A Reply to 'A Case Against Federalism'

 by Wakeley Paul, Esq.


A REPLY TO “A CASE AGAINST FEDERALISM”
[Published in The Island, Oct.29, 2003]
http://www.island.lk/2003/10/29/featur01.html

Sinhala Supremacy for everyone’s good?

OR

Is it a monstrous injustice for a Tamil to be a Sri Lankan Citizen?

Should we not refuse to remain a species Half Extinct?

BY Wakeley Paul
BARRISTER AT LAW, MIDDLE TEMPLE, LONDON
FORMER CROWN COUNSEL, CEYLON
ATTORNEY AT LAW, NEW JERSEY, USA
CRIMINAL DEFENSE ATTORNEY, NEW JERSEY
B.A. [CANTAB] LAW, UNIVERSITY OF CAMBRIDGE M.A. [CANTAB] L.L.M. [STANFORD LAW SCHOOL, CALIFORNIA]

PART ONE

IDENTIFYING A HOMELAND

The report of the Committee on “A Case against Federalism for Sri Lanka ” by 3 Sinhalese and a lone Muslim, is one more characteristic example of Sinhala supremacists struggling to fight the past, the present and the future.

The opening lines of the report read “Prior to European invasions, Sri Lanka was known as Sinhale or ‘Sinhaladeevapa’ meaning land of the Sinhalese.” The conclusion the authors draw by implication is ‘We gave it that name...therefore it's ours.’

The earliest Tamils called the island TAMARAPARANI, after a river in TAMIL NADU, South India. King Asoka referred to the island by this name in his Third Century B.C. rock edict in Girnar in Western India. The well-known TAPROBANE, which the Greek travelers from the time of Alexander the Great called the island, was derived from the Tamil Tamaraparani. In early Sanskrit,it was referred to as LANKA. By the first Century A.D, ILANKAI replaced Tamaraparani as the Tamil name for the island. How does any of this prove whose HOMELAND the island was?

Early human history consists of a combination of migrations and invasions. Even the Sinhalese do not claim that they were the island's original inhabitants. According to the legend in the DIPAVAMSA, Vijaya and 700 followers landed in a place called TAMBAPANNI IN 543 BC, the day the Lord Buddha died and attained Nibbana [Extinction of world desires and escape from transmigration].

Who named it Tambapanni, if there were no local inhabitants at the time that Vijaya landed on this island? To dig a little deeper, Tambapanni sounds a lot like a Tamil name. The distinguished Sinhalese historian Sir Paul Peiris said the Tamils were here before the arrival of any Sinhalese. The Ishwerams [Five Hindu Temples] were in existence long before the arrival of the Sinhalese. The Ishwerams include Nagulesweram in Jaffna, Konesweram in Trincomalle, Munnesweram in Chilaw, Thirukade in Mannar and one other in the South. One could hardly expect the members of this commission with their meager resources and time constraints to have investigated such typical historical clues in greater depth. They were merely seeking to prove a point.

Was Vijaya's intrusion into this island an invasion or a migration?

According to the Mahawamsa[a Sinhala historical epic], Vijaya was ordained to establish Buddhism in this island. The Lord Buddha while on his death bed is supposed to have summoned Sakka, the King of Gods and protector of the Sasana and said “ Vijaya....is come to Lanka.....In Lanka will my religion be established., therefore carefully protect him and his followers.” That sounds more like an invasion to convert the unconverted, rather than chance migration into unknown territory. One could hardly have expected this Committee to probe such historical likelihoods.

In an effort to prove their case that the Tamils were homeless, the authors of the report come up with a succession of propositions that are worth examining a tad more closely than they did. One other salient fact that they failed to take into account was that, if the Mahawamsa is correct and Vijaya sent for and got Pandyan women from South India for himself and his followers, their descendants were all half Tamil.

FIRST, the Tamils are portrayed by the Committee as homeless wanderers. They are a rudderless lot, destined to be Sinhalese subordinates for all time, if they dared to choose to live on this exclusive Sinhala preserve. They have no separate identity with which to lay claim to any part of the island as theirs.

The Tamils happen to float over Sinhala territory according to the authors. I quote, “Until 1505 AD, Sri Lanka was a mono lingual, mono religious state, where the population was exclusively Sinhala Buddhist.”

