Mavai Senathirajah’s landmark decision

During the month of August, amidst a summer dominated by high-level political resignations and firings, the Supreme Court of Sri Lanka ruled on a major case.

A Three-Judge Bench, including Chief Justice Priyasath Dep, found that Tamil political parties who were advocating for an increased sharing of power under a new Federal model, were not breaking the law.

“These parties did not support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka,” Chief Justice Dep noted in his decision.

A finding in the opposite direction would have been crippling for parties such Illankai Thamil Arasu Kadchchi, or ITAK: arguing for secession is a crime in Sri Lanka under the Sixth Amendment to the Constitution.

At the time, many in civil society, especially Tamil political parties, celebrated Chandrasoma v. Mavai Senathirajaha’s a “landmark” decision.

But a month later, some were beginning to question as to how significant the decision actually was.

A long - fought battle

Recently, in an airy top-floor lecture hall at the University of Jaffna one afternoon, M. A. Sumanthiran defended his hard fought decision in front of the Supreme Court.

The Supreme Court

Sumanthiran, who is a Member of Parliament for the Jaffna District and a leading Counsel on the case, said the Supreme Court’s decision was a “direction changer” for politics in this country.

The court “had no necessity to go this distance in this particular case,” he said. “But they have.”

Sumanthiran traced the long battle leading to the judges’ unanimous opinion. The petition was originally filed against the ITAK, a constituent party of the Tamil National Alliance, by Hikkadu Koralalage Don Chandrasoma, a resident of Kelaniya, in 2014.

He alleged that the ITAK was a political party whose ‘aims’ and ‘objects’ were the establishment of a separate State within the territory of Sri Lanka. If so, under Article 157A of the Constitution, the party’s members could be stripped of their office as well as their property which was not necessary for the sustenance of such a person and his family.

The petitioner focused on a section of the party’s constitution to build up his case. Its English translation reads: “The objective of this party is to establish political, economic and cultural liberation among the Tamil speaking people by way of forming an autonomous Tamil Government and autonomous Muslim Government as part of the united federal Sri Lanka in accordance with the principles of self - determination.”

But Lawyers for Chandrasoma said the party’s constitution had been amended in 2008 to replace the word ‘federal’ with confederation,’ which means an alliance between separate and sovereign states, rather than allied states under a central government.

Sumanthiran and his legal team however, countered that point, arguing that the petitioner had misunderstood the Tamil word in question. In 2008, the Party did change the Constitution’s wording, he said, to replace the Sanskritized “samashdi” with the pure Tamil “inaippadchi.”

The Official Languages Commission agreed with position.

In response, the petitioner acknowledged that the word did not meant confederation, but argued that the act of advocating for self-determination in itself involved attaining an independent state.

But once again, the court sided with ITAK. “It is clear that the right to self-determination has had an internal dimension, in that, it could be exercised within the country to the benefit of a ‘people,’ inside the country,” the Chief Justice wrote.

The judges dismissed Chandrasoma’s petition on August 4th.

Sumanthiran stressed that this was a major achievement.

“So the significance of the judgement is that it says it is not illegal, it is not unlawful and it is not unconstitutional to claim to have a system of government based on a federal form, based on the principle of right to self-determination and shared sovereignty,” Sumanthiran said.

He said these findings provide Tamil parties important legitimacy and leverage at the bargaining table of the new Constitution-making process.

Counterpoint

But Professor K. Guruparan, head of the Department of Law at the University of Jaffna, was more critical in his assessment of the decision.

“The fact that a political party in Sri Lanka has to go through the Supreme Court and convince Court that they are not advocating for secession, is in itself an attack on free speech,” he said.

Guruparan added that he believed the Sixth Amendment to the Constitution which criminalizes advocating for secession, should be done away with.

He agreed with Sumanthiran that the Court’s ruling “goes against the grain” of previous government decisions.

But pointed to specific parts of the opinion he found troublesome.

Although the decision legitimized the political parties’ ability to advocate for a federal form of power-sharing, it does not explicitly say if arguing for a confederation model is the same as arguing for secession.

In fact, the Court had taken great pains to make sure the ITAK was promoting a “federal” form of government, rather than a “confederation.”

Guruparan said that presently, it was not clear if parties that argue for a confederation model, where sovereign states give a specified set of functions to a central authority, such as the European Union, would now stand in violation of the Constitution.

The language of the decision, he said, gives a “problematic, rigid interpretation of what a unitary state means.”

“We need to be careful,” he added.

Shifting the political landscape

After the forum, Sinnarasa Thananchayan, a Law student of the University of Jaffna, said the two men’s positions represented a fundamental change happening in Tamil politics.

Sumanthiran’s position was rooted in the landscape of a party politician, where the currency is measurable political wins and losses. “I’ve consistently argued these concepts in front of the courts,” he had said earlier. “This is a direction change.”

But many intellectuals are becoming disenchanted with the TNA, Thananchayan said, believing they were “too compromised.”

“The TNA is not very strong in demands and wishes to work with the government,” he said.

Instead, young people and intellectuals are looking for a new path to self-determination, separate from the violence of the LTTE, but also different than the political calculus of the TNA.

This has led to some supporting the Tamil National People’s Front, a breakaway from the TNA launched in 2010.

Thananchayan said the TNPF argues more forcefully for recognition of the Tamil identity, a strong federal system of government and accountability for war crimes.

The decision in Chandrasoma v. Mavai Senathirajah may give the Tamil parties a stronger position in the new constitution-making process.

But people such as Guruparan and Thananchayan wonder: “Can they trust the results of a process where they believe they’ve sacrificed so much, where they must go to the Supreme Court just to affirm their right to self-determination?

If they get a new Constitution, would it actually represent their interests?