Dharshan Weerasekera, Attorney-at-Law

[Author’s note:  A portion of the present paper was presented at a side-event during the recently concluded 37^th Session of the United Nations Human Rights Council in Geneva]

On 9^th March 2016, the Parliament of Sri Lanka converted itself by resolution[1] into a Constitutional Assembly in order to draft a new Constitution or to amend the present Constitution to a degree that for all practical purposes would turn it into a new Constitution.  The constitution-making process thus begun is now in its final stages.

According to the framework resolution, the final two steps of the constitution-making process is, one, for the Constitutional Steering Committee after consulting the various reports of the Subcommittees on Constitutional Reform to produce an Interim Report[2] (hereinafter ‘IR’), and two, if Parliament approves the Interim Report, to produce a final report and/or a constitutional proposal.  If Parliament approves the final report or the constitutional proposal by a 2/3 majority, it is to be put to a referendum of the People.

Since March 2016 if not earlier, many Sri Lankans particularly Sinhalas argued that the present Parliament lacks a mandate to bring a new Constitution.[3]  But, they had no way to prove their claims, because the only way to do so was with an election and the Government kept postponing elections for two years.[4]  The Government finally relented and held local government elections on 10^th February 2018.

The results of those elections provide the clearest possible evidence that the vast majority of the people disapprove of the Government’s conduct over the past years.  More important, they show that voters who voted for the United Peoples Freedom Alliance (UPFA) at the 2015 General Elections did not authorize their candidates, in the event they lost, to join with the United National Party (UNP) and form a ‘National Government.’ [5]

Not surprisingly, the results of the LG polls put the brakes on the Government’s rush to bring the new Constitution.  However, there is a grave danger that the Government will survive its present ‘crisis of credibility’ or reconfigure itself into a different coalition – which like the present coalition does not enjoy the support of the people but commands a 2/3 majority in Parliament – and using such majority undertake a renewed push for the new Constitution, or at any rate the main proposals of the IR.

This danger is made more acute because of two reasons.  First, key factions in the Government including the official opposition have made it known that they want a new Constitution enacted as soon as possible, and they expect such Constitution to be based on the IR.  For instance, R. Sampanthan, the Leader of the Opposition, is on record as telling the representative of the European Union in Sri Lanka:

‘Soon after the local government elections the process must be expedited and the draft Constitution must be submitted to Parliament and eventually it must be approved by the people at a referendum’[6]

(Since there is no ‘draft Constitution’ at least as far as is known to the general public, and the last document that the Steering Committee presented to Parliament is the IR, what Sampanthan must mean by ‘draft Constitution’ has to be either the IR, or a constitutional proposal based on the IR.)

Second, the international community, especially the United Nations High Commissioner for Human Rights – who has been promoting constitutional reform in Sri Lanka for the past few years – has publicly commended the IR, which means that if there is a renewed push by the Government to bring the new Constitution, it will most probably be based on the IR.

For instance, the High Commissioner in his report A/HRC/37/23 to the Human Rights Council in February 2018 (the report updates the Council on Sri Lanka’s implementation of 30/1 of October 2015) says inter alia:

‘On 21^st September 2017, the Prime Minister presented the interim report of the Steering Committee on Constitutional Reform.  This is a step towards the implementation of commitments under resolution 30/1 ‘on the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population.’[7]

It is essential that Sri Lankans especially Sinhalas study the IR carefully in order to understand exactly what was about to happen to them, indeed might still happen to them.

To the best of my knowledge, a systematic analysis of the IR has not been done thus far.  For instance, during the 3-day Parliamentary ‘debate’ on the IR in mid-December 2017 the official opposition supported the IR.

Meanwhile, even where parties disagreed with the IR, they did so only with respect to particular clauses, and confined their arguments to making various counter-proposals that they felt would be more palatable to their voters.  They did not go into the intrinsic merits (or demerits) of the IR’s proposals.[8]  The purpose of the present paper is to provide a paragraph-by-paragraph analysis of a number of the IR’s key proposals.  I discuss three of the most blatant problems with the IR, to wit:

• With its recommendations for changing Article 2 of the present Constitution – i.e. that the term ‘Unitary’ be replaced by ‘aekiya rajyaya/orumiththa nadu’ – the IR does not identify a problem or problems that the proposed change is expected to rectify, and this makes it impossible for anyone to assess the efficacy of the purported solution. Notwithstanding the aforesaid prolem, indeed independently of it, the IR’s argument as to why Sri Lanka should be turned into an ‘aekiya rajyaya/orumiththa Nadu’ considered purely in terms of the logic and facts offered in support of it, is patently absurd and sophomoric.
• With its recommendations on maximizing devolution of power to the provinces, the IR says that it is guided solely by the ‘Principle of Subsidiarity.’ However, he Principle of Subsidiarity is a principle for distribution of powers between the center and peripheral units that is ideal for a confederation.  For instance, the best known application of the Principle at present is in the Maarstricht Treaty which established the European Union.  The EU is in essence a confederation.[9]  So, what is intended through the proposed Constitution is to turn Sri Lanka into a confederation consisting of the nine designated Provinces, something for which the Government does not have a mandate from the people, especially the Sinhalas.
• The recommendation that the Principle of Subsidiarity guide devolution, in conjunction with the recommendations on the proposed senate, plus the recommendation to abolish the Concurrent List, create a situation or the potential for a situation where the Tamils can consolidate power in the Northern Province, and at a time of their choosing issue a Unilateral Declaration of Independence and have it recognized by segments of the international community in a manner similar to what happened in Kosovo. (The tactic used in Kosovo was subsequently approved if not condoned by a ruling of the International Court of Justice.)[10]  In short, the new Constitution will put in place the irrevocable legal conditions for a future secession of the Northern Province of Sri Lanka, with the members of the majority community in the island, who also have moral and historical rights in the said Province, having little or no say in the matter.

