Tamil leadership lacks perspicuity
By K T Rajasingham, ‘Asian Times,’ Singapore, December 22, 2001
This is a story of another agreement. This time between S J V Chelvanayakam, the leader of the Ilankai Thamil Arasu Kadchi and Dudley Senanayake, the leader of the United National Party. In short, another agreement entered into between two nationals, a Sinhalese and a Tamil. And one cannot simply blame it as another sordid episode of Sinhalese chicanery as the Tamils inherited a leadership that lacked in diplomacy and political perspicuity.
The same sort of mistakes are being committed even now. The present Tamil leadership – the Liberation Tigers of Tamil Eelam (LTTE) – is blindly following the beaten track of the former Tamil moderate leadership over talks with the government, which has already resulted in a fiasco with Ranasinghe Premadasa, and Chandrika Kumaratunge. The negotiation with the present President Chandrika Kumaratunge in 1994-95 was a big flop, subsequently this resulted in Anton Balasingham coming up with his The Politics of Duplicity. It is high time that the Tamil leadership grew up to match its heavyweight opponent – Sinhalese government leaders.
On April 9, 1958, S W R D Bandaranaike reneged on the agreement he had entered with S J V Chelvanayakam. Again, when the Sri Lanka Freedom Party came to power after the July 1960 parliamentary general elections and Srimavo Bandaranaike became prime minister, her government reneged on an earlier pledge given to the Ilankai Thamil Arasu Kadchi by ignoring them. Her government introduced several anti-Tamil laws until they were voted out of power in December 1964, by the defection of 14 of her own party members. Kala Kala de Pala de (As ye sow, so shall ye reap) is the apt saying in Sinhala with regard to Srimavo Bandaranaike’s fall.
Even though the Ilankai Thamil Arasu Kadchi under the leadership of Chelvanayakam continued to lead the Tamils, no mass extra-parliamentary political activities were organized by the party after the Satyagraha campaign of 1961. There were efforts to organize some form of a direct action campaign in the latter part of 1964, but they were given up.
In the mean time, a group of ITAK members who had lost confidence in non-violence, secretly planned to avenge the humiliation of the government’s attack on non-violent protesters in 1961, by organizing a clandestine organization named Puli Padai – Tigers Army.
Puli Padai members, such as K Sivanandasundaram, who later became the Secretary-General of the Illankai Tholilar Kalagam, and A Rajarattinam and several others, met at Thiru-Konesar Temple, Trincomalee on August 12, 1962, and vowed to fight for a Tamil homeland. This secret organization had the full blessing of V Navaratnam, one of the leaders of the Federal Party and at that period of time, the member of parliament for Kayts.
After the parliamentary general elections, the Ilankai Thamil Arasu Kadchi had a secret arrangement to side with the United National Party to form a government. It was proposed to enter into an agreement.
“The FP [ITAK] still wished to collaborate with Sinhalese politicians of the UNP. In the run-up to the March 1965 elections they entered into a secret pact with Dudley Senanayake to lend him parliamentary support in return for Tamil language and other rights. On the other hand, C Suntheralingham, always an independent Tamil MP, who in the colonial period had been in the forefront of the campaign for national unity, and had been a minister in the first D S Senanayake cabinet, was the first to articulate Tamil separatism in the early 1960s. He correctly understood that the goal of Tamil nationalism was simply equality between people, their languages and cultures; it would never accept subservience.
“His long association with the conservative Sinhalese counterparts made him aware of their new goal of Sinhalese hegemony. He unequivocally, and prophetically, declared that the Sinhalese would never honor political agreements and Sinhalese politicians, be they on the right, centre or left, will never concede to the Tamils their language rights. Suntheralingham rejected the unitary state and called for the restoration of the status quo ante: a separate Tamil state of Eelam, comprising of the ancient Tamil areas of North and East of Lanka. This demand was later taken up by V Navaratnam, the MP for Kayts, on resigning from FP. In this way, Tamil separatist nationalism was born.
