{"id":69707,"date":"2017-09-12T15:11:15","date_gmt":"2017-09-12T22:11:15","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=69707"},"modified":"2017-09-12T15:11:35","modified_gmt":"2017-09-12T22:11:35","slug":"the-sc-ruling-on-itak-and-its-seminal-importance-to-discussions-of-federalism-in-sri-lanka","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2017\/09\/12\/the-sc-ruling-on-itak-and-its-seminal-importance-to-discussions-of-federalism-in-sri-lanka\/","title":{"rendered":"The SC Ruling on ITAK and its Seminal Importance to Discussions of \u2018Federalism\u2019 in Sri Lanka"},"content":{"rendered":"

Dharshan Weerasekera, Attorney-at-Law<\/strong><\/em><\/span><\/h2>\n

[Author\u2019s note:\u00a0 The present paper is intended to be read with a previous paper of mine titled, \u2018H. K. D. Chandrasoma\u2019s Case:\u00a0 A Response to D. B. S. Jeyaraj,\u2019 published in lankaweb.\u00a0 For the convenience of readers that article is republished along with this one<\/em>]<\/p>\n

On 21st<\/sup> August 2017, I published an article in lankaweb<\/em> titled, \u2018H. K. D. Chandrasoma\u2019s case:\u00a0 A Response to D. B. S. Jeyaraj,\u2019 in which I endeavored to explain why Chandrasoma filed the case, his main claims against ITAK, the court\u2019s answers to those claims, and finally, the aspects of the judgment that I considered to be of seminal importance to the country.[1]<\/a><\/p>\n

In my view, the lasting importance of the judgment is in the fundamental change or rather development that the court has introduced with respect to the definition of \u2018federalism\u2019 that must now apply in Sri Lanka, at least as far as constitutional jurisprudence is concerned, and the ramifications of this to ongoing debates over devolution, including the proposed constitutional reforms.<\/p>\n

In the past 2-3 weeks, I have read in the local papers at least two articles that have commented on Chandrasoma\u2019s case, in particular comparing and contrasting the court\u2019s definition of \u2018federalism\u2019 with other definitions given by various academics and scholars.\u00a0 In my view, the writers of these articles are engaging in a futile exercise, because of the following reasons.<\/p>\n

As far as constitutional jurisprudence is concerned, the judgment of a court invariably supersedes or trumps the opinions and speculations of academics (to the extent those opinions or speculations have not been incorporated into a judicial ruling).\u00a0 If there is, say, a future challenge to a constitutional amendment where the definition of \u2018federalism\u2019 is a significant factor, our judges will give priority to the definitions generated by fellow judges on the bench.<\/p>\n

Therefore, the more reasonable thing to do is to try and understand what exactly the court said about federalism in the instant case, rather than to seek after definitions proffered by various academics and other pundits – definitions the court has neither referred to nor relied on in the judgment.<\/p>\n

In this paper, I shall briefly discuss three matters.\u00a0 First, explain again what I consider to be the court\u2019s definition of \u2018federalism\u2019; second, explain the general ramifications of the aforesaid definition to ongoing discussions over devolution; and third, point out the specific ramifications to, one, the Parliamentary Sub Committee report on Centre-Periphery relations tabled in November 2016, and two, Paragraph 16 of UNHRC resolution 30\/1, which also explicitly calls for \u2018devolution\u2019 as a means of providing a \u2018political settlement\u2019 to the Tamils.<\/p>\n

The Definition of \u2018federalism\u2019 <\/strong><\/p>\n

The definition of \u2018federalism\u2019 that the court presents in Chandrasoma\u2019s case is based on two things:\u00a0 the dictionary definition of the word, supplemented by a key portion of Chief Justice Sharvananda\u2019s judgment in the 13th<\/sup> Amendment to the Constitution<\/em>.\u00a0 For the dictionary-definition, court has relied on the definition in Black\u2019s law Dictionary<\/em>, an authoritative source for lawyers.<\/p>\n

However, it is possible that a lay-reader might object to this by saying that, as far as he or she is concerned Black\u2019s Law Dictionary<\/em> does not carry any special authority.\u00a0 I emphasize that, the definition of \u2018federalism\u2019 with respect to its material elements is consistent among all reputable dictionaries, and in order to be on the safe side I shall give the definition of \u2018federalism\u2019 found in the Oxford Law Dictionary<\/em>, right after quoting from Black\u2019s<\/em>.<\/p>\n

The following is the definition of \u2018Federal Government\u2019 found in Black\u2019s Law Dictionary<\/em> (6th<\/sup> Edition) relied on by court:<\/p>\n

