Homeland signifies a demarcated area of territory over Chicle a gr oup of people have lived over a long period of time and developed their social, cultural and political institutions by means of Which they are identified. Such a tcrritortT may be part of a multinational and multi cultural state.
The homeland of the Tamils signify such a territorial demarcation of area over which Tamils have lived and held political pouncer. This political power and sovereignty; though lost to foreign powers, by wars and conquest, has in reality reverted to the people who have retained it in the form of authority structures at a louver level such as villages and religious comrmullities and have held it in their trusteeship. In a period of democracy and assertion of human rights its reemergence is illesitable and indisputable and a structural accommodation is one of the imperatives for its harmonious existence.
The achievement of the noble objective of free and prosperous society depends on providing for the structures Which are instruments in effective and useful articulation of the will of the people. This necessitated the need to identify the contours along which a demarcation is necessary so as to provide maximum uniformit,v, providing for the economy and effectiveness of governance.
The concept of homeland is not land alone. It is not difficult to comprehend the idea of a merged North East Province as a Tamil Homeland, if one understands the concept of homeland that has given rise to each province as a distinguished political entity with territorial demarcation.
There has been a near hysteric reaction from the Sinhalese intellectuals to the idea of homeland which has become a basic demand of the Tamil people. It can be reasonably contended that the concept of homeland is not new to Sri Lanka. Further, it is also found to have been embodied in the first constitution of independent Ceylon. It has also been carried down through the Republican Constitution of 1972 and Gaullist constitution of 1978. The architect of such an embodiment in the constitution is Sir Ivor Jennings, who is reputed to be the father of the constitution of independent Ceylon.
But these principles, that are the corner stone of the constitution of independent Ceylon, have become incomprehensible to the post independent politicians, both Tamils and Sinhalese. The constitution came into being through the discussions that took place between the two individuals, D.S.Senanayake and Sir IvorJennings, which brought into existence the so called Minister's draft which in effect became the draft constitution.
The exercise of the constitutional evolution of independent Ceylon can be best described as an attempt to shift the rule of the island which the British obtained by the right of conquest to the Sinhalesq by providing for the legitimization of the pretensions of the Volk to dominate the whole island. It is apparent from the post independence political experience that the Sinhalese did not approach the affairs of the constitution in any sincerity or in the same spirit as Sir Ivor Jennings.
The ethnic problem during the time of independence was popularly known as the minority problem. To understand hones the ethnic problem was purportedly resolved during the time of independence, Sir IvorJennings's observations on this matter are important.
The major difficulty, however, was the minority problem. As it always happens when constitutional reform is under discussion for long periods, members had pledged themselves to conflicting principals. A majority would insist upon territorial representation, but strong minorities would insist upon communal representation. That issue could not be burked, for it had to be the one or the other. As the success of a constitution depends in a large measure on the spirit in which it is accepted, the ideal choice would be to obtain unanimity; but if that was impossible it has to be as large a majority as possible and in any event not less than three quarters.
Two factors helped towards a solution. One was the knowledge that most ofthe minority members were as anxious for self government as the majority members and would not wish to hold up a real constitutional advance merely because all their claims were not met, the other was the fact that a large proportion of the minonties was concentrated in specific areas, so that increased minority representation could beaccordedwithinthe principle ofterritorial representation, by giving those areas representation on a higher numerical basis.
The constitution of Ceylon, Sir Ivor Jennings, page 6.
What was embodied as territorial representation was none other than the concept of homeland adopted to a multi member parliamentary system. The mutilation of the idea of homeland to suite the parliamentary system undoubtedly facilitated the subsequent non recognition of its broad contours that were the territory of the three principal nationalities of Tamil, Kandyan Sinhalese and Low Country Sinhalese. This constitutional adventurism of Sir IvorJennings merging the idea of homeland and parliamentary electoral divisions, in reality, not onllTz failed to resolve the ethnic problem but contributed greatly to the present constitutional crisis. In the words of Sir Ivor Jennings:
"In South Africa, Natal and the Orange Free State were given higher proportionate representation. Moreover, the SouthAfricaAct contained a provision authorising Delimitation Cornrnission to give consideration to (a) community or diversity of interests (b) means of communication (c) physical features (d) existing electoral boundaries (e) sparsity or density of population.
The Constitulion of Ceylon. Sir Ivor Jennings, page 6.