The paper is intended mainly for Sri Lankans, but is relevant to international readers as well, especially persons connected with the Human Rights Council, because of the following reasons.  Article 21(3) of the Universal Declaration of Human Rights, which the Council is duty-bound to honour, states:

‘The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.’[11]

As explained earlier, the 10^th February LG polls have shown that the majority of Sri Lankans reject the ‘National Government.’  If the Government (with the assistance of the international community especially the Council) pushes through constitutional changes that the people do not want, and it results in violence and mayhem in the country, the Council must bare its share of moral and legal responsibility for such consequences.

• With its recommendations for changing Article 2 of the present Constitution the IR does not identify a problem that the proposed change is to rectify; independently of the aforesaid problem, the IR’s argument, both in logic as well as facts, is patently absurd

The IR, in essence, recommends that Article 1 be kept intact but Article 2 changed.  It wants to change Sri Lanka from a ‘Unitary State’ to something called an ‘aekiya rajyaya/orumiththa Nadu.’  The question that immediately arises is, ‘Why make such a change?

Article 1 of the present Constitution states:

‘Sri Lanka (Ceylon) is a Free, Sovereign, Independent and Democratic Socialist Republic and shall be known as the Democratic Socialist Republic of Sri Lanka.’[12]

Article 2 states:

‘The Republic of Sri Lanka is a Unitary State’[13]

If someone wants to change Sri Lanka from a ‘Unitary State’ to an ‘aekiya rajyaya/orumithatha nadu’ (whatever that might mean) it must be because they consider that this country has some want or need that the ‘Unitary’ form of government cannot provide but the ‘aekiya rajyaya/orumiththa nadu’ form can.  So, what is the want or need – in a word the problem – that the ‘aekiya /orumiththa’ form is supposed to solve?

To the best of my knowledge, the IR does not articulate any such problem, which makes it impossible to assess the recommendation on its merits.  In my view, the aforesaid defect is fatal to the IR’s overall argument and one can dismiss it at this stage.

However, as I mentioned earlier, the IR’s argument considered purely on its own logic and facts, is patently absurd and sophomoric.  I shall turn to this matter in the present section.  I shall do two things:  i) quote the IR’s entire discussion for Articles 1 and 2 and the related recommendations, and ii) provide a brief analysis of the aforesaid paragraphs.

1. The IR’s words

The following is the IR’s entire discussion of Articles 1 and 2 of the present Constitution along with the proposed changes.  I have added capitalized letters in front for convenience.

• The President whilst speaking on the Resolution to set up the Constitutional Assembly stated that whilst people in the south were fearful of the word ‘federal,’ people in the north were fearful of the word ‘unitary.’ A Constitution is not a document that people should fear.
• The classical definition of the English term ‘unitary state’ has undergone change. In the United Kingdom, it is now possible for Northern Ireland and Scotland to move away from the union.  Therefore, the English term ‘Unitary State’ will not be appropriate for Sri Lanka.
• The Sinhala term ‘aekiya raajyaya’ best describes an undivided and indivisible country. The Tamil language equivalent of this is ‘orumiththa nadu.’

In these circumstances, the following formulation may be considered: 

• Sri Lanka (Ceylon) is a free, sovereign and independent Republic, which is an aekiya rajyaya/orumittha nadu, consiting of the institutions of the Centre and of the Provinces which shall exercise power as laid down in the Constitution.
• In this Article aekiya rajyaya/orumiththa nadu means a state which is undivided and indivisible, and in which the power to amend the Constitution, or to repeal and replace the Constitution, shall remain with the Parliament and the People of Sri Lanka as provided in this Constitution.[14]

1. ii) Analysis
2. Paragraph [A]

The problem with Paragraph [A] is that, without knowing why the word ‘unitary’ is feared in the North and the word ‘federal’ feared in the South, we cannot tell if the new term, ‘aekiya rajyaya/orumiththa nadu’ will not also create fear in either the North or the South.

For instance, if X is defined by attribute A (which attribute the North fears) and Y is defined by attribute B (which the South fears), and P is suggested as an alternative for A and B, without knowing if P contains either attributes A or B or both, it is impossible to evaluate whether P will in fact alleviate the fear of either the North or the South.

To use a more homely example, if  Anil fears the word ‘chocolate’ and Ranjith the word ‘honey,’ and someone suggests that the word ‘rasa-kevili’ be substituted to allay both Anil’s and Ranjith’s fears, without knowing why Anil fears the word ‘chocolate’ and Ranjith the word ‘honey,’ we cannot tell if they will also fear the word ‘rasa-kevili,’ in the event that the attribute in ‘chocolate’ or ‘honey’ that causes fear in Anil and Rankith respectively, is present in ‘rasa-kevili’ as well.

