Legal and Political Obstacles to Equality in Sri Lanka

The Need for a Self-Governing Regional Government

by Wakeley Paul*

The first British colonial Secretary to the Governor noted in 1798 that the island consisted of 3 separate legal Kingdoms: the Tamil Kingdom in the North & NE, Sinhalese in the low lands in the rest of the country, and the Kandyan Kingdom in the central mountains.  Of these, the British initially ruled only the first two.

The Portuguese and the Dutch ruled the Tamils and low country Sinhalese areas from 1548 to 1796, when the British arrived and took them over from the Dutch in 1796.  These two Kingdoms were like two separate and distinct nations, each with their own language, religion and customs, who were at war with each other prior to colonial domination.  They very rarely intermingled with each other.

No colonial power had conquered the Kandyan Kingdom till the British did so in 1815.

  In 1832, the British united the three Kingdoms into one, for reasons of Administrative convenience.  English was the official language of the whole island.

In 1923 there was a legislative council formed on ethnic lines on a proportional scale of two Sinhalese to one Tamil.

In November 1927, the Donoughmore Constitution stated as follows: "We have come to the conclusion that communal representation is a canker in the body politic."  Representation on ethnic lines which had prevailed since unification in 1833 was abolished.

The Donoughmore Commission introduced and replaced communal representation with Universal Suffrage.  This meant the Sinhalese controlled all power and the right to legislate how they wished in the new legislative assembly called the State Council because they were the overall majority on the island.  Universal suffrage made us Tamils and others vulnerable to the tyranny of the majority.

Voting, however, continued on ethnic lines under universal suffrage.  The North voted for Tamils, the North East voted Tamils and Tamil-speaking Muslims, the south voted low country Sinhalese, the central mountain area voted Kandyan Sinhalese and the Indian plantation workers voted in their candidates.  Those candidates were trade union leaders of these plantation workers.  The workers were rooted to the estates that they worked on.

This caused Governor Caldecott to note astutely and colorfully in a 1939 memo to Malcolm McDonald, the Colonial Secretary,  "That all our fissures radiate from the vexed question of minority representation."

In 1932 a resolution was introduced in the Legislative Council calling for the use of Tamil and Sinhalese in the judicial and civil administration of the country.  The mover of the motion had this to say: "One of the greatest handicaps the people suffer from is the language of the country.  It is most absurd for us to fight on behalf of the vast majority,....when we deny ourselves the right of conducting the government in the people's languages."  Today, the  situation is reversed, and the clamor everywhere is to study English.

In 1944 a resolution was moved in the State Council demanding that Tamil and Sinhalese be made the official languages of the country.

In 1946, a select committee was appointed to study the question of the transition of the official language from English to Tamil and Sinhalese.

On September 20, 1944, the Soulbury Constitution was sent to Ceylon "to consult with various interests, including the minority communities, concerned with the question of constitutional reform."  What they failed to observe was that the Tamils and Tamil-speaking Muslims were the regional majority in the North East.  If they had, the prospects of creating a Federal Constitution might have been considered, but at the time noone petitioned them with such a request.

G.G. Ponnambalam, the leader of the Tamil Congress Party,  demanded instead, 50-50 representation in a single united parliament, 50% for the Sinhalese, and 50% for all the other communities, so as to to prevent the non-Sinhalese being discriminated against and dominated by the majority community.

The Soulbury Commission was convinced that there were no proven acts of administrative discrimination, and was optimistic that there were not likely to be any in the future.  This was a decision Lord Soulbury said he deeply regretted when he met a delegation of Tamil leaders in London in 1967.

On 8-9-1945, on the eve of Independence, the future Prime Minister and then leader of the  Ceylon Congress Party, said this in the State Council to all the minority members:

"Do you want to be governed from London, or do you want as Ceylonese,to help Ceylon  govern?   On behalf of the Congress, and on my own behalf,  I give the minority communities the sincere assurance that no harm need you fear at our hands in a free Lanka."

