Dr Asanga Welikala
As the country engages in a constitutional reform exercise that could finally produce a much-delayed post-war devolution settlement, on 8 August 2017, the Sri Lankan Supreme Court has delivered a determination of potentially major significance. The crisp issue before the court was whether the main Tamil nationalist party, better known in English as the Federal Party, had violated the constitutional prohibition on the advocacy of secession. The court decided that the Federal Party’s position on federalism per se did not fall foul of the prohibition, even in the context of the entrenched and highly centralised nature of the principle of the unitary state in the constitution.
However, against the prevailing and long-established orthodoxy in Sri Lankan constitutional law, the court appears to further accept a number of far-reaching conclusions. These include: that Sri Lanka’s principal minority Tamils are a ‘people’ for the purposes of the international law of self-determination including common article 1 of the two 1966 International Human Rights Covenants; the emergent distinction that the principle of self-determination has an internal and external aspect; that federalism is one constitutional form through which internal self-determination might be realised; and that for this purpose, sovereignty might be shared among peoples within the country. Equally noteworthy has been the court’s reliance on the views of the Canadian Supreme Court in the Reference re Secession of Quebec (1998), the International Court of Justice in its Advisory Opinion on Kosovo (2010), and academic authorities of federalism such as the late Professor Ronald L. Watts.
If this is an accurate reading of the judgment, then it is the judicial recognition of these subsidiary claims associated with the Sri Lankan Tamil demand for federalism that may mark a radical turn in Sri Lankan constitutional law. This may boost current prospects for constitutional reform by lending a prospective imprimatur of judicial approval to devolution options that have hitherto been regarded as unacceptable. But such an uncharacteristically permissive approach by the court may also reanimate opponents of reform to ever greater heights of opposition to devolution and power-sharing.
Ethnic relations in post-colonial Sri Lanka reached the nadir with the anti-Tamil pogrom of July 1983. Sinhala mobs, with more than tacit support from the government of the day, responded to the killing of 13 soldiers in a rebel ambush in the northern Jaffna peninsula by violent reprisals on Tamil civilians in the south of the island. In the wake of the riots, Parliament enacted the draconian Sixth Amendment to the 1978 Constitution, which introduced a comprehensive prohibition on even the peaceful advocacy of secession and banned any political party or association from having as its aims and objectives the establishment of a separate state within the territory of the island. This was made a criminal offence triable directly by the Court of Appeal, and upon conviction, a person could be deprived of civic rights for seven years and be liable to forfeiture of property. A new oath of office including a specific undertaking to desist from advocating secession was also introduced, and all elected officers including MPs and local councillors expected to take it, with failure to do so leading to loss of office.
The Amendment also set down a procedure – triggered for the first time since 1983 in the litigation under discussion – whereby any person could move the Supreme Court for a declaration that a party or association had secession as one of their aims or objectives, and if the court made such a declaration, the party would be proscribed and its members exposed to the aforementioned criminal and civic liabilities.
In 1983, all Federal Party MPs including the then Leader of the Opposition refused to take the oath, and thus lost their seats. They returned to Parliament (and took the Sixth Amendment oath) following the enactment of the Thirteenth Amendment in 1987, which introduced devolution. The Federal Party, formed a year after independence in 1949, had emerged as the preeminent party representing the interests of the Tamil people of the north and east of the island. It was founded and remains committed to the principles that the Sri Lankan Tamils are a distinct people or nation based on the ancient Tamil language and culture within the island, that the north and east of the island is the traditional homeland of the Tamils since time immemorial, that these communal and territorial dimensions of the claim to nationhood entitles Tamils to the right of self-determination, and that the preferred constitutional form in which these claims are to be accommodated is through federal autonomy within a united and undivided Sri Lanka.
The Thirteenth Amendment was the result of the Indo-Lanka Accord of 1987, by which the neighbouring government of India, by then an active participant in the Sri Lankan conflict, undertook to disarm the Tamil rebels in return for the commitment of the government of Sri Lanka to devolve power to Provincial Councils, including a Tamil-majority Council in the Northern and Eastern Provinces.
At this time, devolution was actively opposed by the Sinhala majority in the south and it was even less popular than ever because of the perception of India’s strong-arm tactics on the Sri Lankan government. At the other end of the ethnic divide, the devolution settlement agreed between the Indian and Sri Lankan governments was far short of the federal constitution that most parliamentary Tamil nationalists demanded, although many of them returned to Parliament, as noted, under pressure from India. More extreme Tamil groups, such as the Tamil Tiger militants, rejected the deal and went to war with the Indian peacekeeping force and subsequently with the Sri Lankan military, only to face complete defeat on the battlefield in 2009.
