Federalism and Non Territorial Minorities
Non-territorial federalism is a conception developed by Karl Renner at the beginning of the XX century. In this very interesting essay Dietmar Kneitschel puts forward the proposal that it might be applied to help solving a quite critical situation like that existing in Sri Lanka. In fact, federalism in general and non-territorial federalism in particular are the best conceptual tools for tackling ethnic conflicts that have been running for ages.
Once these ideas become operative tools and practical attitudes, internalized by many individuals willing to overcome the ideology and practice of territorial statism, the chances to work out current intractable clashes between different cultural groups will be higher than ever.
Though the rationale of federalism is by no means limited to a solution of problems in multi-ethnic states, federalism certainly has special relevance for ethnically heterogeneous societies. In a unitary state, as it exists presently in Sri Lanka, national minorities feel marginalized and excluded from political decision making, because of the political hegemony of the majority community. In the words of the late Neelan Tiruchelvam [a], this marginalization and exclusion results from the "absurd contradiction of imposing a mono-ethnic state on a multi-ethnic polity. In the context of a divided society, republican concepts of democracy, citizenship and sovereignty have been used to provide legitimacy to majoritarian rule." (1) In contrast to the unitary state with its concentration of power, a federal state with his diffusion of power has the potential for balancing the interests and aspirations of different ethnic communities and accommodating them within a single state. Therefore, countries with previously centralized state structures (like Canada, India, Spain, Papua New Guinea and Ethiopia) have been transformed by segregation into federal or quasi-federal states.
Federalism is a concrete manifestation of the right to internal self-determination of specific communities in a multi-ethnic or multi-national state. A federal structure of the state has the potential to accommodate the legitimate aspirations of all ethnic, linguistic or religious communities for self government and protection of their distinct cultural and religious identities, while at the same time guaranteeing equal participation by all communities and by all citizens in the political and economic affairs of the country as a whole.
Thus, federalism can be considered as a "first resort" and as an appropriate form of internal self-determination as articulated in the UN instruments. Consequently, a workable federal arrangement would render secession unnecessary and invalid.
Experiences in many parts of the world have demonstrated that federal arrangements can diffuse tensions and mitigate conflicts between different ethnic communities. These can provide a fundamental basis for the peaceful coexistence and co-operation of diverse ethnic or linguistic communities.
These experiences nurture expectations that a new flexible structure of the state and a mode of governance based on the principles of federalism could transform the ethnic conflict in Sri Lanka from violence to constitutionalism and restore the unity of the country that at present is marked by a de facto division.
The concept of traditional territorial federalism
But there is a fear and suspicion that the non territorial minority communities - Muslims and Hill Country-Tamils - could become the orphans or step children, or even the losers of a future federal structure of the state.
In most ethno-political conflicts a territorial solution is at the core of the demands for self-determination. This is also the case in Sri Lanka.
Territory is paramount in autonomy concepts like federalism as well. Territorial federalism is characterized by the distribution of power over territorial entities. The overarching State, the federation, is divided into territorial sub-units (called states, provinces, Länder or Cantons), and State Power is dispersed over these federated sub -units.
Territorially concentrated ethnic or religious population groups benefit in such a traditional federal structure in the following four ways:
1. They are represented in the national parliament or first chamber as they would have been in a unitary state.
2. They are represented in the executive, legislative and judiciary of the federated sub-units where they constitute a majority, enjoying their internal right of self-determination.
3. They are represented as well in the second chamber which voices the concerns of the sub-states in national policy making, and
4. They are an active part in the intergovernmental policy networks which are typical of federal arrangements.
So in mono-ethnic or mono-national states territorial federalism may be an adequate solution.
And even in multi-ethnic or multi-national States where ethno-national communities are territorially concentrated and where the sub-states reflect this situation, territorial federalism, or power sharing between the central State and territorial political sub-units may be adequate and sufficient to satisfy the aspirations and needs of all nationalities or communities.
But non territorial minorities do not benefit equally from all these forms of representation and participation provided by territorial federalism. Therefore, in multi-national or multi-ethnic states with communities dispersed and mixed all over the country, classical federalism as a purely territorial project has serious intrinsic limitations as a solution to manage successfully ethnic identity conflicts und secure rights, dignity and security of all people. The territorial federal logic of traditional federalism is also hardly applicable when there are competing claims over territory.
So in such complex situations, traditional territorial federalism is an insufficient mechanism for the comprehensive accommodation and just representation of all minority rights and concerns.
Territorial federalism could even plant the seeds for new explosive ethnic antagonism by creating new intra-regional minorities. It needs therefore to be supplemented and balanced by a non territorial approach.
