Politics of demonising federalism...

Important extracts from this landmark judgment by the Supreme Court of Sri Lanka are as follows;

“It is established that there is a clear distinction between words ‘federation’ and ‘confederation’. The main issue in this case is whether advocating the establishment of a federal State is tantamount to establishment of a separate State. It is relevant to consider the manner in which federal States were formed in various parts of the world. The United States of America, Australia and Switzerland are federal States. Thirteen States which were former colonies of Great Britain joined to establish the United States of America.

The reason for uniting under one State is to promote trade and to ensure the security of the States. Six States in Australia, in fear of pacific powers, united to establish a federal State. In order to remove linguistic and regional differences, the Swiss federation was formed. Great Britain, France and Italy are examples of unitary States.”

LABELLING AS UNITARY AND FEDERAL

“The labelling of States as unitary and federal sometimes may be misleading. 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 as a federal State. Similarly, in a federal State, if the centre is powerful and the power is concentrated in the centre, it could be considered as a unitary State. Therefore, sharing of sovereignty, devolution of power and decentralisation will pave the way for a federal form of government within a unitary State.”

“The 13th Amendment to the Constitution devolved powers on the provinces. ITAK is advocating for a federalist form of government by devolving more powers to the provinces within the framework of a unitary State. Advocating for a federal form of government within the existing State could not be considered as advocating separatism.”

“It is established that ITAK supports or advocates the establishment of a federal State within united Sri Lanka. It does not support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka as envisaged under Article 157A of the Constitution. Therefore, the petitioner is not entitled to a declaration under Article 157A (4). Application dismissed. No Costs.”

From the very early years since its inception in December 1949, ITAK known as Federal Party in English had been accused by its political detractors of being a party attempting to divide the country by espousing federalism. This has led to the growth of an erroneous impression among many Sri Lankans that federalism amounts to separatism. In its long political journey, ITAK/FP found this perception of equating federalism with secessionism a major obstacle in pursuing the objective of power sharing through negotiations.

Senathirajah relinquished his Secretary post and became President of ITAK. Former Eastern Province Minister and lawyer K. Thurairasasingham took over as Secretary. Thereafter, the new ITAK Secretary Thurairasasingham’s name was substituted in place of “Maavai” Senathirajah as the first respondent

The interim report by the Steering Committee of the Constitutional Assembly shows that a creative compromise was achieved as far as the nature of the state was concerned. Instead of explicitly describing the State as unitary or federal, a “middle way” was found. The report emphasised that “Sri Lanka should remain one undivided and indivisible country”

“FEDERALISM IS SEPARATISM” FALLACY

The Supreme Court ruling of August 4, 2017, however went against the grain of this “federalism is separatism” fallacy. The three-member bench ruled that “advocating for a federal form of government within the existing State could not be considered as advocating separatism.” Furthermore, the SC observed that ITAK advocated a federalist form of government by devolving more powers to the provinces within the framework of the existing State.

In essence, this judgment de-mystified the false arguments and fallacies surrounding federalism and strengthened the right to advocate federalism as a form of government through legitimate democratic processes. Obviously, anyone with a modicum of common sense and basic awareness of the federal idea would know federalism is not and does not amount to separatism.

Unfortunately, the course of majoritarian politics in Ceylon/sri Lanka had been one where a vast number of people were made to believe federalism was tantamount to separatism. The fact that a federal form of government had been advocated by a Tamil political party further strengthened this erroneous belief.

Matters got further complicated when ITAK/FP became the chief constituent of the Tamil United Liberation Front (TULF) in 1976 and contested the 1977 polls on a separatist platform. The lines between federalism and secessionism got further blurred.

The judgment of August 4, 2017, has laid to rest the bogey of “federalism is separatism” in legalistic terms. It has also made it clear that labels such as unitary or federal could be misleading. A unitary State could have federal powers and vice versa. The larger political question however remains. The challenge faced by proponents of federalism is to convincingly propagate the truth about federalism not being separatism to the people of Sri Lanka in general and the Sinhala people in particular.

The August 4 ruling in that sense may be able to provide an impetus to ITAK in its negotiations and discussions within the Constitutional Assembly engaged in the task of formulating a new Constitution.

More importantly, the landmark judgment can also enable all those supportive of the federal idea to advocate those convictions freely without fear of being branded separatists.

“RATA BEDANDA BAA, HABAAI PEDERAL DHENDA”

In spite of the August 4 ruling by the Supreme Court, the anti-federalism camp continues to tar brush federalism as separatism. It is against this backdrop that those drafting the draft Constitution came up with the ‘aekiya rajyaya/orumiththa nadu’ concept. Now that is also being willfully misconstrued and distorted.

There is an obstinate insistence upon the term unitary. There is a cacophony of voices emulating the cackle in George Orwell’s “Animal Farm” and repeating ad nauseam “unitary good, federal bad.” Even a positive attempt to bring out the federal characteristics of a unitary Constitution seems impossible in this environment. In such a situation, I can only nostalgically revive fond memories of the time when the Colombo newspaper seller emphasised, “Rata bedanda baa, habaai pederal dhenda.”

D.B.S.JEYARAJ CAN BE REACHED

AT DBSJEYARAJ@YAHOO.COM