2. Paragraph [B]

There are two problems with Paragraph [B].  First, as I shall explain in a moment, the classical notion of a ‘Unitary State’ no longer applies to Sri Lanka, i.e. Sri Lanka has already moved away from it.  The fact that the UK may also have done so does not mean that Sri Lanka should follow a model of devolution to the same degree and manner as the UK has done.

Second, the examples of Northern Ireland and Scotland are irrelevant as far as considerations as to why more power should be devolved to the Provinces, especially the Northern Province, in Sri Lanka.  The conditions under which Northern Ireland and Scotland became part of the UK are quite different from those under which the various Provinces came into being in Sri Lanka.

The reasons and historical circumstances that might justify Northern Ireland and Scotland ‘moving away from the union,’ cannot be considered as justifying a similar attempt by the Provinces especially the Northern Province of Sri Lanka, which today is dominated by Tamils, but in which the Sinhalas have undisputed historical and moral rights.

2(a)   The ‘Classical definition of the English term, ‘Unitary State’ does not apply to the Sri Lanka Constitution

First, what is the ‘Classical definition of the English term ‘Unitary State’?’  How does one find the ‘classical definition’ of anything? I submit that, a reputed dictionary, lexicon or encyclopedia is a good place to start, because such sources usually provide definitions that have stood the test of time, that is, definitions that have been accepted by the native speakers of a language for long periods of time.

It is reasonable to suppose that, if the word in question is a technical term, the way that eminent practitioners of the related field have used or understood the term is also a good way to get at its ‘classical definition.’

I quote below the definition for the term ‘Unitary State (Government)’ found in, one, the Random House Dictionary, two, the Encyclopaedia Britannica, and finally, a discussion that appears in the draft minutes of the Union Constitutional Committee (India) of which the later Prime Minister of India Mr. Jawaharlal Nehru was the Chairman.

The Random House Dictionary:

‘Unitary (Govt.):  Of or pertaining to a system of government in which the executive, legislative and judicial powers of each state in a body of states are vested in a central authority.’[15]

The Encyclopedia Britannica:

‘Unitary system (Government):’ A system of political organization in which most or all of the governing power resides in a centralized government. It contrasts with a federal system.  In a unitary system the central government commonly delegates authority to sub-national units and channels policy decisions down to them for implementation. A majority of nation-states are unitary systems. They vary greatly. Great Britain, for example, decentralizes power in practice though not in constitutional principle. Others grant varying degrees of autonomy to sub-national units. In France, the classic example of a centralized administrative system, some members of local government are appointed by the central government, whereas others are elected. In the United States, all states have unitary governments with bicameral legislatures (except Nebraska, which has a unicameral legislature). Ultimately, all local governments in a unitary system are subject to a central authority.’[16]

Finally, the following comment is found in the draft minutes of the Union Constitution Committee (India) of a crucial meeting where the Committee discussed whether India was to be a Federal State or a Unitary State:

‘Pandit Nehru stated that the point [i.e. whether India should be a unitary State with provinces functioning as agents or delegates of the central authority, or a federation of autonomous units leaving certain specified powers to the centre] was discussed… and its conclusions were as follows:  1)  that the Constitution should be a Federal structure with a strong centre…etc., etc.’[17]

It is clear from the definitions above that, the classical definition of a ‘Unitary State’ is of a State where the Central Government or Parliament delegates authority to sub-national units, meaning that the sub-national units if such exist carry out the policies generated and framed ultimately by the central authority.  I assert that, the aforesaid definition does not apply to Article 2 of the Sri Lanka Constitution, because of the following reasons.

The Constitution itself does not have an interpretation clause that gives the meaning of ‘Unitary State’ that should apply to Article 2.  However, in the judgment in the 13^th Amendment to the Constitution, Chief Justice Sharvananda gave an interpretation that he considered much apply to Article 2, and that interpretation has been accepted by our courts to this day.

For instance, the Supreme Court, in the recent case, H. K. D. Chandrasoma v. Mervai Senathirajah and others (SC/SPL/03/2014) re-affirmed emphatically that the term ‘Unitary State’ must be understood exactly as Justice Sharvananda set out in the 13^th Amendment judgment.  The court repeated the relevant portion of the 13^th Amendment judgment, as follows:

‘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.’[18]

Therefore, the valid definition for the term ‘Unitary State’ as far as such term applies to Article 2 of the Sri Lanka Constitution is the aforesaid definition given in the 13^th Amendment judgment.  The reader will see that, the said definition is different from the generally accepted definition of that term found in reputed dictionaries, encyclopedias, and also as understood by reputed practitioners of Government such as Nehru.

To repeat, the generally accepted definition of ‘Unitary State’ is of a State where the central government delegates authority to sub-national units, whereas the way that the term is understood in Article 2 is of a State where the sub-national units have the power to generate policy and legislation over specified topics subject to the authority of the central government, i.e. where the central government is ‘legally supreme’ over the subsidiary units, and can override the policies and legislation of the latter if needed.