In his autobiography Sir IvorJennings prides as a near miracle he pulled on the intricate minority problem with his idea and which did the magic and resolved the ethnic problem within the context of a unitary state. His constitutional experiment may have succeeded if the parliamentary system automatically vested power to all those elected representatives. But unfortunately the system effectively shuts out nearly half the representatives and the Tamil members were condemned to be permanently out of the processof governance which was perfectly legitimate under the parliamentary system.
What is this idea which Sir IvorJennings claims as having bcen borrowed from the South African Constitution and integrated into the Ceylon Constitution? Undoubtedly it is the concept of homeland that was found integrated in the South African Constitution.
Further it was stated that the Ceylon constitution was an integration of Australian Constitution and South African Constitution. What was omitted from the Australian Constitution was the federal idea and in its place, Sir Ivor Jennings brought in the concept of homeland as found in the South African constitution. Representation was accorded to the homeland of the three principal nationalities of Ceylon.
It was desired to have a legislature of about 100 members. Examination of the census figures of 1931 showed that if one memberwas given for every 75,000 inhabitants and an additional memberfor every 1,000 square miles of area, there would be 95 members Moreover, theadditionalmembers forarea would number 25 divided as follows:
Low country 6 Kandyan area 11 Tamil area 8 Total 25
The constitution of Ceylon, Sir Ivor Jennings, page 6.
What is the area that Sir Ivor Jennings refers to as Tamil area, to which this allocation of seats were made? The recognition of a Tamil area or a Tamil homeland in the constitution exist but not explicitly. It is the merged North and East Province that has been recognised as a Tamil homeland ever since the final demarcation of them as Tamil Province took place during the latter part of the last century.
The recognition of these two provinces as Tamil provinces in the Bandaranayake Chelvanayagam pact was not an accidental event. It was only an act to uphold an already accepted concept in the constitution which was being undermined by the Sinhala Only Act.
The recognition of homeland principle was embodied in the text of the terms of reference to the first delimitation commission as well as the articles of the constitution dealing with delimitation.
The members ofthe first delimitation commission were Mr.L.M.A.de Silva, Chairman, Mr.N.Nadarajah and Mr.H.EJansz. Their report, that obtained its ascent by proclamation was unanimously accepted by all communities.
The terms of reference of the first delimitation commission of Independent Ceylon was:
(a) That each province of the island be divided into electoral districts the total numberofwhich is specified inthe order and the aggregate of which totals 95 for the whole island.
(b) That each Electoral District of a province shall have as nearly as may be an equal number of persons.
(i) subject to a proviso relating to transport facilities, physical features, and community or diversity of interests of the inhabitants ofthe Provinee; and
(ii) Subject further to the proviso that the rule is to give way where ever it comes into conflict with the directions in (e) and (d).
(e) that the Commission may so divide a Province as to render possible the representation of minorities united by the tie of race, by the tie of religion, or by any other tie. The Commission is directed in making Such division to minimise any disproportion that may arise in the population figures ofthe several eleetoraldistriets demarcated intheprovinee.
(d) That the Commission may create electoral districts returning two or more members but in so doing shall not increase the numberofmembers tobereturned forthe province beyond that Specified in a order.
The process of delimitation was so exercised to take cognizance of the political limitation imposed on the constitutional process by the constraints of widely held perception of homeland among the people of the country both Sinhalese and Tamil. This was further elevated to a status of constitutional law by the section on Delimitation of Electoral Districts.
It is useful to know the concept of homeland or the territorial representation as it is sometimes called, was carried through in the republican constitution of 1972. Whether the framers of the subsequent constitutions had the same comprehension of the principles underlay this arrangement is not known.
The first constitution of Ceylon also known as the Soulbury Constitution contained the following the article on delimitation including the terminology, "carrying out territorial demarcation so as to give representation to a community of interest" which was an act of recognition and elevation of the homeland principle as the foundation of the constitution .
DELIMITATION OF ELECTORAL DISTRICIS
40 (1) Within one year after the completion of every census of the Island following the general census of 1946, the Governor shall establish a Delimitation Conlmision.
(2) Every Delimitation Commission established under this section shall consist of three persons appointed by the Governor General who shall select persons who he is satisfied are not actively engaged in politics. The Governor General shall appoint one of such persons to be the Chairman.
(3) If any member of a Delimitation Commission shall die, or resign, or if the GovernorGeneral shall be satisfied that any such member has become incapable of discharging his functions as such, the Governor General shall, in accordance with the provisions of subsection (2) ofthis section, appoint another person in his place.
