M.A. Sumanthiran’s 22nd Amendment Case Opens a Second Constitutional Question: What Does the ITAK Constitution Mean Under Article 157A?
Legal Correspondent
The intervention of President’s Counsel M.A. Sumanthiran in the constitutional challenge to Sri Lanka’s proposed 22nd Amendment has now opened a much wider legal and political debate—one that goes beyond the immediate question of judicial tenure.
On September 1, 2026, Sumanthiran appeared in the proceedings and sought to have the petitions heard by a full bench of the Supreme Court, arguing that the proposed amendment creates a potential conflict because it concerns the tenure of superior-court judges. The Supreme Court rejected that request and directed that the cases continue before the existing five-member bench.
But there is another constitutional issue that deserves public examination.
Sumanthiran's Anti Muslim Remarks
M. A. Sumanthiran has also faced questions over his role in litigation concerning the fundamental rights of Muslim citizens during the COVID-19-era forced cremation policy. Although the case was taken up as a fundamental-rights issue concerning the compulsory cremation of the bodies of Muslims who died during the pandemic, critics have questioned what ultimately happened to the case and whether it produced any meaningful judicial remedy for the affected families. The episode remains relevant to the broader debate about Sumanthiran’s record as a constitutional lawyer and his claims to defend fundamental rights before the Supreme Court.
There are also continuing questions over remarks attributed to Sumanthiran concerning Muslims and radicalisation in the aftermath of the Easter Sunday attacks. Critics argue that statements made in the highly charged post-Easter environment risked placing collective responsibility on the Muslim community for the actions of extremists. They further argue that Sumanthiran has never offered an adequate public apology to Muslims for remarks they regard as racially or communally offensive. Any such allegation should, however, be assessed against the exact wording, date and context of his original statements, rather than relying on paraphrases. For an investigative article, the strongest approach would be to publish the original quotation alongside his subsequent explanations or responses and allow readers to judge whether an apology was warranted.
It concerns the political organisation to which Sumanthiran belongs—the Ilankai Tamil Arasu Kachchi (ITAK)—and the relationship between its historical constitutional documents, its current political objectives, Article 2 of Sri Lanka's Constitution, and the far more specific prohibition contained in Article 157A, introduced by the Sixth Amendment.
The question is not whether a Tamil political party may advocate devolution, federalism or greater provincial autonomy. The Supreme Court has already answered that question.
The more precise question is this:
If evidence emerges that a political party actually maintains an objective of establishing a separate State within Sri Lanka, what constitutional consequences follow—and what consequences, if any, could that have for an Attorney-at-Law who is a member or office-holder of that party?
That is a legitimate constitutional question. But it must be answered by the courts, not by political assertion.
The document that started the controversy
The historical record is important.
A 2012 report published by The Hindu, reproduced in the material now circulating publicly, reported that ITAK had declined to amend its constitution. The report stated that the party's stated objectives included the establishment of a “unitary Tamil State and a unitary Muslim State.”
That is a serious statement because the Sixth Amendment to the Sri Lankan Constitution inserted Article 157A.
Article 157A(1) provides that no person may directly or indirectly support, promote, finance, encourage or advocate the establishment of a separate State within Sri Lanka.
Even more directly, Article 157A(2) states that no political party or other organisation shall have as one of its aims or objects the establishment of a separate State within Sri Lanka.
This is therefore not merely a question of political rhetoric.
It is a constitutional question.
But there is a crucial legal qualification that any responsible investigation must acknowledge.
The Supreme Court has already ruled on ITAK
In 2014, an application was filed under Article 157A(4), specifically asking the Supreme Court to declare that ITAK had as one of its aims or objects the establishment of a separate State.
The case was SC/SPL/03/2014, Hikkadu Koralalage Don Chandrasoma v. Mawai S. Senathirajah and Others.
And there is an important fact that cannot be ignored:
M.A. Sumanthiran himself appeared for the ITAK respondent in that case. The official Supreme Court judgment records that K. Kanag-Iswaran PC appeared with M.A. Sumanthiran and other counsel for the ITAK respondent.
The case was decided on August 4, 2017.
The petitioner relied on ITAK's constitution and argued that changes made in 2008 transformed the party's objective from federalism into confederalism and therefore amounted to support for a separate State.
The Supreme Court examined the documents—including the Tamil-language constitutional documents deposited with the Elections Commissioner.
But the Court did not declare ITAK a separatist organisation.
Quite the opposite.
The Court obtained an official translation from the Official Languages Department and concluded that the disputed Tamil terminology did not change the meaning of the party's constitutional objective from federation to confederation.
The Court further examined ITAK's political statements and found that its stated objective was federalism within a united Sri Lanka.
The judgment ultimately held that ITAK did not support, espouse, promote, finance, encourage or advocate the establishment of a separate State within Sri Lanka as prohibited by Article 157A.
The application was dismissed.