To explain this difference in a little more detail, and also why it is so important to Sri Lanka at the moment, it is necessary to discuss at some length the seminal case H.K. D. Chandrasoma v. Mervai Senathirajah referred to earlier.  I shall therefore turn to that task now.

1. K. D. Chandrasoma v. Mervai Senathirajah Secretary of the Illangai Tamil Arasu Kadchchi

For the convenience of readers who may be relatively unfamiliar with Sri Lankan constitutional jurisprudence especially interpretations of Article 2, I shall begin with the briefest possible introduction to the background to Chandrasoma’s case, i.e. the reasons that make the case important.

As explained earlier, the Sri Lanka Constitution does not have an interpretation clause that defines the term ‘Unitary State’ in Article 2.  Nevertheless, the judgment in the 13^th Amendment case has provided an interpretation for that term, an interpretation that has been accepted by our courts to this day.

The 13^th Amendment to the Constitution, enacted in 1987, instituted a system of Provincial Councils exercising limited legislative powers over certain specified subjects.  The Central Government is in overall control of the Provincial Governments, first through the powers of the Executive president, and ultimately through Parliament.  For instance, with a 2/3 majority and a referendum Parliament can abolish the Provincial Councils.

However, since the enactment of the 13^th Amendment there have been persons, especially Tamils, who have been demanding that more and more power be devolved to the Provinces.  They have justified these demands by claiming that all they are asking for is federalism or a federal form of government, which permits sharing of sovereignty between the Center and the Peripheral Units.

For nearly thirty years after the enactment of the 13A the Supreme Court of Sri Lanka did not define the term ‘federalism’ Because of this, it was possible for certain of the aforesaid persons to demand that the Central Government be weakened to an extent[19] where the Provinces would become virtually autonomous, including gain the right to unilateral secession, either by action of the Provincial Governments or a referendum held just for the residents of the Province seeking secession.

It is not in dispute that, under federalism or a federal government as that concept is generally understood, that is, the definition of federalism found in reputed dictionaries and commentaries by eminent practitioners of the art of government, the Provinces do not enjoy a right to unilateral secession.[20]

I now come to Chandrasoma’s case.  Chandrasoma filed action against the Illangai Tamil Arasu Kadchichi (ITAK) under the 6^th Amendment to the Constitution.  (Section 4 of the 6^th Amendment permits a Petitioner to petition court for a Declaration that a party or organization has separatist intentions.  The burden of proof is always on the accuser.  If  the court grants the Declaration certain consequences such as proscription follow for the impugned organization.)

In Chandrasoma’s case, court ruled that the Petitioner failed to prove that the phrases in the ITAK’s Constitution on which the Petitioner had relied to establish that ITAK harboured separatist intentions, in fact showed such intention, or at any rate that the phrases in question were susceptible of a more benign interpretation.   But, that is not important for purposes of the present discussion.  The case is of seminal importance regardless of the personal outcome for Chandrasoma, because of the following reasons.

First, to the best of my knowledge, for the first time in Sri Lankan constitutionalhistory, the Supreme Court gave an in-depth definition of the term ‘federal’ or ‘federal government’; second, the court took judicial notice of the fact that, as a result of the 13^th Amendment, Sri Lanka now has a federal form of government, or at any rate that the distinction between a ‘Unitary State’ and a ‘Federal State’ has been irrevocably blurred.

I shall do two things below.  First, present three definitions of the term ‘federal government’:  a) the Court’s definition, b) the definition found in the Oxford Law Dictionary, and c) a relevant discussion of the term in The Federalist Papers, universally acclaimed as the best commentary on the U.S. Constitution.[21]  Second, present the relevant quote where the court discusses the effect of the 13^th Amendment on the term ‘Unitary State’ in Article 2 of the Constitution.

With the first, I wish to highlight the principle of federalism that is now valid for purposes of Sri Lankan constitutional jurisprudence, and with the second, draw out the implications of the aforesaid principle to contemporary discussions of devolution of power in Sri Lanka.

The following is the court’s definition of ‘federal government,’ which is from Black’s Law Dictionary:

‘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.’[22]

The following is the definition for ‘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.’[23]

Finally, the following is a portion of a key discussion of federalism in the Federalist Papers, Federalist 15 to be exact, by Alexander Hamilton:

‘But if we are unwilling to be placed in this perilous situation [i.e. a confederation]; if we still will adhere to the design of a national government, or, which is the same thing, of a superintending power under the direction of a common council, we must resolve to incorporate into our plan those ingredients which may be considered as forming the characteristic difference between a league and a government:  we must extend the authority of the Union to the persons of the citizens – the only proper objects of government.’[24]

From the above quotes it is possible to extract the two defining characteristics of federalism:  first, in a federal government the power of the central government reaches to the individual citizens resident within the Provinces (whereas in a confederation such power reaches only to the Governments of the Provinces); and second, the central government is legally supreme over the peripheral units, which is to say, the central government can override the decisions of the Provincial legislatures if needed.

The reader will see that, the above point is exactly the one captured by Chief Justice Sharvananda’s definition of a ‘Unitary State,’ the key part of which, if I may repeat, states:

‘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.’[25]

I shall now turn to the crucial passage where the court discusses the effect of the 13^th Amendment on the definition of ‘Unitary State’ as that term is to be understood for purposes of Article 2 of the Constitution.  The court 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.’[26]

Note that, in the above the court first states, ‘It is established that there is a clear distinction between ‘federalism’ and ‘confederation.’

