{"id":69709,"date":"2017-09-12T15:17:49","date_gmt":"2017-09-12T22:17:49","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=69709"},"modified":"2017-09-12T15:17:49","modified_gmt":"2017-09-12T22:17:49","slug":"h-k-d-chandrasomas-case-a-reply-to-d-b-s-jeyaraj-1","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2017\/09\/12\/h-k-d-chandrasomas-case-a-reply-to-d-b-s-jeyaraj-1\/","title":{"rendered":"H. K. D. Chandrasoma\u2019s Case: A Reply to D. B. S. Jeyaraj [1]"},"content":{"rendered":"

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

D. B. S. Jeyaraj, the LTTE propagandist sometimes also known to masquerade as a \u2018journalist,\u2019 has written a lengthy commentary on the judgment in H. K. D. Chandrasoma\u2019s case, published in the Daily Mirror<\/em> of 19th<\/sup> August 2017 and titled, \u2018Federalism is not Separatism, rules the Supreme Court.\u2019<\/p>\n

As far as I understand it, Mr. Jeyaraj\u2019s argument is that the judgment is important because of two reasons:\u00a0 first, it has definitively established that the Illangai Tamil Arasu Kadchi (ITAK) political party is not a separatist party, and second, to advocate for federalism in Sri Lanka is not the equivalent of advocating for separatism. \u00a0He goes on to say that the SC has given the ITAK a \u2018clean chit.\u2019<\/p>\n

If Chandrasoma had won the case, the ITAK would have been proscribed as a separatist party, which means that R. Sampanthan, M. A. Sumanthiran, C.V. Wigneswaran, and a host of lesser lights in the TNA elected to the Parliament or to Provincial Councils under the ITAK banner will have immediately lost their jobs.\u00a0 So in that sense they dodged a bullet, and the likes of Jeyaraj and others are probably breathing a sigh of relief.<\/p>\n

As Counsel for Chandrasoma, I have certain insights into the case that I hope will contribute to a more robust and meaningful public discussion of this important case.\u00a0 I shall briefly discuss four issues:\u00a0 one, why Chandrasoma filed the case; two, some salient facts about the background to the 6th<\/sup> Amendment; three, the Petitioner\u2019s main argument and the court\u2019s responses to them (i.e. the essence of the judgment); and finally, why I think the judgment is important for our times.<\/p>\n

The reason for filing the case<\/strong><\/p>\n

As much as I understand it, Chandrasoma\u2019s fear \u2013 and I think it is a fear shared by many other Sinhalas not just the nationalists \u2013 is that the TNA, ITAK and their assorted allies are laying the legal groundwork for a future unilateral secession either through a referendum held just for the residents of the North and East, or by a unilateral declaration of independence by a Provincial Government or an independent group operating within such a province (we can call this later the \u2018Kosovo method.\u2019)<\/p>\n

My instructions were to explore legal means of preventing such an eventuality.\u00a0 We decided to go with the 6th<\/sup> Amendment to the Constitution, because it had never been interpreted in its 35-year existence.\u00a0 Win or lose, at the end of the case there was going to be an interpretation of the 6th<\/sup> Amendment, and that was going to be an advancement<\/em> of the law.\u00a0 Now, we do have such an interpretation.<\/p>\n

The background to the 6th<\/sup> Amendment <\/strong><\/p>\n

The 6th<\/sup> Amendment to our Constitution is almost a word for word replication of India\u2019s Unlawful Activities Prevention Act of 1967, enacted to combat secessionist and separatist movements.\u00a0 The difference between the Indian version and our own is that in India the action is filed at the High Court, whereas in our country the action is filed in the Supreme Court.<\/p>\n

The advantage in the Indian version is that if the respondent is found guilty he has a chance to appeal, whereas with us, there is no such option.\u00a0 (In my view, this is a weakness in our law that needs to be addressed, but in any event the petitioner resorted to the law he had in hand.)<\/p>\n

