15th September 1996

History repeats itself. It was President Saddam Hussein who gave President George Bush, the Republican candidate dreaming of a second and final term, the perfect casus belli for Desert Storm. But that massive, carefully planned operation did not prevent a not-too well-known young governor of Arkansas, Bill Clinton from defeating him. Clinton's vote-winning slogan was no rousing battle-cry but three simple words, "The Economy, stupid".

But now it is President Clinton's turn to dream of a second and final term. He is lucky. Senator Bob Dole is no serious challenger, if the current opinion polls correctly reflect American public opinion. In any case, Ross Perot is unlikely to reduce his chances, the pundits declare.

And what does Mr. Clinton do? What else but a well-managed exhibition of American machismo, the sole superpower playing global policeman... a role made easier by the collapse of the Soviet Union.

A Reuter report datelined Washington however suggested other motives and explanations. "The U.S. is helping those who have worked with us to flee Iraq..." The selfsame dispatch explained that the Kurdish strife "wrecked a C.I.A. effort to topple President Saddam Hussein". It added that members and supporters of the C.I.A- funded Iraqi National Congress are holed up in a mountain hideout in northern Iraq.

Anti-Saddam separatist rebels were particularly active in the Arbil area. With the help of Mr. Tariq Aziz, editor-in-chief of the official Al Thawara newspaper (Mr. Aziz, now a trusted aide of President Hussein, has addressed the United Nations) this columnist visited Arbil some years ago. It was clear to me that the Kurds, conscious of their own group identity and separate history, desired independence but would settle for autonomy, which is what President Saddam finally understood and appreciated.

The total Kurdish population is "probably in the order of 24-27 million" says the British Middle-east affairs specialist, David McDowall, in his book "A Modern History of the Kurds". 13 million live in Turkey, 23% of the total population. 5 to 6 million live in Iran. After the Islamic revolution, and the Shah's exit, the Kurds who had set up "an autonomous region" found an unexpectedly tough opponent in the Ayatollah Khomeini. But ethnic identity does not respect state borders. Thus, the Kurdistan Democratic Party of Iran established bases in northern Iraq. This explains the report two months ago that Iranian troops had attacked a Kurdish base at Khoi Sanjaq... which is in Iraq.

Syria, too, has a large Kurdish community, probably more than two million. This "spread" has earned the Kurds the title of "the world's largest nation without a state". But is it a nation? Kurdish nationalists, says Edward Mortimer, claim that they are a nation united by a common language, related to but distinct from Persian, and divided into several dialects.

A frontier people between the Ottoman Empire and Iran, the Kurds missed out, observes the same writer, when the Treaty of Sevres (1920) offered them a chance. After the monarchy was ousted in 1958, and more so after the Baath party seized power, Baghdad has done its utmost to make autonomy meaningful. Oil revenues were used to improve conditions in Kurdish areas - housing, schools, hospitals, jobs, shops etc.

That certainly was what I saw on my first trip to Iraq. Soaring oil revenues explained the spectacular growth. But tensions on the borders, the "long war" with Iran and mounting defense expenditure explained the steady slowing down. But now we have a sudden explosion of an internal conflict.

American response

It is the American reaction that has thrust the Kurds and Iraq on to the front-page or made headlines. "His position in international affairs is almost enviable compared to his situation at home; so much so that a president in deadlock at home almost reflexively turns to what seem the easier problems of finding peace in the Middle-east or re-defining the West's relations with China" wrote Godfrey Hodgson, author of" All Things To All Men", the false promise of the modern American presidency. President Bill Clinton is well ahead of the G.O.P's Bob Dole but a little sabre-rattling, especially in the Middle-east and against an arch villain like Saddam Hussein could be a smart move.

Saddam Hussein is no Islamic fundamentalist. Far from it. Baathism certainly of the Iraqi variety, is staunchly secular. But in selecting Iran, Iraq, Sudan and Libya for the exclusive American club of "rogue" or "outlaw" states, Washington policy makers have once more betrayed their own anxious concern - a fear that American public opinion cannot be mobilized on foreign policy issues in the absence of a credible enemy, certainly after the collapse of Communism, the global red menace. Has ISLAM filled the void? Will America have to pay a price also for its unilateral action?

U.S. Secretary of State Warren Christopher, who was warmly received in London had to tolerate a decidedly cold reception in Paris.

"The French statement pointedly stopped short of endorsing the U.S. cruise missile attacks on anti-aircraft sites in Southern Iraq, reported Alexandra Capelle, who added "despite the efforts of Mr. Christopher to persuade" the French of the need for an extension. It was only after Mr. Christopher "assured" his hosts that US punitive action against Iraq was complete that the French agreed to continue air patrols in Northern Iraq.

However the French would NOT help to enforce the expanded no-fly zone, running just south of Baghdad. But Mr. Christopher did find comfort in what he called the "extraordinary partnership" between London and Washington. Nonetheless, there does seem some differences between "the cousins" on the "oil-for-food" which allows Iraq to sell two billion dollars worth of oil to cover bills on "humanitarian essentials".

But money talks. All the major European countries are not only concerned over trade but are in fact fierce rivals. Two billion dollars is certainly not peanuts.