Second, the court states:  ‘the labeling of States as unitary and federal may be misleading.’  How is this possible, since Chief Justice Sharvananda specifically juxtaposes the terms ‘Unitary State’ and ‘Federal State’ in his definition of the former?

The court next states:  ‘The 13^th Amendment devolved power to the Provinces….Advocating for a federal form of government within the existing State [i.e. Unitary State] could not be considered as advocating separatism.’

Under the classical definition of ‘Unitary State’ where the central government delegates power to sub-national units, advocating for devolution of power to the sub-national units would be to go beyond the ‘existing State,’ whether or not that can be considered as separatism being a different question.  However, advocating for more devolution within an existing federal State is perfectly possible, under federalism or federal government  as classically defined.

Therefore, it is reasonable to suppose that, as the court sees it, as a result of 13^th Amendment, Sri Lanka is no longer a ‘Unitary State’ as classically defined, but rather a Federal State, or at any rate a State with federal attributes.  The crucial point is that, the relevant distinction as far as Sri Lanka is concerned is between ‘federalism’ and ‘confederation,’ not ‘unitary’ and ‘federal.’

I shall now turn to the implications of the above for contemporary discussions of devolution in Sri Lanka.  It is convenient to consider the implications for the Sinhalas and the Tamils separately.  The implications are as follows.  For the Sinhalas, if they want to go back to a Unitary State as that concept is understood in much of the rest of the world, they must repeal the 13^th Amendment.

For the Tamils, if they want more devolution, they can have it under the present system, but there is a limit, such limit being reached when the centre can no longer effectively control the Provinces.

The crucial point, the one that in my opinion makes Chandrasoma’s case so important, is that the ruling has affirmed that there is a natural limit to the amount of power that can be devolved under the existing system, and that such limit is ultimately determined not by the persons demanding devolution, but by the dynamics of the system itself.

It appears that, what the IR is attempting to do by replacing ‘Unitary State’ with ‘aekeeya rajyaya/orumiththa nadu’ in Article 2 is to remove the aforesaid limit, and give the Tamils (and whoever else wants to join them) a license to demand devolution to a degree that is not possible anywhere in the world even under a federal system!

To return to Paragraph [B], when it says that, ‘The classical definition of the English term ‘Unitary State’ has undergone change,’ implying that this warrants a drastic change in Sri Lanka’s posture towards devolution, it is doing so either in ignorance of, or in spite of, the aforesaid latest developments in Sri Lankan constitutional jurisprudence.  Both possibilities thoroughly discredit the IR’s argument.

2(b)   Northern Ireland and Scotland are irrelevant to discussions of devolution in Sri Lanka

I turn now to the second part of Paragraph [B], to wit, the IR’s suggestion that, because Northern Ireland and Scotland have begun to ‘move away’ from the union with England, Sri Lanka should also adopt a model of devolution that would permit similar conduct by its own Provinces.  As I said earlier, this part of the IR’s argument is also wrong.

The conditions under which Northern Ireland and Scotland united with England are quite different from the conditions under which the several Provinces were created in Sri Lanka, and the fact that the people of Northern Ireland and Scotland may have retained, or acquired, a right to secession does not mean that the residents of the several Provinces especially the Tamils in the Northern Province have also acquired such a right, or have the moral or historical claims to such a right.

In this section, I shall do two things:  first, briefly discuss the conditions under which Northern Ireland and Scotland united with England, and the legal and moral right of the people of people of Northern Ireland and Scotland, based on the circumstances of the aforesaid union with England, to demand secession if and when they desire it; I shall then contrast this with the situation of the Tamils in the Northern Province.

Second, I shall discuss the moral and historical rights of the Sinhalas to the Northern Province in order to bolster the argument that the Tamils in the Northern Province do not have an inherent right to secession in that Province, and to also point out that, on account of the moral and historical rights of the Sinhalas to the Northern Province, any further devolution of the Provinces especially the Northern must be halted until the right of return of the Sinhalas to that Province is recognized and honoured.

1. i) Northern Ireland and Scotland
2. Northern Ireland

The whole of Ireland came under English control as a result of the Act of Union of 1800.  However, in the late 1920’s, other than Northern Ireland, the rest of Ireland separated from England to become the Republic of Ireland.  Northern Ireland remained constitutionally connected to England.

It is impossible to discuss the relationship between Northern Ireland and England without at the same time considering the context in which that relationship has developed.  That context is the history of English domination and oppression of the Irish people during the period roughly spanning 1691 – 1914.[27]  During the aforesaid period, the English nobility worked hand in glove with the Irish nobility.

Northern Ireland became a hub and center of operations for the English.  Naturally, over the years the ‘native’ Irish who inhabited the region became close to the English, in language, religion and cultural habits.  For instance, the majority of Irish people are Catholic, whereas the people in Northern Ireland are Protestant.

To the best of my knowledge, the Northern Irish chose to remain constitutionally connected to England when the rest of Ireland became independent in the late 1920’s because of the aforesaid religious and cultural ties, and the fear that, were they to join the rest of Ireland, they would eventually be dominated by the Catholics.  But the Northern Irish are Irish people; their native country is Ireland, not England.

