Ethno-Nationalist Demands as Contemporary Phenomenon: Structural Challenges for Modern Constitutions

 

 

Lecture on the occasion of the birth centenary of Dr. Colvin R. de Silva,
Sri Lanka’s first Minister of Constitutional Affairs,
Colombo, Monday 26 February 2007

by
Prof. Thomas Fleiner
Director, Institute of Federalism
University of Fribourg, Switzerland

Introduction: Majority Rule for Multi-Ethnic Societies?

 

According to Montesquieu, the French philosopher of the eighteenth century, the law of each country reflects the spirit and the soul of the people. When we are celebrating the memory of Dr. Colvin R de Silva, one of the most prominent constitutionalists of Sri Lanka, we might remember that only those constitutionalists, who have the insight into the soul and the spirit of the people, or - according to the proposal of the majority of the recent expert panel on the new constitution - of the peoples living in Sri Lanka, are in the position to develop those constitutional ideas for the future, enshrined within the historic memory and culture of those peoples, which will be essential for building the common and peaceful destiny of the future of all peoples. Dr. Colvin R de Silva has shaped and contributed to establish the constitution of 1972 which lasted for several years. Today, remembering his contribution and Dr. Colvin himself, we will be accountable to the future generations for contributing to a constitutional framework which will bring peoples, divided by conflict, peacefully together and which will enable them to cooperate for the common interest of their future destiny. Moreover, we have to keep in mind that constitution making is only the first step in the process of peace-building. It will only have a chance if it is able to set the starting point for building up a real, sustainable, common community of peoples willing and prepared to live together.

 

35 years after the constitution of 1972 has been enacted, nobody will expect a foreign scholar to provide any expertise with regard to the soul, culture and spirit of the constituent peoples of Sri Lanka. The European expert can only contribute to the actual constitutional debate in Sri Lanka by providing some relevant European experiences. Constitution making and constitution building is within the responsibility of the political elite of the country which is embedded in the culture and tradition of the country and thus has to bear for itself and for the children the consequences of its endeavour.

 

After Garibaldi, the Italian revolutionary of the 19th century, had achieved to unite fragmented Italy, politicians agreed that now that Italy had been united, one had to care for the Italian people which could only hold Italy together if one “makes” THE “Italian” in order to form the indispensable Italian nation. But even today one has to admit that Italy has remained a country fragmented by historic, linguistic, cultural and even religious diversities, which can only be hold together by one communality which at the same time enables the different communities to share – as part of their own identity – the basic common values of Italy.

 

Still looking into the Italian experience one can detect that in fact there remained different “Italians” up to our days, such as the Italians of the south Tyrol, those of Sardinia, those of Sicily and those of the North of Italy eager to establish their own region called Padania. The political and constitutional unification of Italy was not able - nor was unitary Spain - to establish a more coherent and homogeneous nation. On the contrary, the recent developments in Italy as well as in Spain teach us a different story. In reality both countries tried hard in recent years to hold the country together by devolution and federal structures similar to Belgium and Great Britain in recent years. Even the traditionally most unitary France has introduced regionalism within its constitution as a new structural fragmentation of the country, in order to cope with the modern development of localisation as opposed to globalization – one of the most important challenges of the traditional nation state.

 

The constitution of Dr. Colvin de Silva’s time is based on the experience and the tradition of the unitary Westminster model. The unitary state concept was entrenched with the 1978 constitution as the concept of the unitary state can only be changed by a 2/3rd majority of the parliament followed by a referendum. The unitary model of states took profit from ideas already developed by the great philosopher of the Enlightenment period John Locke, who divided the interests of human beings into a first part of inalienable rights based on equal individual rights which have to be protected for each individual by court, and into a second part open to the common wealth and thus to be achieved by democratic majority decision. According to this view – with regard to the issues, which are of the common interest – the state has to provide for an efficient majority procedure in order to guaranty good state services and products. As on the other side individual human rights are not to be touched by the majority, the parliament has full legitimacy to rule, but only on common interest issues and to provide within this limit legislation for the common wealth of the state by simple majority.

