By Niranjan

The fact that two nations existed before Queen Victoria, in 1830, established her rule on the whole island of Ceylon is documented by the following authors; Fernao de Queyroz, (1692); Paviljeon, (1695); Donald Ferguson; Van Goens, (1675); Van Imhoff, (1740); Anthony Mooyart, (1766); Hugh Cleghorn, (1799); Robert Brownrigg, (1813); Emerson Tennent, (1859).

They describe the extent and boundaries of the Tamil and the Sinhala Kingdoms by observation in the early years and later with maps.

John Stuart Mill’s Concept of Nationality
John Stuart Mill writing in 1861 on the subject of nationality as connected with "Representative Government," foresaw the problems similar to that Sri Lanka has faced since 1948.

He said,

"A portion of mankind may be said to constitute a nationality if they are united among themselves by common sympathies which does not exist between them and any others - which make them co-operate with each other more willingly than with other people, desire to be under the same government, and desire that it should be government by themselves, or a portion of themselves, exclusively. This feeling of nationality may have been generated by various causes. Sometimes it is the effect of identity of race and descent. community of language and community of religion greatly contribute to it. Geographical limits are one of its causes. But the strongest of all is identity of political antecedents; the possession of a national history, and consequent community of recollections; collective pride and humiliation; pleasure and regret, connected with the same incidents in the past."

Mill’s writing on the subject is so relevant to the Sri Lanka situation that quoting him at length is paramount to the understanding of the present problems. He continues to state that,

"Where the sentiment of nationality exists in any force, there is a prima facie case for uniting all the members of the nationality under the same government, and a government to themselves apart. This is merely saying that the question of government ought to be decided by the governed. One hardly knows what any division of the human race should be free to do if not to determine which of the various collective bodies of human beings they choose to associate themselves. But, when a people are ripe for free institutions, there is still a more vital consideration. Free institutions are next to impossible in a country made up of a different nationalities. Among a people without fellow feeling, especially if they read and speak different languages, the united public opinion necessary to the working of a representative government cannot exist. The influences which form opinions and decide political acts are different in the different sections of the country. An altogether different set of leaders have the confidence of one part of the country and of another. The same books, newspapers, pamphlets, speeches, do not reach them. One section does not know what opinions or what instigations are circulating in another. The strength of none is sufficient to resist alone, and each may reasonably think that it consults its own advantage most by bidding for the favour of the government against the rest..."

In all general elections after independence to the last free election 1977, electorates in the Tamil regions elected Tamil candidates and the Sinhala regions elected Sinhala candidates. As such, the major parties of the Sinhalese and Tamils are not truly national parties.

The problem Sri Lanka faces is a problem between the people of two nations that were brought together under colonial rule and held together since independence by a covenant within the Soulbury Constitution.

John Locke and The Concept of Covenant
The philosophical rationale for the concept of the covenant between the ruler and the people was advanced by John Locke, in 1681 in, The Second Treatise on Government. His philosophy was not only a foundation of the American revolution but is also a great contributor to the ideas and values in the constitution of the United States of America and other democratic nations.

In part, it states that, in the state of nature, people are free and have the right to defend themselves and their property from others. In effect, each individual is a sovereign. There is a need for a sovereign government, however, to ensure and protect, if necessary with the use of coercive force, the rights of all people. Each individual need therefore surrender some of their rights to the sovereign government. The government in turn guarantees justice, liberty and individual safety. The implicit agreement that the individual and the state enters into is a covenant or contract. When the individual violates the sacred covenant, the individual is punished. When the state violates it, the individual is no longer bound by the covenant. The person is free to protect his liberty and property and to put down the government’s "rebellion."

Locke further stated that people are slow to act. In general, only a long series of repeated abuses by a government will cause people to act. He specified that the term "rebellion" indicates a return to the state of war and denial of the principles of civic society. When the government is the abuser, it is the government that has rebelled. Under these circumstances it is the community that stands for law and order and the community puts down the rebellion by the government. Locke concluded his treatise with the justification of the people’s right to overthrow governments that violate the trust (covenant) and the law of nature, leading to tyranny, rebellion and dissolution.

Locke in Chapter Three: "Of the State of War," in, The Second Treatise of Government, has this to say about the state of war between two individuals (in the case of Sri Lanka, the two communities):

"17. And hence it is he who attempts to get another man into his absolute power does thereby put himself into a state of war with him. It being to be understood as a declaration of a design upon his life. For I have reason to conclude that he who would get me into his power without my consent would use me as he pleased when he had got me there, and destroy me too when he had a fancy to it; for nobody can desire to have me in his absolute power, unless it be so to compel me by force to that which is against the right of my freedom i.e. make me a slave. To be free from such force is the only security of my preservation, and reason bids me look on him as my enemy to my preservation, who would take away that freedom which is the fence to it. So that he who make an attempt to enslave me thereby puts himself into a state of war with me."

The Covenant Between the Majority and the Minority
Queen Victoria brought together the Sinhala and Tamil Kingdoms under her rule as one colony, Ceylon. In preparations for independence, the two communities were at odds with each other with respect to power sharing in an independent Ceylon.