I do not see a similarity between the above situation and the situation of the Tamils in the Northern Province of Sri Lanka.  For there to be a similarity we would have to envision a situation such as the following.  Suppose India, a powerful neighbor, invades and occupies Sri Lanka for two hundred years, and in the process converts the residents of the Northern Province – be they Sinhalas, Tamils or Muslims – to Indian ways.

Suppose also that, when the rest of the island eventually gains independence, the Northerners choose to remain constitutionally connected to India.  Under those circumstances, no one will question the moral right of the Northerners, if at some point or other they decide to sever constitutional connections with India, and assert independence in their own country, or join with their brethren in such country who are already independent.

1. Scotland

Scotland united with England under the Act of Union of 1707.  Prior to that, Scotland was an independent sovereign State with its own Monarchy, Parliament and other institutions, many of which – particularly the Parliament – continued to function under the Act.

Since the Scottish people united with England of their own free will, no one can question their moral and legal right to sever constitutional connections with England if at some point they decide to do so.  And indeed, if I’m not mistaken the English have conceded this right, as demonstrated by the referendum on Scottish Independence in 2014.

It is impossible to equate Scotland and the Northern province of Sri Lanka and try to argue that, because the Scots may have a right to demand secession, the Tamils have, or should be given, such a right.  The Northern Province was not an independent State in 1987 when the 13^th Amendment created the present nine Provinces of Sri Lanka.

The residents of the Northern Province – be they Tamil, Sinhala or Muslim – did not sign an agreement with the central government stipulating the conditions under which they will remain in the union.  So, there is no question of a moral or legal right for the residents of the Northern Province indeed the residents of any Province, to ‘move away’ from the union, if and when they choose.

The residents of the Northern Province, indeed of all the Provinces, were first and foremost citizens of Sri Lanka at the time 13^th Amendment came into effect, and remained so after it.  They cannot claim rights and privileges over and above the rights and privileges enjoyed under the Constitution by all the citizens of Sri Lanka at the time of enactment of the 13^th Amendment.

However, certain Tamils might claim that at in the distant past – say, before the arrival of European colonial powers in Sri Lanka circa 1500 – the Northern Province was an independent Tamil Kingdom, which the colonials forcibly took away from them, and they (i.e. Tamils) have a right to reconstitute such State.

In my view, for the aforesaid argument to be valid, its proponents must first adduce cogent evidence that the colonial powers, when they conquered the region of Sri Lanka that is now the Northern province, recognized that they were conquering a different country and a different people, that is, a country and a people not subject in some way or other to the Sinhala king.

To the best of my knowledge, there is no such evidence.  For instance, the British, the last of the colonials and the ones to have the most impact on Sri Lanka, never considered the Northern Province a separate country, or the Tamils a separate people:  they always considered the Tamils an ethnic/linguistic minority in Sri Lanka, that is to say, one among several such groups that called the island home.

At the time of independence, the King of England by Order in Council conferred Dominion Status on the country of Sri Lanka (then Ceylon) and the people of such country, not on two countries, and two peoples.[28]  So, the Tamils do not have special rights in the Northern Province.  Under the circumstances, they cannot be compared to the Scots, who have such rights in respect of their native country Scotland, rights expressly stipulated in a treaty of union.

1. The Moral and Historical Rights of the Sinhalas in the Northern Province

If the Sinhalas have moral and historical rights in the Northern Province, then before one discusses devolution of power to the Provinces one must first address the issue of the right of return of the Sinhalas to that Province.  This is because, if the Tamils consolidate power in the Northern Province and move for separation as in Kosovo – a matter I shall explain later – the Sinhalas and their descendants will never again be able to return to an area of the country that is their ‘homeland’ also.

Census data indicate that, as late as the 1970’s there were close to 20,000 Sinhalas living in the Northern Province.  However, in this section I am interested in more ancient times.  I shall cite three experts of unimpeachable authority – the first on the ancient inscriptions of Sri Lanka, the second on the ancient irrigation system, and the third on place-names – to show that there is indisputable evidence that the Northern Province was once home to large Sinhala settlements.

I turn first to Dr. Senarath Paranavithana, the Dean of Sri Lankan archeology, and his observations on the famous Vallipuram Gold-Plate Inscription dated to the reign of King Vasabha, circa 126 -170 AD.  The Gold-Plate, found in 1936, reads:

‘Hail!  In the reign of the great king Vaha[ba] and when the Minister Isigiriya was governing Nakadiva, Piyaguka Tisa caused a vihara to be builtn at Badakara-atana.’[29]

(If a Minister of the Sinhala King was governing Nagadipa, which is an island off the coast of Jaffna, that is indisputable evidence that the writ of the Sinhala king ran in Jaffna and its environs, which is to say the Northern Province, at the times in question.)

