By Usha S Sri-Skanda-Rajah –

Usha S Sri-Skanda-Rajah

Follow UK’s example – Hold That Referendum on Independence in the NorthEast – Like the Scots, Let the People Decide Either Way

Part  1

The world’s oldest democracy has proven it’s also the world’s  foremost  and robust democracy – that Scotland will decide its fate, whether it becomes an “independent country” in a referendum on 18th, September 2014 is in itself a triumph for democracy, whatever the outcome – that the United Kingdom (UK) government (and the Westminster Parliament),  despite campaigning hard for a “NO” vote, did not place obstacles but bowed to the Scottish people’s aspirations articulated in the 2011 General Election win for the Scottish National Party (SNP), and cooperated to holding a referendum, to leave it to the people’s will, speaks volumes for the triumph of democracy; indeed speaks volumes for a triumph for self-determination;  for decency, for peace. Why can’t Sri Lanka follow UK’s example and hold that referendum on independence in the NorthEast and Let the People Decide.. either way.

Triumph of Democracy – Despite Scots being Numerically Far Smaller

The sequence of events, leading to what could be a momentous occasion for Scotland and the advent of an independent Scotland or that might otherwise result in a victory for preserving the United Kingdom, illustrate that democracy is not merely a word but is practiced faithfully in some civilised nations, like this country [1],  notwithstanding the fact the Scots are numerically far smaller within a unitary state, holding only 59 seats[2] of the 650 seats in the Westminster parliament.

To the Acts of Union of 1707[3] which cemented the union of the Kingdom of Scotland and the Kingdom of England creating the United Kingdom of Great Britain, to the Scotland Act of 1998 when the Scottish people’s clear preference for devolution and the establishment of a Scottish Parliament, “with powers to legislate on unreserved matters” [4] expressed through a referendum was granted under Tony Blaire’s Labour government, to SNP’s landslide victory in the 2011 General Election[5] that gave it the mandate to legislate to conduct a referendum on Scottish independence , to the “historic” Edinburgh Agreement[6] signed by Alex Salmond, Scotland’s First Minister and Prime Minister David Cameron in Nov 2012, “confirming the Scottish Parliament’s power to hold a vote that will be respected by both governments,” to the passage of the Scottish Independence Referendum Bill[7] setting out the arrangements for the referendum that received royal accent in Dec, 2013, all of which together, collectively represent, among other, a firm adherence to democratic values and parliamentary processes, signifying the triumph of democracy.

Triumph for Self-determination – either way

Whatever the outcome, this referendum is indeed a triumph for self-determination, recognising the Scots have a right to determine their own destiny freely and have a right to secede; recognising also that on the question of exercising that right, there are mechanisms made available in civilised societies that are at their disposal to effectively facilitate the determination of that right to secede on those grounds, if the majority of them so chose.

It is said referendum is a “tool of direct democracy” a means by which aspirants of self determination submit to a vote to demonstrate they have the backing of their electorate in their objective of achieving their own independent state.

An article in the Oxford Public International Law (OPIL)[8]  site, last updated in June 2011, deals with the subject of “Referendum”  – from a Notion, to Typology, to Historical Developments to Applicable Rules, to Special Cases, to Assessment  – except specifically the Scottish referendum as it does not come under the purview of the timeframe within which it was written.

However it does sufficiently examine and assess the subject for anyone to conclude that a referendum in Scotland applied under the principle of “external self- determination” without issues such as the unreasonable invocation of and reliance on the principles of “non-interference” and of “territorial integrity”, pretexts that oppressive States use to block  or impede that process is indeed a triumph for democracy.

The article opines, “States have used the referendum in the application of self-determination, and a referendum under the principle of “external self-determination” is the exercise of, “a vote by the electorate” under the, “right to decide on the political status of a people and its place in the international community in relation to other states, including the right to separate (secede) from the existing state of which the group concerned is a part, and to set up a new independent state.”

In discussing Scotland’s “Status As A Nation”[9] David Thomson  writes Scotland deserves the right to Statehood and international recognition on the grounds of its right to self-determination:

The expression “people”, as tentatively defined by the United Nations Organisation, denotes a social entity possessing a clear identity and its own characteristics as well as a lengthy common experience, and it implies a relationship with a territory. These are the basic elements of a definition for the purpose of establishing whether such a social entity is a “people” fit to enjoy and exercise the right of self-determination. The expression “nation” implies a somewhat more highly developed stage of social cohesion and organisation.The Scottish qualifications are absolutely unchallengeable on both counts.

Thomson makes the case for the Scottish people’s claim to the right to self-determination quoting from way back when it was first articulated “at international level” in 1320 to the Pope:

Scotland’s claim of right to self-determination was first raised at international level almost seven centuries ago, when the Declaration of Arbroath was sent in 1320 to the Pope – the then international authority – by the Scottish leaders in the name of “the whole community of the realm of Scotland”. It was not an appeal for independence, but an assertion by a people who had been independent since their origins in the mists of history that they were under no circumstances prepared to give up that status for subservience to an aggressor. This important constitutional document confirmed the sovereignty of the people over the institutions of state, and unequivocally asserted the independence of the Scottish Nation, as the following extract makes clear:

“But if this Prince (Robert I, King of Scots)…shall consent that we or our kingdom be subjected to the king or people of England, we will immediately exert ourselves to expel him, as our enemy and as the subverter both of his own rights and of ours, and we will make another king who will defend our liberties.

For so long as one hundred of us remain alive we will never consent to subject ourselves to the dominion of the English. We fight not for glory, or riches, or honours, but for freedom alone, which no good man will relinquish, except with his life.”

Today Scotland’s right to self-determination is a foregone conclusion and whatever the outcome of the referendum that right can never be taken back or reversed.

