Federalism is not separatism: Landmark ruling by Supreme Court

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

Last week’s article in these columns about Sri Lankan Tamil nationalist parties seeking a power sharing arrangement based on federal principles or the federal idea resulted in my getting quite a lot of responses from readers. Most of the messages as usual were from Sinhala readers while a few were from Tamil readers also.

Despite differences in writing styles and usages of words and phrases among the readers who responded, there were two underlying themes in the two different categories of responses. The Sinhala readers expressed doubts and concerns over a political arrangement based on the federal idea. Many of them equated federalism with separatism and rejected any settlement based on federal or quasi-federal lines. A few recognised the difference between both but were worried that federalism may lead to separatism rather than unity.

The opinion expressed by Tamil readers was generally supportive of a political settlement on federal lines. There was much scepticism about such a possibility because they felt Sinhala opinion was overwhelmingly opposed to federalism. Since the Sinhalese comprise 75% of Sri Lanka’s population, the chances of a solution based on the federal idea would never become a reality.

Both these types of contrary opinion were illustrative of Sri Lanka’s deeply divided society. While the essence of Sinhala reader responses to federalism was “We won’t allow it,” the Tamil viewpoint was “they will never allow it”. One thing that struck me in these responses as well as in experiences of the past was the fact that many Sinhalese genuinely yet wrongly believed that federalism amounted to separatism.

It is against this backdrop therefore that I intend re-visiting a path-breaking judicial verdict about which I have written earlier. This is about a landmark judgement by the Sri Lankan Supreme Court five years ago that ruled federalism is not separatism. I shall briefly focus on the history of this case and salient aspects of the SC ruling.

Three-member SC Bench

On 4 August 2017, a three-member Supreme Court bench comprising the then Chief Justice Priyasath Dep and Justices Upali Abeyratne and Anil Goonaratne delivered a landmark ruling that gave a clean chit to the federal form of governance or federalism. The 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.

The first respondent was the then Jaffna District parliamentarian Maavai Somasundaram Senathirajah. Maavai Senathirajah was the Secretary of the Ilankai Thamil Arasu Katchi (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. Former 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.

History of the case

The history of the case in question is quite interesting. When elections to the Northern Provincial Council were held for the first time on 21 September 2013 the Tamil National Alliance (TNA) contesting under the ITAK symbol of House 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.

H.K. Don Chandrasoma’s petition was filed on 27 March 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.

“Samashti” and “Inaipaatchchi”

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’s claim was 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 16 September 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.

Regime change

Meanwhile, there was a regime change on 8 January 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 27 January 2017. His predecessor Shirani Bandaranayake, who was impeached wrongfully by Parliament in a flagrant travesty of justice on 13 January 2013 was re-instated as Chief Justice on 28 January 2015.

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

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 18 February 2016.

Chief Justice Priyasath Dep

Written submissions were filed on 18 April 2016 and 3 May 2016 respectively. With Chief Justice K. Sripavan retiring, Judge Priyasath Dep became Chief Justice on 2 March 2017. The final ruling was delivered on 4 August 2017. Chief Justice Priyasath Dep wrote the judgement with Justices Abeyrathne and Gooneratne concurring. 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 157A (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 organisation 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 organisation shall be made a respondent to such application.”

The petitioner in his Petition dated 27 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)]

Petitioner’s position

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 regard 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.

Sanskrit and Tamil

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.

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 14 May 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 Chelvanayagam, QC, and Member of the TULF and not by ITAK.

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 13th 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 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 16 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”.

The 1st Respondent submitted that from Election Statements and manifestos it was manifestly clear that the ITAK is now seeking a solution “within the framework of a united and undivided Sri Lanka.”

Federalism and Separatism

Let me conclude with important extracts relating to federalism and separatism 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 decentralisation 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.”

(The writer can be reached at [email protected].)