The following is part of Dr. Paranavithana’s commentary.  He says inter alia:

‘Vallipuram, a village in the Vadamaracci division of the Jaffna District, is one of the places in the Jaffna Peninsula, now densely peopled by Hindu Tamils, where have been found remains of the Sinhalese Buddhist civilization which flourished in this extreme northern district of Ceylon during the earlier periods of its history, as it did in the rest of the island.  The stretch of sandy waste between the village and the sea is said to be strewn with vestiges of ancient human habitations over an area about four miles in length and a mile in breadth, foundations of buildings, bricks, pottery and coins being occasionally brought to light by villages digging here.’[30]

I next turn to R. L. Brohier (1892 – 1980), a Dutch-Burgher, recognized as the leading authority on the ancient irrigation system of Sri Lanka.  His two books on the subject are considered classics in the field.  In Part One of Volume 1, he turns to the Northern Province ad discusses the largest tank (man-made lake) in the Province.  His succinct conclusion is as follows:

‘Like all other large tanks in the Province, it is of Sinhalese origin.’[31]

If all the large tanks in the Northern Province are of Sinhala origin, there had to be Sinhala people who not only built, maintained, and farmed using water from those tanks, and that undoubtedly means that there had to be a large Sinhala population in the region at the relevant times.

Finally, I turn to B. Horsburgh, a British Civil Servant (hardly a Sinhala nationalist!) widely recognized as the leading authority on the provenance of place-names in Sri Lanka.  The following are some of the things he says in an article titled, ‘Sinhalese Place names in the Jaffna Peninsula’:

‘That the Sinhalese occupied the northern portion of the mainland which is now Tamil country, there is ample evidence carved in stone all over the Mannar and Mullaitivu Districts, but the fact that they were settled also in the Jaffna Peninsula before the Tamils came, depends for its proof mainly on the evidence furnished by place-named they left behind, corroborated by the very few stone relics that have been found.’[32]

He goes on:

‘One of the most common endings in Sinhalese place names is gama or gamuwa, meaning ‘village.’  The Tamil form of this is kamam, as is shewn by existing place names in the Sinhalese country which also have Tamil names, eg. Kathirkamam for Kataragama.

It should be noted that there is a Tamil word kamam meaning ‘town’ or ‘village’ stated by Winslow to be [pronounced as] ‘kiramam.’  Now, kiramam is from the Sanskrit grama, from which the Sinhalese word gama is derived; so that both kamam and gama came from anterior stock.  I am, however, of the opinion that, where kamam is found in place-names of the Jaffna Peninsula, it is the Tamilized form of gama; because the Tamil word kamam is not used by Tamils of the Peninsula, and is found only in which there is every reason to believe are of Sinhalese origin.

The following are the place names ending in kamam now found in Jaffna:

Valikamam, Vimankamam, Kodikakam, Tampakamam

Valikamam is undoubtedly the Sinhalese name Weligama or ‘Sandy Village.’  It has no meaning in Tamil, whether we translate vali as ‘way’ or as ‘strength,’ or as ‘whirlwind’

Vimankamam also has no meaning in Tamil, whether we take Viman as ‘fearfullness,’ or as the name of the son of Pandu and supposed son of Vayu, God of the Wind…etc. etc.’[33]

I assert that, the aforesaid evidence from Paranavitana, Brohier, and Horsburgh, to name just a few, helps establish beyond any shadow of a doubt that the Sinhalas have been present in large numbers in the Northern Province since time immemorial, which is to say, the Sinhalas as a people have moral and historical rights in that Province.

Under the circumstances, it is unreasonable for anyone to suggest that the Tamils have a right to secession in the Northern Province similar to the one that the Northern Irish and the Scots might have in their respective countries vis a vis the English.  On the other hand, it would appear that the Sinhalas have an indisputable right of return to their ancient ‘homeland’ before any more power is devolved to that region in their absence, thereby setting the stage for a possible secession by the Tamils.

To return to Paragraph [B], when it says that, ‘In the United Kingdom it is now possible for Northern Ireland and Scotland to move away from the union,’ thereby suggesting that Sri Lanka should adopt a similar posture towards the Northern Province, or any other Province that might also want to ‘move away,’ there is not the slightest hint that the writers of the IR considered any of the aforesaid complications.  And this further erodes the IR’s argument.

3. Paragraph [C]

The problem with Paragraph [C] is that, the IR’s claim that, ‘The Sinhalese term ‘aekiya rajyaya’ describes an undivided and indivisible country,’ is simply wrong.  There are two perfectly good Sinhala equivalents for the English words ‘undivided’ and ‘indivisible,’ to wit:  ‘nobeduna’ (undivided) and ‘bediya noheki’ (indivisible)

Therefore, the Sinhala term that best describes an undivided and indivisible country, if that is indeed what the IR wanted to capture, is ‘nobeduna/nebediya heki rajyaya.’

Conclusion

It is universally recognized that, if the premises of an argument are bad, then the conclusion is also bad.  I have shown that, all of the IR’s premises with respect to its conclusion that the term ‘Unitary State’ in Article 2 be replaced by ‘aekiya rajyaya/orumiththa nadu’ are wrong. Therefore, the IR’s aforesaid conclusion is wrong, indeed patently absurd.

