Legal challenges faced by the Federal Party in its 70-year history

Speech on the Seventieth Aniversary of the Federal Party on 18 Dec. 2019 at the Young Artistes Forum Jaffna by M.A. Sumanthiran MP, PC, Associate Secretary General, Ilankai Thamil Arasuk Katchi. 

The history of the Federal Party that was founded on 18 Dec. 1949 and the background to that history are well known to all. When the Citizenship Act and the India-Pakistan Citizenship Act were passed, Thanthai Chelva, , Medical Doctor EMV Naganathan and K. Vanniasingam stood in opposition and split from the All Ceylon Tamil Congress, voted against the government and formed the Ilangai Thamil Arasu Katchi also known as ITAK or the Federal Party.  
When the above mentioned two acts and subsequently the Official Languages Act of 1956 were passed, they were in violation of Section 29 of the Soulbury Constitution, and yet challenges to these bore no fruit in court. In its early years ITAK strategy consisted of Noncooperation in the Gandhian way, and Civil Disobedience through Satyagrahas. These struggles from 1956 onwards succeeded in bringing the government machinery to a complete standstill in 1961 throughout the North and East. As a result, the ITAK was banned under emergency regulations. Sixty seven members including ITAK leaders were gaoled in Panagoda. 

"After the Trial-at-Bar, the efforts of the party were directed towards rooting the rights of the Tamil people through the courts, emphasising legal activism"

After the year 1970, after withdrawing from efforts to promulgate the First Republican Constitution, ITAK’s Non-cooperation and Civil Disobedience struggle reached a climax. From the time Thanthai Chelva resigned from his Parliamentary seat, the idea that we are not bound by the republican constitution gained wide currency and strength among Tamils.
 As an outgrowth of that development, the Tamil United Front was formed and the latter soon became the Tamil United Liberation Front at the 1976 Convention where the Vaddukoddai Resolution was adopted. As a consequence of our just demands for federalism being ignored and sidelined by the state, that watershed Vaddukoddai Resolution emphasised that we would re-establish our sovereignty that we lost to Europeans in our colonial history. As a result of that resolution the Secretary General of ITAK and three of its MPs were arrested and charged, and tried before a bench of three High Court Judges, consisting of a Trial-at-Bar.  
Representing the accused were a team of three Queens Counsel led by Thanthai Chelva, the other two being G.G. Ponnamabalam and Murugesu Tiruchelvam. Besides these legal giants, 64 other lawyers also appeared for the defence. They argued that the Republican Constitution had no force in law and that the Emergency Regulations had not been properly promulgated. That Trial-at-Bar bench accepted the second of these arguments advanced by the accused and set them free.  
Although the Supreme Court subsequently reversed the negative determination of the Trial-at-Bar Bench, the accused were not re-arrested. This judgement is considered a landmark, and the case has earned for itself a place as one of the most important in our legal history.  
Subsequent to the year 1976, ITAK functioned under the name Tamil United Liberation Front (TULF). In 2003 however, as a result of an order by the judiciary, the name TULF could not be used and circumstances arose to revert to the ITAK name.   

"After the year 1970, after withdrawing from efforts to promulgate the First Republican Constitution, ITAK’s Non-cooperation and Civil Disobedience struggle reached a climax"

After the Trial-at-Bar, the efforts of the party were directed towards rooting the rights of the Tamil people through the courts, emphasising legal activism. Following the Prevention of Terrorism Act promulgated in 1971, that law was used to charge Tamil youths. Lawyers allied with the party appeared for these youths. Likewise, after the Second Republican Constitution was promulgated, fundamental rights provisions rooted in that constitution were used to defend the accused youths. In the war years all kinds of cases were filed to defend those whose fundamental right were violated and trampled upon.  
When under pretext of establishing high security zones, the private lands of our people were acquired, in the year 2003 a case was filed in the name of the party’s present leader Mavai Senathirajah. In 2007 interim relief was granted by court permitting the rightful owners the right to resettle on their lands.   
In the same time period, an order was also obtained from the Supreme Court that those ejected from their lands in Sampur in the East ought also be allowed to resettle on their lands. As a result of these legal challenges mounted by ITAK, several thousands of acres of lands usurped by the Army from the Tamil people had to be returned to the owners. There are still cases pending and advancing in court to recover more of these lands taken over by the army from our people.   
Besides these cases, there are several other cases where on important matters of state and in matters of our people’s fundamental rights being violated, the ITAK may take rightful pride in seeking the protection of the courts and prevailing in many of these cases. From the case on the ejection of Tamils from Colombo to the Divi Neguma law that tried to reverse the devolution of power, there are many examples that can be shown to establish how the ITAK has stood for the Tamil people’s rights and by the Tamil people. No other party can rightfully make this claim.   