However, the history of discrimination began to emerge almost immediately after the grant of Independence in February of 1948.

By the Ceylon Citizenship Act No 18 of 1948, one of the first to be enacted once Ceylon was granted Independence, one million Tamil plantation workers of Indian origin, who had voted in the 1931, 1936 and 1947 elections, and had resided on the island for at least two generations, were denied Ceylon Citizenship.

In the following year, by the Ceylon Parliamentary Elections Amendment Act No 48 of 1949,  the Tamil plantation workers were denied the right to vote.  They had voted in 8 Members of Parliament of their choice, out of a total of 96 in the first Parliament.  These seats would now be won by the Sinhalese in the plantation districts, strengthening the Sinhalese hold on parliamentary power still further.

The constitutionality of the Citizenship Act and the Parliamentary Elections Amendment Act was challenged, and the Trial Judge held that both Acts were ultra vires the Constitution.  He went further and ruled  that the Act was in no sense an act to create the status of a citizen, but was, with the 1949 Act, part of a legislative  plan to reduce the electoral power of the Indian community.

The Ceylon Supreme Court reversed this decision.

The pertinent provision of the Constitution which protected the Tamils and others from the tyranny of the Sinhalese Buddhist majority, was Section 29[2] of the Constitution, which read:

No law shall
[a] prohibit the free exercise of religion

[b]  make  persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not liable

[c] confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions.

It was argued that these two Acts violated b and c of the of Section 29[2] the Constitution.

The British Privy Council, which was the final Court of Appeal, in the case of Kodakan Pillai v Madanayake [1953] All England Reports 833, responded to these submissions as follows:

"It is a perfectly natural and legitimate function of a country to determine the composition of its nationals......the migratory habits of the Indian Tamils are facts..... which are directly relevant to  their suitability to be citizens of Ceylon and have nothing to do with them as a community"

In response to the argument that the underlying purpose of the legislation was to discriminate against them as a community by denying them the right to vote and consequently increasing the power of the Sinhalese voters in the region, the Court replied as follows:

"The principle that the legislature cannot do indirectly, what it cannot do directly, has always been recognized by the Board....But the court will not be astute enough to attribute to any legislature, motives or purposes or objects which are beyond its power. IT MUST BE SHOWN AFFIRMATIVELY BY THE PARTY CHALLENGING  THE STATUTE, WHICH ON ITS FACE IS intra vires, that it is enacted as part of a plan to effect indirectly, something the legislature had no power to do directly"

How does one show the motivations of a government except  from the inevitable consequences that flowed from it?  Could anyone possibly have shown that members of the government openly admitted that their true motive was to strengthen the Sinhalese votes in the region, by denying the Tamils of Indian origin the right to vote as a community?  Regardless of their migratory habits, they were rooted to their estates for more than one generation.

Be that as it may, it did not take long before the Privy Council stated categorically that the Ceylon Parliament was not a Supreme legislative body like the British Parliament was; that it was bound and hemmed in by the the provisions of the Soulbury Constitution that governed and
controlled it.

In Bribery Commissioner v Ranasinghe [1964] 2 All England Reports 785, the issue involved the separation of powers and the right of the government to vest administrative tribunals of its choice with judicial powers.  The issue was whether to do so also violated the rights of citizens under S 29[2] to have their cases heard by an independent judiciary rather than an administrative tribunal selected by the legislature.  This is what the Court said:

"Section 29[2] represents the solemn balance of rights between the citizens of Ceylon, the fundamental condition on which inter se they accepted the  constitution, and these are  therefore unalterable under the Constitution. They went on to say that S 29[2][2]had an"unalterable and entrenched status under the Constitution."

In short, unlike other provisions of the Constitution which could be amended by a 2/3 majority, the provisions of Section 29[2] could not be so altered or abolished, except by the granters of that Independence, namely either "THE QUEEN IN COUNCIL  OR THE BRITISH PARLIAMENT WITH ROYAL ASSENT."

