Dharshan Weerasekera, Attorney-at-Law

[Author’s note:  The present paper is intended to be read with a previous paper of mine titled, ‘H. K. D. Chandrasoma’s Case:  A Response to D. B. S. Jeyaraj,’ published in lankaweb.  For the convenience of readers that article is republished along with this one]

On 21^st August 2017, I published an article in lankaweb titled, ‘H. K. D. Chandrasoma’s case:  A Response to D. B. S. Jeyaraj,’ in which I endeavored to explain why Chandrasoma filed the case, his main claims against ITAK, the court’s answers to those claims, and finally, the aspects of the judgment that I considered to be of seminal importance to the country.[1]

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 ‘federalism’ 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.

In the past 2-3 weeks, I have read in the local papers at least two articles that have commented on Chandrasoma’s case, in particular comparing and contrasting the court’s definition of ‘federalism’ with other definitions given by various academics and scholars.  In my view, the writers of these articles are engaging in a futile exercise, because of the following reasons.

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).  If there is, say, a future challenge to a constitutional amendment where the definition of ‘federalism’ is a significant factor, our judges will give priority to the definitions generated by fellow judges on the bench.

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.

In this paper, I shall briefly discuss three matters.  First, explain again what I consider to be the court’s definition of ‘federalism’; 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 ‘devolution’ as a means of providing a ‘political settlement’ to the Tamils.

The Definition of ‘federalism’

The definition of ‘federalism’ that the court presents in Chandrasoma’s case is based on two things:  the dictionary definition of the word, supplemented by a key portion of Chief Justice Sharvananda’s judgment in the 13^th Amendment to the Constitution.  For the dictionary-definition, court has relied on the definition in Black’s law Dictionary, an authoritative source for lawyers.

However, it is possible that a lay-reader might object to this by saying that, as far as he or she is concerned Black’s Law Dictionary does not carry any special authority.  I emphasize that, the definition of ‘federalism’ 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 ‘federalism’ found in the Oxford Law Dictionary, right after quoting from Black’s.

The following is the definition of ‘Federal Government’ found in Black’s Law Dictionary (6^th Edition) relied on by court:

‘The system of government administered in a nation formed by a union or confederation of several independent States.’

‘In strict usage, there is a distinction between a confederation and a federal government.  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.  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.  In a Federal Government, 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—while 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 ‘Staatenbund’ and ‘Bundesstaat’; 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.’[2]

The following is the definition of ‘Federal State’ given in the Oxford Law Dictionary:

‘Federal State:  A State formed by the amalgamation or union of previously autonomous or independent States.  A newly created federal state is constitutionally granted direct power over the subjects or citizens of the formerly independent states.  As such, the new federal state becomes a single composite international legal person.  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.  Examples of Federal States include the USA and Switzerland.  COMPARE Confederation.’[3]

From both sets of quotes, it is clear that  the 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, ‘Those former entities that comprise it have consented to subsume their former sovereignty into that of the Federal State).

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.  Similarly, in a federal union a peripheral units cannot persist in acting contrary to the wishes of the center – 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.

I shall now turn to the second component of the court’s discussion of ‘federalism,’ where the court relies on a key portion from Chief Justice Sharvananda’s judgment in the 13^th Amendment to the Constitution (1987 2 SLR 319).  The court explicitly refers to the following remarks of CJ Sharvananda from the judgment in the 13^th Amendment case:

‘The term ‘Unitary’ in Article 2 is used in contradistinction to the term ‘Federal,’ which means an association of semi-autonomous units with a distribution of sovereign powers between the units and the center.  In a Unitary State the national government is legally supreme over all other levels.   The essence of a Unitary State is that sovereignty is undivided – in other words, that the powers of the central government are unrestricted.  The two essential qualities of a Unitary State are 1) the supremacy of the central Parliament and 2) the absence of subsidiary sovereign bodies.  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.’  (page 10)

I draw the attention of the reader to the first sentence in the above passage, to wit;  ‘The term ‘Unitary’ in Article  2 is used in contradistinction to the term ‘Federal,’ which means an association of semi-autonomous units with a distribution of sovereign powers between the units and the center.’  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.  I shall explain the implications of this point in a moment.

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 –Periphery relations, and also UNHRC resolution 30/1.

The general ramifications of the Chandrasoma judgment to discussions of devolution in Sri Lanka

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.  The courts says:

‘It is established that there is a clear distinction between the 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….The labeling 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 more 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 power to 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.’ (page 17)

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

‘The Republic of Sri Lanka is a Unitary State’

Nowhere in the Constitution is the term ‘Unitary’ defined.  For instance, there is no interpretation clause which defines that term.  [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 ‘Unitary State’ when he first introduced the ’78 Constitution.  For one thing, it would have prevented the lingering controversy over the passing of the 13^th amendment, i.e. whether or not it required a referendum.  But all that is beside the point]

The point is this.  Because there is no definition for ‘Unitary’ 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 13^th Amendment judgment, quoted earlier.  (This is because of the operation of the maxim, ‘An interpretation of the law obtains the force of law,’ and C. J. Sharvananda’s definition has not been rejected or modified in any way by our courts in subsequent years.)