\u2018The system of government administered in a nation formed by a union or confederation of several independent States.\u2019<\/p>\n

\u2018In strict usage, there is a distinction between a confederation<\/em> and a federal<\/em> government.\u00a0 The former term denotes a league or permanent alliance between several States, each of which is fully sovereign and independent, and each of which retains its full dignity, organization, and sovereignty, though yielding to the central authority a controlling power for a few limited purposes, such as external and diplomatic relations.\u00a0 In this case, the component States are the units, with respect to the confederation, and the central government acts upon them, not upon the individual citizens.\u00a0 In a Federal Government<\/em>, on the other hand, the allied States form a union (e.g. the United States) not, indeed, to such an extent as to destroy their separate organization or deprive them of quasi sovereignty with respect to the administration of their purely local concerns, but so that the central power is erected into a true national government, possessing sovereignty both external and internal\u2014while the administration of national affairs is directed and its effects felt, not by the separate States deliberating as units, but by the people of all, in their collective capacity, as citizens of the nation. The distinction is expressed by the German writers by the use of two words \u2018Staatenbund\u2019 and \u2018Bundesstaat\u2019; the former denoting a league of confederation of states, and the latter a federal government or state formed by means of a league of confederation.\u2019[2]<\/a><\/p>\n

The following is the definition of \u2018Federal State\u2019 given in the Oxford Law Dictionary<\/em>:<\/p>\n

\u2018Federal State:\u00a0 A State formed by the amalgamation or union of previously autonomous or independent States.\u00a0 A newly created federal state is constitutionally granted direct power over the subjects or citizens of the formerly independent states.\u00a0 As such, the new federal state becomes a single composite international legal person.\u00a0 Those former entities that comprise it have consented to subsume their former sovereignty into that of the federal State, although they retain their identity in municipal law.\u00a0 Examples of Federal States include the USA and Switzerland.\u00a0 COMPARE Confederation<\/em>.\u2019[3]<\/a><\/p>\n

From both sets of quotes, it is clear that \u00a0the defining characteristic of a Federal State is that, one, the power of the central government reaches to the citizens or residents of the individual provinces (by contrast, in a confederation the power of the central government reaches only to the governments of the provinces), and two, the power of the central government is always supreme over that of the provincial governments (this is made especially clear by the Oxford Dictionary, to wit, \u2018Those former entities that comprise it have consented to subsume<\/em> their former sovereignty into that of the Federal State).<\/p>\n

A necessary implication of the above is that, in a federal union the peripheral units cannot secede at will i.e., without the consent of the pother units that make up the union, while in a confederation they can.\u00a0 Similarly, in a federal union a peripheral units cannot persist in acting contrary to the wishes of the center \u2013 the center always has the power to bring such recalcitrant unit under control, including taking back the powers given to the peripheral units as such.<\/p>\n

I shall now turn to the second component of the court\u2019s discussion of \u2018federalism,\u2019 where the court relies on a key portion from Chief Justice Sharvananda\u2019s judgment in the 13th<\/sup> Amendment to the Constitution<\/em> (1987 2 SLR 319).\u00a0 The court explicitly refers to the following remarks of CJ Sharvananda from the judgment in the 13th<\/sup> Amendment case:<\/p>\n

\u2018The term \u2018Unitary\u2019 in Article 2 is used in contradistinction<\/em> to the term \u2018Federal,\u2019 which means an association of semi-autonomous units with a distribution of sovereign powers between the units and the center.\u00a0 In a Unitary State the national government is legally supreme over all other levels.\u00a0\u00a0 The essence of a Unitary State is that sovereignty is undivided \u2013 in other words, that the powers of the central government are unrestricted.\u00a0 The two essential qualities of a Unitary State are 1) the supremacy of the central Parliament and 2) the absence of subsidiary sovereign bodies.\u00a0 It does not mean the absence of subsidiary law-making bodies, but it does mean that they exist and can be abolished at the discretion of the central authority.\u2019\u00a0 (page 10)<\/p>\n

I draw the attention of the reader to the first sentence in the above passage, to wit;\u00a0 \u2018The term \u2018Unitary\u2019 in Article \u00a02 is used in contradistinction<\/em> to the term \u2018Federal,\u2019 which means an association of semi-autonomous units with a distribution of sovereign powers between the units and the center.\u2019\u00a0 The importance of this sentence is that, as CJ Sharvananda saw it, our Constitution does not permit an arrangement of government where the center and the peripheral units are equals or co-ordinates only, i.e. where the center cannot assert its authority over the peripheral units if and when needed.\u00a0 I shall explain the implications of this point in a moment.<\/p>\n