What they said in effect was that the Section 29[2] safeguards were built into the Constitution by the Soulbury Commission as its cornerstone and were so accepted by the Sinhalese, Tamils and others and that  they had accepted the constitution with its limitations on the powers of the legislative branch as a condition of their independence.

The nation's independence was subject to the limitations set out in Section 29[2].

These limitations led to some effective challenges regarding the constitutionality of significant and important items of legislation.

In 1956, the government passed the Sinhalese Only Act, which made Sinhalese the sole official language of the country.  The earlier commitments to make Sinhalese and Tamil the official languages was scrapped to favor the Sinhalese community alone.  This had a severe and drastic effect on the Tamil-speaking citizens in the NorthEast.  They could not compete equally for government jobs, or in the armed forces, both of which together were the largest employers in the country.  With increased nationalization of private businesses, the Sinhalese politicians gave jobs in the new government corporations to their own kind.

In the name of unity and one language, Sinhalese, the government was becoming increasingly  jingoistic.  As one Member of Parliament expressed it,  "ONE LANGUAGE, TWO NATIONS, TWO LANGUAGES, ONE  NATION."

Kodisweram, a Tamil government servant who was denied his yearly increments in salary for not qualifying in Sinhalese, challenged the constitutionality of THE SINHALESE ONLY ACT. 

The District Judge upheld the challenge and ruled that the Act was ultra vires the Constitution as it violated the provisions of Section 29[2].

The Supreme Court dodged the Constitutional question and reversed on the ground that a government servant had no right under the law to sue the Crown for increments, which it had the exclusive right to deny at any time for any reason.

The Privy Council disapproved of the dodge and remanded the matter to the Supreme Court to consider the Constitutional issue raised.  72 New Law Reports 337.

The Supreme Court never got the opportunity to rule on that issue, as a maddened racist government abolished the Privy Council as the final Court of Appeal.  They went further, and unconstitutionally passed a new Constitution, which illegally excluded the entrenched provisions of Section 29[2].

Realizing that Parliament had no authority to abolish Section 29[2], the government formed an institution called a  "Constituent Assembly" to abolish the old Constitution and replace it with a new one.  The protections provided by Section 29[2] were omitted from this new document.

Under the Soulbury Constitution, which was the only valid Constitution in existence in 1972, this Constituent Assembly had no legislative powers, leave alone the right to abolish the existing Constitution and replace it with a new one.   The rule of Law was ignored, and the tyranny of the majority prevailed.

In the meantime, the government indulged in other illegal activities, commencing as early as 1962. In January 1962, the top brass of the army and police plotted a coup against this same racist government.  The coup was foiled in the nick of time, and the officers were indicted for conspiracy to overthrow the government.

In order to ensure a conviction, the government passed a retrospective law called the Criminal Law [Special Provisions] Act No 1 of 1962, which allowed hearsay and other provisions to be permitted in court ,which laws applied only to these defendants and to no one else.  The accused were convicted by a 3 Judge panel of the Supreme Court specially selected by the legislature to hear this case.  The Privy Council in Liyanage v Regina[1966] All England Law Reports 650 set aside the conviction, on the ground that legislation designed to encompass specified defendants violated the provisions of Section 29[2], by discriminating against them.  Legislation to be valid could not be designed so as to prejudice a specified group of individuals.

With the abolition the right to appeal to the Privy Council and the illegal abolition of  the protections of Section 29[2], the tyranny of the majority raged on.  Non violent political protests  against discriminatory government legislation were met with government-sponsored violence, sometimes by mobs inspired by the government, sometimes by the armed forces.  Non-violence was being crushed and defeated by violence.

