Federalism is not Separatism Rules Supreme Court

By D.B.S.Jeyaraj

The month of August saw a flurry of hectic political activity in Sri Lanka. The statement made by controversial Minister Ravi Karunanayake at the Presidential Commission of inquiry followed by his resignation, the move to postpone Provincial Council polls by way of the 20th Constitutional amendment, the revolt within UNP ranks against the conduct of maverick UNP Minister Wijeyadasa Rajapakshe and the fast-tracking of probes concerning allegations against family members of ex-President Mahinda Rajapaksa, along with other issues like the SAITM affair have been drawing the attention of the nation at large for the past few weeks.  

In the midst of all this August excitement, the Supreme Court of Sri Lanka delivered a landmark judgement of profound importance on August 4th.   

The three member bench comprising Chief Justice Priyasath Dep, Justice Upaly Abeyrathne and Justice Anil Goonaratne in a landmark ruling gave a clean chit to the federal form of governance and the chief Tamil political party espousing federalism in Sri Lanka namely the Ilankai Thamil Arasuk Katchi (ITAK) popularly referred to in English as the Federal Party (FP).  

From the very early years, since its inception in December 1949, the ITAK/FP had been accused by its political detractors of being a party attempting to divide the country by espousing Federalism.   
This has led to the growth of an erroneous impression among many Sri Lankans that Federalism amounts to Separatism. In its long political journey, the ITAK/FP found this perception of equating Federalism with Secessionism a major obstacle in pursuing the objective of power sharing through negotiations.  

Advocating federalism is not the same as advocating a separate state;

The invocation of self-determination does not amount to a demand for a separate state:

The labelling of states as unitary and federal sometimes may be misleading. There could be unitary states with features or attributes of a federal state and vice versa;

 It was clear the ITAK did not have as its aims or objects the demand for a separate State.

Ilankai Thamil Arasu Katchi
The Supreme Court ruling of Aug 4th 2017 however has gone against the grain of this “Federalism is Separatism” fallacy.   

The three member SC bench ruled that “Advocating for a Federal form of Government within the existing State could not be considered as advocating Separatism.”   

Furthermore the SC also observed that the Ilankai Thamil Arasu Katchi (ITAK) was advocating for a Federalist form of Government by devolving more powers to the Provinces within the framework of the existing state.  

On the basis of this legal opinion the Supreme Court dismissed the petition filed by Don Chandrasoma of Kelaniya, who had sought an order from the Supreme Court declaring that the ITAK has, as one of its “aims” and “objects” the establishment of a Separate State.   

The case filed on March 27th 2014 by H. K. Don Chandrasoma in the Supreme Court sought a declaration under Article 157A(4) of the Constitution, which was introduced by the 6th Constitutional Amendment that the Ilankai Thamil Arasu Katchi (ITAK) had as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka. The SC affirmed in its ruling that the ITAK “Does not, support, espouse, promote, finance, encourage or advocate the establishment of a separate state within the territory of Sri Lanka as envisaged under Article 157A of the Constitution”.  
It is a coincidence of ironic significance that the Supreme Court ruling was delivered on August 4th. It was thirty-four years ago on August 4th 1983 after the “Black July” anti-Tamil pogrom that the United National Party (UNP) Govt. of Junius Richard Jayewardene passed the Sixth Amendment to the Constitution disavowing Separatism in Sri Lanka.   

It was on the basis of changes made to article 157 of the Constitution by inserting 157 A as a result of the 6th Amendment that the petition against the ITAK was filed. 34 years later a Supreme Court judgement of August 4th has laid to rest the bogey of Federalism being depicted as Separatism.  
The landmark judgement was written by Chief Justice Priyasath Dep with Justice Upaly Abeyrathne and Justice Anil Gooneratne concurring. The petitioner was Hikkadu Koralalage Don Chandrasoma of G -16, National Housing Scheme, Polhena, Kelaniya.   

The petitioner was represented by Counsel Dharshan Weerasekera and Madhubashini Rajapaksha.

 
Maavai Somasundaram Senathirajah
The first respondent was Jaffna District parliamentarian Maavai S. Senathirajah. Somasundaram Senathirajah hails from the northern village of Maaviddapuram, known as Maavai.   