I shall now proceed to explain the general ramifications o the judgment both to general discussions of devolution, and the specific ramifications to the Sub-Committee report on Center \u2013Periphery relations, and also UNHRC resolution 30\/1.<\/p>\n

The general ramifications of the Chandrasoma judgment to discussions of devolution in Sri Lanka<\/strong><\/p>\n

The following is the key passage in the judgment where the court gives its verdict as to whether Chandrasoma has established that ITAK is a separatist party.\u00a0 The courts says:<\/p>\n

\u2018It is established that there is a clear distinction between the words \u2018federation\u2019 and \u2018confederation.\u2019\u00a0 The main issue in this case is whether advocating the establishment of a federal state is tantamount to establishment of a separate state\u2026.The labeling of states as unitary and federal sometimes may be misleading.\u00a0 There could be unitary states with features or attributes of a federal state and vice versa.\u00a0 In a unitary state if more powers are given to the units it could be considered as a federal state.\u00a0 Similarly, in a federal state if the centre is more powerful and the power is concentrated in the centre it could be considered as a unitary state.\u00a0 Therefore, sharing of sovereignty, devolution of power and decentralization will pave the way for a federal form of government within a unitary state.\u00a0 The Thirteenth Amendment to the Constitution devolved power to the provinces.\u00a0 The ITAK is advocating for a federalist form of government by devolving more powers to the provinces within the framework of a unitary state.\u00a0 Advocating for a federal form of government within the existing state could not be considered as advocating separatism.\u2019 (page 17)<\/p>\n

In this section I shall briefly explain the general ramifications of the above passage to discussions over devolution in this country.\u00a0 I shall start with the necessary background information, which involves discussing Article 2 of the Constitution.\u00a0 Article 2 of the Sri Lanka Constitution states:<\/p>\n

\u2018The Republic of Sri Lanka is a Unitary State\u2019<\/p>\n

Nowhere in the Constitution is the term \u2018Unitary\u2019 defined.\u00a0 For instance, there is no interpretation clause which defines that term.\u00a0 [In my view, Sri Lanka would have been spared a lot of trouble if Mr. J. R. Jayawardena had seen to it to include an interpretation clause that defined \u2018Unitary State\u2019 when he first introduced the \u201978 Constitution.\u00a0 For one thing, it would have prevented the lingering controversy over the passing of the 13th<\/sup> amendment, i.e. whether or not it required a referendum.\u00a0 But all that is beside the point]<\/p>\n

The point is this.\u00a0 Because there is no definition for \u2018Unitary\u2019 provided in the Constitution itself, the only valid definition or interpretation of that term as far as our Constitution is concerned is the definition provided by C. J. Sharvananda in the 13th<\/sup> Amendment judgment, quoted earlier.\u00a0 (This is because of the operation of the maxim, \u2018An interpretation of the law obtains the force of law,\u2019 and C. J. Sharvananda\u2019s definition has not been rejected or modified in any way by our courts in subsequent years.)<\/p>\n

The problem is that, the 13th<\/sup> Amendment has undoubtedly diluted the power of the central government, and CJ Sharvananda\u2019s definition permits such dilution subject to the condition that there can never be a division of sovereignty.\u00a0 Unfortunately, this situation has provided an opening for the Eelamists.\u00a0 As long as the term \u2018Federal State\u2019 or \u2018federalism\u2019 was left undefined by our courts, C. J. Sharvananda\u2019s definition of \u2018Unitary State\u2019 permitted the Eelamists to say something like this:
\n\u2018Under the \u2018Unitary\u2019 system of Sri Lanka as defined by our own courts, devolution of power is permitted. \u00a0A \u2018Federal State\u2019 is also an arrangement of government which permits a devolution of power on a sliding scale, that is, in some \u2018Federal States\u2019 there can be a strong central government (i.e. the US) and in others there can be a weak central government (i.e. Switzerland) with far more powers devolved to the peripheral units.\u00a0 We advocate a \u2018Federal\u2019 system of government for Sri Lanka, and we are not doing anything wrong, because all we are asking for is just more<\/em> devolution of power.\u2019<\/p>\n

Permit me to quote the actual words of two key Eelamists, in this case R. Sampanthan and M. A. Sumanthiran, to illustrate the above point.\u00a0 The following is what Mr. Sampanthan said in the course of an important speech in 2012, at the 14th<\/sup> National Convention of the ITAK in Batticaloa:<\/p>\n

\u2018Our expectation for a solution to the ethnic problem of the sovereignty of the Tamil people is based on a structure outside that of a unitary government, in a united Sri Lanka in which Tamil people have all the powers of government needed to live with self respect and self-sufficiency.\u00a0 We believe that only within such a structure of government can the Tamil people truly enjoy the right to self-determination that is their inalienable right.\u2019[4]<\/a><\/p>\n

