Constitutional models of power sharing
A seminar on “Constitutional models of power sharing, challenges and perspectives in multi ethnic societies” organized by Institute of Constitutional Studies in Collaboration with Fribourg University, Switzerland and the assistance of the Government of Switzerland took place on 18 January 2016 at the Public Library Auditorium, Jaffna.
Addressing the event, the Northern Province Chief Minister C.V. Wigneswaran said Tamil Speaking people of the Northern and Eastern Provinces feel that the people of the North and East of Sri Lanka are fully qualified to be categorized as People entitled for self determination in terms of the characteristics and qualifications delineated in the U.N. Covenants. How to recognize our right of self determination within this Country which is multi lingual, multi ethnic and multi religious is the larger problem facing the Country.
The full text of the Chief Minister’s Address is given below:
Guru Brahma …………
Members of the Institute for Constitutional Studies, officials of the Swiss Embassy, learned Panel Speakers, Hon’ Ministers and Hon’ Members of the Northern and Eastern Provincial Councils, Secretaries and Heads of Departments and other officials,
Following my request addressed to the Swiss Ambassador to invite to Jaffna the Swiss Institute for Federalism of Fribourg, Switzerland for a series of Seminars and Conferences on devolution of power, Mr.Davide Vignati, First Secretary, Political Affairs of the Embassy of Switzerland, Colombo contacted Dr.Eva Maria Belser who is here, the Director of the Institute who confirmed her availability. It is she who identified Professor Nico Steytler from Cape Town and Mr.Maurizio Maggetti to accompany her. I had considered such a Seminar urgent on account of the Constitutional drafting process which was being put in motion early this month.
Thus with the support of the Institute for Constitutional Studies of Dr.Jayampathy Wickramaratne we have jointly organized this Seminar. I considered the Hon’ Members of the Eastern Province important since our political problems are intertwined and sufficient knowledge in respect of the subject in hand was critically needed not only by us in the Northern Provincial Council but also by the Members of the Eastern Provincial Council.
I had suggested the University fraternity as well as the Civil Society too be given this opportunity. I am glad it has been possible to arrange such a Seminar for them too this afternoon and tomorrow respectively. While the Seminar today will predominantly be a platform from which our Resource Persons, Professor Eva Maria Belser of the University of Fribourg, Switzerland, Maurizio Maggetti, Research Fellow at the Institute of Federalism (Incidentally he has worked in Sri Lanka with the Berghof Foundation and Sarvodaya) and Professor Nico Steytler of the University of the Western Cape, Cape Town, South Africa would be sharing their knowledge and wisdom, both theoretical and practical on the whole issue of different constitutional models for power sharing during this two hours’ session, their inputs would be beneficial to all of us Sri Lankans to identify constitutional mechanisms that would suit our particular ethnic background and context. Solutions would have to be later identified on the basis of the knowledge we receive to suit the existing circumstances.
Let me give a brief survey of our past and present.
97 years ago two Sinhala political leaders Sir James Peiris and Mr.E.J.Samarawickrema wrote and pointed out to a National Leader and Tamil, Sir Ponnampalam Arunachalam, that the Tamils have been the majority in their own areas from time immemorial while the Sinhalese have been in their areas. Those areas could be identified more or less to fit in with the Northern and Eastern Provinces from where most of our honourable Members present here have come from on the one side and the rest of the Provinces to the South of these two Provinces on the other.
Though there have been a tendency to doctor and change history after 1956 the statement by those two Sinhala Leaders are still accepted as historically correct. The two communities Tamil and Sinhala have occupied this Island from time immemorial. The existence of the Kingdom of the Tamils or the Jaffna Kingdom upto the coming of the Western Nations have been historically recognized.
Incidentally the TNA Manifesto of 2013, by which a large majority of us were elected to the Northern Provincial Council, inter alia with regard to our stand on a political solution states as follows –
OUR STAND ON A POLITICAL SOLUTION
The principles and specific constitutional provisions that the TNA considers to be paramount to the resolution of the national question relates mainly to the sharing of the powers of governance through a shared sovereignty amongst the Peoples who inhabit this island. The following salient features of power sharing are fundamental to achieving genuine reconciliation, lasting peace and development for all the Peoples of Sri Lanka:
* The Tamils are a distinct People and from time immemorial have inhabited this Island together with the Sinhalese People and others
* The contiguous preponderantly Tamil Speaking Northern and Eastern Provinces is the historical habitation of the Tamil Speaking Peoples
* The Tamil people are entitled to the right to self-determination
* Power sharing arrangements must be established in a unit of a merged Northern and Eastern provinces based on a Federal structure, in a manner also acceptable to the Tamil Speaking Muslim people
* Devolution of power on the basis of shared sovereignty shall necessarily be over land, law and order, socio-economic development including health and education, resources and fiscal powers.
It is in this context that we are seeking solutions for our ethnic conflict. Of course our learned Lecturers would give us the knowledge with regard to the various models of power sharing, the challenges we have had in pursuing various models of power sharing and the various perspectives that prevail in multi ethnic societies. We Sri Lankans will have to identify mechanisms that would suit us as we sit down to prepare a new Constitution for us.
It might be useful at this stage to refer to what the majority decision of the Supreme Court said with regard to the 13th Amendment when it was introduced as a solution to the ethnic conflict in 1987 when an action was brought stating that the 13th Amendment affected adversely the “Unitary character of the State” and the “Supremacy of Parliament”.
