme Court ruling should be acknowledged as a landmark ruling that would enable future governments to pick up the pieces and hold Sri Lanka together in better ways than it has been held since independence.