“Though that time the FP felt that there was still room for accommodation in parliamentary terms, this was very much in doubt. The FP secretary in 1964 gave the first vague expression of separatism in these words: ‘If the leaders of the Sinhalese people persist in this attitude, I will say that when you will be advocating federalism, we will rather choose to have a division of the country even at the cost of several lives’.” Sri Lanka: The National Question and the Tamil Liberation Struggle by Satchi Ponnampalam, pages 132-133.
In the general elections held on 1965, C Suntharalingham, a former minister in the D S Senanayake government and an independent member of parliament between 1947 and 1960, in his election campaign of 1960, called for the creation of a separate state for the Tamils, to be called Eelam.
Suntheralingham wrote on December 20, 1963, “I propose to invite those Eyla [Eelath Thamils] Thamils who accept the policy that the time has come for the partition of Ceylon and for the restoration of the Thamil state that existed before the Treaty of Amiens of 1802, to come forward and join the fight for the Freedom and Independence of the Eyla Thamil Nation.
“As a first step, and for the immediate future, all constitutional methods have to be tried and the Eyla Thamils must be persuaded at the next general elections to send as their representatives to Parliament only those who will endeavor to secure a free and independent Thamil Nation State of Eylom within the Commonwealth. Eylom will want a number of candidates to contest each and every seat which may be in Eylom territory. They must be prepared to undergo personal and financial sacrifices. If they fail, they will only have themselves and the Eyla Thamil people to thanks.
“I am satisfied that if the Federal Party [Ilankai Thamil Arasu Kadchi] under Mr Samuel Chelvanayakam continues to claim that their Federal Policy and their Sathyagraha and Ahimsa and Patha-Yathirai plans are alone acceptable to the general body of Eyla Tamils, the Eyla Thamil Nation will take a long time to be reborn. The sufferings and tribulations of the rising generation can hardly be described. But what future generations will have to undergo cannot be imagined.
“It is the next general election that will decide whether the Elya Tamils are to survive or perish in Eylom. Will the public servants who are retiring and other Tamils who bemoan their present fate and future of their progeny, enter into a freedom struggle of Eylom? Eylom wants them! Do they not hear the Drum Tattoo of Eylom Murasu!” Eylom: Beginning of the Freedom Struggle; Dozens Documents by C Suntherlingham pages 72-73.
Before dealing with Eelam and its historical aspect, the words “nation” and “state” need some form of definition or clarification.
“The nearest we can get to a definition is to say that a nation is a group of people bound together by common history, common sentiment and tradition and usually [through not always as, for example, Belgium or Switzerland] by common heritage. A state on the other hand is a society of men united under one government. These two forms of society are not necessarily coincident. A single nation may be divided into several states and conversely a single state may comprise several nations or parts of nations.” This is what the 20th Century legal writer, John Salmond, in his work on jurisprudence, has to say about the definition of a nation.
It is easier to observe a consensus of opinion on the meaning of the term state, but it is more difficult to have such a consensus in terms of a definition of what constitutes a nation. Former American president Woodrow Wilson once defined a state as “a people organized for law within a definite territory”.
Furthermore, J H Price in his Elements of Government, defined state to mean “an association of men and women, formed for certain specific purposes, with a clearly defined territory and an organized system of government”.
The judicial definition of a nation was offered by a United States Court in the case of Montoya v US, 180 US 261 21 S CT 358 45 L ed 521, as follows, “A people or aggregation of men existing in the form of an organized jural society usually inhabiting a distinct portion of the earth speaking the same language, using the same customs, processing historic continuity and distinguished from other like groups by their racial origin and characteristics and generally but not necessarily living under the same government and sovereignty.”
Therefore, a concept of nationhood cannot be created by the fiat of men, however powerful. A nation must evolve from some tortuous natural process. For such an evolution, there must be willingness from the people to identify themselves with such nationality. Tamils are a nation, but they are in a state called Ceylon and the nationhood is in the process of being evolved torturously.
In reality, a state is a political organization that consists of people, a government and a clearly defined territory – a geopolitical entity. Similarly, a state is where the people are an association of men and women who voluntarily submit themselves to be controlled and governed by a government.