He is generally known as Maavai Senathirajah with the prefix Maavai attached to his name.   
Senathirajah is the President of the Ilankai Thamil Arasuk Katchi which is the chief party within the configuration known as the Tamil National Alliance (TNA). The TNA contests polls under the House symbol allocated to the ITAK. Senathirajah was the Secretary of the ITAK with its headquarters in 30 Martin Road, Jaffna when the case was filed. Hence he was designated as the first Respondent.  
Subsequently Senathirajah relinquished his Secretary post and became President of the ITAK. Eastern Provincial Minister and lawyer K. Thurairasasingham became Secretary of the ITAK.   
Thereafter the new ITAK Secretary Thurairasasingham’s name was substituted in place of Maavai Senathirajah as 1st respondent.   

The other respondents were the commissioner of Elections and the Attorney - General. Senior Lawyers K. Kanag Ishwaran PC and M. A. Sumanthiran PC along with attorneys -at -law Viran Corea and Niran Anketell appeared for the first respondents.   

Deputy Solicitor-General Nerin Pulle and State counsel Suren Gnanaraj appeared for the AG.  
The history of the case in question is quite interesting. When elections to the Northern Provincial Council were held for the first time on September 21st 2013 the TNA contesting under the ITAK symbol won 30 of the 38 seats. Retired Supreme Court judge C. V. Wigneswaran became Chief Minister.   

A number of petitions against the ITAK/TNA were filed by different persons. Almost all of them related to complaints about perceived references to Separatism in the TNA election manifesto released for the 2013 Northern Provincial poll.  

The Chief Justice at that time was Mohan Peiris. Taking a cue perhaps from the precedent set by former Chief Justice Sarath Nanda Silva, Chief Justice Peiris decreed that all the cases must be heard by a bench presided over by the Chief Justice himself.   

There were many delays in taking up the cases filed in 2013 as most of them were in the Sinhala language.   

As such the State was requested to translate the petitions into English.  

Mr. H.K. Don Chandrasoma’s petition was filed on March 27th 2014(3/2014).The petitioner sought a Supreme Court declaration under Article 157A (4) of the Constitution that the Ilankai Thamil Arasu Katchi (ITAK) had as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka. The Petitioner Don Chandrasoma was represented by his Counsel Dharshan Weerasekera.  

Chief Justice Mohan Peiris
Initially Chandrasoma’s 2014 petition was taken up along with the 2013 petitions by then Chief Justice Mohan Peiris. However, Chandrasoma took up the position that while the 2013 cases were based on the TNA Election Statement of 2013, his case dealt directly with the party Constitution, and therefore his case needed to be taken up separately. The Petitioner based his claim on the basis that a 2008 amendment to the ITAK Constitution sought to replace the word “Samashti” which means Federalism with “Inaipaatchchi”.   

The Petitioner claimed that “Inaipaatchchi” meant Confederal and that advocating Confederalism was tantamount to advocating a Separate state.   

The ITAK’s position was that the replacement of “Samashti” with “Inaipaatchchi” was only one of several such changes replacing the Sanskritised word in the Constitution with pure Tamil alternatives.   
Both words referred to Federalism or Federal only, it was argued.  

When the matters concerned were taken up before then chief justice Mohan Peiris, he suggested that the matter could be settled by the ITAK tendering an affidavit disavowing separatism.   

When the ITAK tendered an affidavit on September 16th 2014 stating that its positions cannot be said to be separatist, the Petitioners stated that they were not satisfied with the Affidavit and requested that the matter be taken up for further hearing. So, while the six petitions filed previously in 2013 remained pending the 3/2014 petition filed in March 2014 was taken up before the Supreme Court.  

Meanwhile, there was a regime change on January 8th, 2015 with incumbent President Mahinda Rajapaksa being defeated by President Maithripala Sirisena.   

Chief Justice Mohan Peiris was removed from office through a controversial procedure on 27th January 2017. His predecessor Shirani Bandaranayake, who was impeached wrongfully by Parliament in a flagrant travesty of justice on January 13th 2013 was re-instated as Chief Justice on January 28th, 2015.   

After holding office for a single day in a symbolic gesture, Ms. Bandaranayake quit office on Jan 29th, 2015.    The senior most Supreme Court judge Kanagasabapathy Sripavan was sworn in as Chief Justice on Jan 30th 2015.  

Chief Justice Kanagasabapathy Sripavan
Chief Justice Kanagasabapathy Sripavan did not wish to hear the case due to personal reasons.   
He recused himself. Thereafter the case was heard by a bench presided over by the next senior most judge Priyasath Dep PC. The other members of the three -member bench were Judges Upaly Abeyrathne and Anil Gooneratne.   