41 (1) Every Delimitation Commission established under section 40 ofthis Order shall divide eachProvince oftheisland intoanumber of electoral districts ascertained as providedin subsection (2) ofthis section and shall assign names thereto.
(2) The total number of persons who, according to the last pnmeding general census, were for the time being resident in the province shall be ascertained to the nearest 75,000. In respect of each 75,000 of this number the Delimitation Commission shall allot one Electoral District tothe province andshalladdafurther number of electoral districts (based on the number of square miles in the province at the rate one additional electoral district for each 1,000 squaremiles of area calculatedtothe nearest 1,000) as follows;
Westem Province 1 Central Province 2 Southern Province 2 Northem Province 4 Eastem Province 4 North Westem Province 3 North Central Province 4 Uva Province 3 Sabragamuwa Province 2
(3) Subject to the provisions of subsections (4) and (5) of this section, each electoral district of aprovinceshall have as nearly as may be an equal number of persons:
Provided that, in dividing a province into electoral districts, every Delimitation Comml Scion shall have regard to the transport facilities ofthe province, its physical features and the communityordiversity of interests of its inhabitants.
(4) Where it appears to the Delimitation Commission that there is in any area of a Province a substantial concentration of persons united by a community of interest, whether racial, religious or otherwise, but differing in one or more of these respects from the majority ofthe inhabitants ofthat area, the Commission may make such division ofthe Province into electoral districts as may be necessary to render possible the representation ofthatinterest. Inmakingsuch division the Commission shall have due regard to the desirability of reducing to the minimum the disproportion in the number of persons resident in the several electoral districts ofthe Province.
(5) Notwithstanding anything in subsection (1) of this section, the Delimitation Commission shall have power to create in any Province one or more electoral districts returning two or more members:
Provided that in any such case the number of electoral districts for that Province, as ascertained in accordance with the provisions of subsection (2) of this section, shall be reduced so that the total numberof Members to be returned for that Province shall not exceed the total number of electoral districts so ascertained.
In the Republican constitution of 1972 the provision detailing the nature and content of representation is repeated in the same words as in the Soulbury Constitution.
In the the Gaullist constitution of 1978 the concept of 0 province beingaunitis retained though for the first time the concept of effecting territorial demarcation so as to give representation to a community of interest disappears.
96.(1) The Delimitation Commission shall divide Sri Lanka intonotlessthan twenty and notmorethan twentyfour electoral districts, and shall s.ssign names thereto.
(2) Each province of Sri Lanka may itself constitute an electoral district or may be divided into two or more electoral districts.
(3) Where a Province is divided into a number of electoral districts the Delimitation Commission shall have regard to the existing administrative districts so as to ensure as far as is practicable that each electoral district shall be anadminiXtive districtoracombinationoftwo ormoreadminiXtive districts ortwoormore electoral districts together constitute an adminiNtive district.
(4) The electoral districts of each Province shall together be entitled to return four members, (independently of the number of members which they are entitled to return by reference to the numberofelectorswhose names appear in the registers of electors of such electoral districts), and the Delimitation Commission shall apportion such entitlement equitably among suchelectoral districts.
(5) In the event of a difference of opinion among the members of the Delimitation Commission, the opinion ofthe maJority thereof shall prevail and shall be deemed to be the decision ofthe Commission. Where each member ofthe Commission is of a different opinion, the opinion ofthe Chairman shall be deemed to be the decision of the Commission Any dissentient membermaystate hisreasons foreachdissent.
(6) The Chairman of the Delimitation Connnission shall communicate the decisions of the Comuniion togetherwith the seasons, if any, stated by a dissentient member to the President.
The absence of a lively debate on the issue of homeland of various people during the time of independence arose mainly due to the naivity that prevailed among the native leadership that communal differences will disappear and everyone would turn out to be good children of mother Lanka by simply refraining from making any reference to the communal factor. But this turned out to be an illusion to be exploited by the Volk. The ministers draft of the constitution argued passionately that undoing the communal representation, which has been the basis of representation thus far, would create a Ceylonese Nation without communal differences.
Added to this, during the time of independence, an atmosphere was created, where casting any doubt on the integrity of Sinhalese leadership was seen as an act of bad faith against the Constitution and independence. The Sinhalese leaders pretended to be such men of honesty and states manship that the appointment of the Soulbury Commission was seen as a challenge to their integrity and reasonableness and they refused to cooperate with the Soulbury Commission.30 The following observation by Sir IvorJennings provides some enlightenment on the thinking that lead to the Article 41 and what was expected from it.
