L E G A L W A T C H
Bandaranaike Memorial Lecture by H. L. de Silva
More constitutional changes put forwardBy Nayana
"Lanka" was the subjectof this year's Constitutional choices in the current context of Sri Bandaranaike Memorial Lecture delivered by well-known lawyer and former Sri Lankan Ambassador H.L. De Silva, P.C.Given the fact that Mr De Silva's views on constitutional change are known not to be on all fours with those of the Government or the "devolution lobby", the invitation extended to him by the Bandaranaike Memorial Committee was a heartening demonstration of respect for diversity which is sometimes lacking in the invitation lists to more elaborate "talkathons".
Despite its title, the lecture was, as "H.L." himself admitted at the outset, focused on the major plank of the Government's constitutional proposals, namely the devolution of power from the centre to the periphery.
Mr De Silva's critique is basically that federalism involving a demarcation based on ethnic lines leads to the creation of ethnic enclaves which in turn provides the driving force for secessionary movements, especially if there is no counter-balancing mechanism towards integration and cooperation. He cited Yugoslavia, Czechoslovakia and the former Soviet Union as examples.
He also quoted Eric Nordlinger ("Conflict Regulation in Divided Societies") who said: "Federalism may actually contribute to a conflict's exacerbation and the failure of conflict regulation. In some deeply divided societies it is impossible to draw state boundaries without including a large number of individuals belonging to segments whose territorial base is elsewhere. Federalism thus allows or encourages the dominant segment in any one state to ignore or negate the demands of the minority segment. ..... Moreover, territorial isolation increases the probability of the most violent form of strife - civil war. The strong identification of one segment and its values with the territory it inhabits may readily produce demands for some form of semi-autonomy, and its concentration and power within the territory heightens the readiness of both leaders and followers to escalate demands, if their original ones are not met."
Another argument of Mr De Silva's, which is likely to strike a responsive chord with voters in this country, is that the devolution of power does not necessarily bring government closer to the people. What it achieves instead is "the proliferation of politicians at the local level and the replication of all the abuses and malpractices that are found to occur at the centre."
This column too has made the point that devolution of power is not an end in itself but is only supposedly a means to improving the quality of life of the people of the area. As such, one must have regard to the quality of the power that is to be devolved, and hence proposals for independent police and elections commissions, uniform standards of justice and the clear enforceability of fundamental rights against devolved authorities are of vital importance. These issues were not specifically addressed in the Government's last published constitutional draft.
On the other hand, Mr De Silva's recourse to the U.S.A. and Israel as examples of multi-ethnic integration did not seem particularly apt as those countries have never faced a demand for territorial separation on ethnic lines, apart from the demand of occupied territories for their freedom in the case of Israel. In fact, a characteristic of both the U.S.A. and Israel (and also Switzerland, many centuries previously) was a voluntary coming together of disparate groups with a conscious desire to forge a new nation.
The Sri Lankan problem involves a claim to ethnic separateness re-inforced with a demand for territory. Thus Belgium, Canada, India or Spain might have been more appropriate examples in that regard.
While Mr De Silva does not hide his belief that a unitary system, properly administered with respect and tolerance for all, could have solved our problems, he accepts the reality of the Thirteenth Amendment, as have many political parties which initially opposed the scheme.
The better part of his lecture was accordingly used to analyze the arguments for and against having a "concurrent" list of subjects. The Thirteenth Amendment, while enumerating the subjects that are reserved to the centre and those that are devolved on the provincial councils, also contains a list of subjects on which there is concurrent jurisdiction.
This list includes such matters as protection of the environment, higher education, inter-provincial irrigation schemes, tourism and electrification schemes, where it needs little imagination to realize that Province and Centre must work in harmony, balancing the national interest and the interests of neighbouring provinces with those of the province in question.
The concurrent list as presently constituted also includes matters which might seem better left to the province alone, such as provincial lotteries, cooperative societies and festivals, but such anomalies could be rectified without doing away with the concurrent list altogether.
The Government's draft new constitution has done away with the concurrent list, thereby dividing legislative powers into two mutually exclusive areas of Centre and Region. Hence there is no concept of power sharing between the centre and the regions, but rather an idea of separateness, re-inforced in the Government's draft by the provision for regional councils to obtain foreign loans and investment, subject only to guidelines laid down by the centre.
Opponents of the concurrent list argue that overlapping jurisdiction will lead to disputes in which the centre will necessarily prevail. There are two counter-arguments to this.
Firstly, the granting of mutually exclusive jurisdiction will not necessarily eliminate disputes. For example, a region could refuse (or covertly neglect) to enforce decisions made by the centre even in relation to reserved subjects; or the manner in which a regional council legislates on certain regional subjects could have an adverse impact on other regions, thereby making it a national problem.
The second argument is that mechanisms can be established to resolve disputes between centre and region. H.L. De Silva cited one such example from the Federal Republic of Germany where the constitution provides that in the case of concurrent subjects the Federation has the right to legislate to the extent that a need for federal regulation exists, either because a matter cannot be effectively regulated by the legislation of individual Lander (states); or because the regulation of a matter by a Land statute might prejudice the interests of other Lander or the whole body politic; or because the maintenance of legal or economic unity especially the maintenance of uniformity of living conditions beyond the territory of one Land necessitates such regulation.
Mr De Silva also referred to the new South African constitution which places emphasis on the interdependency of government at the central, provincial and local levels, and requires agencies of government at all levels to exercise their powers in a manner that does not encroach upon the geographical, functional or constitutional integrity of any other level of government; to cooperate with each other in good faith; and to inform one another of, and consult one another on, matters of common interest.
Modern Canadian and American jurists whom Mr De Silva quoted, hold the view that federalism in the twentieth century has come to be viewed as a cooperative venture between national government and the provinces.
Mr De Silva made the point that if it is the view of local constitution framers that the Sri Lankan political ethos is too fraught with rivalry and competition to make such cooperation likely, then that is a telling argument against attempting federalism in Sri Lanka's political context.
Whether or not one agrees with all of H.L. De Silva's arguments, his lecture represented the kind of reasoned criticism from a knowledgeable and politically disinterested source, to which the Government's draft proposals ought to have been subjected before they were made public.
By publishing detailed proposals and only then subjecting them to critical discussion, the Government has got itself into a position where it cannot alter fundamental features of its draft without losing face politically. Thus alternative views are today confined to lectures and seminars. The "package" gathers dust while its chief exponent takes on a new role of grassroot political organizer, the Opposition has to dance in California to raise money; and censored news from the battlefront becomes daily more bizarre, with the defence establishment now listing as "missing in action" soldiers whose dead bodies it has already admitted to receiving.