The point is that, the Indians have been making vigorous use of their law, unlike in our country, and in fact the Indian Parliament has seen fit to amend the Act six times since `1967, each time making it more rigorous.\u00a0 There is a rich body of Indian case law which has interpreted the Act and its uses over the years.<\/p>\n

In my view, the above facts reveal two things:\u00a0 first, the Indian Parliament plus the courts have considered that the Unlawful Activities Prevention Act is an effective means of combating secessionism and separatism in that country, and two, that perhaps given a federal system such as what the Indians have, coupled with the realities of communalism which are an integral part of Indian politics, a device such as the UAPA is essential<\/em> in order to maintain the territorial integrity of the country in the long run.<\/p>\n

Since Sri Lanka has adopted key elements of the Indian federal system with the 13th<\/sup> Amendment, Sri Lanka has important lessons to learn from the above two points, especially with respect to using the 6th<\/sup> Amendment.\u00a0 By facilitating an interpretation of the 6th<\/sup> Amendment, Chandrasoma has made it possible for other concerned citizens to resort to this provision more easily.<\/p>\n

The Petitioner\u2019s main arguments \u00a0<\/strong><\/p>\n

The Petitioner\u2019s claim was that explicit statements in the ITAK\u2019s Constitution plus reasonable inferences that can be drawn from relevant passages in that document indicate that the arrangement of government the ITAK is seeking is that of a \u2018Confederation,\u2019 and that, since a \u2018Confederation\u2019 by definition involves a union of sovereign states, ITAK seeks is to establish such a sovereign state, namely, Tamil Eelam.<\/p>\n

The Petitioner relied on three arguments in order to support the above claim:\u00a0 first, an Amendment to the ITAK Constitution in 2008, which substituted the word \u2018Innaipachi\u2019 for the word \u2018Samasthi\u2019 with reference to the type of government what the ITAK is seeking.\u00a0 It is not in dispute that the Sanskrit work \u2018Samasthi\u2019 means \u2018federal.\u2019\u00a0 Chandrasoma\u2019s claim was that the word \u2018Innaipachi,\u2019 read in the context of certain ideas and concepts contained in the relevant passage, can only mean \u2018Confederation.\u2019<\/p>\n

Second, in its passage on \u2018aims and objects\u2019 the ITAK asserts that the Tamils of Sri Lanka have a right to self-determination under international law.\u00a0 Chandrasoma\u2019s claim was that, a right to self-determination is only claimed by people who want to liberate themselves from another people or a country, such as in the case of colonial occupation.\u00a0 Therefore, to assert a right to self-determination indicates that the ITAK harbours an intention of separating from the Sinhalas and the rest of Sri Lanka, and this in turn indicates they have an intention of setting up a separate state.<\/p>\n

Third and finally, the Petitioner focused on \u2018Rule 17\u2019 of the Amendment to the ITAK\u2019s Constitution where ITAK unambiguously endorses \u2018all resolutions and actions taken by the Tamil United Liberation Front and the Illankai Tamil Arasu Kadchi from 14th<\/sup> May 1976.\u2019\u00a0 It is not in dispute that the Vaddukodai Declaration, a seminal separatist document (among other things it was considered by Vellupillai Prabakaran as giving him a mandate for his actions) was signed by the TULF on 14th<\/sup> May 1976.<\/p>\n

So, Chandrasoma\u2019s claim was that, the fact that the ITAK has endorsed all TULF resolutions going back specifically to 14th<\/sup> May 1976 means that ITAK has unmistakably endorsed the Vaddukoddai Resolution, which indicates that it continues to harbour separatist intentions.<\/p>\n

What does the court say to these charges?\u00a0 On the first count, the court says that the change in words from \u2018Samasthi\u2019 to \u2018Innaipachi\u2019 does not connote a change in meaning or objective, and that what ITAK had done was to substitute for a Sanskrit word a pure Tamil word of equivalent meaning.\u00a0 The court pointed out that ITAK had made such substitutions in a number of other places in the Constitution also.<\/p>\n