Further, if the Delimitation (inmissionwas empowered to take community or diversity of interests into consideration, it would be possible to give seats to any substantial concentration of Tsmil orMuslimvoters in the Low countly, to any substantial concentration of Muslim voters in the Northem or Eastem Province, and to Indian estate voters in the Kandyan Provinces. Even allowing for these variations the Tamils and the Kandyans would have increased representation, while the general effectofusing sparsity of population as a basis for increased representation would be to benefit the backwanlareas.Thescheme didnotpmvide for Burgherand European representation, and so theGovernorwas empowered to appoint six additional members in his discretion.
Some ofthe minority members would not be satisfied with increased representation, since theydeied paxity ofrepresentationasbetween the majority andtheminorities.Itwasnot possibletomeet thisdemandwithout losingthe support ofthe majority; but it was hoped to allay some at least of the minority fears by imposing limitations on the power of the legislature andtransferxing toanindependent Public Service Commission the function of making appointments to the public service It should be added that the scheme of representation was not decided upon until it was seen that the efforts made by Mr.S.W.R.D.Banadaranayake to secure agreement amongthemembersofthe State Council had failed.
The Constitution of Ceylon, Sir Ivor Jennings, page 7.
The communal motive was dominant; that is, the primary intention was to give a greater proportionate representationtothe minorities; butthe other advantages were foreseen. In any event the Ministerswere looldngforward, as their Memorandum makes clear, to the time when the communal factor would be quite irrelevant.
The Constitution of Ceylon, Sir Ivor Jennings, page 210.
It is now very clear, while the concept of homeland is not new to Sri Lanka, the Sinhalese political leadership keeping in line with tradition of deceit and dishonesty, having engineered the Volkist degeneration of the nation were unable to uphold the founding principles of the constitution.
Leaders like S.W.R.D.Banadaranayake who tried to uphold the fundamental principles based on which the constitution was formulated had themselves cut short. What remains unexplainable is the failure of the Tamil leadership to grasp what was already enshrined in the constitution, pursuance of which could have avoided the confrontation generated by the novel demand of federalism which was seen as an attempt at the division of the country.
The idea of homeland is more explicitly debated and accommodated in the South African political agenda. Writing in his biography of issues concerning homeland and how they are resolved, Nelson Mandela had this to say:
The Government ofthe Bophuthalswanaof homeland alsorefusedtoparticipate andreisted incorporation into a united South Africa. I was disturbed that these important groups were choosingng nottoparticipate.Tobringthemonboard we proposed some significant compromises. We agreed for the use of double ballots for provincial andnational legislatures, guarantees of greaterprovincial powers; the x of Natal Province as Kwazulu/Natal; and the affirmation that a principle of internal selfdetermination wouldbeincludedinthe const onforgroup sharing a common cultural and language heritage.
Long Walk To Freedom, Autobiography of Nelson Mandela, page 607.
The idea of an indigenous unitary Ceylonese Nation State took shape during the latter part of the last century31 and beginning of this century. The Ceylon National Congress that came to be the forum where this idea was articulated soon became the voice of the Sinhala Volk and the Tamil leadership which passionately believed in a Ceylonese nation, had no Option to seekjustice within a unitary Ceylon.
The constitutional experience before this period was that of a subject nation and was dominated by the British Governor who was also the Commander in Chief of the British Settlement in Ceylon who enjoyed the support of an Execut*e Council and a Legislative Council. The Governor made laws with the advise and consent of the Legislative Council. He was empowered to make any law and order for good governance ofthe Island. The British Crown retained the power of veto.
Subsequently the idea of an expanded Legislative Council to include Ceylonese based on community interests took hold. Inspired by Indian freedom movement the demand for self government gradually took shape and when the British had to heed to these requests, the idea of election was introduced to back the communal representation. However, the Constitutional experience during the early part of this century should be seen as as a haggling between the middle class interests of the natives and the British rulers. Only four percent of the people had a right to vote in 1924 and effective power remained with the Governor. Further agitation brought the Donoughmore Commission which recommended the reduction of powers ofthe Governorand promoted the idea of self government.
