Dharshan Weerasekera, Attorney-at-Law

In this installment, I turn to the recommendation by the Interim Report (‘IR’) that the ‘Principle of Subsidiarity’ should guide centre-periphery relations in Sri Lanka.  Chapter Two of the IR is titled, ‘Principles of Devolution,’ and Section One of that chapter is titled, ‘Principle of Subsidiarity to Apply.’  This is the section in its entirety:

• This principle of subsidiarity (i.e. whatever could be handled by the lowest tier should be vested in it) has been generally accepted in submissions made before the Steering Committee, the Sub-Committees, as well as the Public Representations Committee for Constitutional Reforms.
• The Report of the Sub-Committee on Centre-Periphery Relations also recommends that more power and authority be devolved to the Local Authorities.
• This principle should be a guide in deciding on the allocation of subjects and functions between the three tiers of government.

In this paper, I shall do two things:  first, show that the premises in Paragraphs [A] and [B] above are wrong, therefore the conclusion that, ‘the principle [i.e. subsidiarity] should be a guide in deciding allocation of powers among the three tiers of government’ does not, and cannot, follow.  Second, explain that the principle of subsidiarity may in fact be quite harmful to countries such as Sri Lanka.

1. Paragraph [A]

The problem with Paragraph [A] is that the IR’s assertion that the principle of subsidiarity has been ‘generally accepted’ – if we are to understand by that that it has been accepted by large numbers of the people of the country, as opposed to just the members of the Sub-Committees in question – cannot be true.  This is because of the following reasons.

Sri Lanka’s constitutional traditions are based primarily on English constitutional principles supplemented to some extent by American and French ideas (for instance, with regard to the Executive Presidency.) To my knowledge, the best-known application of the principle of subsidiary, as I shall discuss in a moment, is in the Maarstricht Treaty which established the European Union.  As such, the aforesaid principle is alien to Sri Lanka’s constitutional traditions.

It is true that, the Government launched a ‘Public Representations Committee for Constitutional Reform.’  The Committee toured the country for six months collecting information from members of the public about what they would like to see in a new Constitution.  It is also reported that part of the Committee’s duties involved educating the public about various aspects of constitutional reform.   But, there are serious questions about whether the Committee accomplished anything useful.

I quote below from an assessment that appeared in The Island of 9^th October 2016, by one Sanjana Hattottuwa, a researcher for the well-known NGO, Centre for Policy Alternatives, that speaks to this matter.  He says, inter alia:

‘An island-wide poll conducted by Social Indicator the polling arm of the Centre for Policy Alternatives (to which I am attached as a Senior Researcher) on perceptions around and attitudes towards the new Constitution makes for very depressing reading.  The official topline report will be released to the public this week.  Some of the key findings bear mention. 

Contrary to what the President, Prime Minister and the whole government may believe, a quarter of Sri Lankans have no clue that a constitutional reform process is taking place at present.  34.1% know a reform process is taking place, but have no idea about the details or where the process is currently at.  The twenty-member Public Representations Committee (PRC), appointed by the PM, held public sitting in al districts of the island earlier this year.  Just the written representations to the PRC numbered in the thousands.  And yet, echoing concerns made at the time around publicity and awareness-raising, the Social Indicator brings out that over 70% of Sri Lankans hadn’t heard of the PRC and its activities. 

Its gets worse.  A staggering 76.8% hadn’t heard of the Constitutional Assembly, which had its first sitting on 5^th April 2016 in the Parliament Chamber.  Even amongst those who had heard of it, there was no awareness around what it was doing.  Unsurprisingly, nearly 60% of Sri Lankans said that the Government hadn’t been successful in communicating the constitutional reform process – such as its importance of progress – to citizens.[1] 

If the assessment above is accurate, and there’s no reason to think it is not (furthermore, it is coming from a person who works for an outfit, the CPA, which is supportive of the Government) then the principle of subsidiarity cannot be considered as being generally accepted by large numbers of the people of  Sri Lanka.

2. Paragraph [B]

The problem with Paragraph [B] is that, the opinion of the Sub-Committee on Centre-Periphery Relations – or for that matter any of the other Sub-Committees – on the purported value of the principle of subsidiary to Sri Lanka cannot, or ought not to, count for very much if the majority of the people of the country don’t know very much about the principle.