The legal scheme of devolution, in the form of a lengthy constitutional amendment and consequential ordinary legislation, was challenged at Bill-stage before the Supreme Court by a large number of petitioners for inconsistency with a number of provisions of the 1978 Constitution, including the provision declaring Sri Lanka to be a unitary state, which may only be amended through approval by a two-thirds parliamentary majority and in a referendum. While the government in 1987 did enjoy the necessary majority in Parliament, it was reluctant in the extreme to put the proposal to referendum, where it more than likely would have been defeated. Thus, the Supreme Court’s determination in In re the Thirteenth Amendment (1987) that the Thirteenth Amendment Bill was intra vires the constitution assumed crucial political significance.
In the event, the court decided by a majority of one that the proposed scheme of devolution was consistent with the unitary state, because sovereignty remained fundamentally untouched and the centre retained ultimate legislative and executive supremacy, including to unilaterally change the constitution and if necessary to even abolish the Provincial Councils. In the majority’s view, the Councils would be exercising devolved power as subordinate bodies to the central institutions, rather than a co-ordinate sovereignty, and the centre was adequately constitutionally equipped to deal with any provincial threat to alter these arrangements, including through any attempt at secession.
This judgment set a monistic and centralising paradigm with regard to the key principles of sovereignty and the unitary state in Sri Lankan constitutional law, which has influenced the haphazard implementation of devolution. It has emboldened central institutions to clawback what is offered in the constitutional framework with executive measures and ordinary legislation, very often with judicial sanction. In this way, the Thirteenth Amendment determination has had a rather paradoxical character and effect, in the sense that, in permitting devolution, the majority felt impelled to give a rather rigid and uncompromising interpretative spin to the concept of the unitary state, which is otherwise unelaborated in the text of the constitution. It has satisfied neither the opponents nor the proponents of devolution, but the determination has thus far remained indisputably the leading case on all these key issues. The question that arises is if the present decision, Chandrasoma v. Senathiraja and Thurairasasingham (2017), heralds the start of an unravelling of that uneasy constitutional consensus.
The Judgment in Chandrasoma
The present case was triggered by a petitioner in March 2014 who sought a declaration that the Federal Party had secession as one of its aims, and consequently for its proscription as required by the Sixth Amendment. In assessing the arguments of the petitioner and respondent, the court recounted a compact history of the evolution of Tamil constitutional claims since independence, and in doing so relied inter alia upon the Canadian Supreme Court and the International Court of Justice in elucidating a number of critical constitutional concepts, including sovereignty, federalism, and most prominently, the principle of self-determination of peoples. Chief Justice Dep was persuaded, with the other two judges agreeing, that the Federal Party’s claims to shared sovereignty and federal autonomy within the framework of a united and undivided Sri Lanka, as repeatedly reaffirmed in public statements including election manifestoes, were legitimate political claims which did not amount to an advocacy of secession. The application was accordingly dismissed without costs.
Discerning the court’s own views on a number of key substantive points is made somewhat difficult by the way the judgment is written and structured. The sparsity of its reasoning constantly raises questions in the reader as to the extent to which the court contemplates, and fully understands, the conceptual ramifications of its conclusions. In large part, it is a presentation of the petitioner’s arguments followed by the respondent’s responses. However, in the light of its final conclusions being based on the court’s acceptance of the respondent’s arguments almost entirely, it is reasonable to assume that the recitation of the respondent’s arguments must be construed as being endorsement rather than mere narration. If this is true, then the court appears to accept the following contentions.
The first point with political significance in the context of the current process of constitutional reforms is the court’s acknowledgment that the old constitutional classification as between unitary states and federations is now increasingly blurred and unstable. In recognising that forms of federalism can, in fact, exist within formally unitary states through processes of devolution and multilevel governance, it is implicitly acknowledging a well-known distinction between federalism and federation that has been made in comparative politics and constitutionalism for quite a while. But this is a completely new proposition to make in Sri Lankan constitutional discourse, which has remained stubbornly wedded to the older formalist categories. This acknowledgement by the court could help constitution-makers transcend the artificially reductionist unitary v. federal debate on which so many constitutional debates founder in Sri Lanka, and focus attention on the more constructive path of devising a system of devolution based on practical needs and realities on the ground.
