Tuesday, 6 May 2014 00:22
A comparison with Sri Lanka and India
Russia moved in its troops, without any national, formation or regimental markings on their uniforms, mounted on Russian vehicles and bearing state-of-the-art Russian weapons and communication equipment, into the Southern Ukrainian peninsula of Crimea and rapidly annexed the region into the Russian Federation.
The United Nations General Assembly condemned the move, and at the UN Security Council, Russia vetoed a Resolution condemning the move. China abstained from voting in the Security Council. While the troops were in place in Crimea, a referendum was conducted in which the majority of Crimeans voted to join the Russian Federation.
Slights to the status of the Russian language by the Ukrainian Government and fears of discrimination against people of Russian origin in Crimea by the Ukrainian administration were the ostensible reasons given by the Russians for the move.
Historically, Crimea was a part of the old Soviet Union, which had been taken away by the autocrat of the USSR, Khrushchev and ‘given’ to Ukraine, which at that time was a satellite state within the USSR. The world is split on old Cold War era lines over this change of national borders by the use of force, which was the first time it had taken place in this manner after the end of World War II.
The USA and the European Union condemned the move, with the rest of the world falling in line with their old Cold War inhibitions. China was the exception, having abstained in the UN Security Council vote. The analogies to Tibetan and Uighurs minorities within the People’s Republic of China were too close for comfort. India, surprisingly, took a mild, pro-Russian stand; being a huge weapons buyer from Russia is probably the reason.
Sri Lanka vacillated, seemed to support Russia, then probably saw the possible analogy with the North and East Provinces and Jayalalitha’s (Chief Minister of Tamil Nadu) calls for a referendum in the Tamil-speaking provinces of Sri Lanka, together with India’s position on the 13th Amendment Plus and/or Minus, and took what our foreign policy pundits thought was a ‘non-aligned’ stand.
Russia massed troops on its eastern border with Ukraine and conducted war games, which were termed provocative. The international community was alarmed at this new development to change the accepted borders in Europe by force of arms.
An emergency meeting was set up between US Secretary of State John Kerry and the Russian Minister of Foreign Affairs Sergei Lavrov. Their talks followed a late night telephone call from Russian President Vladimir Putin to US President Barak Obama, when the two discussed potential diplomatic solutions to the Ukraine crisis.
Foreign Minister Lavrov at this meeting restated the demand he made two weeks earlier when Russia moved incognito troops into Crimea. The demands included the future military neutrality of Ukraine, a federal structure for Ukraine’s Constitution, and the status of an official language for Russian on par with the Ukrainian language. President Putin, in a TV interview, cited the UN’s Responsibility to Protect (R2P) doctrine as justification for his move.
Ukraine’s Government expressed outrage on the Russian proposals. Ukraine’s Foreign Ministry in a statement said: “Russia’s proposals for federalisation of Ukraine, Russian as a second official language for Ukraine and others are viewed in Ukraine as nothing less than proof of Russian aggression against Ukraine.” They went on to describe Foreign Minister Lavrov’s demands as an unacceptable ‘ultimatum’. Ukraine’s Foreign Ministry pointed out that Russia, in effect, demands only one thing: ‘The complete capitulation of Ukraine, its dismemberment, and the destruction of Ukrainian statehood’.
After the phone call between President Putin and Obama, the US White House issued a statement stressing the possibility of a US-Russian compromise if Moscow ‘pulls back its troops and does not take any steps to further violate Ukraine’s territorial integrity and sovereignty’.
The US has been pressing for international monitors to be deployed in Ukraine with a mission from the Organisation for Security and Co-operation in Europe and for early elections in Ukraine. Russia, on the other hand, issuing a statement on the telephone call between the President Putin and Obama, stuck a completely different note, saying that in the call President Putin had repeated to President Obama the previous warnings by Russia on the behaviour of ‘extremists’ in Ukraine who were alleged to be ‘committing acts of intimidation against peaceful residents and certain government agencies with impunity’.