If a new Constitution sets up a system of devolution according to the principle of subsidiary and it leads to harm, it is the people, including future generations of Sri Lankans, who will ultimately have to live with those consequences.

The only way that a Sub-Committee’s opinion about the principle of subsidiarity can be of any value, given the reality that the people as a whole know little or nothing about the said principle, is if the members of the Sub-Committee are prepared to indemnify the people for any harm that they (the people) might suffer as a result of the implementation of the Sub-Committee’s ideas.  To the best of my knowledge, the members of the Sub-Committees in question have not shown a willingness to provide such a guarantee.

3. Paragraph [C]

Recall that, if the premises of an argument are bad, the conclusion is invariably bad.  Since both Paragraphs [A] and [B] are baseless, the IR’s conclusion – i.e. that it would be best for the country if the principle of subsidiary were to govern Centre-Periphery relations under a new Constitution – does not, and cannot, follow.

We can end the discussion at this stage.  However, there are compelling reasons why the principle of subsidiarity might be distinctly harmful to a country such as Sri Lanka, and it is worthwhile discussing some of those reasons.  I shall turn to that matter now.

As mentioned earlier, to my knowledge, the best-known application of the principle of subsidiarity is in the Maarstricht Treaty which established the European Union.  For reasons that I shall explain in a moment, the European Union is in essence a confederation.  The question is whether, what is good for a confederation is necessarily good for a single sovereign State.

It is important to first understand what exactly a confederation is in order to appreciate what the Europeans may have expected to achieve by making the principle of subsidiarity an integral part of their law.  A confederation is generally understood as a union of sovereign States for mutual benefit.  Black’s Law Dictionary, a reputed dictionary, defines the words ‘confederacy’ and ‘confederation’ as follows:

‘Confederacy:  A league or agreement between two or more independent States whereby they unite for their mutual welfare and the furtherance of their common aims.  The term may apply to a union so formed for a temporary or limited purpose as in the case of an offensive or defensive alliance, but it is more commonly used to denote that species of political connection between two or more independent States by which a central government is created, invested with certain powers of sovereignty (mostly external), and acting upon the several component States as its units, which, however, retain their sovereign powers for domestic purposes and some others.’[2]

And,

‘Confederation:  A league or compact for mutual support, particularly of princes, nations or States.  Such was the colonial government during the Revolution [American Revolution]’[3]

At this stage, it is important to recall the crucial distinction between ‘federalism’ or ‘federal government’ and ‘confederation.’  Recall that, in ‘federalism’ the power of the central government reaches to the individual citizens resident within the respective Provinces or States that make up the union, whereas in a ‘confederation’ the power of the central government reaches only to the Governments of the aforesaid Provinces or States.[4]

As a result of the above, one of the defining characteristics of  confederation is that the Provinces or States can secede at will from the union, either by action of their respective Governments or on the basis of  a referendum held just for the residents of the Province or State that wants to secede.

Let’s now turn to the European Union.  The EU has both of the aforesaid characteristics of a ‘confederation’:  a) the Members of the EU are independent sovereign States that have come together in order to achieve certain mutually beneficial goals,[5] and b) every Member is perfectly free to leave the union if and when it wishes to do so (Article 50).

We can now turn to the principle of subsidiarity.  A glance at the Maarstricht Treaty shows that, what Europeans have sought to achieve with the aforesaid principle is to permit or facilitate the European Parliament sitting in Brussels to pursue the objectives of Article 3 of the Treaty without compromising – indeed while protecting – the sovereignty of the individual Members.

I quote below from Article 5 of the Treaty, which is where the principle of subsidiarity is first discussed.

‘5(1) The limits of Union competences are governed by the principle of conferral, the use of Union competences is governed by the principles of subsidiarity and proportionality.

5(2)  Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein.  Competences not conferred upon the Union in the Treaties remain with the Member States.