The Crown, after many years of debate, mediated between the communities the Covenant that brought them together. That Covenant was Section 29 of the Soulbury Constitution. At the time of independence in 1948, equality, liberty, and justice were guaranteed to the Tamils in Section 29 of the Soulbury Constitution. Under this constitution, Tamils of Ceylon had recourse to the Privy Council when their rights under the covenant is violated. The Privy Council and the Crown were thus the guardians of the covenant between the Tamil and Sinhala communities.

The Section 29
Section 29 of the Soulbury Constitution is as follows:

"29. (1) Subject to the provisions of this Order, Parliament shall have power to make laws 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 which persons of other communities or religions are not made liable; or

(c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions; or

(d) alter the constitution of any religious body except with the consent of the governing 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 of that 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 of the provisions of the Order, or any other of His Majesty in council in its application to the Island.

Close examination of subsection (3) and the first clause of subsection (4) demonstrate the extent to which the authors went to preserve minority rights. They also demonstrate the extreme guarantees the Tamil representatives required to enter the Tamil nation into this political and economic union. Section 29 was entrenched into the Soulbury Constitution for this reason.

Professor G.L. Peiris, in the series of articles he wrote on the constitutional process, in the Sunday Island of February 25 and continued on March 5, 1995, refers to Section 29(2) and (4). Professor Peiris pointed out that Section 29(4) which allows the constitution to be amended by a two-thirds majority of Parliament did not apply to Section 29(2). He wrote,

"...because Section 29(2) represents basic conditions subject to which minorities are prepared to accept, in the first place, in the transfer of power to Colombo. In other words there is something impregnable or invulnerable about Section 29 subsection (2). It possessed a special attribute of quality. And the powers conferred on Parliament by Section 29 subsection (4) could not legitimately be invoked in respect of letters imposed upon Parliament by Section 29 subsection (2)."

The Privy Council and the Crown are the protectors of the Covenant that was accepted at independence. In Bribery Commissioner v. Ranasinghe, the Privy Council stated that,

"No such law shall- (a) prohibit or restrict the free exercise of any religion, there follow (b), (c) and (d), which set out further entrenched religious and racial matters, which shall not be the subject of legislation."

The Privy Council went on to say that,

"They represent the solemn balance of rights between the citizens of Ceylon, the fundamental condition which inter se they accepted the constitution; and these are therefore unalterable under the constitution."

The 1972 Constitution and The Final Break of the Covenant
In 1956 the Bandaranaike government passed a law, "The Official Language Act," disregarding Tamil concerns and in violation of Section 29 of the Soulbury Constitution that formed the Covenant between the Sinhala and Tamil Nations. That single act initiated peaceful and legal protests that lasted 16 years.

In 1972, before the supreme court could, at the request of the Privy Council, rule on the constitutionality of the Official Language Act of 1956, the Sinhalese majority government, without review, advise, or consent of the Tamil people, enacted a new constitution which abolished the Soulbury Constitution and the crucial covenant with it. The representatives of the Tamils refused to vote and walked out of the constitution assembly.

The 1972 constitution transformed a secular state, that protected the rights of the minorities, into a Buddhist Sinhala unitary state. The 1978 Constitution made some concessions to the minorities, but in substance it maintained the status quo of the Buddhist Sinhala Unitary State.

The Tamils never agreed to either of the two constitutions. In fact, the Tamil people asserted their right to self-determination in the 1977 elections.

By not including Section 29 in the 1972 and the 1978 constitutions, the majority government, which was the Sinhala Nation, broke the sacred covenant between the two nations and returned the Tamils of Ceylon to their previous status as colonial people and subjects of the Queen. If Great Britain is unwilling or unable to accept this status of the Tamil people as its subjects, then the Tamil people become sovereign by virtue of their pre-colonial status as the people of the Tamil Kingdom.

The UN Resolutions
The United Nations 1960 Declaration and the future Programme of Action for implementation of Declaration, Resolution 2621(XXV), adopted by the General Assembly on 12 October 1970, applies to Sri Lanka.

The General Assembly has in 1960 declared that:

1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.

2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected.

Resolution 2621 (XXV) Reaffirms, "the inherent right of colonial peoples to struggle by all necessary means at their disposal against colonial Powers which suppress their aspiration for freedom and independence."

The UN Resolutions on the subject of Genocide are also relevant.

The United Nations in its resolution 96 (I) dated 11 December 1946, decided that genocide is a crime under international law.

Article II of that resolution defines genocide as, "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such,

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in 'whole' or in 'part';
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring the children of the group to another group;

Article III: "The following acts shall be punishable ;

(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;"

Heads of states, Ministers, officials and individuals can be prosecuted for genocide. Sri Lanka's Heads of State, Ministers, police, some members of the armed forces, some members of the Buddhist clergy and civilians can also be prosecuted under the UN resolution on genocide.

The violence perpetrated on the Tamil community since 1956 to the present shelling, bombing, invasion and resulting displacement, restriction on food and medicine, rape and killing of innocent civilians constitute genocide. Self-determination and secession are accepted as the solution when a group is subjected to genocide.

It is the duty of the comity of nations, to collectively and individually, examine all relevant issues, and uphold the right of the Tamil people to self determination.


John Stuart Mill and Some Comments on Sri Lanka