Towards Cooperative Governance: Revisiting the Devolution Debate
By Sumanasiri Liyanage
Let me first focus on the current state of the devolution debate. A survey done by the Social Indicator in 2004 has revealed that only 44 percent of the respondents support reorganization of the Sri Lankan state on the basis of some form of power-sharing. This relatively weak support for power-sharing may be attributed to multiple reasons. In my opinion, the way in which the devolution debate was carried out by us, the federalists, also contributed to the current low level of support for power-sharing. So I prefer to begin with a self-criticism. Many of us took very conflictual attitude when discussing the importance and necessity of federal or quasi-federal arrangements. Besides this conflictual attitude among us there was another obvious reason. It was quite natural to introduce terms, concepts and categories in a more rigorous manner when the subject was first introduced. When the teachers are not mature and well experienced, it would be always safe if they stick to textbook definitions. When the teachers are well experienced and the subject is not unfamiliar to the audience, different and more flexible teaching methodology can be deployed. Nearly two decades after the discussion began, the debate on power-sharing has now advanced enough so that the participants of the two sides are in a position to interact in a more friendly and cooperative manner. This is one of the positive aspects of the series of seminars recently organized by the Ministry of Constitutional Affairs and National Integration. We meet there TNA Parliamentarians, Members of non-LTTE political parties, federalists like Rohan Edrisinghe, Shiral Lakthilake and Mario Gomez, and non-federalists like Udaya Gammanpila, Charitha Herath and Manohar de Silva. I feel this forum would be more productive than many federalism workshops organized by various NGOs in the country. Participation is more inclusive rather than selective. Mahinda Rajapakse was honest when he declared himself as a unitarist prior to the last presidential election. Two of his ‘coalition’ partners are well known advocates of a unitarist solution. Taking different position on controversial issues is not in itself bad. As Stuart Hall once remarked: “[we should] not afraid of positionalities. [But we should be] afraid of taking positionalities too seriously.” It is interesting to note that in the last decades or so, the constitutional discourse has been conducted on the basis of unitarist/ federalist dichotomy. However, the actual practice in pluri-national democracies in the last two decades has made this distinction interestingly blurred. So, one may even wonder whether it is legitimate to delimit the discussion within the boundaries of this conventional dichotomy. Binaries are useful for beginners, but in advanced understanding the role binaries may play would be limited.
So in this article I propose to federalists as well as to non-federalists that we should re-demarcate the boundaries of the discussion to go beyond the conventional dichotomy between federal and unitary. Why do I suggest so? I suggest it for two reasons. First, as I mentioned earlier, the international discourse on power-sharing in pluri-national democracies (PNDs) has advanced very much beyond this conventional binary analysis. Secondly, there has been a general consensus now that two constitutionally separate competencies –namely two-tiers of governments- should be established as one main element of the constitution. A third-tier can be incorporated into the constitution. However, as my discussion focuses on conflict resolution dimension in PDNs, I will not deal with the third-tier of government in this article.
In this context, the most legitimate questions to be asked are: What should be the relationship between these two constitutionally separate competencies? How this two-tier governmental arrangement could ensure co-operative governance instead of conflcitual governance? We can also add a question that would have economic implication. How and in what manner could the governance be effectively adhered to the principle of subsidiarity?
The setting up of constitutionally separate two-tiers of government can be justified on multiple grounds. The notion of subsidiarity has increasingly been invoked to legitimize the setting up of a lower level of government. It has multiple meaning, but most common and relevant here is that it refers to organizational and territorial principle requiring that decision-making and implementation be carried out in a space that is as close as possible to the citizen. This idea also goes with the notion of deliberative democracy that all the affected should be given an equal opportunity to participate in the decision-making as equals in a non-coercive context. Secondly, in pluri-national societies, the concept of majority is a fluid one. Had different national groups been marginalized or dominated by the majority national group, an asymmetry of allegiances to the state would have been the result. Two-tiers or multiple tears governance would provide a space to these national groups to exercise their authority in contiguous areas where they represent the majority. So it has conflict prevention or resolution aspect. Thirdly, as local representation in the center includes both individual and group interests, decisions that would injurious to numerically small communities can be prevented. So that pluri-national character of the country will be reflected in making decisions.
I believe we have now reached some kind of consensus on the above three points although there are unresolved complex issues. However the question is how this two-tier system of governance could be institutionalized to promote cooperative governance and to minimize prevailing suspicion, mistrust and fears of different communities. Different countries have tried different mechanisms. Some worked well while the others were not that successful. This mixture of results once again makes the constitutional design more problematic. In my opinion, the concepts of division of labor and subsidiarity would contribute in resolving these problems. In any country, there are issues that are nationally relevant. These subjects include in modern polity, inter alia, the national defense, macro-economic management, international relations, maintenance of minimum standards on social welfare, education, health, environment protection and similar issues. Then there are issues that are locally specific. The distinction between national and regional may be blurred in some issues but quite clear in many issues. So the notions of subsidiarity and division of labor can be deployed in constitutional design. Hence the question of which tier is superordinate or subordinate would become a non-issue. The issue is which tier can perform the function effectively, and efficiently. In this sense, the criteria may be not political but economico-technical. So the relationship between national and provincial with regard to these two categories should be based on the principle of non-hierarchical horizontality.
Nevertheless, there are two additional questions to be answered. As I mentioned earlier there are some issues that may overlap both local and national spheres. How could these concurrent subjects be addressed? In South African constitution, the subjects in the concurrent list are used as a one way of developing cooperative governance. There are multiple ways in dealing with concurrent subjects. A joint mechanism –such as the conference of chief ministers- can be used in dealing with concurrent subjects. Alternatively, provincial governments can be given power to make laws on concurrent issues subject to the minimum standards laid out by the national government. The second contentious issue is what mechanism should be devised in case the governments, both national and provincial, overstep the boundaries of their respective legislative and executive powers. In many situations, the constitutional court is given the authority to decide in such situation. In Sri Lanka, one of the fears expressed by the Sinhala nation is based on so-called slippery slope argument, i. e. that Thamil nation will use power-sharing as a stepping stone for secession. Similarly, the Tamils have raised the fear that the national government would use its authority to weaken the provincial government. Of course these fears cannot be handled completely by constitutional means although constitution can devise many mechanisms to address and redress these concerns. Besides the constitutional court, such mechanisms include bi-cameral legislature, finance commission, the conference of chief ministers. In my opinion, the second chamber can be set up following the old principle of 50-50 proposed by G G Ponnambalam.
Let me recap my main argument. In my opinion, the continuation of power-sharing debate on the basis of unitary-federal dichotomy will not be capable of breaking impasse in current constitutional debate. So I propose that the constitutional discourse should be redefined focusing on inter-governmental relationship. This will allow us to address more important issues of non-hierarchical horizontality, concurrency, and co-operative governance.
[This is the text of speech given at the seminar organized by the Ministry of Constitutional Affairs and National Integration in Colombo on November 25, 2006. The writer teaches political economy at the University of Peradeniya. E-mail address: email@example.com ]