Petition against the establishment of a separate state
By Neville Ladduwahetty
A petition (SC SPL 03/2014) was filed in the Supreme Court claiming that the “aims” and “objects” of the Illankai Thamil Arasu Kachchi (ITAK) was to establish a separate state under terms of Article 157A (4) of the Constitution. Since the petition has to be judged under the provisions of the current 1978 Constitution the opinions presented below are based on its provisions and not on possible future provisions.
A Supreme Court panel of three Judges in their determination stated:
“The labelling 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 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 decentralisation will pave the way for a federal form of government within a unitary state”.
“The Thirteen[th] Amendment to the Constitution devolves powers on the provinces. The ITAK is advocating for a federal 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”.
The implications of the judgement cited above are:
1. The claim that the ITAK is advocating a federal form of government should be examined in the context of the “aims” and “objectives” stated in the ITAK manifesto.
2. Is a state characterised as unitary or federal based on the extent of powers devolved or is it based on whether the powers of the regional units are subordinate to the centre or sovereign?
3. Could a federal form of government exist within the framework of a unitary state?
4. Since Article 2 of the Sri Lankan Constitution states that Sri Lanka is a unitary state and Article 3 states that sovereignty is inalienable, how could sovereignty be shared?
Each of these four points is examined in detail below.
1- THE ITAK MANIFESTO
The section of the ITAK manifesto cited in the judgment states:
“We as a People are thus concerned about our historical habitats, our collective rights that accrue to us as a People and as a National and our entitlement to exercise our right to determine our destiny to ensure self-government in the Tamil Speaking North-East of the country within a united and undivided Sri Lanka … It is also noted that identical statements as cited above was also included in the 2015 Election Manifesto of Tamil National Alliance”.
Therefore, in view of the fact that the word “Federal” does not appear anywhere in the text of the ITAK manifesto cited above, the question is how anyone could conclude that the ITAK is advocating a federalist form of government.
Furthermore, considering that a federalist form of government has specific powers that are constitutionally assigned to federal units, how is it realistically possible for any people, whether Tamil or Tamil-speaking, to exercise rights in respect of an undefined and unarticulated destiny for self-government since such rights need to be defined and incorporated in the Constitution of a federal state.
UNITARY vs FEDERAL
Patrick J. Monahan in Chapter 4 of “Constitutional Law” 1997 states:
“The classic definition of federalism is that offered by K. C. Wheare, who described the federal principle as “the method of dividing powers so that the general and regional governments are each within a sphere co- ordinate and independent.” [K.C. Wheare, Federal Government, 4th ed. (London: Oxford University Press, 1963) at 11.] Wheare’s definition states that under a federal system the general and the regional government each has an autonomous sphere of power that can be exercised independently of the other level. Further, under Wheare’s formulation, the powers of the central government are exercised directly over individual citizens, rather than indirectly through the states or provinces. In the event that the central government does not have power to regulate citizens directly, the form of government would be confederal rather than federal”. “A similar definition of federalism was offered by A.V. Dicey, who identified the three leading characteristics of a “completely developed federalism” as including the distribution of powers among governmental bodies (each with limited and coordinate powers), along with the supremacy of the constitution and the authority of the courts as the interpreters of the constitution. [A.V. Dicey, Introduction to the Study of the Law of the Constitution, 7th ed. (London: Macmillan, 1908) at 140″.
“Although Wheare’s definition has been criticised by some commentators as being unduly legalistic [See, for example, P. T. King, Federalism and Federation (Baltimore: Johns Hopkins University Press, 1982) at 77.] or as placing undue stress on the separateness of the central and regional authorities, [See A.H. Birch, Federalism, Finance and Social Legislation (Oxford: Clarendon Press, 1955) at 306] it provides a basis for distinguishing federal from other forms of government and remains widely accepted among students of the subject. Donald Smiley, for example building on Wheare’s formulation, offered the following three-part working definition of a federal state [See D.V. Smiley, The Federal Condition in Canada (Toronto: McGraw-Hill Ryerson, 1987) at 2.] (I adopt for purposes of this book):
* Legislative powers are distributed between a central and a regional government;
* The powers of the central and regional governments are not subject to change by the other level of government; and
* Individual citizens are subject to laws enacted by both the central and the regional governments”.
The opinions cited above clearly distinguish features of federal governments on the one hand from unitary or confederal forms of government on the other. A clear distinguishing feature is that in a unitary state, powers assigned to units are subordinate to the centre while in a federal state, powers of the centre and the regional units are each sovereign and independent.
