Sri Lanka’s Supreme Court Holds Federation is Not Separation

Court dispels doubts

By: Thambu Kanagasabai, LLM [Lond.] FCII, August 27, 2017
Former Lecturer in Law, University of Colombo, Sri Lanka
President: Tamil Canadian Elders for Human Rights

Sri Lanka’s Supreme Court headed by Chief Justice Priyasath Dep delivered a politically historical judgement on August 4, dispelling the doubts and paranoia of  some Sinhalese extremist politicians and few Buddhist Clergy surrounding the concept of a federal form of government in Sri Lanka as advocated by the Tamil National Alliance who have abandoned the demand of a separate state of Tamil Eelam which was mandated by the Tamil voters in 1977 elections by endorsing the Tamil Liberation Front’s Vaddukoddai Resolution of 1976.

A private citizen Chandrasoma petitioned  the Supreme Court in 2014 calling for a declaration under Article 157 A [4] of the Constitution, alleging that Ilankai Thamil Arasu Kachi [ITAK] is a political party which has its “aims and ‘objects’ the establishment of a separate state within the territory of Sri Lanka. ITAK’s objective is to establish political, economic and cultural liberation of Tamil speaking people by forming a autonomous Tamil government and autonomous Muslim government as part of united Sri Lanka in accordance with the principle of self-determination stating that “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 contended that the ITAK and its members have violated the provisions of Article 5 of Sixth Amendment to the constitution and violating the declaration issued under Article 4 of Sixth Amendment, all provisions falling under Article 157A of the Constitution. The Sixth Amendment in brief prohibits any person, organization or party promoting a separate state in Sri Lanka.

It is relevant to view the article below written by this author:
Sri Lanka’s Sixth Amendment: a Violation of UN Charter
https://www.colombotelegraph.com/index.php/sri-lankas-sixth-amendment-a-violation-of-un-charter/

The petitioner’s main contention is that the ITAK when considering its “aims and ‘objectives’, it is only seeking a ‘confederation’ form of government which connotes the unity of two separate states, instead of a ‘federal form of Government.”

The court unanimously among other matters made the following decisions;

[1] “Samasti” [Federal Form} does not mean Confederation. “Samasti” and “Inaippatchi” [United] means the same concept.
[2] Federation and confederation differ on various matters.
Confederation denotes a permanent alliance between fully sovereign and independent states, yielding to the Centre authority a controlling power for a few limited purposes, such as External and Diplomatic Relations. Central government acts upon the States and not on citizens.

In a Federal Form of Government the allied states form a Union [eg. USA] with quasi sovereignty with respect to administration of their purely local concerns, with Central Government possessing both external and internal sovereignty, with Central Power erected into a true National government, and National Affairs directed and its effects felt not by the separate states deliberating as ones, but by the people of all, in their collective capacity “as citizens of the Nation.”

It is to be noted that the Black’s Law Dictionary 6^th Edition [P- 611] defines Federal Form of Government as follows:
“The system of government administered in a nation formed by the Union or Confederation of several Independent States.”

Former Chief Justice Sarvananda, defined “Federalism as merely a distribution of sovereign powers between the units and the Centre” unlike in a Unitary State where sovereignty is undivided.”

The essential qualities of a unitary state are:-
[a] The supremacy of the Central Parliament
[b] Absence of a subsidiary sovereign bodies
[c] Powers of the Central Government are unrestricted
[d] Subsidiary bodies that may exist can be abolished at the discretion of the Centre

It is to be noted that the ITAK in its Affidavit dated 16-09-2014 has stated under oath that “it is axiomatic that neither the ITAK nor the TNA can be said to have as its aims and/or objects the establishment of a separate state within the territory of Sri Lanka”.
The Election Manifesto of TNA in 2013 and in 2015 under the heading “Tamil people and the present constitutional arrangements” mentions its position 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 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.”

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.”
The right to secession based on self-determination and International Law arises in the following circumstances as stated by the Canadian Supreme Court in the case  “SECESSION OF QUEBEC PROVINCE IN 1998”:
[i] Where a “people is governed as a part of colonial empire.
[ii] Where a “people” is subject to alien subjugation, domination or exploitation.
[iii] Where a “people” is denied any meaningful exercise of its rights of self-determination within the state of which it forms part.
[iv] In other circumstances, people, are expected to achieve self-determination within the framework of their existing state.

The Kosovo Advisory opinion – 2010 delivered by the International Court of Justice [Judge Canbcad Trindaoe] laid down two dimensions of the right of self-determination – one Internal and the other External as developed by Contemporary International Law.
[a] Internal refers to the right of every people to be free from any foreign domination.
The external self-determination refers to the right of every people to choose their destiny in accordance with their own will, if necessary – in case of systematic oppression and subjugation against their own government.
Thus the International Law is as now developed and evolved to legitimise the right of self-determination of people who are subject to unequal and discriminating treatment from their own government. Hence this right is fully applicable and exercisable by the Tamils who have been at the receiving end since Independence in 1948 from the British.

The Judge concluded that “In the current evolution of International law, International practice [of states and of International organizations] provides support for the exercise of self-determination by people under permanent adversity or systematic repression, beyond the traditional confines of the historical process of de-colonization. Contemporary International Law is no longer insensitive to patterns of systematic oppression and subjugation”
The following remarks of the Sri Lanka’s Supreme Court are confusing and appear to be blurring the distinction between a Unitary form of Government and Federal form of Government.
It says:-
“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”

Oxford Dictionary Defines:
“Federal form of government as a system of government in which power is divided between a central government and several regional ones”
“Unitary form of Government as a system of government in which the powers of the separate constituent parts are vested in a central body”

The essential features of a federal state as defined and accepted according to norms of International Law and practice is the existence of several independent states with quasi sovereignty over pure local affairs and concerns, with centre possessing the external and internal sovereignty.