Diplomatic circles commenting on the Kerry-Lavrov talks say that the Russian Foreign Minister did not appear to have given any negotiating flexibility or space to Kerry over Russia’s demands. In an interview on Russian television, Lavrov denied that Russia had any plans in invade Eastern Ukraine. But reports continue of pro-Russian mobs attacking Ukrainian Government institutions and rampaging in a number of major cities in Eastern Ukraine, including Donetsk.
In the interview, Lavrov repeated the demand that Ukraine be federalised and that Russia be made an official language, which he stated that the Ukraine Government in Kiev had rejected. Lavrov went to the extent of quoting Ukraine’s Foreign Minister who he alleged had said that “the Russian proposal was unacceptable because federalisation goes against the fundamental principles of Ukraine’s state set up”.
Lavrov continued: “It is not clear why. I do not know anything about such principles. Secondly, the idea of making Russian Ukraine’s second language was also rejected by the Ukrainians as unacceptable.”
Lavrov concluded: “If the Ukrainian leadership persists in rejecting the idea of federalisation… if they continue to ignore the ethnic Russians and the Russian language, the constitutional reforms that they have begun will not yield any sensible result.”
On the unrest being fermented in Ukraine’s eastern region bordering Russia by pro-Russia elements, local Ukrainian residents have coined a rhyming proverb to brand Russia’s blatant attempt to exploit deeply-persistent but until now manageable regional and linguistic issues. They say, “Tyesto myesto, a drozhzhi russkie” in Ukrainian, meaning, “The dough is local, but the yeast is Russian!”
A federal constitution
In countries which gave a number of ethnicities and linguistic groups within national borders, a federal or quasi federal system is a well-recognised tool to create unity in diversity, holding together the fabric of a single nation state, yet allowing the diversity to bloom in regions.
A federal constitution distributes the powers of a sovereign state among different bodies, both at the centre and in the regions, each coordinate with an independent of others. Federalism entails a definite sacrifice of sovereignty by participating entities to the federal authority, at the same time retaining their own legislatures and governments for certain agreed-upon matters. The constitution lays down the parameters of this division of powers.
Regions, provinces and states within a federation retain their specific identity but renounce certain powers which they could have in favour of the federal body. Differing form a federation, in unitary nations, sovereign power is vested in a single legislative body. A unitary country is where power is undivided. Ukraine up to this time has what can be described as a unitary constitution. That is why the Ukrainians are incensed that the Russia is trying to twist their arms to change to a federal state.
In Sri Lanka, we went through this same process, at the time that the 13th Amendment to the Constitution was enacted. Many said that India was using untoward pressure on the Government of Sri Lanka to impose a federal constitution. However the Supreme Court of Sri Lanka has determined that the 13th Amendment was consistent with the unitary state as the government at the centre had certain specific powers over the provincial councils.
In deciding whether a given constitution is federal or unitary, the amount of power the centre has over the regional legislatures in crucial. Ever since the major political party representing the Tamil minority in the north and east Sri Lanka called itself the Federal Party and demanded a federal constitution, the majority Sinhala people have been consistently opposed to a federal system, preferring a unitary system of government. This, notwithstanding the fact that even leaders like S.W.R.D. Bandaranaike in their early years supported federalism as a probable solution for Sri Lanka’s diversity.
On 17 January 1926, Bandaranaike speaking in Jaffna, under the auspices of the Jaffna Students’ Congress, described the country’s traditional form of government which existed in pre-colonial days as ‘decentralised,’ similar to a loose federation. Bandaranaike explained that the British introduced a centralised form of government, which he said was unsuitable for a country like Ceylon. Bandaranaike said that a federal system based on provincial autonomy would be the only solution to the island’s political challenges.
Prior to this in May and June 1926, Bandaranaike, authored a series of six articles in the Ceylon Morning Leader articulating his views on a federal system of government for Ceylon. In 1927 the British colonial government appointed the Donoughmore Commission to ‘report on the situation in Ceylon and proposals for revision of the constitution’.