This distinction was confirmed in the determination by the Chief Justice and 3 other Justices during the Supreme Court case on the 13th Amendment in 1987 that established that Sri Lanka was a unitary state. They stated:
“…the legislative competence is not exclusive in character and is subordinate to that of Central Parliament which in terms of Article 154G (2) and 154g (3) can, by following the procedure set out therein, override the Provincial Councils. Article 154G conserves the sovereignty of Parliament in the legislative field…in our view 154G (2) and (3) do not limit the sovereign powers of Parliament”.
3 – FEDERALISM within a UNITARY STATE
Based on the material presented above the main characteristic of a Unitary State is that powers of the centre are sovereign and supreme over the powers assigned to the peripheral units. Therefore, the opinion that a unitary state with more powers given to the units could be considered as a federal state” is at variance with the opinions cited above, because in a unitary state it is not the extent of devolved powers that matter but whether they are subordinate to the centre or not. In such a context, the term “federal form of government” has no meaning because as long as the central government retains its supremacy over regional units the state would be unitary.
This was clearly stated by The Rt. Hon. Dominic Grieve QC, Attorney General of UK, during the course of a speech delivered to BBP Law School on October 25, 2012. He stated:
“There is no more critical distinction in the constitutional law of the United Kingdom than that between, on the one hand, laws made by the sovereign Parliament (which the Parliament of the United Kingdom is) and laws made by a body to which decision making powers have been delegated by law, which is not sovereign. Lord Hope’s judgment draws the distinction with great care. He said: “The Scottish Parliament does not enjoy the sovereignty of the Crown in Parliament that as Lord Bingham said in Jackson is the bedrock of the British constitution. Sovereignty remains with the United Kingdom Parliament. The Scottish Parliament’s power to legislate is not unconstrained. It cannot make or unmake any law it wishes.”
Thus, the feature that makes the United Kingdom a unitary state is that powers devolved to Scotland, Wales and Northern Ireland are subordinate to the supremacy of Parliament in Westminster. Therefore, the opinion that there could be a federal form of government within a unitary state has no material meaning other than as a reference ONLY to the extent of powers. Under no circumstances could that imply any reference to the independence of a unit within a unitary state. Therefore, for the statement to have meaning it would be necessary to devolve more powers than currently provided for in the 13th Amendment on the condition that they are subordinate to the powers of the government if Sri Lanka is to remain a Unitary State. Whether such powers would be sufficient to exercise the right of the Tamil People “to determine their destiny to ensure self-government” as stated in the ITAK manifesto, is an altogether different question.
SHARING of SOVEREIGNTY
Article 2 of the Constitution states: “the Republic of Sri Lanka is a Unitary State” and Article 3 states: “In the Republic of Sri Lanka the sovereignty is in the People and is inalienable”.
In the context of Articles 2 and 3, sovereignty cannot be shared. On the other hand, the only way sovereignty could be shared is to dismantle the existing unitary state structure of Sri Lanka and transform it into a federal state. However, based on all the material presented above a federal form of government within a unitary state is contradictory because a federal form of government cannot exist within a unitary state.
The petition (SC SPL 03/2014) filed in the Supreme Court claimed that the “aims” and “objects” of the IllankaiThamilArasu Kachchi (ITAK) was to establish a separate state under terms of Article 157A (4) of the Constitution. Perhaps, the indeterminate nature of the language in the ITAK manifesto prompted the petitioner to interpret that the “aims” and objectives” in the manifesto could not be achieved without an external determination such as a separate state to fulfil its unsubstantiated and undefined destiny.
The Supreme Court in its determination interpreted the manifesto as seeking an internal arrangement that amounted to “a federal form of government within a unitary state”. Hence the ruling that states: “Advocating for a federal form of government within the existing state could not be considered as advocating separatism”. However, since the section of the manifesto cited in the judgment does not contain the term “federal”, how the Court came to the conclusion that the ITAK was advocating a federal form of government is a mystery.
The material presented above clearly demonstrates that a federal form of government existing within a unitary state is a contradiction of terms
More importantly, there is a likelihood that the opinions and concepts expressed during the hearing of this petition could add to the confusion that already exists in regard to issues associated with the restructuring of the Sri Lankan State. Since this may have a direct bearing on the ongoing constitutional reform process there is an urgent need to revisit these opinions and concepts if what has already been expressed is not to be cited as a precedent.