Where then did all the Tamils go? Were they wiped out by Duttugemunu and his successors or were they not seen or heard from under the dictatorial rule of their mono lingual, mono religious superiors? Is the answer to that question by this learned legal foursome that the Tamils in 1505 [a] did not exist, or [b] were regarded as if they did not exist?

SECONDLY, this Sinhala trio and one Muslim claim that “The Tamil elite unfairly obtained privileges from the British government which they had to surrender in 1948.” Is this the Sinhala Buddhist inferiority complex rearing its pathetic head again? Is this not the complex the Sinhalese leaders used to both justify and glorify discrimination against the Tamils? Anyone else, any where else, would have hid their heads in shame to use such a cowardly excuse to justify discrimination, leave apart glorify it. Sinhala rulers did this with pride as a badge of honor. Homeland or no homeland, would anyone want to be ruled by those grounded in and hounded by such complexes?

First, let us ask this Committee, how do the Tamil elite create a homeland unless there are people in it to back such a rash and audacious claim? Why in turn would those people want a homeland away from a homeland if they were the objects of benevolent rule? Mr. Wanasundera and his cohorts do not think these things through when they invent Tamil myths for Tamil leaders, like their own ancestors did for theirs.

A second question the Committee avoids answering is why the Tamil leaders initially demanded 50-50 representation in a central parliament? That demand was not only inconsistent with a desire to manufacture a non existent ‘Homeland’, but was openly demanded before the Soulbury Commission to prevent the Sinhalese from dominating a unitary Parliament and thereby benefiting themselves at the expense of all the other communities. The 50-50 demand was made to assuage Tamil fears of possible discrimination by the Sinhalese against all the other entrenched local communities on the island. Was that a paranoid fear, considering the litany of Sinhalese actions that have more than justified that fear since the island gained Independence from the British? The fear that equality among the different communities would be honored more in the breach than its observance was what prompted the Soulbury Constitution to incorporate the entrenched clause Section 29[2] into the Constitution. The Ceylon Parliament was given only limited legislative powers; and abolishing Section 29[2] was not a power granted to them. They had no power to exclude it from a new constitution either, as they brazenly and illegally did, in 1972 and 1978. It was in the words of the Privy Council in Bribery Commissioner v Ranasinghe [1964] 2 All England Reports 785 “the fundamental condition, inter se, on which they accepted the Constitution, and these are therefore unalterable ...”

This prompts me to ask the Committee whether they agree with the abolition of Section 29[2] of the Soulbury Constitution which demanded equality of treatment for all, or do they think this equality nonsense impeded the Sinhala right to create a Sinhala Buddhist Constitution; which was the right of the Sinhala Buddhist people; whose Sinhala Buddhist nation was tainted by non Sinhala Buddhist invaders into Sinhala Buddhist terrain - which non Sinhala Buddhist invaders shall remain on Sinhala Buddhist territory, on whatever degrading terms and circumstances the Sinhala Buddhists decree. Is it Tamil opposition to the concept of a Sinhala Buddhist nation that the committee deems to be reprehensible? Is it the position of the Committee that if we Tamils had meekly submitted to Sinhala Buddhist advancement at everyone else's expense, [quote] “that we could have built, by now, one of the most prosperous and peaceful nations in Asia?” Now, isn’t that a dainty dish to set before the Queen? If we had cooperated toward our downfall and demise, we would all have ended up prosperous and well.

THIRD, That if there was a lost Tamil Kingdom, it should have been demanded back before the Soulbury Commission. Really? Had the Sinhalese rulers yet had a chance to prove how discriminatory, how untrustworthy, how self centered, how uncaring, how violent and brutal they were going to be when dealing with their opponents after independence? The Tamil leaders asked for 50-50 representation in Parliament to avoid discrimination under Sinhala rule against all other communities, not violent and brutal suppression by them, which was sadly not anticipated. They hardly expected their rulers to turn into monsters.

The Sinhalese had not yet demonstrated that D S Senanayake would renege on his pre-Independence pledge that the minorities had nothing to fear from the Sinhalese when they got independence. A touch of caution by asking for 50-50 representation to avoid the possibility of discrimination against minorities was hardly reprehensible, considering the fact that discrimination is exactly what Mr. Senanayake enacted, soon after attaining Independence, when he threw the plantation workers into a pile of dung.