 

However, this simplistic view does not fit any more to the reality of multiethnic states. The view of the enlightenment philosophers was based on the idea that all human beings are equal and are thus holders of equal inalienable rights. In states which are fragmented by different ethnicities, the ethnic identity, that is the right to be different, is to be considered to be a value of similar importance to any other universal individual human rights value which simply cannot be overruled by simple majority. It is for this reason that a simple majority does not have its legitimacy with regard to ethnicities which insist to be different from the majority. As a consequence, one could only have majority decisions within an ethnically homogeneous society. We are aware, however, that 95% of the actual member states of the UN have in reality to care for multiethnic society. For all these states the simple majority principle does not fit the real interest of the fragmented society they have to care for.

 

On the other hand it would be unrealistic, inhuman and impossible for many different reasons to divide majorities along ethnic lines. The countries composed of different ethnicities will rather have to find new concepts in order to build on their diversity and legitimize policies for the common good and public interest of the entire nation composed of different ethnic communities.Minority populations therefore cannot any more be taken care of by the simple majority of the state. Within a Westminster system, ethnic minorities fear in fact to end up as eternal loser against the ethnic majority as a permanent winner. In such conflicts majority loses legitimacy and thus has to choose governmental systems which can include and build on the different diversities.

 

Moreover in fragmented countries, the issue of government is not only limited to good governance but mainly also to the more important question of legitimacy which can be focused on with the short question: Who governs whom? Indeed, rulers and power-holders of fragmented states need legitimacy not only from the majority but also from the different communities.

 

The national ethnic communities have - based on new developments of international law - a legitimate claim for internal self-determination. However, up to now, no community can claim unilateral external self-determination or the right for unilateral secession. As a consequence, the constitution of a state fragmented by different ethnic communities needs to address internal autonomy for ethnic communities. And indeed, as the British legal philosopher John Austin has requested, the ruler, in order to claim sovereignty, needs obedience with regard to the great bulk of the society. Such obedience is only possible if the rules are legitimate. However, common rules can only become legitimate, if they are “owned” by all communities, which is only the case if all of them have been included in the decision making process of the common state. If they are excluded from the power-sharing system on the centre, rules can only achieve legitimacy, if they have been established within the autonomy of the concerned community itself based on the self-rule system.

 

As long as the different communities are not able to rule themselves within the frame of the state constitution and as long as they cannot share powers with all other power-holders, in particular by participation in constitution making and constitution building, they will continue to disclaim legitimacy to the state they are ruled by. Thus the best safeguard against secession is to build on common trust and to provide for incentives by providing for self-rule and shared-rule.

 

As Sri Lanka’s ethnic crisis worsened, politicians and constitutional lawyers began to look for solutions. Dr. Colvin was one of the first political leaders in the South to call for the restructuring of the Sri Lankan State. Addressing the All Party Conference, convened sometime after the tragic events of July 1983, he stated:


“At the basis of our national and state crisis in respect of communal relations is      obviously the widespread acceptance among the minorities, and especially the Tamil   minority which lives in considerable numbers in contiguous territory, that         the state as presently organised does not serve the purposes it should serve,             especially in the field of equality of status in relation to the state, the nation   and the government. This is the true      source of the Ealam demand.”


This impressive statement already several decades ago shows how visionary Dr. Colvin could foresee the future challenges and the constitutional requirements necessary to overcome the historic shortcomings of a constitutional structure designed by the simple majority principle.

 

The Challenge of the Label Federalism

 

The most difficult question Sri Lanka is challenged with today is the question of the state structure which has been addressed by the expert group installed by the government. With regard to this issue the most controversial question is whether, and if yes to what extent, Sri Lanka should turn into a federal structure or remain principally a unitary state with less or more decentralization.

 

Before going into the merits of this question, I have to refer to the complexity and to the controversy which is triggered by using simply the label “federalism”. Within the legal culture of Great Britain federalism means centralism in the sense of the authors of the federalist papers in 1787 which supported the new federal constitution for the United States. For others, such as several Spanish politicians, federalism is considered as the first step towards anarchy and secession.

