Abstract
This chapter aims to explore the influence of the Canadian Reference over the Sri Lankan Constitutional discourse. The legal issues concerning sub-state nationalism , the self-determination of peoples and secession that were dealt with by the Canadian Supreme Court in the Reference Re Secession of Quebec (1998) have been of central relevance to Sri Lankan constitutional debates for decades. Sri Lanka has struggled to find a viable constitutional settlement for the politico-territorial claims of its main minority Tamil people since before independence . The intricate balance that the Canadian Supreme Court struck between competing norms of international and constitutional law has, perhaps unsurprisingly, inspired Sri Lankan liberal federalists about the possibilities of a principled approach to a resolution of their own conflict. For them, the judgement not only clarified the key principles applicable to accommodating Tamil autonomy within a united Sri Lanka , but it also added normative depth, through the transferable discussion of the ‘unwritten principles’ of the Canadian constitution, to the design of the federal-type institutional architecture that is needed for a Sri Lankan settlement.
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Notes
- 1.
I discuss these issues and the failed peace process of 2001–2006 in greater detail in Welikala (forthcoming).
- 2.
Chandrasoma v. Senathiraja and Others (2017), SC SPL 03/2014, SC Minutes, August 4, 2017, http://www.supremecourt.lk/images/documents/sc_spl_03_2014.pdf.
- 3.
- 4.
Department of Census and Statistics, “Census of Population and Housing of Sri Lanka 2012”, Table A3, http://www.statistics.gov.lk/PopHouSat/CPH2011/Pages/Activities/Reports/FinalReport/Population/FinalPopulation.pdf.
- 5.
Tamil nationalism’s attempts to encompass the Muslims of the north and east within the Tamil nation under the rubric of ‘Tamil-speaking people’ have been resisted by the Muslims, who insist on their separate religion-based identity. The Indian Tamils, the descendants of indentured labour in the British colonial plantation economy, do not make territorial claims.
- 6.
In Re the Thirteenth Amendment to the Constitution and the Provincial Councils Bill (1987) 2 SLR 312.
- 7.
There is now considerable confusion on this point. Contrary to the majority in the Thirteenth Amendment Case, the Supreme Court in In Re the Nineteenth Amendment to the Constitution (2002) 3 SLR 85 held that Articles 3 and 4 must be read together, whereas the court in its determination of constitutionality of the latest Nineteenth Amendment Bill (see Parliamentary Debates 234(3), 9 April 2015: Cols. 261–284) held that since Article 4 is not entrenched, not all violations of Article 4 would result in a violation of Article 3. There is thus no coherent general account of the relationship between these two provisions in the constitutional case law.
- 8.
For an illustration of this viewpoint, see, e.g., de Silva (2008: 74). For the judicial expression of a broadly similar perspective, see the dissenting opinion of Justice Wanasundera In Re the Thirteenth Amendment to the Constitution and the Provincial Councils Bill (1987) 2 SLR 312 at 333–383, which is critically discussed in Coomaraswamy (1997: Ch. 7).
- 9.
See, e.g., note 7, supra.
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Welikala, A. (2019). Constitutional Migrations in the Commonwealth: The Quebec Secession Reference and Sri Lankan Constitutional Discourse. In: Delledonne, G., Martinico, G. (eds) The Canadian Contribution to a Comparative Law of Secession. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-03469-6_7
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