The case then proceeded at its own pace subject to the law’s customary delays. Obtaining translations of relevant documents and particulars impeded the pace to some extent.  
The main argument by respective counsel was on February 18th 2016.   

Written submissions were filed on April 18th 2016 and May 3rd 2016 respectively. With Chief justice K. Sripavan retiring, Judge Priyasath Dep became Chief Justice on March 2nd, 2017. The final ruling was delivered on August 4th 2017. Chief Justice Dep wrote the judgement with Justices Abeyrathne and Gooneratne concurring.  

The Supreme Court ruling has been like Manna from heaven to the Ilankai Thamil Arasuk Katchi. With the prickly issue of the party allegedly subscribing to separatist policies being raised in courts, the ITAK had a virtual Damoclean Sword of proscription and related penalties hanging over its head.   
The SC ruling not only eliminated that danger but also vindicated the party in its adherence to its key policy of promoting a Federal form of Government in Sri Lanka. The Supreme Court judgement had invigorated and strengthened the ITAK by stating unequivocally that advocating Federalism does not amount to espousing separatism.

 
Nature and Direction of the Case
A brief perusal of the Supreme Court judgement provides a valuable insight into the nature and direction of the case. The Petitioner R.K. Don Chandrasoma relied on Article 157 A (4) in petitioning the Supreme Court to issue a declaration regarding the Ilankai Thamil Arasu Katchi (ITAK). The relevant clause says -  

(4) - “Where any political party or other association or organization has as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka, any person may make an application to the Supreme Court for a declaration that such political party or other association or organisation has as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka. The Secretary or other officer of such political party or other association or organization shall be made a respondent to such application.”  

The petitioner in his Petition dated 27th March 2014, prayed for following reliefs:  
i) A declaration that ITAK is a political party which has as one of its “aims” and “objects” the establishment of a separate State within the territory of Sri Lanka.  

ii) An order that the ITAK and its members, in consequence of the declaration issued under Article 4 of the Sixth Amendment to the Constitution [157A (4)] are subject to the provisions of Article 5 of the Sixth Amendment to the Constitution of Sri Lanka. [157A (5)] 

2008 Amendment to ITAK Constitution
The Petitioner based his claim on the grounds that a 2008 amendment to the ITAK Constitution sought to replace the word “Samashti” which means Federalism with “Inaipaatchchi”.   

The Petitioner claimed that “Inaipaatchchi” meant Confederal and that advocating Confederalism was tantamount to advocating a separate State. The Petitioner stated that the Constitution of ITAK, which is in Tamil and the subsequent amendment effected to the Constitution in 2008, which is in Tamil, were filed at the Elections Commissioner’s office’.   

Rule 2 of the Constitution of ITAK (English translation) which refers to the objective of ITAK read as follows:  

“The objective of this party is to establish political, economic and cultural liberation among Tamil speaking people by way of forming autonomous Tamil Government and autonomous Muslim Government as part of United Federal Sri Lanka in accordance with the principles of self –determination. Note: There will be a full guarantee in regards to Religion, language rights and fundamental rights for the minorities residing in the States which will be connected”.  

The Petitioner submitted that the amendment replaced the word ‘Federal’ with the word ‘Confederation’. The translation provided by the Petitioner replaced the word ‘Federal’ and inserted the word ‘Confederation’.   

The Petitioner stated that the replacement of words in Rule 2 by the said amendment to the ITAK Constitution indicated a shift in the “aims” and “objectives” of ITAK.   

The Petitioner further said that the full statement of the present “aims” and “objectives” of the ITAK, subsequent, to the above amendments, is to establish a separate State within Sri Lanka.  
The ITAK’s position was that the replacement of “Samashti” with “Inaipaatchchi” was only one of several such changes replacing the Sanskritised words in the party Constitution with pure Tamil alternatives.   

Among the Sanskritised words replaced by pure Tamil words were “Samashti” to “Inaipaatchchi” (Federal) “Angaththuvam” to “Uruppurimai” (membership), “Podhu Kaariya Sabhai” to “Podhuchchabai” (General Council), “Kaariyatharisi” to “Seyalaalarchch” (Secretary), “Thanaathikari” to “Porulaalar” (Treasurer) and “Visheda” to “Sirappu” (Special).   