The committee in its desperate bid to blind themselves to the Tamil claim to the NorthEast says:

“A distinct racial group called ‘Tamils’ was recognized for the first time by the British colonial administrators only after 1880 and in 1907 they became a census category.”

It is regrettable that jurists of such titular distinction have evidenced a total inability to research their history before making such unsupportable statements. I quote Secretary Cleghorn’s Minute to the British Colonial Secretary in 1799, soon after the British had settled into the island. “Two different nations from a very ancient period have divided between them possession of the island. First, the cingalese inhabiting the interior of the country in its southern and western parts from the river Wallouve to that of Chilow, and secondly the Malabars who possess the northern & eastern districts.

These two nations differ entirely in their religions, language and manners....” PLEASE, OH PLEASE, honorable members of the Committee, don’t hide behind the closet crying that they said Malabars, not Tamils. In addition to this, any effort to deny that the Colebrook Commission, in turn, amalgamated these separate Independent Kingdoms to form a single administrative unit would be a fairy tale. Anyone who knew both the very distinguished, very honorable, very accomplished late Mr. Chalvanayakam on the one hand; and Mr. Wanasundera and his cohorts on the other, would know who is more likely to spin a fairy tale to prove a false proposition.

FOURTH, That the Tamil claim to a homeland was destroyed at the Thimpu Conference because it did not confirm their rights under International Law and practice or the law of the Constitution of Sri Lanka; and

FIFTH, that The Tamils failed to support their claim to the Northern and Eastern Provinces by historical evidence at that conference.

It is hard to believe that two former Supreme Court Judges and a former Sinhalese Solicitor General, as did their Sinhala government at that Thimpu conference, display such abysmal ignorance of the two sets of laws that they cited, as items that can either support or deny the claim to a Tamil homeland, or Sinhalese homeland, for that matter. They obviously failed to appreciate the fundamental distinction between ‘nation’ as defined by international and domestic law and ‘homeland.’ Under International Law, Ceylon was recognized as a single nation. This recognition did not in any way, by so doing, address the issue of people's homelands. Neither the United Nations nor other nation would address that issue unless asked to intervene on that score. The sanctity of Sovereign ‘Nation’ States may be losing their significance; but the concept remains a dominant feature of International law even today. Advocates of Homelands have no right to be represented at the U.N. in New York. Only the representatives of ‘Nation’ states have a legal status before that body.

The Ceylon Constitution in turn recognized one Parliament representing the whole island. {[Section 29[1] of the Soulbury Constitution}. This is what prompted Mr. Chalvanayakam to demand that it be changed to a Federal Constitution with Regional Legislative Councils. That demand was made to overcome the gross inequities that were being perpetrated on Tamils and other communities under the concept of a UNITARY Constitution. To say we could not justify our claim to a homeland under either system of law is ignorance personified. Of course we could not. Neither the Constitutions of the U N or Ceylon or accepted traditional concepts of International law addressed that question. The Soulbury Constitution was founded on the concept that the island was one nation. That assumption has been challenged from the day the demand for a Federal state was made. The case for the Federal State was made because the people whose homelands were in the NorthEast were being discriminated against by their Sinhalese rulers, who dominated the Parliament under the Unitary Constitution. The people in the NorthEast had become a permanent minority in that Parliament. Lord Soulbury later acknowledged that he had made a mistake in acting on the assumption that the island was one country and not two, divided by race, religion, personalities, habits and culture.

The Tamil claim that the Northern & Eastern Provinces are part and parcel of their own native homeland was unquestionably buttressed by the population statistics prior to the ruthless Sinhalese policy aptly called ‘Colonization.’ The North was and remains 90% Tamil. Prior to massive Colonization sponsored by Sinhalese governments since independence, the Sinhalese were only 4.2 % of the population of the East in 1924. After some slow and steady colonization, the figure rose to 9.4% of the population in 1947, just prior to Independence. By 1981 that figure had risen to 25% and stands today at 32%. In an open and shameless bid to usurp the Tamil homeland from the Tamils, the Sinhalese governments, without any compunction, ‘colonized’ Tamil lands and stuffed them full of armed Sinhalese settlers. With the colonization schemes in Amparai & Seruwila, which comprised of 1500 square miles, 2/5 of the land area of the Eastern Province, they changed the demography of the region from 4.2% Sinhalese to 32 % of the population today. This action of the Sinhalese government, in and of itself, proves that this was the Tamil Homeland until it was invaded by the Sinhalese en masse by this new, quietly ruthless technique of ‘colonization.’ The Commission had the gall to cite this grossly altered statistic to deny the Tamil claim to this region as part of their homeland. It would appear that Tamils demand to their homeland was further buttressed by the determined effort of successive Sinhalese governments to plant Sinhala settlers on Tamil lands. With this deliberately manipulative policy of changing the demography to increase their already dominant control of a single Parliament, the Sinhalese rulers once again displayed their single minded determination to suppress and trample on the rights of everyone but themselves. This was hardly conducive to fostering unity among the races.