"Although the Supreme Court subsequently reversed the negative  determination of the Trial-at-Bar Bench, the accused were not  re-arrested. This judgement is considered a landmark, and the case has  earned for itself a place as one of the most important in our legal  history"

Indeed, ITAK’s agenda through court action is not merely limited to winning Tamil rights. ITAK is a flagship for challenging any and all iniquitous efforts in Sri Lanka at suppressing the rights of the people, and for upholding the rule of law when it is violated and promoting all the characteristics of good governance. At the end of last year when the President himself went against the constitution of the land, the ITAK was an integral part of the challenge to authoritarianism, standing at the forefront of the effort to oppose that foul move and re-establish democracy throughout the country.  
There are those who hold the notion that legal challenges must not be mounted to prove resoundingly that we can have no faith in the judicial system in which we function. Among those who entertain that notion we say whether we have faith or not, it is extremely important to keep mounting legal challenges to bad laws and oppressive administrations. The ITAK is a party that is proudly guided by that spirit of stressing the importance of legal activism. We stress the importance of registering a protest when we file action. By professionally fighting those cases we have on many an occasion scored victories proving the presence of fundamental rights violations in the state, and thereby won aid and sustenance of various types for people. The ITAK has made and continues to make a unique contribution in this regard.  
The ITAK which had been banned for some months in 1961 as stated, faced a serious legal challenge in 1976. That challenge was overcome under Thanthai Chelva’s leadership with the help of our legal experts. 

"the ITAK has proved and established that our policies are reasonable under international law"

After the war in the years 2013, 2014, six cases were filed demanding the proscription of the ITAK, the imprisonment of its MPs and the confiscation of all their properties. The first five of these cases averred that the ITAK was advocating separatism in its Northern Provincial Council report, and that this was a contravention of the Sixth Amendment to the constitution.  
In the sixth of these six cases, which was filed in the year 2014, it was argued plaintively that by using the term confederacy the ITAK was creating a path to separation. It was thiscase that was heard and argued first. Known as Chandrasoma Versus Mavai Senatirajah, the case had its judgement delivered on4 Aug, 2017. According to that judgement, on the basis of sovereignty and self-determination, the ITAK has the right to advocate for a confederal form of governance. The judgement affirmed our party’s historic position. Our party, the ITAK, formed 70 years earlier had called for confederacy in the year 1951 in Trincomalee asserting that the right flowed on the basis of our sovereignty and right to self-determination.   
Unfortunately, right from the beginning Sinhalese leaders have made false propaganda among their people telling them that confederacy is to split the country. Even in 1961 when they banned the ITAK, it is the very same thing that then Prime Minister Sirimavo Bandaranaike told her people. Many decades later, even after carrying out an armed struggle for separation, Sri Lanka’s Supreme Court itself has declared that advocating for confederacy or federalism is a very lawful act.   
Whether circumstances were favourable or not, by consistently and continually arguing for our rights borne under international law in Sri Lankan courts, the ITAK has proved and established that our policies are reasonable under international law. Not only in the area of confederacy, but also in the areas of economic and cultural rights, our same approach to problem-solving has won our peoples many favourable outcomes.  
Taking positions contrary to those political parties that hold that seeking the help of courts is pointless, and thereby achieving many advances to our lot and circumstances, is the proud and unique achievement of the Ilankai Thamil Arasuk Katchi.

TransCRIBEd by N. Lohathayalan