 

In reality, Federalism is neither centralistic nor the first step towards secession. Federalism provides rather for the most flexible constitutional design, which enables building on and accommodating territorially fragmented diversities. It is not by accident that today 24 states have decided for a federal system, and that 45% of today’s world population is living within a federation.

 

Some of those federal states claim themselves federal by their constitutional preamble or by labelling the state to be federal. Some as e.g. India or the United States do not name their state as federal. Moreover throughout the entire constitution of the US one does not find the word federal at all. India, which calls itself in Article 1 of the constitution to be a union of states, labels at least the court as federal. Switzerland calls itself a confederation. However notwithstanding the label, all those states are considered federal because their constitution provides for self-rule of the constituent units and for shared rule of those units in the centre.

 

Looking into the recent proposal of the majority of the expert panel of Sri Lanka we realize that they did not label the future state of Sri Lanka a federal state either. With regard to the question whether in the end the constitution can still be considered federal or not, the wording and the symbolic label are not relevant. Much more relevant is rather the question whether the institutions granting self rule and shared rule are consistent with a federal system or not.

 

With regard to the concrete controversy whether Sri Lanka should turn into a federal or non federal system, let me address this dispute by quoting the famous sentence of John Winston Churchill proclaiming in one of his famous speeches: “Democracy is the worst form of government, except for all those other forms that have been tried.” A similar sentence could be used with regard to federalism. It may be the worst of all different governmental systems with regard to multiethnic states, but one can certainly share Churchill’s conviction and add: “except of all others which have been tried.”

 

Is this statement correct? Let us look into the different challenges multiethnic states are confronted with today. For this purpose I will refer myself to some of the main problems addressed by the majority expert panel:

 

First challenge: Exclusion of smaller ethnic groups

 

Multi-Ethnicity

As first challenge to cope with, the expert panel addresses the exclusion of smaller ethnic groups: “The crisis in the Sri Lankan polity has arisen because, although the country is multi-ethnic and multi-religious, the numerically smaller ethnic groups have not had their due share of State power which in their opinion, would have facilitated greater integration.

 

Can a unitary state meet this challenge just in the same way a federal state could? The basic legitimacy for ruling the unitary state is the nation, which by its democratic majority runs the state through a parliament which does not represent adequately the different communities and their territories, a head of the state representing its unity and the executive accountable to the parliament and in some instances to the head of the state.

 

As the parliament decides on major policy issues by majority, minorities are principally excluded from any influence with regard to major policy making issues. The parliament decides by majority on the elections and on all legislation including legislation on decentralization. Minorities thus have almost no chance that even their major interests would be taken into account by the majority. They depend on the good will of the majority.

 

Even in the constitution making process they may be excluded, if they represent less than one third of the voters. Centralized states such as France and Turkey are “citizen-states” which are considered to belong to all equal citizens. The citizen is an a-cultural or culturally nude being, which has only a rational and political but not emotional and/or cultural dimension. Language, religion, history and cultural customs are ignored. Often constitutions imposed by the majority on the minorities pretend to be culturally neutral because they address all peoples as citizens. In this sense the majority of these countries argues that state decisions are limited to political issues and thus considers all citizens notwithstanding their cultural background to be equal. The right of human beings to be different is denied.

 

However, even in such cases minorities often feel excluded because although the state does not preach for any majority culture or religion daily life such as language and culture are still determined by the majority culture. Some 14 months ago the European Council adopted on  December 13 2005 a resolution inviting member states “to promote in their national legislation the recognition of the cultural rights of minorities on territorial autonomy and to take the appropriate measures in order to make sure that the member states reject any attempt to promote the ethnic purity of the state or to organise the territory and the administration of the state on an ethnic basis with the exception of the affirmative measures which aim to achieve a fair representation of the national minorities in their country’s administration, at the central and the local level and to stop defining and organising themselves as exclusively ethnic or exclusively civic states.” (Recommendation of the Parliamentary Assembly 10762 of December 13 2005)

The majority of the Experts Panel follows this reasoning by declaring the state to belong to the “constituent peoples” of Sri Lanka.