The concept of non-territorial federalism
Non-territorial or personal or corporate federalism is an unconventional federal concept. This concept defines the right of self-determination not from the narrow perspective of a privileged traditional nation or nationality with its well-defined own territory, but from the wider perspective of the individuals who subjectively profess a group identity without taking into consideration their place of residence. So the concept dissociates the right for self-rule from territory. It transcends the limits of homelands or places of residence.
This way, the so called non territorial minorities can assert their rights of self determination, and several ethno-national groups can enjoy autonomy in the same territory.
Thus, this concept would empower the members of a community which live outside the boundaries of their 'homeland'.
It would likewise empower those ethnic or religious communities which do not define themselves as traditional nations, and which do not claim a specific part of the country as their homeland, but which also may want to rule themselves and not to be ruled by others. Non-territorial federalism would secure that the linguistic, educational and cultural rights of such minority communities are also guaranteed.
So non-territorial federalism is aiming at something more than the negative right of minorities to get protection against exclusion and discrimination by national or regional majorities. It would establish a positive right of self-determination even for territorially dispersed minorities.
The idea of personal or non-territorial federalism had been propagated already at the beginning of the 20th century by the Austrian Social Democrat Karl Renner who tried to find a fair and democratic solution for the ethno-national diversity in the Austro-Hungarian Empire. The idea was to represent different nations at the state level in separate autonomous national councils; these councils would have the power to legislate in matters of cultural policy and education.
At present, the most prominent proponent of non territorial federalism in multiethnic or multi-national societies with ethnically mixed territories is the Norwegian Professor of Peace Studies and Director of the TRANSCEND Network for Peace and Development Johan Galtung.
In view of the experience in Ex-Yugoslavia, he has warned that in countries with a high degree of competing ethnic nationalisms and with nationalistic doctrines of blood and soil, territorial federalism could be an invitation to continued ethnic cleansing. And in his opinion such a danger could be avoided or at least reduced if federal arrangements were not based on territorial, but on non-territorial criteria.
A non-territorial federal formula would leave people where they are, but fully recognize their right to some self-determination. In short, the idea of Galtung is that in multi-national-countries each distinct nation elects its own parliament regardless of the place of residence of the individuals who form the particular nation. These parliaments with their executive arms would have authority especially over nation-specific cultural and educational affairs. On top of this there would be an over-arching super-parliament responsible for matters, which concern all nations or groups together.
I think it would be unrealistic to expect that such a concept could be implemented in Sri Lanka as a solution for the main ethnic conflict between Sinhalese and Sri Lanka Tamils, because Tamil Eelam [b] is clearly defined as a territorial project, and not merely as a project of cultural autonomy. And probably Sinhalese nationalists would also disagree with such a concept.
However there are not only two but four distinct communities in Sri Lanka. And a restructuring of the State and a new democratic federal constitution should not only address the concerns of the two communities in open conflict but should also address the legitimate concerns of the hitherto silent or non-militant minority communities, the Muslims and the Hill country Tamils.
The new federal constitution should make the State and the whole society more democratic and be inclusive. It should provide rights of self- and co-determination to all existing communities and thus prevent the possibility of new ethnic cleavages and tensions in the future.
Therefore, even if we can presume that non territorial arrangements as suggested by Galtung would not be accepted as a solution of the main conflict between Sinhalese and Sri Lanka Tamils, such arrangements could be useful for the territorially dispersed communities who equally possess their own distinct identities and thus - in an extended sense - rights of internal self-determination.
Such non-territorial arrangements could also be a reasonable alternative to the Southeast autonomous Muslim unit claimed by a sector of the Muslim community. Because a separate Muslim territorial unit within the Eastern province would not represent the great majority of Muslims who are living outside this unit.
Non-territorial federalism is certainly not a comprehensive federal institutional solution in itself, but it could be a useful additional building block in a solid constitutional and political architecture combining territorial federalism, convocational power sharing arrangements and constitutionally guaranteed safeguard for minorities.
The important condition is that such architecture must give proper recognition of equal status to all communities in Sri Lanka. It must legitimize and give concrete expression to the aspirations of all four communities to some form of self-government while at the same time binding them together in a larger and equally self-governing shared multi-national or multi-ethnic federal state.
The Belgian model
Belgium is an interesting example of a country with a combination of territorial and non-territorial federalism as well as consociational arrangements.
This small European country - half of the size of Sri Lanka - has developed by long process a dual form of self-government for its citizens who belong to 3 different linguistic or cultural communities, Flemish, Walloons and Germans.