 

To be continued…

[1] Framework Resolution of 9^th March 2016

[2] The Interim Report of the Steering Committee, 21^st September 2017, www.constitutionalassembly.lk

[3] See for instance, Dharshan Weerasekera, ‘The Illegality of the Ongoing-Constitution-making process in Sri Lanka,’ 1^st January 2015, www.lankaweb.com

[4] Under the Sri Lanka Constitution, a simple majority is sufficient to win a referendum.  So, it is possible for a Constitution to become law even if close to 49% of the population oppose it.  A Constitution rejected by close to half the population of a country can hardly be considered as having the moral legitimacy to be the Supreme Law of the Land.  Therefore, it is essential that the 2/3 majority in Parliament that approves constitutional changes has the requisite mandate to bring such changes.  This is especially so if the 2/3 majority in question is the result of a coalition of political parties formed after a particular General Elections.

[5] The present Government or ‘National Government’ is the result of a Memorandum of Understanding between the United Nation Party (UNP) and the Sri Lanka Freedom Party (SLFP).  The SLFP is the main constituent of the United Peoples Freedom Alliance (UPFA).  At the 2015 General Elections, the UNP won 106 seats in the 225-seat Parliament, while the UPFA came second with 95.  To have a majority in Parliament one needs 113 seats, so the immediate option open to the UNP was to form an alliance with one or more of the minority parties and form a government.  However, soon after the elections, 45 SLFP MP’s loyal to President Sirisena joined the UNP to form a so-called ‘National Government.’ The aforesaid 45 included SLFP’ers had contested under the banner of the UPFA, and also a number of persons who had been rejected by the voters at the elections but were appointed to Parliament through the National List, at Sirisena’s behest.  The addition of that 45 not only gave the UNP a simple majority, it got them close to a 2/3 majority, with which one can do almost anything in the Sri Lanka Parliament.  Therefore, the 10^th February 2018 Local Government Elections were seen by many as a referendum on whether UPFA/SLFP voters who had voted at the 2015 General Elections approved of what Sirisena’s SLFP’ers did after the elections.  At the LG polls, UPFA/SLFP voters voted overwhelmingly for the Sri Lanka Podujana Peramuna (SLPP) a new party formed under the patronage of former President Mahinda Rajapaksa, and expressly advertised as an alternative to the SLFP.  The SLPP got 45% of the vote, while the UNP got 35% and the SLFP, now led by President Sirisena, a mere 13%.  This is conclusive proof that UPFA/SLFP voters did not – indeed could not have – approved of what ‘Sirisena’s ‘45’’did after the 2015 General Elections.

[6] ‘TNA wants draft Constitution presented to Parliament soon after LG polls,’ The Island, 24^th January 2018

[7] A/HRC/37/23, 25^th January 2018, para 21

[8] The counter-proposals offered by the various political parties in Parliament are annexed to the Interim Report

[9] The distinctive characteristic of a confederation is that each of the Members retains their inherent right to secession.  If one makes the ‘Principle of Subsidiarity’ the sole basis for relations between the Center and the Provinces in Sri Lanka, it necessarily means granting or conceding to each of the Provinces an inherent right to secession, a right they don’t have at present and something which Provinces don’t have even under a Federal system.

[10] Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, International Court of Justice, Advisory Opinion of 22^nd July 2010, www.icj-cij.org

[11] Universal Declaration of Human Rights, Article 21(3)

[12] Article 1, Sri Lanka Constitution

[13] Article 2, Sri Lanka Constitution

[14] Interim Report, pgs. 1 – 2

[15] The Random House Dictionary of the English language, Unabridged Version, 1983

[16] Encyclopaedia Britannica, www.britannica.com

[17] Collected papers of Jawaharlal Nehru, Vol. 3 (Second Series) page 53

[18] Judgment in case SC/SPL/03/2014 decided on 4-8-2017, www.supremecourt.lk

[19] For instance to expand the Provincial List, limit the reserved List to a bare minimum, and abolish the ‘Concurrent List’

[20] See for instance the judgment of the Canadian Supreme Court in Reference Re Secession of Quebec, 1998, 2SCR 217

[21] The U.S. Constitution is universally regarded as the best example of a Federal Constitution.

[22] Judgment in SC/SPL/03/2014, Pages 9-10

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

[24] James Madison, Alexander Hamilton and John Jay, The Federalist Papers, (ed. Issac Kramnick), Penguin, London, 1987, p. 149

[25] See page 8 for the rest of the quote

[26] Ibid, judgment, p. 17

[27] ‘A Sketch-Map History of Britain 1688 – 1914’ Ed. Irene Richards et al, George Harap and Co. London, 1940, p. 111

[28] See Ceylon (Constitution) Order in Council, His Majesty the King Of England, 15^th May 1946, www.lawnet.gov.lk

[29] ‘Vallipuram Gold-Plate Inscription of the Reign of Vasabha,’ S. Paranavthana, Epigraphia Zeylanica, Vol. IV, 1934 – 1941, p. 237

[30] Ibid, Paranavitana, p. 229

[31] R. L. Brohier, Ancient Irrigation Works in Ceylon, Part 1 (1934), Chapter 3, ‘The Northern Province and the Peninsula of Jaffna.’

[32] B. Horsburgh, ‘Sinhalese Place Names in the Jaffna Peninsula,’ The Ceylon Antiquary (1916)  Vol. 2, Part 1, p. 54

[33] Ibid, Horsburgh, pgs. 54 – 55