\u2018The position that the North and East of Sri Lanka are the areas of historical habitation of the Tamil speaking people cannot be compromised in the structure of government.\u00a0 We must have unrestricted authority to govern our own land, protect our own people, and develop our own economy, culture and tradition.\u00a0 Powers must be allocated under this structure based on the understanding that meaningful devolution should go beyond the 13th<\/sup> Amendment to the Constitution passed in 1987. This position has been accepted by our party.\u00a0 Our acceptance of his position does not mean that we consider the 13th<\/sup> Amendment to be an acceptable solution, nor that, in the event our right to internal self-determination is continuously denied, we will not claim our right under international law to external self-determination.\u00a0 It only means that this is the only realistic solution today.\u2019[5]<\/a><\/p>\n

The following, meanwhile, are some remarks by Mr. Sumanthiran, from an article published in the Bar Association of Sri Lanka Law Journal of 2015.\u00a0 The article is part of an \u2018exchange\u2019 with three others \u2013 Ranil Wickremasinghe, Faiser Mustapha and J. C. Weliamuna – on the principles that must guide the proposed new Constitution.\u00a0 Mr. Sumanthiran gives his ideas as to the principles that must underpin Center-Periphery relations, and says inter alia<\/em>:<\/p>\n

\u2018In accordance with this principle [i.e. the purported principle of maximum devolution], the Centre must have the minimum possible subjects and functions and the Centre and the devolved units must be supreme in their respective spheres of competence.\u2019[6]<\/a><\/p>\n

\u2018Thus, the list of subjects for the Centre should be limited to matters that are \u2018national\u2019 in nature\u2014matters such as National Defence, Foreign Affairs, National Fiscal Policy, Immigration\/Emmigration, Citizenship, Customs, Posts, Telecommunications, International Airports, Major Harbours, Railways, National Highways and Maritime Zones.\u2019[7]<\/a><\/p>\n

\u2018All other powers must be exercised by the provinces.\u00a0 This must include exclusive powers over land, development, health and education.\u2019[8]<\/a><\/p>\n

There are two key elements in what both the aforesaid Eelamists are saying:\u00a0 first, they consider that the amount or extent of devolution is a matter to be determined by the people demanding such devolution \u2013 in this case the Eelamists themselves \u2013 and not by natural limits intrinsic to the system; and second, it is possible in the Federal State as they envision it for the Center and the Peripheral Units to be \u2018equal,\u2019 i.e. \u2018Supreme within their respective spheres of competence.\u2019<\/p>\n

It should be noted that, the aforesaid idea is entirely contrary to the definition of \u2018federalism\u2019 accepted by most people including the dictionaries.\u00a0 Recall that, according to the dictionary-definition of \u2018federalism,\u2019 the sovereignty of the central government always subsumes that of the peripheral units, which means that, though the peripheral may have exclusive jurisdiction over particular matters, this is always subject to the authority of the central government, i.e. the central government retains the right to withdraw such jurisdiction if it deems such action necessary.<\/p>\n

We thus come to the judgment in Chandrasoma\u2019s case.\u00a0 I shall specify three important ways in which it impacts discussions over devolution in this country.\u00a0 First, the court has taken judicial notice of the fact that as a result of the 13th<\/sup> Amendment we now have a federal arrangement of government, or at any rate that what we like to think of as a \u2018unitary\u2019 system has in reality incorporated significant federal elements.<\/p>\n

The court, however, has defined \u2018federalism,\u2019 so it is no longer possible for the Eelamists to promote schemes of devolution (which the Eelamists call \u2018federal\u2019) but which are entirely contrary<\/em> to what most people including the dictionaries understand by the word \u2018federal.\u2019\u00a0 According to the definition of \u2018federal government\u2019 that court has now set out, the central government must always be superior to the peripheral units, i.e. the sovereignty of the center always subsume that of the peripheral units.<\/p>\n

So, ideas such as those being peddled by the likes of Mssrs. Sampanthan and Sumanthiran, to wit:\u00a0 that they want \u2018all<\/em> the powers of government needed to live with self respect and self-sufficiency,\u2019 that, \u2018the Centre must have the minimum possible subjects and functions and the Centre and the devolved units must be supreme in their respective spheres of competence,\u2019 and so on, can no longer be presented as if those ideas were federal<\/em> ideas.<\/p>\n

