TAMIL VOICE (SUPPLEMENT) - FALL 1996
THE BROKEN COVENANT
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 Mills Concept of
Mills 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,
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
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 governments "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 peoples 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):
Covenant Between the Majority and the Minority
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.
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,
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,
The Privy Council went on to say that,
Constitution and The Final Break of the Covenant
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 General Assembly has in 1960 declared that:
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,
Article III: "The following acts shall be punishable ;
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