In a judgment advancing the cause of political freedoms, the Supreme Court ruled that the political position of the Illankai Thamil Arasu Kadchi (ITAK), which is the main constituent party of the Tamil National Alliance (TNA), in advocating for a federalist form of Government via the devolution of power to the Provinces within the framework of a unitary State, was not espousing separatism.
In SC SPL 03/2014, Hikkadu Koralalage Don Chandrasoma v. Mavai S. Senathiraja and K. Thurairasasingham and Others, the latter respondent being the incumbent Secretary of the said political Party (while the former was the former Secretary of the Party, of which he is currently the President), a three-member bench of the Supreme Court with Chief Justice (CJ), President’s Counsel Priyasath Dep writing the opinion of the judgment, held that the ITAK did not have as its aims and objects, the establishment of a separate State within the territory of Sri Lanka.
According to Rule 2 of the ITAK’s Constitution, the objective of the party is to establish political, economic and cultural liberation among Tamil speaking people by way of forming an autonomous Tamil Government and an autonomous Muslim Government as part of a united federal Sri Lanka in accordance with the principles of self-determination.
As per Article 157A of the Constitution of Sri Lanka, which constitutes the 6th Amendment to the Constitution, it is held that “no person shall, directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka.”, and therefore that no political party or association or organization shall have as an aim or object, the establishment of a separate State within Sri Lanka’s territory.
The petitioner had made reference to what is known as the Vaddukoddai resolution of 1976 and the manifesto of the Tamil United Liberation Front (issued at the 1977 General Election), both of which advocated for the establishment of a separate State.
However, the Court taking into account submissions made by the first respondent including an affidavit from Senathiraja, a statement issued by the ITAK in relation to and in prior to the Northern Provincial Council Election in 2013 (at which the ITAK contested under the banner of the TNA) and the TNA’s manifesto in relation to the Parliamentary Election in 2015, noted that although members of the ITAK had previously adopted and taken up the position of calling for a separate State, including the refusal by some members to take oath under the 6th Amendment, which in turn led to the loss of their Parliamentary seats during the period from 1983 to 1988, subsequent to the enactment of the 13th Amendment to the Constitution, the situation had undergone a complete sea change, with all those who were later elected to Parliament from the ITAK taking oaths under the 6th Amendment, due to the fact that the ITAK’s current position was one of being within the framework of a united and undivided Sri Lanka.
Furthermore, Dep CJ joined by Judges, Justices Upali Abeyrathne and Anil Gooneratne held that, “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. It is established that the ITAK supports or advocates the establishment of a federal State within a united Sri Lanka.”