Second, the idea that the people demanding devolution have an unrestricted right to determine the amount or extent of power to be devolved is no longer viable.\u00a0 In either a Federal State as defined by the dictionaries, or a \u2018Unitary State\u2019 as defined by C. J. Sharvananda, the system<\/em> sets distinct limits on the amount of devolution possible, namely, the limit is reached when the Center loses the capacity to effectively control the Peripheral Units.<\/p>\n

Third, in concluding paragraph of its judgment, the court unequivocally states that, a party advocating federalism in Sri Lanka can do so only within the framework of the unitary system.\u00a0 It is worth repeating the key portion of that paragraph.\u00a0 Court says:<\/p>\n

\u2018The Thirteenth Amendment to the Constitution devolved power to the provinces.\u00a0 The ITAK is advocating for a federalist form of government by devolving more powers to the provinces within the framework of a unitary state.\u00a0 Advocating for a federal form of government within the existing state could not be considered as advocating separatism.\u2019<\/p>\n

To repeat, ITAK (or any other party) can advocate for a federal state, but only within the framework of a unitary state<\/em>.\u00a0 So, it is impossible from now on for the Eelamists to play one of their main tricks, namely, saying that what they advocate is \u2018federalism within the framework of a united and undivided Sri Lanka<\/em>.\u2019 It should be noted that, a confederation is also \u2018united and undivided\u2019 until one or more of its members decide to separate!<\/p>\n

It must be emphasized that, the court does not say, \u2018ITAK is advocating for a federalist form of government within the framework of a united and undivided Sri Lanka<\/em>.\u2019\u00a0 If ITAK wants to pursue federalism in this country, court expects it to do so within the framework of a unitary state, as such a thing is understood in our constitutional jurisprudence.<\/p>\n

What is the definition of a \u2018Unitary State,\u2019 valid for our Constitution?\u00a0 As already explained, it is the definition given by C. J. Sharvananda, quoted earlier. \u00a0So, from now on, whatever the Eelamists choose to call the system of government they prefer for our country, in its substance<\/em> that system must always have a central government that is superior to the peripheral units, and retains the authority inter alia to take back the powers devolved to the peripheral units.<\/p>\n

In my view, on each of the aforesaid points, the court has dealt a deathblow to the ambitions of the Eelamists.\u00a0 \u00a0All that remains is for me to explain the specific ramifications of the judgment to, one, the Subcommittee report on Center \u2013 Periphery relations tabled in November 2016, and Paragraph 16 of UNHRC resolution 30\/1, which also calls on the GOSL to reach a \u2018political settlement\u2019 with the Tamils by devolving more power to the Provinces.<\/p>\n

Unfortunately, the constraints of time prevent me from taking up this matter at this moment.\u00a0 I shall try to take it up in a future paper.\u00a0 However, this may be a blessing in disguise.\u00a0 I urge readers especially if they are law students to complete the task, and contribute something new and interesting to ongoing discussions of this seminal case.<\/p>\n

[1]<\/a> The judgment in H. K. D. Chandrasoma v. Mervai Senathirajah Secretary of the Ilankai Tamil Arasu Kadchi<\/em>, SC\/SPL\/03\/2014 (delivered on 4th<\/sup> August 2017) is available at www.supremecourt.lk<\/a><\/p>\n

[2]<\/a> Pages 9-10 of the judgment<\/p>\n

[3]<\/a> Oxford Law Dictionary, Oxford University Press, 2015<\/p>\n

[4]<\/a> Text of Address by R. Sampanthan at the 14th<\/sup> National Convention of ITAK in Batticaloa, 27th<\/sup> May 2012, www.dbsjeyaraj.com<\/a><\/p>\n

[5]<\/a> Ibid<\/p>\n

[6]<\/a> \u2018Towards a Desirable Legal Framework for Achieving National Reconciliation in Sri Lanka,\u2019 M. A. Sumanthiran, Bar Association of Sri Lanka Law Journal<\/em>, Vol. XXI, 2015, pages, 38-41, pg. 40.Ibid,<\/p>\n

[7]<\/a> Ibid<\/p>\n

[8]<\/a> Ibid<\/p>\n","protected":false},"excerpt":{"rendered":"

Dharshan Weerasekera, Attorney-at-Law [Author\u2019s note:\u00a0 The present paper is intended to be read with a previous paper of mine titled, \u2018H. K. D. Chandrasoma\u2019s Case:\u00a0 A Response to D. B. S. Jeyaraj,\u2019 published in lankaweb.\u00a0 For the convenience of readers that article is republished along with this one] On 21st August 2017, I published an […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12,100],"tags":[],"class_list":["post-69707","post","type-post","status-publish","format-standard","hentry","category-forum","category-new-constitution"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/69707","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=69707"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/69707\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=69707"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=69707"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=69707"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}