India's "Federal Constitution" is not a Suitable Model for Sri Lanka
TAMIL TRIBUNE, September 2006 (ID. 2006-09-01)
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Abbreviations
1. A Presidential Pledge on Unitary Constitution
2. President Opts for an "Indian Federal Model"
3. Is Indian Constitution Federal?
4. Concluding Remarks
ABBREVIATIONS
EU - European Union
JHU - Jathika Hela Urumaya
JVP - Janatha Vimukthi Peramuna
LTTE - Liberation Tigers of Tamil Eelam
SLFP - Sri Lanka Freedom Party
USA - United States of America
1. A Presidential Pledge on Unitary Constitution
In Sri Lanka's Presidential Election of 2005, SLFP candidate Mr. Mahinda Rajapakse ran on the platform that any peaceful settlement of the ethnic conflict between the majority Sinhalese and the minority Tamils would be within a "unitary constitution". This was in direct contrast to the stated position of the then President Chandrika Kumaratunga that she was for a federal constitution. Rajapaksa signed agreements with the Marxist Sinhala party JVP and the chauvinistic Buddhist Sinhala party JHU that he would safeguard the unitary character of the country if elected president. Both the JVP and JHU supported him in the election because of this pledge. Rajapakse's election manifesto pledged to uphold the unitary status of Sri Lanka. He was elected president in the November 17, 2005 election. Thus President Mahinda Rajapakse is committed to keeping the Sri Lankan constitution "unitary" in character.
2. President Opts for an "Indian Federal Model"
President Mahinda Rajapakse knows that the Tamil minority would never accept a unitary constitution willingly. So, what was up in the newly elected President's sleeves? In order to impose a unitary constitution on the minority Tamils, he must first defeat Tamil armed resistance; that is, the Sri Lankan military has to defeat the Liberation Tigers of Tamil Eelam (LTTE) militarily and destroy it as a fighting force. In this he had a problem on his hands. Apart from the fact that the Sri Lankan military might or might not be strong enough to defeat LTTE, if he breaks the ceasefire and starts the war in order to impose a unitary constitution, most foreign governments, including America, Canada, European Union and Japan, could turn against the Sri Lankan government. The Sri Lankan government had successfully lobbied and had LTTE banned in America, Canada and the European Union. While these countries and Japan are putting pressure on LTTE publicly to re-start peace talks, they are also putting considerable pressure on President Rajapakse privately to offer a reasonable peace proposal. None of these countries would consider a unitary constitution a fair proposal. If the president were to insist of a unitary constitution for Sri Lanka, these countries may ease the pressure on LTTE. They may even reach the conclusion that a fair solution meeting the legitimate aspirations of the Tamil people is not possible within a united Sri Lanka. This, the Sri Lankan government fears.
So President Rajapakse has to come up with a federal proposal that is not really federal in character. He has to come up with a federal solution that is federal in name only, but is really unitary in its characteristics. This is the reason for President Rajapakse's interest in a federal model based on the Indian constitution. With so many federal constitutions available around the world, why did he opt for the "Indian federal model"? It fits with his goal of presenting a "pseudo-federal constitution" (a "federal constitution" that is primarily unitary in character).
3. Is Indian Constitution Federal?
Although it is generally touted as a federal constitution, Indian constitution is almost a unitary constitution. This is not just the view of this writer; this view had been expressed by many. In fact, the dominant unitary character was recognized by at least some constituent assembly member, some whom were happy about it and some were unhappy about it. Here we give a few quotes from the Indian constituent assembly proceedings of November 22, 1949.
"Our Constitution is more unitary than federal, and from that point of view I think it is a much greater improvement from the time we set about this task." - P.S. Deshmukh (This member is obviously for a unitary constitution and is happy that what started as a federal constitution ended up as mostly a unitary constitution.)
"Situated as we are, we wanted to have a federal constitution but we have produced a constitution that is mostly unitary." - M. Thirumala Rao
"This constitution envisages a kind of federo-unitary system of government, leaning largely towards the unitary system... I have no doubt a feeling in my mind that it would have been as well that we had started with greater confidence in the people and the States than what we have betrayed in that part of the constitution where we deal with the States and the Provinces." - Syamanandan Sahaya
"Even in the circumstances prevailing in India, it is not necessary that the central government should regard the provincial governments as its perpetual wards... We are trying to usher in an era of full democratic government and yet we begin by distrusting the States on which it will ultimately depend whether democracy succeeds in this country or not. I fear that the central government has taken too much responsibility on itself and that the constitution may, instead of making the state governments realize their responsibility, will discourage them in the performance of their task and make them feel that they are no more than agents of the central government. Such a feeling cannot promote the development of a full sense of responsibility nor can it stimulate the provincial electorates and the legislatures to exercise the supervision that they should in a self-governing country." - Pandit Hirday Nath Kunzru
Not only politicians, but political scientists also point to the unitary nature of the Indian constitution. P. Krishna Mukherjee wrote in 1954, "the constitution that emerged out of the August deliberations of the constituent assembly of India in January 1950 is a definitely unfederal or unitary constitution." (P. Krishna Mukherjee, "Is India a federation?", The Indian Journal of Political Science, July-September 1954.)
The dominant unitary character of the Indian constitution is not just a matter for political or scientific analysis, it has practical consequences. Most state chief ministers from outside the Hindi-belt region had expressed dissatisfaction at the concentration of power at the central government. There are armed uprisings in many northeastern states, demanding independence. One has to wonder if at least some of these uprisings would not have arisen if the states were given substantial autonomy to run their own affairs.
4. Concluding Remarks
Given the dominant unitary character of the Indian constitution and the dissatisfaction of many state governments about the concentration of power at the central government, the Indian constitution is not even a suitable starting point for Sri Lanka. Sri Lanka should start from scratch or start from a truly federal constitution and build on it.
International community is putting pressure on President Rajapakse to come up with a suitable package of constitutional amendments to meet the legitimate aspirations of the Tamil minority. Rajapaksa who is committed to a unitary constitution, so came up with the Indian constitutional model that is federal in name only but is predominantly unitary in character. USA, Canada, European Union, Japan, Norway and other countries that sincerely want to see a peaceful and just resolution of the ethnic conflict should tell the Sri Lankan government not to play games but engage in the peace process in sincerity.
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