Moscow opinion

Russia has too many problems of its own to worry too much about Iraq and the Kurds. Nonetheless US Military intervention in an area which Moscow has reason to regard as part of its sphere of influence has certainly caused concern in Moscow. This explains the response of Mr. Yevgeny Primakov, former Pravda correspondent in Cairo, and now the Russian foreign minister.

Rohan Edirisinha Faculty of Law, University of Colombo

The debate on devolution of power in Sri Lanka in recent months has been plagued by various myths and misconceptions about a number of constitutional concepts and principles. These need to be clarified.

The main area of confusion surrounds the meaning of the terms unitary and federal. The defenders of the Legal Draft on Devolution often make the point that it is difficult to define these two terms. While this may be true it is possible to define the essence of these terms.

The opponents of the Legal Draft base their arguments on the fact that merely because the word unitary is deleted from the Constitution, a federal form of government is introduced. This is a false assumption. The Legal Draft on Devolution does not introduce a federal form of government.

The essence of a unitary from of government

A unitary form of government is one in which all legislative and executive authority is vested in a single legislature and a single executive. It has also been described as one in which "the habitual exercise of supreme legislative authority is carried out by one central power".

The single, central law making authority may if it so desires, delegate powers to subsidiary, subordinate bodies. If this is done it is done from the plenitude of its own powers.

The essence of a federal form of government

"A system for decision making is federalist if it is an entity composed of territorially defined groups, each of which enjoys relatively high autonomy and which together, participate in an ordered and permanent way in the formation of the central entity's will".

Max Frenkel's definition in Federal Theory, highlights the importance of several key features of a federal form of government: autonomy; a division of powers between the centre and provinces/regions/states; the supremacy of the Constitution (for the ordered way) and provincial/regional representation at the centre.

There are several characteristics which can be identified as the basic features of a federal form of government. Ronald Watts, Professor of Politics at Queen's University, Canada, has surveyed several scholarly writings on Federalism and identified the following attributes as the basic features of Federalism:

1. Two orders of government each acting directly on their citizens, a formal distribution of legislative and executive authority and allocation of revenue resources between the two orders of government, including some areas of autonomy for each order; in short, a clear cut division of powers;

2. Provision for the representation of regional views within the federal (central) policy making institutions; this could be in the form of provinces/regions electing a certain number of members to a second chamber of Parliament.

3. A written supreme constitution not unilaterally amendable and requiring the consent of all or a majority of the constituent units; since a federal constitution is deemed to be a compact or covenant between the centre and the regions/provinces, amendments require the consent of both.

4. An umpire to rule on disputes between the centre and the provinces/regions; the umpire is invariably the judiciary.

5. Processes to facilitate relations between the centre and the provinces/regions where responsibilities are shared;

( Ronald L. Watts, Contemporary Views on Federalism )

These five essential features of a federal form of government ensure that there is substantial devolution of power to provincial/regional units and that such devolved power cannot be undermined or unilaterally reduced or abolished.

The way to overcome the glaring deficiencies in the present Provincial Council system is to introduce a scheme of devolution of power which includes the five features described above as the essence of Federalism.

After the failure of the Thirteenth Amendment, it is totally unreasonable to expect the minority parties to accept a system of devolution given to devolved Units by Parliament and not by the Constitution, a system of devolution that can be Unilaterally withdrawn by a Parliament which does not even include a second chamber to represent regional concerns.

Those who want the Constitution to retain the unitary label must realize the practical implications of what they advocate.

They should also remember that the Unity of the country was perhaps best protected when the Constitution did not expressly provide for a unitary form of government and that paradoxically the seeds for a separatist movement were sown soon after the introduction of the 1972 Constitution which expressly declared that Sri Lanka is a unitary state.

The myth about the legal Draft

But there is another important lesson to be learned from the five basic features of Federalism. The Government's proposed Legal Draft, though it deletes the commitment to Sri Lanka being a unitary state, does not introduce a federal form of government.

With the possible exception of the first feature, not one of the essential features have been introduced in the legal draft.

Since the Constitution is not supreme and there is no judicial review of legislation, the umpire's, role is seriously circumscribed. There are no provisions for regional representation at the centre. The constitution, including the entire scheme of devolution, can be changed by Parliament acting unilaterally.

Even the new South African Constitution of May 1996, which does not introduce a federal form of government has more federal features than the Legal Draft. The Constitution does not refer to either of the labels, Federal or Unitary. It does provide, however, for a clear division of powers between the centre and the provinces.

The supremacy of the Constitution is unequivocally recognized as a basic value of the document. All law and conduct inconsistent with it is void. The principle of Cooperative Government is recognized in the Constitution and several mechanisms to facilitate such cooperation have been introduced. Provinces have the power to adopt their own Provincial Constitutions as well.

Provincial representation at the centre is guaranteed by a National Council of Provinces which provides for the 9 provinces to be represented in the bi-cameral central Parliament, and for the provinces to be consulted before constitutional amendments are introduced. The National Council of Provinces consists of 10 member delegations from each of the 9 provinces, led by the Provincial Premier (Chief Minister).