 

Secession

Often one argues that a unitary state can better prevent secession than a federal state. The issue of secession does not depend on the specific structure of the state; secession is requested on the basis of a so called right to external self-determination by a people. Such demands have their origins within the concrete historical discrimination and humiliation of peoples and communities. In many cases such requests for violent secession can be met by providing for incentives such as: including minorities into the decision making process of the centre in order to share powers with them on one side and on the other side by granting them autonomy and self-rule.

Historically secessionist movements have arisen within centralized as well as decentralized states. Actual secessionist movements such as the ones in Sudan, in Moldavia, in Turkey, in France and in Georgia have developed in unitary and not in federal states. On the other hand federal states have been able to hold diversities together such as Switzerland, Ethiopia, Belgium, South Africa and Canada. The only way Belgium and Canada may be able in the future to avoid secession is by granting self-rule to Quebec or to the Flemish community.

 

Second challenge: Integration of minorities/Integrating minorities

 

According to the majority of the expert panel, a second challenge to overcome with the new constitution is the lack of integration of the minorities being sidelined and becoming alienated from the Sri Lankan State, because the power sharing mechanism has failed.

 

Indeed, minorities can only identify with their state if they participate in its decision making process. Not only the majority but also the minorities need to have “ownership” of the state; only if minorities are granted realistic possibilities to defend and protect their interests, can the state be built up as a homeland for all communities. This requires institutions and processes, which would allow common trust and real power-sharing among the different ethnic communities ruling the fate of the peoples of a country, which all of them can claim to be their country and their homeland.

 

The central state can install mechanisms of power-sharing by providing for special procedures in areas of so called special or vital interest for minorities. It can also provide for special representation of minorities within the parliament. Such provisions however will always be critically evaluated for reasons of equality. These special provisions for the protection of minorities can be misused. If abuse is reproached, the privilege may be refused because it may overburden the majority with vital interest procedures. As a consequence, such provisions may have a counterproductive effect, in particular, when the provisions are considered to overrule the majority by minorities with the aim to install a tyranny of the minority.In a federal design such power-sharing mechanisms are much less burdensome for both minorities and the majority for the following reasons:

 

First: Many issues considered to be of vital interest are within the competence of federal units and based on the constitutional devolution. With regard to these issues the central institutions do not have to intervene. Many conflicting issues can therefore be avoided in a federal system.

Second: On the central level power-sharing is provided not for communities but for federal units, which have their proper responsibility with regard to their constituency. They are accountable on all issues of government either on the local level or by participating in the decision making process on the central level.

Third: Procedures on the legislative or constitutional level do not differ between areas of special and/or vital interests for minorities. Thus there is no conflict on issues with regard to the interpretation of the vague notion of vital interest. Moreover minorities do not have the burden to claim an issue to be of vital interest. Thus, they can not be blamed or discriminated for misusing such powers. On the contrary, all federal units share the same responsibility which is to achieve common wealth for the entire community as such.

 

Third challenge: Accommodate different identities

In the proposal of the majority of the expert panel we can also read: “In this context, the goal should be to provide a form of governance that accommodates the different ethnic/religious identities within one country, while maintaining unity in diversity, through constitutional reform and thereby making an attempt to move away from conflict.

 

Minorities can certainly at best be accommodated by decentralization that is by providing for a strong local autonomy or self-rule with regard to issues of local interests and often also of vital interests for minorities such as education. Decentralization however is often challenged for the following reasons:

 

First: In central states the decision for more or less decentralization is within the competence of the central legislature. Thus it depends on the majority of the legislature either to provide for more or less devolution. In Britain it was the Westminster parliament which decided by majority for devolution of powers to Scotland and Wales. In case, the opposition gets the majority within a new elected parliament, it can at its whim also reduce the devolution or even extend it by simple majority. Neither the Scots nor the Welsh will have a special position in order to influence such decision. It is only through their parties that they can try to convince the majority party to take special care of their vital interests.