The Committee, which vehemently denies the existence of a Tamil Homeland; and dismisses it as Chelvanayakam's fairy tale, uses these deliberately modified figures to bolster their denial. The underlying truth is that the colonists stand like armed sentinels in the Tamils' midst, because it is our homeland; not because it was theirs. How many Sinhalese political parties won how many seats in this region? Were these minuscule results caused by the Tamils colonizing their homelands; or was it because it always was the Tamils' homeland to begin with? The Committee claims the Tamils have not adduced historical proof of their right to regard the NorthEast as theirs. What more proof do we need? The population figures coupled with the policy of ‘Colonization’ prove it by themselves. This prompts me to ask the same question in reverse. Have the Sinhalese ever produced an iota of historical evidence to show that the NorthEast were part and parcel of their historical legacy or that they were part and parcel of the NorthEast? Not a title of evidence. We only have the Committee's long leap in logic to buttress their claim to these regions.

Let me begin by quoting some findings of the Committee. “Had the Tamil leaders co-operated with the majority community as did the Muslims and extended their hand of friendship to early independent governments, we could have built, by now, one of the most prosperous and peaceful nations in Asia...even now, some Tamil politicians seem to enjoy making unfounded and general allegations of discrimination...but when challenged to cite specific instances...they never come forward to do so...the "Tamil Problem" originated from the mind set of a tiny minority of the Tamil elite who refused to recognize the history, cultural background, and socio-political reality of this country,” This is a delightful mouthful of gobbledygook.

The authors of the report then proceed to deal with their belief that the Northern and Eastern Provinces are not our homeland.

In making the claims of non cooperation they forget that the Tamil Congress joined hands with the government and G G Ponnambalam became a Minister right after Independence. They also ignore the final, but fruitless, effort at cooperation having to be shelved when the Senanayake-Chalvanayakam Pact had to be dropped due to pro Sinhala opposition. They ignore Senanayake’s effort to make the Konesweram Temple a protected area denied, unless - as the Sinhalese opposition parties insisted - it contain an image of the Buddha, in order for it to be entitled to receive such a protective status. Buddhist establishment was now being extended to Buddhist encroachment.

The first plaintive cry for cooperation came from none other than D S Senanayake in his now, not so famous plea in Parliament in November 1945, when he said “On behalf of the Congress and on my own behalf , I give to the minority communities the sincere assurance that no harm need you fear at our hands in a free Sri Lanka.”

Within less than twenty four months of attaining Independence, this very first Sinhalese Prime Minister went back on that promise and deprived the Plantation workers the right to citizenship and the right to vote. If the Committee applauds that move with whatever excuse they can muster, how do they justify allowing these workers the right to continue working, and the obligation to continue to be exploited? On humanitarian grounds? Does this humanitarian Committee applaud this action of the government on the basis that the plantation workers were not a recognized minority? What were they, just a bunch of disposable non humans with no rights? That is precisely what the Sinhalese government reduced them to. They were citizens before. They voted before. They controlled 10% of the seats in Parliament before. The attitude of Mr. Senanayake and this Committee can be likened to the attitude of the southern white Americans towards the Negroes after slavery was officially abolished They would hire Negro maids to baby sit their children in order to go to a Ku Klux Klan meeting. The plantation workers could remain to slave away for minimum wages and worse living conditions without votes and without rights. They were disposable but employable. They could be ignored, but exploited. They could remain to serve, but not be served themselves. Was Mr. Chevanayakam's objection to this inhuman action of the government, one of those “reprehensible and unpatriotic acts” that the Committee condemns? Was Mr. Chelvanayakam's warning, “Today it is them, tomorrow it is us who will be axed,” equally “reprehensible and unpatriotic?” Did the fact that the warning came true, make it unacceptably unpatriotic? Would it have been patriotic if this revered, highly principled Tamil leader had sat back and applauded the governments action with the self-realization:

First they came for them;
And I did not speak out,
because I was not one of them.
Then it was the Communists;
and I did not speak out,
because I was not one of them,
Then it was the Unions;
and I did not speak out,
because I was not one of them.
And then they came for me,
And there was none of them,
Left to speak for anyone,
Not for them or me.