Belgians are both members of territorial units and members of autonomous non-territorial communities. While the regional councils represent the interests of the people living in the different regions, the community councils represent the interests of the different ethno-linguistic communities from all regions. And this constitutional architecture, though it has not eliminated the conflicts between the 3 communities, has made them manageable and has avoided violent conflict.
Therefore, the Belgian model, especially its non-territorial principles and institutions, may be instructive and give some inspiration for the discussion in Sri Lanka.
Many people in Sri Lanka have the fear that a federalization of the unitary State would sooner or later result in the disintegration of the State and finally in the partition of the country. It is certainly true that there have been cases of break up of federations. But unitary States have experienced secessions as well. And comparing secessions from unitary countries with secessions from federal countries, the danger of secession seems to be greater in a unitary than in a federal State. This has been confirmed by a comparative study on the relative merits of federalism versus unitarism in divided societies undertaken by an international research team organized by Ugo Amoretti and Nancy Bermeo in the year 2000. The conclusion was as follows:
“In advanced democracies with divided societies, including Switzerland, Belgium, Canada and Spain, federalism has helped to keep states unified and democratic in the face of possible secession by territorially based minorities. Outside the advanced industrial societies, federalism also gets good reviews. Countries whose histories of electoral competition are long (India), short (Mexico), or mixed (Nigeria) have all evinced the positive effects of federal structures. In Russia, the fluid nature of the federal system and the constitution’s lack of specificity have created a number of bilateral relationships between the center and the regions, but have also managed to eliminate the threat of regional secession - with the obvious exception of Chechnya.” (2)
Of course there are cases of countries where federal arrangements failed, like Sudan and Eritrea. Examples of failed federations are also Soviet Union, Yugoslavia and Czechoslovakia. However, those three communist countries were federations only by name, but not in substance; de facto, they were highly centralized and authoritarian States, which kept their different nationalities together by force. Therefore, the dissolution of these formally federal countries after the fall of communist regime should not be considered as a failure of the federal system (which in reality did not exist), but as a failure of the de facto unitary state, which had disguised itself as a federal state.
It is also true that federal countries like Canada and India are still facing separatist threats, but it seems to be equally true that they are able to resist these centrifugal forces and preserve the unity of the country because of the federal structure. Without federalism, most probably the forces of secession would be more successful.
From all these examples we can draw the conclusion that federalism is no cure-all prescription for the elimination of the secessionist claims and the disappearance of ethno-political conflicts.
In federal multi-ethnic states conflicts and tensions between different ethnic or linguistic groups will not disappear. Multi-ethnic federations like Nigeria, Pakistan, India, Malaysia, Canada, Belgium and Spain are still facing severe challenges by ethnic or linguistic rivalry or secessionist claims.
But the point is that conflicts and tensions between different ethnic groups in federations are in most cases fought out non-violently and thus become politically manageable. In consequence, the risk that such inter-ethnic conflicts result in intra-state violence and attempts for secession is certainly lower in a federation than in a unitary state.
So federalism is no absolute guarantee against secession. But federalism has the potential to moderate nationalist political passions and channel armed conflicts towards peaceful discourse and transform warfare into conventional politics.
Thus, in a federal state, it will be easier than in a unitary state to manage such conflicts through non-violent means, by negotiation and compromise. Hence, the dangers of not devolving power are greater than of doing it, and the probability of secession is higher in a unitary state than in a federal one.
The “culture of federalism”: unity and diversity must be balanced
Federalism is an expression of both unity and diversity within a single political system.
But federalism per se is not automatically a recipe for democratic governance, partnership and ethnic harmony. Its success is not guaranteed. Federalism is only a framework and a mechanism for distribution of power, that can lead to a solution to ethnic conflicts in a society. What matters is substance rather than labels.
Successful federalism is premised on the willingness of all parties to co-operate as partners with each other while respecting their differences through constructive compromises between particular and common interests. Without such a will, federalism becomes an empty promise and will not work in reality. Therefore, for a coherent and cohesive federal arrangement that would stand the test of time, more important than the structures and institutions of federalism are its principles, fundamental values and rules, the “culture of federalism” as expressed in the consciousness, beliefs and attitudes that determine the political behavior of political parties, and the broad citizenry. For federalism to flourish it requires the will for partnership and a sincere commitment to permanent association by all parties involved. So the federal culture seems to be the Achilles’ heel of federalism.