That judgment is the most important legal obstacle to any claim that ITAK can simply be declared unconstitutional today because of the material shown in a historical newspaper report.
But does the 2017 judgment end the matter forever?
Not necessarily.
A constitutional declaration concerning a political party is based on the evidence before the Court and the party's objectives as established at the relevant time.
The present investigative question should therefore be narrower and more precise:
What is the current constitution of ITAK?
The Election Commission's current website lists ITAK among Sri Lanka's recognised political parties and provides links to its party constitution and other documents.
The Election Commission also requires recognised parties to submit their constitutions, policy declarations and financial information, and requires amendments to a party constitution to be submitted to the Commission.
That means there is a straightforward documentary route.
Instead of relying upon rumours, political speeches or social-media translations, investigators should obtain:
- the current ITAK constitution;
- every amendment submitted since the 2017 Supreme Court judgment;
- the Tamil original;
- the certified English translation;
- the policy declaration submitted to the Election Commission;
- subsequent election manifestos;
- official party resolutions; and
- any documents concerning the party's constitutional objectives.
If those documents demonstrate a materially different objective from the one considered by the Supreme Court in 2017, then the constitutional question could be raised again through the procedure expressly provided by Article 157A(4).
That is the legally credible route.
Article 157A does not automatically remove a person's civil rights
This is another area where the public debate requires precision.
There is a powerful argument that Article 157A has severe consequences—but those consequences do not automatically arise merely because someone belongs to a political party that has been accused of separatism.
The Constitution establishes a judicial process.
Under Article 157A(4), any person may apply to the Supreme Court for a declaration that a political party has as one of its aims or objects the establishment of a separate State.
If the Supreme Court makes such a declaration, Article 157A(5) provides that the political party is deemed to be proscribed, parliamentary members belonging to it lose their seats, and nomination papers submitted by the party become invalid.
There are also criminal consequences for persons who continue as members or office-holders after such a declaration, subject to conviction through the constitutionally prescribed process.
Separately, Article 157A(3) provides serious consequences for a person who personally acts in contravention of Article 157A(1), including possible civic disability, property forfeiture and loss of civic rights for a period not exceeding seven years following conviction.
Therefore, it would be legally inaccurate to write that Sumanthiran has automatically lost his civil rights simply because ITAK has a disputed constitutional provision.
That conclusion would require a legally established finding and the procedures contemplated by Article 157A.
The Attorney-at-Law question is nevertheless real
There is, however, a particularly interesting constitutional provision concerning lawyers.
Article 157A(7) expressly includes every Attorney-at-Law among the persons subject to the oath or affirmation introduced by the Sixth Amendment.
The constitutional oath requires the person to declare that he or she will uphold and defend the Constitution and will not support, promote, encourage or advocate the establishment of a separate State within Sri Lanka.
That makes the question of professional conduct more complicated than simply asking whether a lawyer is a member of a particular political party.
Membership alone is not equivalent to personally advocating a separate State.
There must be evidence of conduct falling within the constitutional prohibition.
This distinction is especially important in Sumanthiran's case because the Supreme Court itself has previously accepted the distinction between federalism within Sri Lanka and separatism.
In its 2017 judgment, the Court stated that advocating a federal form of government within the existing State could not, by itself, be treated as advocacy of separatism.
Consequently, anyone seeking disciplinary action against Sumanthiran would need to establish considerably more than the proposition that he supports devolution or federalism.
Can Sumanthiran therefore be barred from the 22nd Amendment case?
At present, the answer cannot responsibly be stated as an automatic yes.
The fact that Sumanthiran is a member of ITAK does not itself establish that he has personally violated Article 157A.
Nor does the fact that he represented ITAK in the 2014 constitutional litigation establish that he personally supported a separate State.
Indeed, the Supreme Court judgment records that the ITAK position was that it sought political arrangements within a united Sri Lanka, and the Court ultimately accepted that distinction.
A much stronger legal argument would require evidence that Sumanthiran himself has subsequently advocated the establishment of a separate State contrary to Article 157A(1), or that a current ITAK constitutional objective now materially differs from the position examined and accepted by the Supreme Court in 2017.
Only then would the question of constitutional and professional consequences become substantially different.
The BMW question must also be separated from the constitutional question
Another issue raised in the public debate concerns the controversial BMW import-duty matter.
There is documentary reporting concerning an alleged BMW duty-revenue fraud involving thousands of vehicles and an estimated loss of approximately Rs.16 billion to the Sri Lankan State. News reports at the time described allegations involving undervaluation and the use of concessionary vehicle permits.
The BMW matter has subsequently continued to attract calls for investigation and recovery of allegedly lost revenue.
But this is where investigative journalism must draw a hard line.
The existence of the BMW revenue-fraud allegations does not, by itself, establish that M.A. Sumanthiran, BASL or any individual lawyer participated in wrongdoing.
If there is documentary evidence that particular lawyers acted in a way that prevented the State from recovering revenue, that evidence should be published and independently verified.