5(3)  Under the principle of subsidiarity, in areas which do not fit within its exclusive jurisdiction, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at the central level or at the regional and local levels, but can rather, by reason of the scale or effect of the proposed action, be better achieved at Union level.’[6]

To repeat, the principle of subsidiarity, to the extent it is integral to European Law, is a device to make a confederation more efficient and effective, given the constraints imposed by the sovereignty and independence of its several Members:  it is emphatically not a principle of devolution, for instance, to satisfy the thirst of those Members for more power and control over their own affairs.

It is important to consider what would happen if one uses the aforesaid principle in order to empower the Provinces at the expense of the Center – i.e. create a confederation where once there was a sovereign State?  The Americans of the late 18^th Century had first-hand experience with confederation.  Sri Lankans (and anyone else) who want to understand what it is like to live under a confederal form of government can learn a great deal by listening to the Americans.

I shall confine myself to the following passage by Alexander Hamilton, in Federalist 16:

‘In our case the concurrence of thirteen distinct sovereign wills is requisite under the Confederation to the complete execution of every important measure that proceeds from the Union.  It has happened as was to have been foreseen.  The measures of the Union have not been executed; and the delinquencies of the States have step by step matured themselves to an extreme, which has, at length, arrested all the wheels of government and brought them to an awful stand.  Congress at this time scarcely possesses the means of keeping up the forms of administration, till the States can have time to agree upon a more substantial substitute for the present shadow of a federal government.  Things did not come to this desperate extremity at once.  The causes which have been specified produced at first only unequal and disproportionate degrees of compliance with the requisitions of the Union.  The greater deficiencies of some States furnished the pretext of example and the temptation of interest to the complying, or to the least delinquent States.  Why should we do more in proportion than those who are embarked with us in the same political voyage?  Why should we consent to bear more than our proper share of the common burden?  There were suggestions which human selfishness could not withstand, and which even speculative men, who looked forward to remote consequences, could not without hesitation combat.  Each State yielding to the persuasive voice of immediate interest of convenience has successively withdrawn its support, till the frail and tottering edifice seems ready to fall upon our heads and crush us beneath its ruins.’[7]

It should be noted that, the Americans to their credit decided to dump the aforesaid system and form a ‘more perfect union’ under their present Constitution.  To make a long story short, if, as the writers of the IR seem to want, Sri Lanka is turned into a confederation consisting of the nine Provinces, it is quite possible that Sri Lankans will have to deal with the same type of mess that the Americans had to deal with two centuries ago, so eloquently described by Hamilton above.

I assert that, persons who presume to write a Constitution for a country, or assist in such process, have a responsibility to ensure that members of the public are informed of the possible ill-effects or drawbacks of the various proposals that are made, if such ill-effects and drawbacks can be gleaned either by considering the experience of other countries or by common sense and reason.

Shockingly, there is not the slightest effort by the writers of the IR to discuss the drawbacks of confederation, or (which is the same thing) dilution of the powers of the central government to the point of confederation, with reference to the experience of the Americans, or anyone else!  And yet, they glibly recommend that Sri Lankans embrace the Principle of Subsidiarity.

To be continued…..

[1] Sanjana Hatttotuwa, ‘The New Constitution That May Never Be,’ The Sunday Island, 9^th October 2016

[2] Black’s Law Dictionary, 4^th Edition

[3] Ibid, Black’s.

[4] See, The Interim Report of the Constitutional Steering Committee of Sri Lanka:  A Brief Analysis, Part 1, Dharshan Weerasekera, www.lankaweb.com. 2^nd April 2018

[5] See Articles 3 and 4 of the Treaty (Consolidated Version, as of 26^th October 2012, www.eur-ex.europa.eu Article 4 is as follows:  ‘4(1)  In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States. 4(2) The Union shall respect the equality of Member States before the treaties as well as their national identities, inherent in their fundamental structure, political and constitutional, inclusive of regional and local self-government.  It shall, respect their essential state functions, including ensure, the territorial integrity of the State, maintain law and order and safeguard national security.  In particular, national security remains the sole responsibility of each Member State. 4(3)   Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.’

[6] Article 5(1), (2) and (3), Consolidated Version, 26^th October 2012

[7] James Madison, Alexander Hamilton and John Jay, The Federalist Papers, (ed. Isaac Kramnick), Penguin, London, 1987, pgs. 147-151