"No matter what form federalism takes, how federal institutions are designed, and what federal principles are emphasized, it is generally clear by now that where there is a positive attitude towards federalism and will to build a federal system, where the political society involved rests on sufficient trust, sufficiently widespread to allow the many leaps of faith that must be taken to make federalism work, where political culture is either favorable or at least open to federal arrangements, where all of this leads to a wider understanding of liberty as federal liberty, then federalism has a good chance of succeeding when used for peace-making. It may have almost as good a chance if most of those elements are present and some chance even if one or two of them is. But it seems quite clear that without any, the chances of success are extremely limited." (3)
And he further emphasizes:
"Ethno-nationalist statism is the most difficult form of statism to accommodate in any kind of federal relationship. Ethno-nationalism is highly egocentric in most if not all cases. Consequently, there must be even more of a will to establish federal links and arrangements where ethno-nationalism is involved." (4)
Federalism and Democracy
There is a strong association of federalism with the democratic ethos. Federalism and democracy are inextricably linked: true federalism cannot exist without democracy. Federalism is an advanced system of democratic governance.
1. It adds to the traditional horizontal division of powers in a unitary state (independent executive, legislative and judiciary powers) another dimension of checks and balances by creating a vertical power sharing as well.
2. In addition, it aims at enlarging and securing the democratic individual and group rights of all inhabitants and communities of the federation.
Therefore, the acceptance of democratic principles, norms and "rules of the game", political pluralism and the guarantee of individual human rights throughout the federation is a sine qua non to the effective functioning of a viable and sustainable federal system. Federal institutions have therefore the task of protecting basic rights of citizens in all the constituent units and holding accountable regional governments violating such rights. Consequently, though LTTE (Liberation Tigers of Tamil Eelam) had been accepted by the Government of Sri Lanka and the international community as sole representative of the Tamil people during the peace talks, LTTE would have to renounce such a claim which is inconsistent with the principle of democratic pluralism, once a federal system would come into operation.
Federalism can function only in an environment of democracy, with a vibrant multi-party system in place, with respect for human rights and the rule of law.
Federalism is a permanent process of negotiation and compromise based on the "rules of the game" as established in the constitution.
Conditions for successful federalism in Sri Lanka
Democratic federal multilevel governance is no panacea that can solve overnight the complex ethnic dispute. But a transformation of the unitary into a federal state might provide the best framework for democratic power sharing and be the most suitable arrangement for a gradual and long-term management of the ethnic conflict.
Certainly, federalism needs to take a particular shape in Sri Lanka. It will not do simply to emulate federal systems of other countries. The sharing of power and the mode of co-operation between the center and the regions has to be crafted on the basis of the unique historical, political, social and cultural conditions of Sri Lanka. And the interests and aspirations of non territorial minorities must be taken into account.
To draft such a tailor-made federal constitutional architecture for Sri Lanka is a challenging task. It will require unbiased new innovative thinking and imagination, and it should be considered a task in which all stakeholders must participate.
Old dogmatic positions should be replaced by new creative proposals and by the vision of a new democratic multi-ethnic federal Sri Lanka that would guarantee to all its citizens their individual and collective political, social and cultural human rights.
Since the constitution of a country is the expression of a basic consensus of the people of the country, which unites them above particular party-political interests and communal interests, the new constitution should count with the consent of an overwhelming majority of the people, and it should not be imposed against the will of any minority community.
Thus, the need for a 2/3 majority in parliament and the additional requirement of approval by a referendum seems to be reasonable. Without the informed consent and the approval by the people, a new constitution would lack legitimacy. All communities must take ownership of it.
But not only is a new constitution required. A constitution - even the best formulated one - is not more than a piece of paper. It will only work and become a tool for democratic change and peace building if its norms are internalized and fully respected by both politicians and citizens.
The true test of a new federal constitution lays not in its words but how that constitution is lived. Therefore, the change of the constitution has to go in tandem with a change of attitudes and a genuine commitment to democratic federal principles.
Old stereotypes and prejudices have to be removed, sterile egoistic confrontation has to be replaced by cooperation for mutual benefit, and the still existing culture of violence should cede to a culture of non-violence, dialogue and compromise.
(1) Neelan Tiruchelvam, Constitutionalism and Diversity, LST Review July 1999, quoted in LST Review Vol. II Issue 165 July 200 l, p.7
(2) Nancy Bermeo, Federalism and Institutions, Essay based on the concluding chapter of Ugo Amoretti and Nancy Berrneo, eds., Federalism and Territorial Cleavages, John Hopkins University Press (forthcoming ), published in Daily Mirror, January Il, 13 and 14, 2003)
(4) Daniel J. Elazar, Federalism and Peace-making, p.7
[a] Neelan Thiruchelvam was a Sri Lankan Tamil politician and an internationally respected academic. He was assassinated in July 1999.
[b] Tamil Eelam is the name given by certain Tamil groups in Sri Lanka to the territorial state which they aspire to form in the Northern and Eastern provinces of Sri Lanka. It is derived from the ancient Tamil name for Sri Lanka: Eelam.