Would his cooperation and agreement to support this inhuman action have been patriotic in the eyes of the Committee? The cooperation needed would have made us all prosperous and well, according to the Committee! What the Committee overlooks is the fact that the electorates in the NorthEast rejected Mr. Chelvanyagam and his highly principled stand in the 1952 election and voted for the Tamil Congress which cooperated with the government on this issue ; and where did that get them?

As surely and unerringly as Mr. Chevanayakam predicted, after promise after promise and pledge after pledge to have a bilingual nation, came the dreaded Sinhala Only Act.

Was it “reprehensible and unpatriotic” for the Tamils to object to this legislation? Should they have succumbed and submitted meekly to this Act, so that, in the words of the Committee, the different ethnic groups would weld themselves together to form one integrated nation state, instead of spreading stories that their future prospects as a community were in danger so as to arouse the feelings of the average Tamils against the Sinhalese?

In whose bread box; in which safe; in which kitchen were the committee of four hidden since we got Independence? Would Mr. Chalvanayakam have survived a day if he adopted the position of the Committee, with the prospect of the massive loss on Tamil employment if the Sinhala Only Act became law? The Committee has, however, a rather naive intolerance of politicians. Let me quote them: “The weakest link in any political structure are the politicians. Their self interest and ambitions come first for them. Therefore we need robust checks and balances to thwart anyone flouting the Constitution or utilizing it to attain their ambitious ends at the expense of the country. There should also be a system of ferreting out unsuitable politicians.”

What kind of ivory towered dictatorial gibberish is this? Was this the inspiration of some God with a dictatorial twist of mind who finds opposition to legislation unconstitutional? Some supreme being who demands that these selfish fiends who oppose the government should be ferreted out? By whom? The honorable, righteous members of the committee, or by people who think like them. Are we supposed to treat these thoughts of the Committee seriously? Am I making dreadful mistake writing this response, or is that necessary, so we can ferret their ideas out with reason?

What, in fact, happened to the opposition's right and duty to object to government policy and even organize demonstrations against them? When exercised by Tamils, this right was deemed intolerable and was countered by unspeakable violence by organized mobs and armed forces. There were monks who controlled Parliament and Prime Ministers who succumbed to monks. There were pledges made and pledges dishonored. There were times when the Tamils knew not where to turn to harvest their grievances, because Parliament had become the pawns of outside forces. The chaos generated by a single Act of Parliament speaks volumes for its significance. It was the Sinhala Only Act, not the opposition to the Act that split the country apart. The Committee, of course, has closed its eyes to everything except what they view as Tamil intransigence. Opposition was a sin devoutly to be rejected; cooperation a virtue to be embraced; and “ the standard of living of all communities would have risen substantially.”

Who according to this Committee were responsible for the violence in 1956,1958, & 1966? The Tamils on account of their non violent protests against the Sinhala Only Act or the Sinhala mobs and army who set upon the Tamils for objecting democratically? In no instance did the Tamils retaliate with violence. Who do the committee salute and honor, those who opposed and protested without violence in the true democratic tradition or those who retaliated against non violence with undemocratic brute force? Let me quote the manner in which these 4 committee members dealt with the Sinhala Only Act and its blood letting consequences: “Subsequently however, under the XIII Amendment, Tamil also had been made an official Language.” Was it really? What about those who could not get jobs with the government, armed services, police, government corporations because of the disadvantages they faced as a result of the Sinhala Only Act? What about the victims of Sinhala mob and government terror? Say sorry and carry on as if nothing happened, or blame their plight on the Tamils for not cooperating with the government and opposing government policy? How can anyone display such a callous disregard to the consequences of an Act that tore the nation asunder?