 

Second: As we can observe in the British case decentralization within unitary states is in many cases asymmetric as in the case of Finland and Denmark with regard to the Aland Islands and Greenland or with regard to Spain. Asymmetric decentralization often creates problems with regard to other areas which feel underprivileged or even discriminated. Thus it creates tensions which can be clearly felt in Spain between the Castilians and the Catalonians. In Britain, the areas which have not received special powers, such as e. g. Cornwall as one of the Celtic nations, are now claiming special privileges as well. In addition, England claims the following: Many issues can now be decided independently from Westminster by the Scots themselves. However, the Scottish members of Westminster still decide on issues which would only regard the rest of England. Thus, they are privileged to decide both on Scottish and on all England issues which should not any more be of their concern. A solution for such challenges can only be found in a real federal system.

 

Third: Decentralization within unitary states is in most cases limited to administrative and seldom extended to some rare legislative competences. Usually decentralized regions have no power to levy their proper taxes according to their proper bylaws. In general they cannot provide for their proper income which they would need in order to pay the expenditures for the implementation of their constitutional and legislative mandates. Thus, decentralization can in reality usually not be fully implemented. The decentralized units depend on the budgetary power of the centre. With regard to legislation they often only have the power to enact bylaws with very limited content. In addition they usually lack the proper constitutional authority with regard to their inner structure and to their relationship toward their proper local authorities.

 

Fourth: With regard to the income and to their expenditures decentralized units depend not only on central control of the unitary executive branch. As the central government is accountable to its democratic parliament for all issues of the state the parliament and in particular the executive must also have the control to supervise decentralized units as long as those units are not democratically organised and democratically accountable to their proper constituency. Only decentralized units with a proper parliament may organize accountability of local executives towards the local parliament.

 

Fifth: Top down decentralization does not meet the basic principle of subsidiarity. According to this principle, local units should have all powers and competences for public services which they can manage and afford out of their proper forces and possibilities with regard to human resources, income and expenditures. In principle, it is the local unit who decides when it considers itself not any more competent to manage certain issues. In the top-down decision making process of centralized states the local units are often only delegated competences when the centre feels overloaded or considers the issue to be too conflicting and thus better to be decentralized. 

 

Fourth challenge: permanent conflict management

Either/Or Conflicts

Ethno-nationalist conflicts are conflicts which divide the society in most cases in “either/or” divisions. Those divisions are deeply rooted within the historic consciousness of the peoples. Each party is convinced of its just cause and thus accuses the adversary part for all damages, losses and injuries caused by the conflict. Unlike social conflicts, which open issues on quantities and thus can be solved by compromises under universal terms of justice offering one side a bit more and the other a bit less.  However conflicts caused by conflicting ethnic communities cannot be solved by quantitative compromises.

 

In general those conflicts do not even allow a neutral broker or arbitrator to facilitate between the parties. Any facilitator or arbitrator is often and soon blamed to prefer one party against the other and thus denied any objectivity or neutrality with regard to the conflict. To provide for institutions and procedures to prevent either/or conflicts one has thus the primary task to establish a constitutional arrangement which allows real community building. Moreover, ethnic conflicts can seldom be solved definitely once and for all. The only possibility to deal with such conflicts is to find the way for peaceful negotiations and a peaceful management of those conflicts. The goal to be found is not the final solution but the path, which enables concerned peoples continuously to proceed peacefully step by step  to approach and optimize temporary solutions.

 

For this reason, the focus should always be on the process and not on the solutions. Unfortunately, in most cases dealing with such conflicts media and politicians are eager to focus on final solutions instead of seeking credible and acceptable procedures which would initiate a long lasting or permanently lasting peaceful settlement which would turn enemies into adversaries.

 

Focussing on the acceptability of such procedures the essential for peaceful acceptance is the principle of inclusiveness. Any process dealing with such conflict needs to be inclusive. It has to include all possible different parties which eventually will have to contribute to the peaceful implementation of the results of negotiations. Each party must have the feeling that its proposal for the settlement will become a decisive contribution for the new structure of the common state.

 

For this reason the process of constitution making and constitution building as well as for amending the constitution is of most crucial importance for any state structure. In this process all relevant minorities need to be integrated without any discrimination. Mediators or facilitators with regard to such conflicts should thus control only the process but not the content. The content of settlements should only belong to the parties.