On the question of a unitary Sri Lanka, serious reservations were expressed by the Donoughmore Commission whose report appeared inJuly, 1928;
Not only is the population not homogeneous, but the diverse elements of which it is composed distrust and suspect each other. It is almost true to say that the concept of patriotism in Ceylon is as much racial as national; and that the best interests ofthe country are at times regarded assynonymouswiththewelfhre ofthe particular section ofthe people. If the claim for full responsible government be submitted to examination from this standpoint it will be found that its advocates are always to be numbered amongthose who from the larger communities and who, iffreed from external control, would be able to impose theirwill on all who dissented from them. Those, on the otherhand, who form the minority communities, though united in no other respect are sole in their opposition to the proposal. A condition precedent to the grant of full responsible government mustbe the gmwth of a publicopinionwhichwill make that grant acceptable, not only to the section, but to all sectionsofthe people.
To prevent the further escalation of the divisive tendency, the Commission proposed a scheme based on the Committee system of the English Local Government in its attempt to accommodate and bring together the diverse forces under one unitary state. The communal representations of the earlier period was seen as a drawback and there was no sound system in sight. The commissioners have to put up a brave face and pretend to be optimistic that the formula would pave the way for true national unity and assumed that they have sealed the repercussions of the communal representation by the new scheme. They further stated -
It was generally admitted, even by many communal representative themselves, that the communal form of appointment to the L4slative Council was a necessary evil and should only continue until conditions of friendliness and acknowledgement of common aims were developedamongthe different communities. Itis ouropinion, however, that the very existence of communal representation tends to prevent the development ofthese relations, and that only by its abolition will it be possible for the various diverse communities to develop together atrue naticxnalunity.
Contrary to the expectation of the Donoughmore Commission, the government that came into existence based on the constitution of 1931, as proposed by the Donoughmore Commission, led to the Pan Sinhala Ministry that laid the foundation of a unitary state based on the Sinhala Volk ideology.
The reason for this Pan Sinhala Ministry was the belief that the unanimity so achieved would speed up the gaining of independence and provide an opportunity for the Sinhalese to demonstrate and prevail upon other communities that their reasonableness will render any demand for a greater share of power and division of sovereignty irrelevant. However, soon the weakness of the system was exposed by the usurpation of the constitutional process by Sinhala Volk. The Tamils then started thinking of means and devices that would ensure them a secure share of power in the government within a unitary Ceylon.
To combat the situation and the dangers the situation posed, the Tamil leaders were ill equipped. They were prisoners of their own subculture and were relectunt to break off from the traditions of their subculture. Their class interests, subservient elitist culture and their economic well being that was rooted in the South have kept them divorced from their own people. They failed to comprehend the political realities and aspirations of their people and could not articulate their political will.
The Tamil leaders sought accommodation. They tried to blunt the dreadfulness of a unitary state and parliamentary democracy which led to the tyranny of the majority. They came out with the idea of balanced representation, known as the fifty fifty demand, under which no community would be able to outvote the other community.
However, when the Sinhala leaders felt they have exposed themselves too early, they ended the Pan Sinhala Ministry with another deceptive exercise in 1942 by appointing Mr.Arunasalem Mahadevaas HomeAffairs Minister.
Soon the Committee system was grinding to a halt and reforms were discussed and debates started to transfer the idea of unitary state of Ceylon from the British rulers to the hands of the natives. As soon as the election to the new State Council was completed in March 1936 which was boycotted by the Tamils, the Pan Sinhala Board of Ministers took up the question of Constitutional Reforms. The Board of Ministers proposed the idea of unitary state by providing for increased representations to the minorities and accepting clauses for the protection of minorities.
The last of the Constitutional Commission under the presidentship of Lord Soulbury went along formulating a new Constitution for an independent Ceylon based on the ideas included in a draft Constitution drawn by a predominantly Sinhala Board of Ministers headed by Mr.D.S.Senanayake.
The apprehensions of the minority and their demands for share of power was to be effected through necessary safeguards in the Constitution:
Mr.D.S.Senanayake, who had replaced Sir BannJeyatilleke, wasmoreinclinedtotakewhat was offered and then ask for more, than to reject an offer because it was inadequate. A constitution dEd by Ministers, even under rigid conditions, could not be worse than the Donoughmore Constitution. If itwas acoeptedby three quarters ofthe State Council, emphasis could no longer be laid upon communal disagreement. In fact, SirAndrew Caldecott has believed apparently wrongly to have invented the device ofthe three quartersmajorityin order to overcome the difficulty which has been felt even more in India. If unanimity or any appropriation to it is required, the result must be not a compromise but the acceptance of the minority demand; if, however, a three quarters majority was required, no single minority could hold the majority to ransom, while the Sinhalese alone could not carry the Council.