REPLACING A UNITARY CONSTITUTION WITH FEDERALISM

“The idea of replacing the present Unitary Constitution with a Federal one is an arbitrary decision...it is most unlikely to succeed because it ignored the country's” historical evolution and its current socio-political reality.”

Does the historical evolution and socio political realities alluded to, encompass the following:

[a] The abolition of The Privy Council as the highest Court of Appeal because the Council ordered the Supreme Court to decide the Constitutionality of the Sinhala Only Act?

[b] The passing of the 1972 Constitution which unconstitutionally excluded the guarantees of equality demanded for all communities and religions by Section 29[2]the Soulbury Constitution?

[c] The fact that the Sinhalese rulers went to illegal lengths to form a Constituent Assembly to create a new Constitution without guarantees of such equality?

[d] The indiscriminate, heartless and cold blooded use of the Prevention of Terrorism Act to slaughter and butcher Tamil dissidents who had finally and in desperation decided that the only way to retaliate against government-sponsored brutality was to give them a dose of their own medicine? The fact that Non-violence had been met with violence and had become an ineffective tool of protest? That the last desperate weapon available to counter government violence was to retaliate in kind, in order to stun a brash and brutal ruling clique that the resort to violence is not a one way street.

[e] The violent responses of Sinhala mobs to the ultimate, Vaddukottai resolution, after all efforts to negotiate any concessions to Tamil demands had failed? These were the 1977 riots, the 1979 riots, the riots and police violence in 1981 including the burning of the Jaffna Public Library, and finally the riot to supersede as well as end all riots, the 1983 holocaust. Does the historical evolution also take into account the fact that the birth of armed resistance put an end to armed mob and military violence outside the Northern & Eastern provinces?

Did these aspects of the "historic evolution" militate in favor of separation or cooperation? Did the socio political realities -for want of a more refined term - inspire cooperation or desperation? The Tamil Times [December 1982], summed it up aptly: should the peace loving Jaffna Tamils forever remain peace loving until their identity as nation is liquidated? Even if this closed eyed committee were to deny the obvious existence of a Tamil homeland, do they blame these atrocities on the Tamils for having caused them, because they objected rather than cooperated? How convoluted can the thinking of former Sinhalese Supreme Court Judges be? Sadly, there are a pocketful of Sinhalese supremacists who share their sentiments, which is why it is a monstrous injustice for Tamils to retain Sri Lankan Citizenship. We should refuse to be treated as creatures that are half extinct.

Let me quote again some comments of this Committee. “A sample survey carried out on our behalf clearly indicated that over 92% of our people rejected Federalism, mainly because it is their perception that it is likely to pave the way for the eventual Balkanization of the our country into small antagonistic states.”

All I can say in reply is, that it is equally clear that your people are not our people; and our people are not yours. We seek a division into two states, not a Balkanization into a cluster of small antagonistic ones. This is but another example of the Committee sidestepping the fundamental issue facing the nation through little distortions. As lawyers they should well know, a little lie here, and a little lie there, distorts the truth beyond recognition. The little lies become big lies and in turn becomes one big lie, which refuses to recognize the truth. They might do well to recognize the significance of the tripartite oath of witnesses in court; First, to tell the truth; then the whole truth [not parts of it and suppress the balance]; and finally, nothing but the truth, not intersperse the truth with a bouquet of falsehoods.

Let us examine the following events to see whether or not a division into two - as opposed to a break-up into cluster of separate states - is the goal of the Tamil people and why.

Youthful participants in a black flag demonstration were arrested, kept in custody and released without charges after 4 months in March 1973; then there was the uncalled for police disruption of a Tamil International Cultural Conference resulting in 9 deaths and hundreds injured in 1978; the fact that these incidents did not result in either inquiry or apology; incarceration of Tamil youth under Emergency Regulations which were the rule rather than the exception in the NorthEast; the overpowering frustration of the Tamil youth over their denial of equal access to the University on merit; the fact the Federal Party had been duped into not challenging the legality of the Sinhala Buddhist 1972 Constitution; all lead to an increasing desire and demand not just for Federalism, but separation, a division of the island into two states, not more.