Each 10-member delegation consists of 6 permanent delegates nominated by the political parties in the relevant provincial legislature and 4 floating delegates who shall be selected by the provincial legislature depending on the subject/legislation under consideration in the National Council of Provinces.

Each provincial delegation is entitled to one vote. Therefore the 10 member delegation will have to reach a consensus on any issue in the Council.

The myth about establishing federalism

Another myth about federalism, which Mr. Batty Weerakoon in his writings both in flavor of and against the legal draft, has helped popularize, is that a federal form of government is always established by previously independent or sovereign states coming together to constitute a new state.

Constitutional scholars recognize that there are two methods by which a federal form of government may be established. The more common method known as Integrative Federalism is where previously independent states integrate to form a new political entity.

The second method known as Devolutionary Federalism is where a country with a previously unitary form of government opts to change to a federal system. As Patrick Peeters of the University of Leuven, Belgium, has explained:

Integrative Federalism refers to a constitutional order that strives at unity in diversity among previously independent or confederally related component entities.

Devolutionary Federalism, on the contrary, refers to a constitutional order that redistributes the powers of a previously unitary state among its component entities; these entities obtain an autonomous status within their fields of responsibility. The principal goal is to organize diversity within unity.

(Patrick Peeters, Federalism: A Comparative Perspective - Belgium transforms from a Unitary to a Federal State)

Belgium, Spain and Nigeria are examples of countries which have adopted Devolutionary Federalism and moved from unitary to federal forms of government. The South African Constitution of 1996, though not federal, has moved in that direction too.

The fundamental flaw in Batty Weerakoon's argument is that he assumes erroneously that a federal state can only be created through Integrative Federalism.

The five features of federalism outlined above make it clear that the definition of federalism has little to do with how a form of government was introduced, but more with the relationship between the centre and the provinces. The Batty Weerakoon thesis unfortunately supports those opponents of devolution who argue that a federal form of government necessarily presupposes a division of the country.

The myth that a federal form of government can only be introduced when previously independent states decide to merge, coupled with the provision that Sri Lanka shall be a Union of Regions has unfortunately created the impression that under the Legal Draft, Sri Lanka will be divided into quasi-independent regions which will thereafter enter into a federal arrangement.

There is therefore an implicit division of the country or at least an implied recognition of independent regions. Therefore the phrase "union of regions" has created as many problems as the term "federal" might have done.

From the discussion above it is clear that:

( a) A State with a unitary form of government can through the introduction of devolution of power change to a state with a federal form of government.

(b) Though the legal draft abandons the label "unitary", it does not introduce a federal form of government as a number of basic federal features have not been incorporated in the document.

The myth about labels

Another myth promoted by the opponents of the Legal Draft is that a Constitution must bear either the label "unitary" or "federal" and that most countries bear the unitary label. This is completely false. Many countries which have unitary and federal forms of government do not refer to these words in their constitutions. Sri Lanka did not have either label until 1972.

The following countries do not use either label: South Africa, the Philippines, Singapore, Thailand, Brunei, the People's Republic of China, the Republic of Korea, Japan, France, the United Kingdom, Italy, Norway, Spain, India, Nepal, the United States of America.

The Indonesian Constitution contains a provision that the "state shall be unitarian".

Australia, Belgium, Germany, Switzerland, Canada, Pakistan, Russia and Malaysia have provisions in their constitutions which refer to the words "federal" or "federation".

It is clear, therefore, that labels are not necessary.

The need for a new initiative

A new initiative to break the stalemate in the Parliamentary Select Committee is needed. A fresh approach breaking off the shackles of the language, structure and legalistic orientation of both the 1972 and 1978 Constitutions should be adopted. These two Constitutions were both fundamentally flawed, failed to promote values and principles and fell short of basic principles of constitutionalism.

Sri Lanka should be ashamed of both these documents.

As a start, Article 1 of the Legal Draft should be replaced with the following which is influenced considerably by Article 1 of the new South African Constitution: -

(l) The Republic of Sri Lanka is one, united and sovereign democratic state founded on the following values:

a) Human dignity, equality and the advancement of human rights and freedoms;

b) The Supremacy of the Constitution and the Rule of Law;

c) Universal adult suffrage and a multi-party system of democratic government to ensure accountability, responsiveness and openness;

d) Cooperative Government in which the national, regional and local spheres of government are distinctive, interdependent and interrelated;

Neither the label "unitary" nor "federal" should be used. The phrase "union of regions" should be abandoned as well. The division of powers between the centre and the regions should be spelled out in two lists broadly similar to the lists contained in the Legal Draft.

Provisions to enshrine the principle of the Supremacy of the Constitution, to introduce a Senate or National Council of Regions to provide for a regional voice at the centre, and mechanisms to facilitate national/regional collaboration in important areas such as the Environment, should also be incorporated.

A provision to require Regional Councils to participate in the constitution amendment process must also be introduced. The State should treat all religions equally.

Perhaps then Sri Lanka's third attempt at drafting its own Constitution, will result in the introduction of substantial devolution of power, a united Sri Lanka in which all persons are equal, and a Constitution that commands the respect and obedience of all Sri Lankans.