On the contrary, in a unitary state the center may devolve some powers to units, but with its powers unrestricted, it has even the powers to abolish those units at any time at its discretion.
According to Sri Lankan Constitution, the Government has the powers to abolish the Provincial Councils even if they possess wider devolved powers from the centre. Hence it could not be considered as a Federal State as commented by the Supreme Court as in a unitary state there is no sharing of sovereignty with the centre.
The Tamil National Alliance in its manifesto is calling for a Federal form of Government under a united Sri Lanka and not under a unitary Sri Lanka. What is called for is a Federal form with shared sovereignty over various local concerns and affairs/and functioning as a semi-autonomous unit within a united and undivided Sri Lanka, thus ruling out a separate sovereign and fully independent state. United denotes ‘joining together for a common purpose’. This implies a union with the centre for prescribed purposes like external matters Example:- Defence, Security, Railways, and Custom etc.

All in all the demand for a federal state within a united and undivided Sri Lanka is justifiable and practicable as found in USA, Switzerland and Australia.

Another matter which was discussed by the Supreme Court was the right of Self-determination as laid down in the UN Covenants in 1966, International Covenant on Civil and Political Rights and International covenant on Economic, Social and cultural Rights under Article 1, which states as follows:-
“All people have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural developments.”

Though the first respondent emphasized the right of self-determination for the people [Tamil people] inside the country for their benefit, the court has not discussed this right and its applicability for Tamils, though the Contemporary International practice and law clearly allows this right for the Tamils on the grounds of discrimination, subjugation and systematic policy and agenda of marginalisation and commission of war crimes, crimes against humanity amounting to GENOCIDE as exposed by several UN Rapporteurs who visited Sri Lanka after the war in 2009.

Refer to this article by the writer which explains in detail the legal aspects and legitimacy for self-determination:
Historical, Political & Legal Justification of Tamils’ Right to Self-Determination

https://www.colombotelegraph.com/index.php/historical-political-legal-justification-of-tamils-right-to-self-determination/

It has to be stated that the ITAK is not advocating for Federal form of Government by devolving more powers to the provinces within one framework of a unitary state, but only within a united and undivided Sri Lanka.

A Federal system of Government functions with different characteristics and it cannot function under a unitary Government where the centre is vested with full sovereignty and controls over a unit or units like the Provincial councils. They are defined, accepted and practised as entirely two different systems of Government. The Supreme Court appears to have omitted to pinpoint the ITAK’s demand for a Federal Form within a united Sri Lanka. Instead it has substituted the word ‘unitary’ which is at variance with the scope and definition of a united Sri Lanka.
However, the court has clearly stated that Federation does not imply the formation of a separate state, fully sovereign, independent and free from any control by the centre and Federation neither implies separation or secession.

However, It is to be noted that the court in the concluding paragraph has stated clearly that “It is established that the ITAK supports or advocates the establishment of a federal state within the united Sri Lanka” which is  contradicting the preceding statement that “ITAK’s  advocating for a federalist form of government by devolving more powers within a unitary government”. Obviously this does not constitute a federal form of government as each stands uniquely with characteristics and functions of their own as defined and practised according to accepted International Laws and norms.

It therefore lies on TNA’s shoulders to carry forward their agitation for a federal form of government as pledged in their manifesto while enlightening the public particularly the people and politicians in the south, citing this judgement to dispel the doubts and mistaken beliefs and suspicions prevailing in the south who have been fed to believe that federalism will lead to separation.

TNA also has the added burden and responsibility to agitate for the right of self-determination allowed in the UN Covenant of 1966 Article 1.  This right exists for the Tamils who qualify as a ‘People’ as mentioned in the said Article.

It is to be noted that the Bandaranayaka-Chelvanayagam Pact of 1967 and Indo-Ceylon Accord of 1987 have recognised the historical habitat of Tamils as “people in the Northern and Eastern Provinces,

It thus falls on the shoulders of TNA to discharge their responsibilities and stand firm in the fulfilment of their commitments as mentioned in their election manifesto. Any shirking or compromising the pledges for concessions instead of rights, will only pave the way for the extinction of Tamils through assimilation, and TNA recording its political blunder in history as betrayers of trust and killing the aspiration of Tamils;

For the sake of clarity, a short definition of the following terms is as follows:-

UNITARY FORM OF GOVERNMENT
A system of Government in which the powers of the separate constituent parts are vested in a central body.

FEDERAL FORM OF GOVERNMENT;
A system of Government in which powers is divided between a central Government and several regional ones possessing quasi -sovereignty.

CONFEDERATION:
A union of alliance of countries, peoples, states fully sovereign and independent.

UNITED;
Joining politically as separate units:

In the light of this politically significant judgement which is impacting all the communities in Sri Lanka, the Sri Lankan Government must not miss this rare and final opportunity to adopt a Federal System of Government and once and for all settle the ethnic problems and march towards building a peaceful and prosperous united Sri Lanka.

Failing to do so will only keep the communal fire burning and later exploding while paving way for international interventions and even resorting to external self-determination leading to secession at a future time.