All this led inevitably to the passing of the Vaddukoddai Resolution, the publication of which was proscribed by Mrs. Bandaranaike's pro Sinhala government. Amirthalingam and other M Ps who defied that ban were arrested and charged for doing so. The Judges at the Trial at Bar disqualified themselves. The government, through their Tamil Attorney General, appealed that disqualification to the Supreme Court. Then suddenly and mysteriously the charges were withdrawn. Why? Did they fear that the challenge to the validity of the 1972 Constitution would succeed? We do not know. But, let us be thankful that the charges were withdrawn for whatever reasons they may be. Mr. Amirthalingam in his speech in Parliament and Mr. Shiva Paspathy, the Attorney General at the time, give conflicting versions as to the time and circumstances surrounding that withdrawal.

Ultimately, Mr. J. R. Jayawardena, the supreme Sinhala butcher who won the 1977 election by waving a wand of false promises to solve the Tamil problem, once again reverted to mob rule and the use of the armed forces to crush the TAMIL desire for separation. His weapons to quell and crucify Tamil aspirations were the 1977,1979, 1981,and 1983 riots. The Armed forces and vicious violent mobs became the weapons that the youth finally had to combat with weapons of their own. The government with a 5/6 majority in Parliament, had let democracy run amok. Mrs. Bandaranaike had relied on her Army, J R incited mobs and the armed forces to riot, causing plantation workers to seek refuge in Vavuniya in 1979. David Selbourne described the brutality displayed by the army as they searched for Tigers and settlers like ploughing through new crops. “ With the passing of the Prevention of Terrorism Act, in 1979, official brutality against Tamils was legalized. Arrests, torture, detention for up to 18 months without charges were made legal and became part and parcel of the intolerable daily existence of the people in the North & East. Jayawardena had waved the witch’s wand in the face of the Tamil youth. His election campaign promised un-kept promises which wound up with an order to "wipe out" these militant, dissident separatists within 6 months of July 11, 1979. His order to "wipe out" what he described as the terrorists within 6 months only made these youth, branded as "Terrorists," more determined than ever, to win a war for total Independence. Faith in Sinhala governments was lost for ever. Terrorism was being increasingly recognized for what is "armed Resistance against Armed aggression."”

Mr. Jayawardena and this Committee could not distinguish between a terrorist and an Iguana. They could not begin to realize that it was they that spawned armed resistance. It was they that wrought terror on their own heads - that terror bred terror. The youth had abandoned non violence as a weapon of protest for a weapon the government was suddenly stunned enough to have to listen to.

The Committee added a comment in its report that, since devolution has failed, Federalism must fail too. This once again frighteningly exposes the ignorance of the chairman who was one of the Judges on the Advisory opinion on the XIII Amendment. Chief Justice Sharwanandha, in what was by far the best, most succinct and lucid of a slew of opinions delivered, highlighted the significant characteristic of devolution of power under an Unitary Constitution. To summarize his opinion, under an Unitary Constitution, Parliament remained the Supreme Legislative body at all times. They could delegate, but not relinquish, that power or any part of it to any regional or other body. It always remained in control over what it delegated. What it gave, it could withdraw or modify at any time. The difference between that and a Federal structure is that what is surrendered, like virginity, is gone forever. The Tamils first sought Federalism [not Devolution] before Separation. That is why Devolution failed. It was a sop that the Tamil people were not willing to buy, though some of their representatives in Parliament seemed to fall for that trap. Justice Wanasundera, in a legal opinion that would have made any Oxbridge-educated jurist blush with shame, spent his time justifying the right to Sinhala supremacy through the free and uncontrolled use of historical inaccuracies and distortions, and then proceeded to broadcast his political opinions with the trumpet blast and drum beat of a military band.

It was a classic example of what a legal opinion should not be. While the Chief Justice analyzed the clauses of the Constitution, Justice Wanasundera swayed off into a dancing tirade of " why this country is my country; and why this country is not your country. He now is the Chairman of this Committee and co author of this Committee's Findings. In sum, who is to blame for today's continuing ethnic crisis? Is it Sinhalese governments that perpetuated the concept of Sinhala Supremacy, or the Tamils who resisted that with all the resources at their command? Those resources finally ended in a resort to violence to combat legalized brutality.

I leave it to the reader to decide if this was the correct course with the kind of objectivity not displayed by the Committee in its report.

Wakeley Paul, Esq.
wakeleypaul@hotmail.com

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Posted November 17, 2003