It was explained that Tamil words in usage of Sanskrit origin were replaced by words of pure Tamil origin. The ITAK submitted that the word ‘Confederacy’ was not substituted in place of ‘Federal’ as argued by the petitioner and that both “Samashti” and “Inaipaatchchi” referred to Federal or Federalism.  

Official Languages Department Translation
In view of the contrasting positions taken by the Petitioner and the 1st Respondent, the Court called upon the learned Deputy Solicitor General to assist Court and an order was made for the translation of the Tamil documents by the Official Languages Department.   

The official translation provided by the Official Language Department stated 
as follows:   

“Rule 02 Objective: In (a) repealing the word “Samashti (Federation)” and substitution of the word “Inaipaatchchi (Federation)”.   

The translations were filed of record in February 2015. The Official Languages Dept. translation tallied with the ITAK claim that both words “Samashti” and “Inaipaatchchi” meant the same.  

When the Application was taken up for hearing before court, the learned Counsel for the Petitioner conceded that the official translation before this court does read “Federation” and not “Confederation”.   
It was also the contention of the Counsel for the Petitioner that “Federation” and “Confederation” meant the same thing though the Counsel for the Petitioner did not pursue this line of argument at the initial stages.  

The Learned Counsel for the Petitioner at the hearing and in the written submissions based some of his arguments on the Vaddukoddai Resolution passed by the newly formed Tamil United Liberation Front (TULF) on May 14th 1976, which advocated establishment of a separate State. The contention of the Counsel for the Petitioner was that the ITAK has unconditionally and unambiguously endorsed all resolutions of the TULF going back to 14 May 1976.  

In regard to this submission the 1st Respondent (ITAK secretary) in his written submissions took up the position that the claims to territorial Statehood made in the Vaddukoddai Resolution adopted over 40 years ago in 1976, at the 1st National Convention of the Tamil United Liberation Front (TULF) presided by Mr. Chelvanayagam, QC, and Member of the TULF and not by ITAK.  

Further excerpts from the Judgement are as follows -  

Call for a Separate State
“Learned Counsel for the ITAK had conceded that it is an undisputed fact that the course of Tamil politics underwent an episode during which the call for a separate State was taken up and that Members of the ITAK also adopted a similar position and that some members had refused to take oath under the Sixth Amendment to the Constitution and as a result lost their seats in Parliament. From 1983-1988 there were no Tamil representatives from the North and the Eastern Provinces in Parliament, District Councils and local bodies. 

It was further submitted on behalf of the ITAK that this situation however changed with the enactment of the Thirteenth Amendment to the Constitution and that several Members who lost their seats in Parliament returned to Parliament after subscribing to the oath prescribed by the Sixth Amendment to the Constitution and that every single sixteen (16) Members belonging to ITAK in the current Parliament have subscribed to the oath prescribed by the Sixth Amendment and also that several who were Members of Parliament on previous occasions have also subscribed to the oath several times’.  
“The Seventh Schedule refers to Oath/ affirmation to be taken or subscribed under Article 157A and article 161(d) (iii) of the Sixth Amendment to the Constitution. It reads thus:  

“ I ………………………..do solemnly declare and affirm/swear that I will uphold and defend the Constitution of the Democratic Socialist Republic of Sri Lanka and that I will not, directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka”.  

“The 1st Respondent Mavai Somasunderam Senathirajah, then General Secretary and current President of the ITAK in his affidavit dated 16th September 2014 tendered in this case stated under oath that “It is axiomatic that neither the ITAK nor the Tamil National Alliance can be said to have as its aims and/or objects the establishment of a separate State within the territory of Sri Lanka”.   
This indicates that the ITAK no longer supporting or advocating the establishment of a separate state”.

 
Tamil National Alliance
“Further, it is stated in the 2013 Election Statement released in advance of the Northern Provincial Council Elections by ITAK which contested elections under the banner of the Tamil National Alliance(TNA)in alliance with several other parties but under the ITAK name and symbol, under the heading “Tamil People and the Present Constitutional Arrangements” as follows:  
“We are as a People are thus concerned about our historical habitats, our Collective Rights that accrue to us as a People and as a National and our entitlement to exercise our right to determine our destiny to ensure self-government in the Tamil Speaking North-East of the country within a united and undivided Sri Lanka.”

Thereafter, after delineating the party’s position on “Our Stand on a Political Solution”, it is stated as follows:
“All that has been stated above shall be enacted and implemented within the framework of a united and undivided Sri Lanka.”