Considering  the three leaders of the main political parties, David Cameron, Ed Miliband and Nick Clegg have made a pledge to “deliver change to Scotland” and “to devolve new extensive power to the Scots if they reject independence”[10],  the only decision that remains to be made is whether Scots would exercise that right under the principle of external self-determination or internal self-determination, otherwise put as an independent state or staying within the United Kingdom.

In a three part written pledge appearing in the Daily Record, flashed all over the media, the three leaders recognising “people want change” and concluding “a NO Vote would will deliver faster, safer and better change than separation” have vowed they would bring that change: promising “extensive new powers” to the Scottish parliament “delivered by the process and to the time table agreed by the three parties. The second says the leaders agree that the UK exists to ensure opportunity and security for all by sharing our resources equitably” The third categorically states the final say on funding for the NHS will lie with Scottish government “because of the continuation of the Barnett allocation for resources and the powers of the Scottish Parliament to raise revenue. ”

Triumph for Decency  – Sewel Convention

Meaningful devolution begun by Tony Blaire’s government under the Scotland Act of 1998 actually gave the Scottish Parliament powers to legislate for a referendum on Scottish independence after its landslide victory in the 2011 General elections,[11] the SNP campaigning that it was seeking a mandate for a referendum.

Although under devolution the Scottish parliamentary elections were to be conducted on the basis of part first past the post and part proportional representation, a move to ensure, it was thought, to prevent  the SNP from garnering a majority in the Scottish parliament, one heartening feature of this evolutionary exercise that has brought us to this critical moment, witnessing the determination of Scotland’s future, is that every step of the way the Scots were able to debate, discuss and negotiate agreements that were not marred by deception, deceit, constant broken promises or lack of will on the part of UK governments or Westminster parliament.

As it stands the number of Scottish MPs in the UK parliament compared with the rest of UK is higher than the standard ratio, in other words they have more representation in Westminster. Not only that they’re able to vote on issues that involve England, Wales and Northern Ireland (as well as because of that have a bigger say on major issues affecting Scotland), prompting the “West Lothian Question”[12]. However no constructive moves has been made to correct this inconsistency advantageous to Scotland so far.

But more importantly since devolution,  the relationship between Westminster, the UK parliament and Hollyrood, the Scottish parliament is governed by the Sewel Convention [13] that provides that, “the UK parliament may not legislate for devolved matters without the consent” of the Scottish Parliament,” illustrating the non-divisive, non-adversarial manner by which business is transacted:

(The Sewel  Convention) was created to manage the power of Westminster to legislate on matters within the legislative competence of the Scottish Parliament. This is known as the Sewel Convention, and the related Scottish parliamentary motions are now known as Legislative Consent Motions (previously Sewel Motions). These motions (of which there are around a dozen per year) allow MPs to vote on issues, which among other things, are within the Scottish Parliament’s legislative competence. The Sewel Convention states that the Westminster Parliament will not normally legislate on devolved matters in Scotland without first obtaining the consent of the Scottish Parliament.”

This being so under convention, the real score  under the Scotland Act of 1998 does not deter Westminster from legislating for Scotland :

“The Scottish Parliament was formed by statute, the Scotland Act of 1998 and is thus a creation of Westminster. No sovereign status on the Scottish Parliament is conferred, and the act has not changed the status of the Westminster Parliament as the supreme legislature of Scotland, with Westminster retaining the ability to override, or veto, any decisions taken by the Scottish Parliament. The Westminster Parliament remains the sovereign body; power is devolved rather than transferred to the Scottish Parliament. As a consequence, the ability of all Westminster MPs to vote on Scottish legislation has not been legally diminished by devolution, as made clear by Section 28(7) of the Scotland Act 1998, which states that the legislative powers of the Scottish Parliament do “…not affect the power of the Parliament of the United Kingdom to make laws for Scotland.”

This dynamics between convention and statute, where convention overrides statutes in practice reinforces my argument that this referendum and how it came about is a triumph for decency.

Triumph for Peace

Although the implications[14] of this break-up for both parties in this referendum  are huge, the logistics[15]  of which, regarding currency etc in the event of a Yes vote. has not been spelt out yet, in the end and despite the haggling and despite David Cameron and Alex Salmond putting forward “rival visions” and hammering out their message to the Scottish people, this referendum campaign has been peaceful.

Although with his leadership in the balance David Cameron said with his hand on heart that he “would be heartbroken if the family of nations that we’ve put together was torn apart” even expressing “a frank assessment of his own party’s image”: that it was not about kicking the “effing Tories” [16], the exchanges between both sides have been strong but mainly civil.

Despite David Cameron saying, “It’s not a trial separation it would be a painful divorce… I don’t want the people of Scotland to be sold a dream that disappears,” setting out what Scots would lose by a Yes Vote, Alex Salmond called the referendum  ” a once in a life time opportunity” referring to Cameron as “scare mongering” with some pro- independence business figures releasing a joint statement that said: “Scotland has always had the wealth, the talent and the resources… while the ‘No’ campaign talks down Scotland we are determined to focus on opportunity.”

The army hasn’t been called out, no legislation passed to muzzle the Scottish people when Scots raised their  voice to separate from the UK, there’s been no militarisation or occupation of Scotland since, no check points, no intimidation, no arrests, no disappearances, no torture, no violence, no deliberate attempt to colonise Scotland towards changing its demography, no land grab, no breaking of promises to devolve power; no genocidal acts, no wars and no perpetration of war crimes. [17] [18]

Only a triumph for democracy, self- determination, decency and peace.

As we wait to see what the outcome would be – what the Scots want their destiny to be my head and heart wonders why Sri Lanka can’t follow UK’s example and hold that referendum on independence in the NorthEast and Let the People Decide….