The ‘Kandyan Claim’
The Kandyan National Assembly made submissions before the Donoughmore Commission, advocating a federal Ceylon, with three provinces, similar to the administrative arrangement prior to the Colebrooke-Cameron Commission, which had earlier unified the administration of the island.
The Kandyan Sinhala people viewed themselves as a nation and in their submission to the Donoughmore Commission said: “Ours is not a communal claim or a claim for aggrandisement of a few: it is a claim of a nation to live its own life and realise its own destiny. We suggest the creation of a federal state as in the United States of America… A federal system… will enable the respective nationals of the several states to prevent further inroads into their territories and to build up their own nationality.”
The Donoughmore Commission dealt with what they referred to as the ‘Kandyan Claim’ in a separate and distinct chapter of their report. They expressed sympathy for the concerns expressed by the Kandyan Sinhalese but rejected the claim for a federal Ceylon mainly on the basis that the country needed to be united. Ethnic and cultural identity needed to be transcended and what was most important at this stage of Ceylon’s constitutional evolution, leading towards independence from Britain, was a philosophy of a united Ceylonese mentality.
It is interesting to note that in 1938, British colonial civil servant Leonard Woolf, who had served in Ceylon in the district administrations of Kandy, Jaffna and Hambantota, and therefore worked with all communities in all the geographical regions of the country, based on his experience, proposed a Swiss model Cantonal system for Ceylon, with five Cantons, one each for the Kandyan Sinhalese, the Low Country Sinhalese, the Tamils of the north, the Tamils of the east and one for the Tamils of Indian origin.
In April 1951, the Ilankai Tamil Arasu Kadchi at its first national convention articulated the desire of the Tamil people for a federal union with the Sinhalese. In 1957 the Federal Party through the Bandaranaike-Chelvanayagam Pact, agreed to accept proposals for establishing Regional Councils. The pact was later unilaterally abrogated. In 1965 the Dudley-Chelvanayagam pact was entered into to deal with problems faced by Tamil people, but was abandoned after three years without any progress.
In 1970 there was a Constituent Assembly, appointed to formulate a new constitution and the Federal Party proposed a Model Federal Constitution with five separate units: 1. The Raja Rata; 2. The Kandyan Provinces of UVA, Central and Sabaragamuwa; 3. The Southern and Western Provinces; 4. The Northern Province, Trincomalee and Batticaloa Districts and; 5. Ampara. This was rejected by the Constituent Assembly.
In May 1976 the TULF adopted the Vadukkodai Resolution, which marked the commencement of the struggle to establish a separate state of Tamil Eelam. Recent events in Sri Lanka have led to a concentration of power at the centre, in the hands of the Executive Presidency. Constitutional amendments and centrally-driven programs such as Divi Neguma have seen the marginalisation of the second and third tiers of government.
India is an example of a gradual process of federalisation. Nowhere in the Constitution of India is the world ‘federal’ mentioned. India is a Union of States, in which the Constitution delineates the power of each tier of government – the Centre, the States and Panchchayats and Municipalities. The Seventh Schedule of the Constitution of India delimits the subjects to each level of government by three lists.
Indian federalism is unique, in that it is asymmetric. Article 370 makes special provision for the State of Jammu and Kashmir. Article 371 makes special provision for the States of Andhra Pradesh, Arunachal Pradesh, Assam, Goa, Mizoram, Manipur, Nagaland and Sikkim. The President of India by Article 356 can impose President’s Rule on any state, where no party can form a government or where there is violent disturbance. This gave the Centre immense power over the states.
Moreover when the Congress Party controlled both the Central Government and the States, this together with the powerful overwhelming affect of the all India services, the Indian Administrative, Service, the Indian Police Service, the Judicial Service, made the Indian Union for all practical purposes a Unitary State.
However, over time, India has virtually federalised. The first and foremost reason for this was the capture of power in the states by regional political parties. In Tamil Nadu, in Kerala, in Andhra Pradesh, in West Bengal, in Jammu and Kashmir, voters no longer vote for a nationally-dominant party such as the All India Congress or the BJP. Regional satraps, through their state party formations, now control the states. This has resulted in weak coalition government at the centre in Delhi.