On the second count, court says that \u2018self-determination\u2019 has an internal dimension, and that the fact that someone asserts \u2018self-determination,\u2019 does not necessarily mean they harbor an intention to secede, but could mean that they wish to gain more power for themselves within<\/em> the existing system.\u00a0 Such an ambition cannot be considered as amounting to a separatist intention.<\/p>\n

On the third count, court says that, because the Petitioner had not listed the TULF as a Respondent, and it was the TULF that had originally signed the Vadukoddai Declaration, the fact that the ITAK has endorsed all resolutions and acts of the TULF going back to 14th<\/sup> May 1976 is irrelevant for purposes of the present case.<\/p>\n

It is an astute point, because it is possible that the TULF, between 1976 and 2008, adopted a resolution renouncing the Vaddukodai Declaration, in which case the ITAK would necessarily have endorsed such resolution also, as per \u2018Rule 17\u2019 of its Constitution.<\/p>\n

Such then is the judgment.\u00a0 All in all, it is a balanced and well-reasoned judgment and far be it for me to criticize it.\u00a0 I shall now turn to the reasons that I think the judgment is especially important for our times.<\/p>\n

The reasons that make the judgment important<\/strong><\/p>\n

I shall discuss two reasons.\u00a0 First, the court sets out certain principles relating to the definition of \u2018federalism.\u2019 The court bases its discussion on the dictionary-definition of \u2018federalism,\u2019 and compliments that by referring to certain observations of Chief Justice Sharvananda from the judgment in the 13th<\/sup> Amendment case.<\/p>\n

The conclusion of the court, which is an amalgamation of the aforesaid dictionary-definition plus CJ Sharvananda\u2019s observations is that the terms \u2018Unitary\u2019 and \u2018Federal\u2019 are misleading (i.e. there can be unitary elements in a federal system and vice versa) but the fundamental juxtaposition is between unitary\/federal on the one hand and \u2018Confederation\u2019 on the other.\u00a0\u00a0 The key passage with respect to this is as follows:<\/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

To the best of my knowledge, this is the first time that a Sri Lankan court has explicitly articulated the above point, and it has profound ramifications, particularly to ongoing discussions about devolution of power to the Provinces.<\/p>\n

To digress a moment, as a general matter, to my knowledge all hitherto discussions of federalism in this country have been based on definitions proffered by various academics, public intellections and suchlike pundits, and the common element in these definitions is that they see federalism as being part of a single continuum<\/em>, with \u2018Unitary\u2019 at one extreme end of it and \u2018Confederation\u2019 at the other.<\/p>\n

Under the aforesaid definitions, it is possible to interpret federalism as permitting an arrangement where the central government and the peripheral units are equals, or co-equals<\/em>, \u2018supreme within their own spheres of influence.\u2019<\/p>\n

What the court has done with Chandrasoma\u2019s judgment is to put an end to the aforesaid speculations.\u00a0 The court has established that the valid definition of \u2018federalism\u2019 at least in terms of its application in Sri Lanka is the dictionary-definition (which is also the classical definition of the concept \u2018federalism\u2019), where the fundamental dichotomy is between federalism on the one side and confederation on the other.<\/p>\n

Furthermore, by relying on CJ Sharvananda\u2019s observations in the 13th<\/sup> Amendment judgment, the court has identified the distinctive element that turns a federal system into a confederation, to wit:\u00a0 it is division of sovereignty.\u00a0 Court cites with approval the following passage from the CJ Sharvananda\u2019s judgment in the 13th<\/sup> Amendment case:<\/p>\n

\u2018In 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

To repeat, the distinctive characteristic of the existing system of government in Sri Lanka, whether we wish to call it \u2018Unitary\u2019 or \u2018Unitary\/Federal,\u2019 is undivided sovereignty<\/em>. The practical manifestation of this in terms of the distribution of powers between the center and the provinces is that, no matter how much power may be devolved to the provinces, the center must always retain the power to keep the provinces under control, which necessarily includes the capacity to take back the powers of the provinces if needed.<\/p>\n