If there are allegations of conflicts of interest, the relevant questions should include:
- Who represented whom?
- What was the precise legal mandate?
- What was the outcome sought?
- What legal fees were charged?
- Were those fees properly invoiced?
- Were they recorded in the relevant accounts?
- Were applicable taxes paid?
- Were there undisclosed relationships between lawyers, clients and other parties?
- Were any representations made to the court that subsequently proved materially inaccurate?
Those are legitimate investigative questions.
But allegations that the Election Commissioner was bribed by Tamil businessmen, for example, should not be published as established fact without admissible evidence.
A responsible investigation should ask for the evidence rather than manufacture a conclusion.
BASL also deserves scrutiny—but through documents
The Bar Association of Sri Lanka is a professional organisation. The fact that Sumanthiran appeared on behalf of BASL in the 22nd Amendment proceedings is publicly reported.
That creates legitimate questions about professional accountability, but not necessarily wrongdoing.
The appropriate scrutiny would be institutional:
How does BASL select counsel for constitutional litigation?
Who authorises litigation positions?
What are the terms of engagement?
What are the fees?
Are those fees properly recorded and accounted for?
Are there conflicts between institutional interests and the interests of individual members?
And, most importantly:
Are constitutional objections being advanced because they are legally sustainable, or because particular institutional interests are affected?
Those questions should be answered through BASL's constitutional documents, audited accounts, resolutions and properly disclosed records—not through rumours.
The Supreme Court's own rules recognise a formal professional-discipline framework for Attorneys-at-Law. The Court's published rules include rules governing the admission, enrolment, suspension and removal of Attorneys-at-Law, as well as conduct and etiquette.
Therefore, if there is credible evidence of professional misconduct, there is already a legal mechanism for examining it.
The 22nd Amendment debate now needs evidence, not personalities
The central danger in the present controversy is that two different constitutional debates could become mixed together.
The first is whether the proposed 22nd Amendment is constitutionally valid.
The second is whether the lawyers appearing before the Supreme Court are themselves subject to constitutional or professional conflicts.
Those questions should be considered independently.
The Supreme Court has already rejected the request for a full bench and has continued the proceedings before the five-member panel.
The constitutional challenge must therefore be decided on the legislation, the Constitution, precedent and the submissions properly made before the Court.
But the public also has a right to ask questions about the professional and institutional interests involved.
And if somebody produces credible evidence that a current political-party constitution violates Article 157A, the Constitution itself provides a mechanism for testing that proposition before the Supreme Court.
That is the point that should not be lost.
The real test: apply Article 157A equally
The most important principle is not whether Sumanthiran is politically popular or unpopular.
It is not whether ITAK is popular or unpopular.
It is not whether BASL supports or opposes the 22nd Amendment.
It is whether Article 157A is applied equally to everyone.
The Constitution expressly prohibits a political party from having as one of its aims or objects the establishment of a separate State within Sri Lanka.
At the same time, the Supreme Court has expressly ruled that advocating federalism within a united Sri Lanka is not, by itself, separatism.
Therefore the public debate must move beyond the old newspaper headline.
The question today should be:
What does the current ITAK constitution actually say?
If it says what critics allege, the document should be produced.
If it does not, the allegation should be withdrawn.
If it has been amended since the Supreme Court judgment, those amendments should be examined.
If the party's present objectives remain within a united Sri Lanka, that should be acknowledged.
And if any individual—including an Attorney-at-Law—has personally violated Article 157A, the constitutional procedure should be followed.
That is how the rule of law works.
A constitutional question—not a political execution
M.A. Sumanthiran's appearance in the 22nd Amendment proceedings has placed his legal submissions under intense public scrutiny.
His request for a full Supreme Court bench has already been rejected.
But the more interesting question may now be whether the same constitutional standards that lawyers invoke against government institutions should also be applied to political parties and legal professionals themselves.
There is historical evidence showing that ITAK's constitutional objectives have previously generated precisely this controversy. There was even litigation under Article 157A specifically directed at the party. Yet the Supreme Court in 2017 dismissed that application after examining the party's constitutional documents and official translation, concluding that ITAK advocated federalism within a united Sri Lanka rather than a separate State.
That judgment cannot simply be erased by a newspaper screenshot.
But neither should it prevent legitimate examination of new evidence, if such evidence exists.
The appropriate demand now is therefore simple:
Publish the current ITAK constitution. Publish the amendments. Publish the Election Commission record. Publish the evidence. Let the Supreme Court determine whether Article 157A has been breached.
And if the evidence establishes a constitutional violation, the consequences should follow according to law—whether the person involved is a politician, a businessman, a lawyer, a BASL office-holder or anyone else.
The Constitution cannot be a weapon used only against political opponents. If Article 157A means what it says, it must apply equally.
That is the constitutional question M.A. Sumanthiran's appearance in the 22nd Amendment proceedings has now brought back into the public arena.