The petitioner’s argument with regard to the Federal Party’s claim of a Tamil right to self-determination was that this necessarily includes an implicit assertion of a right to secession at will, even if that option is not for the time being exercised, because if a people are to fully control their political status, self-determination must necessarily include the right to form an independent state. This is the traditional view of self-determination as expressed in common article 1 of the two human rights Covenants.
In response, the Federal Party asserted that the Tamils were a people for the purposes of the international law principle of self-determination, including the right in the form expressed in the Covenants. However, they qualified this by reference to the internal/external distinction in the exercise of the right recognised by the International Court of Justice in the Kosovo Advisory Opinion and by the framework established by the Canadian Supreme Court in the Quebec Secession Reference by which there would be no unilateral right to external self-determination unless conditions were such that the internal exercise of the right was systematically prevented or violated. They also adduced the academic views of Ron Watts in support of the accommodationist view that internal autonomy for group claims to self-determination abates if not precludes secessionist movements and sentiments.
This is a more contemporary view of self-determination, taking into account new developments in international law and practice as well as comparative constitutional law. The old principle of self-determination which was almost always regarded as applying only to decolonising contexts is now of course understood to be much broader (to include sub-state national claims within existing states), deeper (to include general democratic entitlements within existing states), and more focussed (by refining the objective circumstances of secession as a remedy of last resort, through the development of the internal aspect of self-determination for sub-state peoples).
In all these respects, the Supreme Court agreed with the Federal Party’s contentions in holding that ‘…it is clear that the right to self-determination has an internal dimension, in that it could be exercised within the country to the benefit of a ‘people’ inside the country. Thus, the invocation of self-determination does not amount to a demand for a separate State, as the right is sometimes to be used internally within the territory of an existing State’.
While of course the principle of self-determination so understood bars a unilateral right to secession, the necessary implication of this conclusion is that Sri Lanka seems now to have been judicially recognised as a multi-demoi polity, with the Tamils having an entitlement to some form of constitutional accommodation of their claim to internal self-government. It follows, further, from this pluralistic understanding of the societal foundations of the Sri Lankan state that the monistic concept of sovereignty underpinning the current constitutional order would have to be reconsidered.
In the Indo-Lanka Accord preceding the Thirteenth Amendment in 1987, the Sri Lankan government had acknowledged that Sri Lanka is a ‘multi ethnic, multi lingual and multi religious plural society’. Such a conception of societal pluralism is entirely consistent with a monistic view of Sri Lankan nationality and sovereignty. The implications of the present judgment, however, are arguably much more fundamental. Because of the normative charge added, through the notion of internal self-determination, to the Tamil federalism demand, the logic of the judgment opens up major questions of re-territorialisation and pluralisation of peoples and sovereignties. Only a plurinational and asymmetric – and not an orthodox, mono-national – form of federalism (or other non-federal devolved constitutional structure) can accommodate a sub-state exercise of collective internal self-determination.
In short, it appears the Supreme Court, has indirectly – or unwittingly – endorsed the principles encapsulated in the Oslo Communique of 2003 (a statement of constitutional aims jointly adopted, but quickly abandoned, by both the government and the Tamil Tigers during the failed Norwegian-facilitated peace process): ‘…the parties agreed to explore a solution founded on the principle of internal self-determination in areas of historical habitation of the Tamil-speaking people, based on a federal structure within a united Sri Lanka’.
Whether or not this decision reflects a liberal turn in Sri Lankan constitutional law and judicial attitudes remains to be seen. It is not entirely clear if the court itself appreciated the deeper consequences of its conclusions, and it may well resile from them if and when it does.
What happens would also depend on the response of Sinhala nationalists and others opposed to devolution beyond the Thirteenth Amendment – and indeed reformists who would prefer a much less radical foundation for a new devolution settlement – once they realise the potential implications of the judgment, which they would unequivocally regard as subversive.
After a promising start in 2015, the ill-disciplined and opaque constitution reform process has not demonstrated progress, kept the public engaged, or maintained momentum. As the current reformist government becomes mired in other political and economic challenges, opponents of reform are increasingly beginning to control the narrative on constitutional issues. Ironically, therefore, there is the possibility that the Supreme Court’s unprecedented broad-mindedness on the national question may serve to strengthen opponents rather than proponents of reform, although the process may yet be salvaged by a demonstration of leadership by the government.
(Dr Asanga Welikala is Lecturer in Public Law at the University of Edinburgh, Acting Director of the Edinburgh Centre for Constitutional Law, Research Associate of the Institute of Commonwealth Studies, and Research Fellow of the Centre for Policy Alternatives)