It follows from the aforesaid that if an attempt is made to dilute the powers of the center to an extent where the center can no longer exert effective control over the provinces, such an attempt cannot be justified as an attempt to enhance or further federalism: it is instead an attempt to break out of the federal model and pursue a confederation.<\/p>\n

The importance of Chandrasoma\u2019s case is that the aforesaid ideas have now become a part of the constitutional jurisprudence of Sri Lanka.\u00a0 What are the ramifications of this?\u00a0 I\u2019ll just explain three lasting ramifications.<\/p>\n

First, ITAK is permitted to advocate for \u2018federalism,\u2019 but only within<\/em> the \u2018existing system,\u2019 which is to say, the unitary\/federal model as now defined by court.\u00a0 In such a system, there is a distinct limit to the amount of power that can be devolved to the peripheral units, and that limit \u2013 the red-line, as it were \u2013 is where the centre loses the capacity to impose effective control over the peripheral units, including to take back at its discretion the powers devolved to the units.<\/p>\n

Second, under the definition of \u2018federalism\u2019 set out by the court, a right to external self-determination does not exist in our country for people dissatisfied for whatever reason with the amount<\/em> of power devolved to the Provinces.\u00a0 They must adjust their own demands and expectations and function within the parameters of the existing system.\u00a0 Court confirms this by citing with approval the famous ruling of the Canadian Supreme Court in Reference re Secession of Quebec.<\/em> \u00a0\u00a0Court specifically cites the following passage from the aforesaid judgment:<\/p>\n

\u2018The Court was also required to consider whether a right to unilateral secession exists under international law\u2026.a right to secession only arises under the principle of self-determination of people at international law where \u2018a people\u2019 is governed as part of a colonial empire, where \u2018a people\u2019 is subject to alien subjugation, domination or exploitation, and possibly where a \u2018people\u2019 is denied any meaningful exercise of its rights of self-determination within the state of which they are a part.\u00a0 In other circumstances peoples are expected to achieve self-determination within the framework of their existing state.\u00a0 A state whose government represents the whole of the people or peoples resident within its territory, on the basis of equality and without discrimination and respects the principle of self-determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states.\u2019\u00a0 (p. 16)<\/p>\n

Since the Tamils of Sri Lanka are not under colonial occupation, or under \u2018alien subjugation and domination,\u2019 and furthermore, since the democratic rights of Tamils are respected \u2013 as evidenced by the fact that members of ITAK are in Parliament and in Provincial Councils \u2013 the ITAK cannot claim that the Tamils of Sri Lanka have a right to external<\/em> self-determination under international law.<\/p>\n

The judgment in Chandrasoma\u2019s case now makes it easier to make the above case before the international community, because it has clarified what the \u2018existing system\u2019 is.\u00a0 Also, it opens the way for opponents of devolution \u2013 not just of further devolution but even of the amount of devolution that has been affected so far (i.e. under the 13th<\/sup> Amendment)- to say something like this:<\/p>\n

\u2018If what ITAK wants is more power or autonomy for Tamils, and a unitary\/federal system allows for devolution of powers as long as the Center retains the unshakeable capacity to control the Provinces effectively including to withdraw the powers given to the Provinces, let\u2019s have such a system, but let the unit<\/em> of devolution be something other than the Province, say, the District.\u2019<\/p>\n

ITAK, and all other \u2018federalists\u2019 in this country, will have to give a reasonable reply to a query such as the above, especially if it is asked in the international arena.\u00a0 And until such an answer is given, they will find it difficult to advance any arguments about the purported right of Tamils in this country to external<\/em> self-determination under international law.<\/p>\n