Let me quote
“The Unitary character of the State of which the characteristics are the supremacy of the Central Parliament and the absence of subsidiary sovereign bodies remains unaffected. The Provincial Councils do not exercise sovereign legislative power but and are only subsidiary bodies exercising limited legislative power subordinate to that of Parliament. Parliament has not there by abdicated or in any manner alienated its legislative power in favour of any newly created legislative authority. The concept of devolution is used to mean the delegation of Central Government power without the relinquishment of supremacy. Devolution may be legislative or administrative or both and should be distinguished from decentralization. The scheme of devolution set out in the Bills does not erode the sovereignty of the People and does not require the approval of the People at a Referendum” (unquote.)
Our experience of the past two years at the Northern Provincial Council have proved the words of the majority of the Supreme Court Bench to be in fact correct. The Provincial Council system has not altered the unitary character of the state.
But in modern times it appears difficult while one examines the various Constitutions to strictly categorize them into unitary, federal or confederate.
Robert Garner and others in their book published in 2012 under the heading “Introduction to Politics” said (I quote) “States no longer feel that they have to make an exclusive choice between either unitary or federal systems. They sometimes devise hybrid combinations”. (unquote)
Thus the classical distinction between federal and unitary state is giving way to more complex forms of the nation states. There are States which are unitary mainly or federal mainly. But there are also States which are unitary in some dimensions but federal in other characteristics. There are even those which are neither unitary nor federal. There can therefore be several types of combinations. India and China are examples of mixed characteristics, I believe. Thus we cannot limit us to look at the problem of devolution from a binary reasoning standpoint of unitary or federal only.
There is no doubt that our Parliamentarians are probing into various such possibilities of permutations and combinations.
Yet it is essential to keep in mind the fact that a strictly unitary state places power in the hands of the majority and the consequent authoritarianism, majoritarianism and domination of the majority-centre would affect the minority-periphery. Decentralization is the device of a unitary state but devolution is different. We are going to examine how through devolution the individuality of People different from the majority could be preserved and maintained.
We Tamil Speaking people of the Northern and Eastern Provinces feel that the people of the North and East of Sri Lanka are fully qualified to be categorized as People entitled for self determination in terms of the characteristics and qualifications delineated in the U.N. Covenants. How to recognize our right of self determination within this Country which is multi lingual, multi ethnic and multi religious is the larger problem facing the Country.
Federalism of course limits the extensive State power by creating two sovereign powers – the National governmental power and the state governmental power thereby restraining the influence of both, as in the United States. Of course Separation of Powers imposes internal limits by dividing any government into legislative, executive and judicial arms giving different branches separate functions and thus forcing them to share power. By this way there are checks and balances maintained.
There are a very broad range of political options for settling ethnic conflicts today. I believe we would be examining these options today.
Being conscious of our Northern Provincial Council electoral manifesto and what have befallen on our community since especially 1956, namely the broken promises following the tearing up of the Bandaranayake – Chelvanayagam pact until the rejection of Post Tsunami Operational Mechanism (PTOMS) in 2005, it is imperative to bear in mind the need for a constitutional framework that promotes power-sharing and protects the identity, language, culture and right to self determination of communities who call Sri Lanka as their home in their areas of historical existence.
It is imperative for us to be collectively aware of and learn lessons from other Countries so that we do not repeat the same mistakes with regard to our collective future in Northern and Eastern Provinces bearing in mind our need to protect our identity and to manage our internal affairs to ensure our safety and security, based on existing UN and International Covenants, Conventions and Principles, within a united Sri Lanka.
It is worth noting at this juncture, even an agreement reached with Madam Chandrika Bandaranaike Kumaratunga’s government on the basis of negotiation and consensus to utilise the international pledge of funds to address post natural disaster/Tsunami rehabilitation, reconstruction and development, was challenged by a constituent member of the then regime in the Supreme Court and the mechanism was sidelined.
Having been in office for more than two years I am now acutely conscious of the limitations of the 13th Amendment, which when conceived in 1987 was intended to provide for asymmetrical power-sharing for a merged Northern and Eastern Province by the Government of India on behalf of Tamils of the North and East in its negotiations with the then Government of Sri Lanka under President J.R.Jeyawardena to resolve the ethnic conflict.
However, at that time there was lack of integrity on the part of the then Sri Lankan Political Leadership in granting what was discussed and agreed upon. This was very succinctly brought out in the letter written by late Mr.Amirthalingam, Mr.Sivasithambaram and the present TNA leader Mr.Sambandan in their letter dated 28th October 1987 addressed to the then Indian PM Shri Rajiv Gandhi. (copies can be distributed).
As Tamils we need to be very clear in our mind as to what should be the basis of constitutional reform process and political settlement that should be reached, in order to avoid the bitter past experience!
It is this recognition that prompted me to ask the Swiss Ambassador for help. We needed to know about the scope, nature and model of well established power sharing structures found either in Switzerland via Cantons and through confederation, or elsewhere.
Northern Provincial Council is a new structure and all of you including the Councilors and the Administration are for the first time as elected representatives and bureaucracy (having been under the Governor’s rule until end of 2014) called upon to work the devolution process. It is therefore imperative to learn and
familiarize with the practices of the federal principles in multi lingual, multi ethnic, multi religious societies to live in peace, security and harmony!
As for the Councilors and Ministers, acquiring knowledge in this subject area will enable you to become very successful and effective future leaders of our community.
For the Administrators, acquiring knowledge and appreciation of federal principles will enable you to work effectively with the Central Government to serve the post war needs and priorities of the people of Northern Province and Eastern Province.
As for the war battered people of Northern Province and Eastern Province the Councilors as leaders at the grass-root level will be able to interact effectively and practically serve people better whilst developing themselves intellectually.
ln fact as advised by me recently I will share with all of you Councilors belonging to the Northern Provincial Council documents relating to how you could perform effectively as Councilors and develop your capacities and capabilities to become effective political leaders in the near future!
Let me welcome the Guest Speakers and our Organisers and look forward to a fruitful Seminar this morning. Thank you.