The Dominion of Ceylon The development of its Laws and Constitution, Sir Ivor Jennings and Mr.H. W. Tharnbiah, page 32.
The British rulers as well as the Tamil leaders, in spite of sceptism, vested so much hope and trust in the magnanimity, just play and statesmanship of the Sinhalese leaders all of which were soon to evaporate and crumble under the onslaught of the Sinhala Volk. What unfolded was the legitimisation of the mob rule as was foreseen by Sir. Ponnabalam Ramanathan, himself a great proponent of the idea of the Ceylonese Nation, in his memorandum to the British Monarch in 1933.
The shift of power from the British to Sinhala leadership was to bring increased hardship and disappointment to the Tamil people. The Sinhala leadership violated with impunity the accepted Constitutional norms and opted to rule the country by undermining the Constitutional principles and its spirit which was sought to guarantee a harmonious Sri Lanka.
The Tamil politicians were more concerned about the British not going further enough in granting self rule to a non existing Ceylonese Nation, than the political future of their own people.
The Constitutional pillars that facilitated the transformation of Sri Lanka from Colonial entity into an independent entity rested on the following four basic principles:
(1) The recognition of the homeland aspirations in the temtorial constituency which stood to placate a sense of collective right over land, sea and resources which is common to bothSinhalese and Tamilpeople;
(2) The article 29 which guarantee equality to all citizens and stood to prevent the nectment of diseriXtonr laws against any community
(3) The independent Civil Service Commission which guarantee the equal opportunity to all citizens on the basis of merit.
(4) The independent Judicial Service Commision so thatjudicial appoinments shall be free from political influence.
(4) Greater political representations to the minoritiesthanwhat theywouldget interms oftheethnic proportionasa safeguard to the minorities against the tyranny of majontywhich the supremacyofparliament stoodtolegilimise andpeIpetuate.
Sir Ivor Jennings commenting on the safeguards he introduced to keep the wheels unitary state moving states,
The Ministers decided to establish a Judicial Service Commission in order to removejudicial appointments from politics and to give some sort of guarantee to the minorities that appointments to the judicial service would not be determined on communal lines. The proposal was acceptable to the Soulbury Constitution and accordingly finds a place in the Constitution. The powers of the Governor General ceased to be discretionery,thnDugh amendments made by the Independence Order.
The Constitution of Ceylon . Sir Ivor jeMZlingsX page 220.
The Ministers decided to establish a Public Service Commission in furtherance of their desire to guarantee to the minorities that administration under the new Constitution would not be conducted on communal lines. They felt that appointments to the public service were particularlyimportant inthis respect, and accordingly the Public Service Commission was given all the independence that a constitution makes possible. The Soulbury Commission approved of this intention, and the modifications made in the Minister' draft are merely incidental.
Tile Constitution of CeAlon, Sir Ivor Jennings, page 223.
A lot of hope was pinned on Article 29 of the constitution ch seas to prevent enactment of discriminatory laws against Community limiting the legislative powers of the Parliament.
LEGISLATIVE POWERS AND PROCEDURE
29 (1) Subject to the provisions ofthis Order, Parliament shallhavepowertomakelaws for the peace, order and good government of the Island.
(2) No such law shall(a) prohibit or restrict the free exercise of any religion; or
(b) make persons of any community or religion liable to disabilities or restrictions to whichpersonsofothercommunities orreligions are not made liable; or
(c) confer on persons of any community or religion any privilege or advantagewhichisnotconferred on persons of othercommunities orreligions; or
(d) alterthe constitutionofanyreligious body exceptwiththeconsent ofthegoverning authority of that body,
Provided that, in any case where a religious body is incorporated by law, no such alteration shall be made except at the request of the governing authority ofthat body.
(3) Any law made in contravention of subsection (2) of this section shall, to the extent of such contravention, be void.
(4) In the exercise of its powers under this section, Parliament may amend or repeal any ofthe provisions ofthis Order, or of any other Order of His Majesty in Council in its application to the Island:
Provided thatno bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under the hand ofthe Speaker that the number of votes cast in favour thereof in the House of Representatives amountedtonotlessthan tviTo thirds ofthe whole number of members ofthe House (including those not present).