Third, if it had been the idea of the TNA, the ITAK and their assorted allies to permit the word \u2018Unitary\u2019 to remain in the Constitution, but bring in constitutional changes that diluted the powers of the center over the periphery to an extent where the center can no longer effectively control the actions of the Provincial Governments \u2013 for instance by curtailing the powers of the President over the Provincial Governor or by eliminating the concurrent list –\u00a0 without subjecting the related constitutional amendment to a referendum, such a thing is no longer possible.<\/p>\n

Now that the meaning of \u2018federalism\u2019 has been clarified with respect to its defining characteristic, no matter what one calls the resulting form of government, if there\u2019s a reduction or a change in the power of the Centre vis a vis<\/em> the Provinces, the issue of whether there\u2019s the potential for that change to result in a division of sovereignty arises.<\/p>\n

Sovereignty, as everyone knows, is a matter that comes under Article 3 of the Constitution, long recognized as the very backbone of the Constitution, and one of the Articles that automatically requires a referendum in order to amend.<\/p>\n

Therefore, if an attempt is made to sneak in constitutional changes that dilute the power of the Centre vis a vis<\/em> the Provinces by relying solely on a two-third majority in Parliament, now there\u2019s a chance to challenge the related Bill under Article 3 of\u00a0 the Constitution, and seek a referendum.\u00a0 That is a huge advantage for the People at this moment.<\/p>\n

Finally, the important point about Chandrasoma\u2019s case is that in the course of it Court ordered an English translation of the ITAK Constitution to be produced by the Department of Official Languages.\u00a0 To the best of my knowledge this is the only such official translation of the document because the version in the Elections Commissions\u2019 office is in Tamil.<\/p>\n

As already mentioned, in \u2018Rule 17\u2019 of the Amendment to the ITAK Constitution in 2008, it explicitly states that ITAK endorses all resolutions and acts of the TULF going back to 14th<\/sup> May 1976.\u00a0 That means ITAK endorses the Vaddukoddai Declaration, an indisputably separatist document, unless in the time between 1976 and 2008 the TULF has passed a resolution renouncing the said Declaration.<\/p>\n

In Chandrasoma\u2019s case, the court deemed the above fact irrelevant, and for good reason.\u00a0 However, the fact that ITAK has endorsed the resolutions and acts of the TULF going back to 14th<\/sup> May 1976 is now in the public domain, thanks to Chandrasoma.\u00a0 All that is required is for a civic-minded Sri Lankan to re-file an application \u00a0against the ITAK solely on \u2018Rule 17\u2019 of its Constitution, and this time list the TULF as a respondent also, and then let them come before court and explain themselves.<\/p>\n

To the best of my knowledge, the TULF has now renounced the Vaddukoddai Declaration.\u00a0 So, all they have to do is get on the stand (figuratively speaking) and say so.\u00a0 In that event, the ITAK is caught, well and good.\u00a0\u00a0 Meanwhile, if ITAK tries to amend its Amendment and belatedly renounce the \u2018VD,\u2019 they\u2019ll be caught inter alia<\/em> under Section 8(2)(f) of the Evidence Ordinance (\u2018subsequent conduct\u2019).\u00a0 So, they are stuck.<\/p>\n

In short, if the ITAK thought that with Chandrasoma\u2019s case they were rid of a headache, they are mistaken.\u00a0 It may well be that, their troubles \u2013 or rather the real \u2018fun\u2019 – is just beginning.<\/p>\n

[1]<\/a> A version of this paper was published in lankaweb<\/em> on 21st<\/sup> August 2017.<\/p>\n","protected":false},"excerpt":{"rendered":"

Dharshan Weerasekera, Attorney-at-law D. B. S. Jeyaraj, the LTTE propagandist sometimes also known to masquerade as a \u2018journalist,\u2019 has written a lengthy commentary on the judgment in H. K. D. Chandrasoma\u2019s case, published in the Daily Mirror of 19th August 2017 and titled, \u2018Federalism is not Separatism, rules the Supreme Court.\u2019 As far as I […]<\/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-69709","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\/69709","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=69709"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/69709\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=69709"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=69709"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=69709"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}