United and Undivided Sri Lanka
It was also noted that identical statements as cited above were also included in the 2015 Election Manifesto of Tamil National Alliance”.   

The 1st Respondent submitted that from Election Statements and manifestos it was manifestly clear that the ITAK is a seeking a solution “within the framework of a united and undivided Sri Lanka.”  
Another important and interesting assertion made on behalf of the petitioner pertained to the right of self determination. According to the SC ruling “the Petitioner alleged that “self-determination involves attaining an Independent State, or, reciprocally, if the people asserting self-determination freely choose to remain as part of another State, they retain the right to secede at their will, because the only reliable way for a people to fully control their political status, as well as their economic, social and cultural development, is in an Independent State.   

Therefore the right to secede is an integral component of the right to self-determination, even though, at any given point in time, the people who have acquired the right to self-determination might not assert their right to secession.”  

Right to Self-Determination
Counsel for the ITAK responded thus “The fact that it is “peoples” who are repositories under international law for the right to self - determination and thus the ITAK holds that the Tamil people are a “people” in terms of the above international covenants, and therefore, it is axiomatic that the Tamil people are also entitled to the right to self-determination”.   The lawyers representing the ITAK submitted that “It is clear that the right to self-determination has an internal dimension, in that it could be exercised within the country to the benefit of a “people” inside the country. Thus, the invocation of self-determination does not amount to a demand for a separate State, as the right is sometimes to be used internally within the territory of an existing State”.   The crux of the petitioner’s argument was that the ITAK had supported the Vaddukoddai Resolution, and that this combined with its position that the Tamil people were entitled to the right to self-determination demonstrated that it had as one of its aims or objects the establishment of a separate state. The ITAK in its response claimed that self-determination could be exercised within a state, citing judgments from the International Court of Justice and the Canadian Supreme Court. The ITAK also claimed citing its Election Manifestos and Statements that it stood for federalism within a united and undivided Sri Lanka.  It was against this backdrop that the Supreme Court entered judgment. Among the salient points in the ruling were -  
* Advocating federalism is not the same as advocating a separate state;

*The invocation of self-determination does not amount to a demand for a separate state:
* The labelling of states as unitary and federal sometimes may be misleading. There could be unitary states with features or attributes of a federal state and vice versa;
* It was clear the ITAK did not have as its aims or objects the demand for a separate State.

Fallacies Surrounding Federalism

In essence the Supreme Court judgement de-mystified the fallacies surrounding Federalism and strengthened the right to advocate federalism as a form of Government through legitimate democratic processes. It may also have invigorated the political determination of the Ilankai Thamil Arasu Katchi (ITAK) to pursue its 68 year old goal of a power sharing arrangement based on the Federal idea more enthusiastically in the near future.   Let me conclude with relevant extracts from this landmark judgement by the Supreme Court of Sri Lanka -  

“It is established that there is a clear distinction between words ‘federation’ and ‘confederation’. The main issue in this case is whether advocating the establishment of a federal state is tantamount to establishment of a separate state. It is relevant to consider the manner the federal states were formed in various parts of the world. United States of America, Australia and Switzerland are federal states. Thirteen States which were former colonies of the Great Britain joined to establish United States of America. The reason for uniting under one state is to promote trade and to ensure the security of the States. Six States in Australia in fear of pacific powers united to establish a federal state. In order to remove linguistic and regional differences Swiss federation was formed. Great Britain, France and Italy are examples of unitary states”.  

Labelling of States as Unitary or Federal
“The labelling of States as Unitary and Federal sometimes may be misleading. There could be Unitary States with features or attributes of a Federal State and vice versa. In a unitary state if more powers are given to the units it could be considered as a federal state. Similarly in a federal state if the centre is powerful and the power is concentrated in the centre it could be considered as a unitary state. Therefore sharing of sovereignty, devolution of power and decentralization will pave the way for a federal form of government within a unitary state’.  

“The Thirteenth Amendment to the Constitution devolved powers on the Provinces. The ITAK is advocating for a Federalist form of Government by devolving more powers to the provinces within the framework of a Unitary State. Advocating for a Federal form of Government within the existing State could not be considered as advocating separatism”.   “It is established that the ITAK supports or advocates the establishment of a federal State within united Sri Lanka. It does not, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka as envisaged under Article 157A of the Constitution. Therefore Petitioner is not entitled to a declaration under Article 157A (4) of the Constitution. Application dismissed. No Costs”.   

D.B.S.Jeyaraj can be reached at [email protected]