The final blow came when the government denied Tamil youth equal access to the Universities.  By a program of affirmative action for the majority community, Sinhalese students were granted admission on lower grades than the Tamils had to achieve.  This sparked off a demand by the Tamil youth for Independence, and on 14 May, 1976, the leaders of the newly formed United Tamil Front passed the Vaddukottai Resolution, which vowed to contest the next election with a demand for the establishment  of "a free Sovereign, Secular, Socialist State of Tamil Eelam."

The new Prime Minister, Mr Jayawardena, ordered the army to wipe out every separatist on sight.  The Tamils now retaliated with the advent of the Liberation Tigers.  The government first passed Act No 16 of 1978, proscribing the Liberation Tigers of Tamil Eelam, followed by the draconian Prevention of Terrorism Act No 48 of 1979.

Under the latter Act, Tamils could be arrested and detained for 18 months without charges, without lawyers, without access to family.  Disappearances and torture while in detention were rampant.  The anger, anxiety, frustration and disappointment experienced by the Tamils caused the Liberation Tigers to use violence to combat violence, and take all necessary steps to free the Tamils from the nightmare of tyranny imposed on the Tamil people by the J.R Jayawardena government. 

The Tigers retaliated first as a guerrilla group and then as a full fledged army.  When 13 soldiers were killed in the North in 1983, the government sponsored the worst anti Tamil racial riots in the history of the country.  The Tigers took the Sri Lankan Army head on. The government sought the help of the Indian Army, who were also routed by the LTTE.  The government could not afford to spark racial riots ever again, as they did not have troops to spare to prevent the mobs from getting out of hand and attacking the government itself.

In the meantime the Prime Minister created a new Constitution which ignored the separation of powers and created an Executive Presidency, which position he assumed, with close to dictatorial powers.  By also introducing elections by proportional representation, he made it virtually impossible for any future government to command the 2/3 majority necessary to amend or abolish the Constitution he had instituted.  The prospects of hoping for equality under a Constitution was lost forever.  The Tamil aim now was for a regional self government in the NorthEast.

The LTTE gave up on expecting equal treatment under the Sinhalese and has now had de facto control over a substantial area of the NorthEast, but is yet dependent on the consolidated fund of the central government for part  of its subsistence.  The present President and leader of the
opposition are agreed in principle to the grant of regional power to the LTTE.  The government’s leftist, racist coalition partner, the JVP, and the Buddhist monks are totally opposed to the concept.

Tamils in the Vanni, the area of the NorthEast controlled and governed by the LTTE have lost faith in the Sri Lankan Courts and have their own judicial system in the area.

The LTTE submitted the ISGA [Internal Self-Governing Authority] proposals+ to the government to form the basis of peace talks between the government and the LTTE.  The President has waxed, waned and played around with this proposal.  She first opposed it, then agreed to have peace talks, using these proposals as the basis for the talks, and finally came up with alternative proposals, all of which has led to nought.

 In the meantime, the Cease-Fire Agreement of 2002, which promised to restore the NorthEast, which was ravaged by the civil war, to normality, has been honored mostly in the breach.

The legal and political situations are in a state of uncertain flux, with no prospect of any solutions in the offing.  The government is paralyzed by its own coalition partner and the President is committed to do nothing to solve the national problem in order to survive as President.  Relations between the government, the Sinhalese opposition party the UNF and the LTTE are in a deep freeze, while all peace negotiations are in a state of hopeless limbo.  Any effort to give us a significant role in controlling our own affairs is vigorously opposed by the government’s coalition partner, the communist JVP, without whose support the President would lose her fragile majority in Parliament.  The government is presently paralyzed and can do nothing to ameliorate the situation.

*B.A.[Cantab] Law, Cambridge University, England
M.A, [Cantab]
L.L.M. Stanford Law School, California
Attorney at Law, New Jersey USA
Barrister at Law, Middle Temple, London
Former Crown Counsel and  Advocate,Supreme  Court of Ceylon [now Sri Lanka]

+separate article

###

Posted June 1, 2005