The problem is that, the 13^th Amendment has undoubtedly diluted the power of the central government, and CJ Sharvananda’s definition permits such dilution subject to the condition that there can never be a division of sovereignty.  Unfortunately, this situation has provided an opening for the Eelamists.  As long as the term ‘Federal State’ or ‘federalism’ was left undefined by our courts, C. J. Sharvananda’s definition of ‘Unitary State’ permitted the Eelamists to say something like this:
‘Under the ‘Unitary’ system of Sri Lanka as defined by our own courts, devolution of power is permitted.  A ‘Federal State’ is also an arrangement of government which permits a devolution of power on a sliding scale, that is, in some ‘Federal States’ 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.  We advocate a ‘Federal’ system of government for Sri Lanka, and we are not doing anything wrong, because all we are asking for is just more devolution of power.’

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.  The following is what Mr. Sampanthan said in the course of an important speech in 2012, at the 14^th National Convention of the ITAK in Batticaloa:

‘Our 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.  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.’[4]

‘The 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.  We must have unrestricted authority to govern our own land, protect our own people, and develop our own economy, culture and tradition.  Powers must be allocated under this structure based on the understanding that meaningful devolution should go beyond the 13^th Amendment to the Constitution passed in 1987. This position has been accepted by our party.  Our acceptance of his position does not mean that we consider the 13^th 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.  It only means that this is the only realistic solution today.’[5]

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

‘In 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.’[6]

‘Thus, the list of subjects for the Centre should be limited to matters that are ‘national’ in nature—matters 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.’[7]

‘All other powers must be exercised by the provinces.  This must include exclusive powers over land, development, health and education.’[8]

There are two key elements in what both the aforesaid Eelamists are saying:  first, they consider that the amount or extent of devolution is a matter to be determined by the people demanding such devolution – in this case the Eelamists themselves – 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 ‘equal,’ i.e. ‘Supreme within their respective spheres of competence.’

It should be noted that, the aforesaid idea is entirely contrary to the definition of ‘federalism’ accepted by most people including the dictionaries.  Recall that, according to the dictionary-definition of ‘federalism,’ 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.

We thus come to the judgment in Chandrasoma’s case.  I shall specify three important ways in which it impacts discussions over devolution in this country.  First, the court has taken judicial notice of the fact that as a result of the 13^th Amendment we now have a federal arrangement of government, or at any rate that what we like to think of as a ‘unitary’ system has in reality incorporated significant federal elements.

The court, however, has defined ‘federalism,’ so it is no longer possible for the Eelamists to promote schemes of devolution (which the Eelamists call ‘federal’) but which are entirely contrary to what most people including the dictionaries understand by the word ‘federal.’  According to the definition of ‘federal government’ 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.

So, ideas such as those being peddled by the likes of Mssrs. Sampanthan and Sumanthiran, to wit:  that they want ‘all the powers of government needed to live with self respect and self-sufficiency,’ that, ‘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,’ and so on, can no longer be presented as if those ideas were federal ideas.

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.  In either a Federal State as defined by the dictionaries, or a ‘Unitary State’ as defined by C. J. Sharvananda, the system 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.

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.  It is worth repeating the key portion of that paragraph.  Court says:

‘The Thirteenth Amendment to the Constitution devolved power to 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.’

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

It must be emphasized that, the court does not say, ‘ITAK is advocating for a federalist form of government within the framework of a united and undivided Sri Lanka.’  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.

What is the definition of a ‘Unitary State,’ valid for our Constitution?  As already explained, it is the definition given by C. J. Sharvananda, quoted earlier.  So, from now on, whatever the Eelamists choose to call the system of government they prefer for our country, in its substance 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.

In my view, on each of the aforesaid points, the court has dealt a deathblow to the ambitions of the Eelamists.   All that remains is for me to explain the specific ramifications of the judgment to, one, the Subcommittee report on Center – Periphery relations tabled in November 2016, and Paragraph 16 of UNHRC resolution 30/1, which also calls on the GOSL to reach a ‘political settlement’ with the Tamils by devolving more power to the Provinces.

Unfortunately, the constraints of time prevent me from taking up this matter at this moment.  I shall try to take it up in a future paper.  However, this may be a blessing in disguise.  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.

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

[2] Pages 9-10 of the judgment

[3] Oxford Law Dictionary, Oxford University Press, 2015

[4] Text of Address by R. Sampanthan at the 14^th National Convention of ITAK in Batticaloa, 27^th May 2012, www.dbsjeyaraj.com

[5] Ibid

[6] ‘Towards a Desirable Legal Framework for Achieving National Reconciliation in Sri Lanka,’ M. A. Sumanthiran, Bar Association of Sri Lanka Law Journal, Vol. XXI, 2015, pages, 38-41, pg. 40.Ibid,

[7] Ibid

[8] Ibid