The Central Government on Delhi is virtually controlled by political parties controlling the states. In the 2014 Parliamentary elections, which are going on now, it has been predicted that no single party will get an absolute majority. Coalition politics and a weak centre will continue.
Abuse of Article 356
The second reason was the that Supreme Court of India placed severe restrictions on the President of India’s power to dissolve state government and impose President’s Rule using Article 356. The author of India’s constitution, Dr. Ambedkar, Chairman of the Drafting Committee, when commenting on this Article 356, called it the dead letter of the Constitution.
When in the Constituent Assembly discussion on this Article, it was argued that Article 356 is liable to be abused, Dr. Ambedkar responded: “I share the sentiments that such articles will never be called into operation and that they would remain a dead letter. If at all they are brought into operation, I hope the President who is endowed with these powers will take proper precautions before actually suspending the administration of the provinces. I hope the first thing he would do would be to issue a mere warning to a province that has erred that things are not happening in the way that they were intended to happen in the Constitution. If that warning fails, the second thing for him to do will be to order an election allowing the people of the province to settle matters by themselves. It is only when these two remedies fail that he should resort to this article.”
In fact what happened was quite the opposite. Delhi-based central governments advised the President to dissolve state governments opposed to them at will. One is reminded of that famous comment by a British Law Lord of 30 years standing at his farewell speech, that in all his experience on the Bench, there is only one law he absolutely believes in: ‘The Law of Unexpected Consequences’!
Article 356 was probably the most abused Article in the Indian Constitution, until a one-time Chief Minister of Karnataka S.R. Bommai challenged the dissolution of the state government by the President under Article 356, in what has gone down in history as the ‘Bommai Case’. The Supreme Court held that the President’s order dissolving the State Assembly is subject to judicial review. This placed a clear limitation on the central government’s power.
Unitary or Federal question
The question of Unitary or Federal revolves around the question of the powers the central government has over the secondary level institutions.
In practice, constitutions which are unitary in character may undergo changes through legislative amendments brought about through free internal choice, due to the influence of a powerful neighbour. In others the judiciary may through interpretation of the constitution place limits of the centre’s power and thereby federalise a constitutional regime.
Politically by the state level secondary level, electing a political party opposed to the party in power at the centre may place ‘political’ if not legal limits on the unitary nature of the constitution. Also a constitution which has some aspects of devolution may see powers being centralised through later amendments or through centrally-driven programs implemented without a role for provincial and divisional institutions.
In Sri Lanka, today we see a Chief Secretary belonging to the Sri Lanka Administrative Service, challenging the power, through the Judiciary, of the Chief Minister of the Northern Province, controlled by a political party, opposed to the party in power in Colombo.
It is interesting to note that whatever the Judiciary lays down in this regard on chief secretary-chief minister relationships will not be confined only to the Northern Province; it will apply to the relations between all chief secretaries and chief ministers in all nine provinces of Sri Lanka. The Law of Unexpected Consequences at work! No constitutional arrangement, like everything else in this world, is permanent; change is inevitable, driven either by national sentiments, external pressure or judicial interpretation.
Russia is trying to federalise Ukraine through external pressure. On 7 April, after a summit meeting between the US, Russian and Ukrainian Foreign Ministers and the Foreign Policy Chief of the EU, a statement was issued that there was agreement on Ukraine embarking on a process of constitutional reform designed to foster regional autonomy, local self government and the protection of minority rights (federalisation?) among other matters in an inclusive, accountable and transparent manner.
Meanwhile Russian forces are conducting war games near eastern Ukraine’s border. Ukrainian authorities admit they have lost control over eastern Ukraine and the Ukrainian Army is on a war footing.
(The writer is a lawyer, who has over 30 years of experience as a CEO in both State and private sectors. He retired from the office of Secretary, Ministry of Finance and currently is the Managing Director of the Sri Lanka Business Development Centre.)