 

Looking into existing examples of conflict management processes provided for in existing constitutions one has to admit that unitary states do not offer conflict management procedures or institutions acceptable for minorities and also for the majority. On the contrary minorities usually feel exploited by the tyranny of the majority which can only be overcome by vital interest procedure which may on the other side turn into the tyranny of the minority.

 

The only credible and acceptable institution of unitary states providing for some conflict management are constitutional and administrative courts giving individuals some possibilities for their defence against misuse of public power. However these courts deal almost exclusively with individual human rights. Collective rights are in most cases excluded. Such collective rights could of course provide for some relief for the minorities. However, the concrete implementation of such collective rights which are still strongly disputed is most controversial and often unrealistic.

 

If one looks into the substance of federalism, this constitutional design offers political collective rights for constituent territories of the federation. These political collective offered by federal states providing shared and self rule are the most important tools for permanent conflict management because they offer a permanent possibility to either delegate controversial issues to the self-rule area and to negotiate for common interests based on the shared-rule principle.

 

With regard to self rule all issues which are either/or issues can thus be devolved to the federal units to be dealt with under the self-rule system of their proper political institutions. Issues which become less crucial and more open for compromise can be transferred for the benefit of all to the centre. Such flexibility is only offered by institutions set up by federal constitutions.

 

With regard to conflicts on the central level different branches of government can include the existing diversity of the country within the parliament by the two chamber system. Within the executive conflicts can find relief by providing for representation of the communities within the executive according to the Swiss or the Belgian system. In addition one can introduce a guarantee for proportionality within all different institutions including courts and administration. Finally the constitution making process can provide for including minorities and guaranteeing their rights not to be diminished or violated by a constitution making process.

 

Such institutions and processes however can only help to find peaceful settlements of conflict if each party is prepared to the often painful process to find the necessary compromise. Such process has only a chance if the parties are open for the understanding of the position of their adversary party. Understand means literally “to stand under something”, meaning “under the position of the adversary”. Only if one is flexible enough to make the first step and to change his position at least temporarily and to “under­-stand” the position of the adversary from the other point of view one can expect the adversary to act in the same way. If in the end both parties understand each others position really the compromise is at reach.

 

Communalities

The engines for community building are common values and common interests. A community can only be established if peoples agree to live together. Without reconciliation and common trust a common political community can not be established. In the traditional nation-state the communality was self-evidently based on common ethnicity (Germany), common civic ideology (France), or common destiny (immigration into the melting pot USA). In multi-ethnic societies such self-evident common values do not exist. Those societies need to build communalities based on their diversity. Diversity as a value has particularly been universally recognized in the world of music.

 

Important development of societies towards more complexity in culture and in particular in music is often seen, when music develops from monotonic sounds to polyphonic music. In State structure one can observe similar signs for development. In fact the unitary state concept of the 19th century has in its very beginning already been challenged by the more complex federation of the United States. Today, federalism is certainly the more complex and enriched constitutional structure of a state which meets the complexity of modern society. Of course as a polyphonic orchestra it needs a good conductor, which is a good constitution, and a common melody for all different instruments. Besides the values of local identities the federal structure also needs communalities which can hold the multi-ethnic society together.

 

Such communalities are needed because only based on those communalities all parties are prepared and willing to make the necessary compromises. In order to accept losses one needs to be convinced that the price to be paid is worth the costs. Thus only when the different communities consider the communality as an added value for which it is worthwhile to pay the price for peace, they can be convinced to hand in some of their assets in order to gain the added value of the common good. Such communalities or common values would need to be addressed within the constitution of the federation. They should reflect the values for which all communities and parties are interested to come and remain together. As a concluding example we might reflect on the value of diversity proclaimed in the preamble of the constitution of South Africa which would read as follows and with which I propose to conclude:

 

“We,… Believe that South Africa belongs to all who live in it, united in our diversity. We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to - Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; Improve the quality of life of all citizens; free the potential of each person; and Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations…“