Every certificate ofthe Speakerunderthis subsection shall be conclusive for all purposes and shall not be questioned in any court of law.
The initiative for the inclusion of the above article came from the Sinhalese who included it in the Ministers draft. This enabled the British to convince the Tamils that there need not be any apprehensions regarding their fate under a unitary Ceylon. If not for the shrinement of these principles as a part of the Constitution, the dissension of the Tamils would have led to the creation of a federal state or separation that would have considerably delayed the attainment of a self government and independence
Added to these short comings was the tendency to gloss over the basic problems with colonial generalisations which was subsequently exploited by the Volk to undermine the rights ° Tamil people. The lack of congruence between the constitutional structures and the social base rvas a major cause for the collapse of the first Soulbur, constitution. If structures rvere provided that could have enabled the articulation of the aspirations of the Tamil people, it Would have rendered extreme postures irrelevant in subsequent periods.
The state aided colonisation undermined the concept of a territorial constituency Which recognised the right of a particular community offer a particular territory The citizenship Act of 1949 violated Article 29 that stood to make it illegal the imposition of disability on any particular community. These svere tlvo steps directed against the Tamils in the North East and Estate Tamils so as to undermine their political power.
Then came the real blow in the form of Sinhala Only Act in l 956, Which completely alienated the Tamils from the idea of a Ceylonese nation.
This law enabled the near total banishment of the Tamils from the gox ernment serx ice.
S.W.R.D.Bandaranyke Who promised the rooters, Sinhala in trventv four hours once elected, introduced the Sinhala Only Act ill the following Words on the DthJune 1956.
The Sinhala language shall be the one Official Language of Ceylon.
This act did arvas Pith the concept of the independent Civil serx ice and and Subsequently Tamil people lost confidence ill the Judiciary for three reasons. Firstly, it could not provide redress against state sponsored discrimination by allowing for its orvll politicization. Secondly its arm, the police force, loosing its national character bar becoming Sinhala onls and becoming the arm of the oppressis e rule bs its own militalisation and could not serve the Tamil people. Thirdly it increasingly served the oppressive rule of the Sinhalese governments bv catering for the implementation of emergency regulation and military rule that rvas subsequently imposed on the North East.32
Further divorce of the Tamils from the unitary state came about by the intolerable atmosphere created in the South by the effective deployment of the factor snobbery, Which is an important trait of the Sinhalese culture which is not found among the Tamils, as a political Weapons The resulting pogroms led to immense physical harm and violence against the innocent Tamils33 in the South leading to the break down of personal relationship between Tamils and Sinhalese further Weakening the foundations of a uniter v Sri Lanka.
The collapse of the unitary state created bv the failure of the Sihnhalese to uphold the terms and principles of the Soulbury constitution and the abuse of the power of parliament to undermine the constitutional norms and thus advance the Volkist ideal, created a political void among the Tamil people forcing them to seek alternate arrangement that would assure them a secure and prosperous life.
As the Tamils were affected further by the entrenchment of the Volk, and decay of the idea of the unitary state, the Sinhalese in the North and East who have been leading a prosperous and harmonious life among the Tamils, were seen as an extension of the Volkist designs and had to leave the North and East. This has made difficult the extending and establishing an understanding between the Tamil and the Sinhalese communities in the North East.
The recent demand for carving out the territories where Sinhalese have been settled recently in the North and East, vindicates the Tamil apprehensions, that the State aided Sinhala settlements are not Sinhalese coming to live in the North East as the Tamils coming to live in the South, but these settlements are an extension of the designs of the Volk to be used for territorial annexation, where these innocent settlers are only pawns.
The right of the state to settle people of another community that has been marked out to provide representation to a particular community so as to alter the content of representation of the existing appropriation, clearly violates and undermines the principles that are the cornerstone of the constitution of Sri Lanka. The assertion that the state has a right to settle the majority Sinhalese anywhere it wants is a violation of the constitutional law which it pretends to uphold.
Today there are six Sinhalese members of Parliament from the North East which has been achieved by the settlement of the Sinhalese in the Homeland of the Tamils while there has been no such increase in the Tamil representation in the South. The contention of the Sinhala Governments is such, it is possible to settle Sinhalese in every electorate in the North East making them Sinhalese majority electorates that would completely end the Tamil representation in parliament and other representative bodies.