The younger generation Tamils in the 1960s began to reflect on their glorious past as a nation and a state with unquenchable yearning, to rule again their own homeland. The popular slogan during this period wasAanda inam, meendum aazha ninaipathil, thavaru enna? A nation that ruled before; what is wrong in the desire to rule again? However, it was not to be as the results of the parliamentary general elections held on March 22, 1965, withered away rapidly their Utopian dream for a separate homeland. The results led to the natural death of the pioneer, the so called freedom outfit, said to be Puli Padai.
Out of the 145 elected seats, the UNP won 66 seats, the SLFP 41, the FP 14, the LSSP 10, the CP 4, the SLFSP 5, the ACTC 3, the MEP 1 and the JVP 1 seat. Srimavo Bandaranaike and her coalition partners, the LSSP and the CP, together won 59 seats, whereas the UNP and its partners, the breakaway group from the SLFP, called the Sri Lanka Freedom Socialist Party led by C P De Silva and the MEP led by Phillip Gunawardene, obtained 72 seats. K M P Rajaratne, the leader of the Jathika Vimukthi Perumuna, was trounced at Welimada constituency, but his wife Kusma Rajaratne triumphed at Uva-Paranagam constituency.
A total of 3,821,918 votes were polled, which was 82.1 percent of the total voters in the country. The UNP polled 1,590,929, which was 39.3 percent of the total votes and the SLFP polled 1,221,437, 30.2 percent of the total votes. An interesting feature in these, the sixth elections of the country, was that out of 495 candidates, 169 forfeited their deposits.
The lack of a clear majority portended the gloomy future of a hung parliament, resulting in the UNP and the SLFP leadership looking towards the Tamil political parties for support. The lame duck Prime Minister, Srimavo Bandaranaike, hung on as caretaker prime minister after the results were officially announced for more than 40 long hours without tendering her resignation.
Jeyaratnam Wilson, the son-in-law of Chelvanayakam, who was the author of the political biography entitled S J V Chelvanayakam and the Crisis of Sri Lankan Tamil Nationalism, 1947 – 1977, wrote as follows:
“Mrs Ranji Senanayake [a Tamil and an ex-journalist of the Lake House Group of papers], the wife of Maitripala Senanayake, the SLFP’s Deputy leader, tried negotiating with Tiruchelvam, the FP strategist – who in response orchestrated the negotiations in such a way so as to obtain the maximum benefit for the FP. Mrs. Senanayake provided him with the details of what the SLFP government would do for the Tamils, in return for their support. Surprisingly, since she was a Tamil herself, it did not occur to her that the SLFP, once ensconced, would fail to deliver on its promises, in the same way as it had done in the past. The FP support would have meant, among other things, that her husband would continue as the most senior minister next to the prime minister. Though never a forceful personality, he had influence and was considered reliable in the establishment circles, and would have been eminently acceptable as head of a government. While stalling Mrs Senanayake, Tiruchelvam advised Chelvanayakam on the best strategy for the FP.” – pages 103-104.
M Tiruchelvam always had the ear of Chelvanayakam and enjoyed influence with him. Chelvanayakam trusted in his ability as a shrewd negotiator and also as a well-wisher of the party. The Sinhalese political parties started negotiation with him even before the results of the elections were out. Esmond Wickremasinghe, on behalf of the UNP leadership, visited with him to Jaffna, when the election campaign was on, to finalize a secret understanding with Chelvanayakam and Amirthalingham.
By this time, the Tamil political parties began to behave at variance with their accepted political principles. According to V Navaratnam, a founder member of the Ilankai Thamil Arasu Kadchi, who lives in Canada, “Our role in parliament was not to help either of them [UNP or SLFP] to govern, nor to barter away our independence of action for any price. As a matter of fact, the Federal Party from its very inception had set out to make the constitution unworkable and to wreck it whenever possible. Our duty by the people was to be vigilant about any attempts to encroach into Tamil interests and resist them by every means available to us in the parliamentary system. In my view cooperation with Sinhalese government to govern was not one of such means.” The Fall and Rise of the Tamil Nation, page 221.
Despite such accepted policy of the party, Chelvanayakam and Amirthalingham took the opposite position. Already, when the election campaign was on, S Thondaman had publicly announced the CWC’s position to support the UNP. It was reported that he too played a major role in bringing the ITAK with the UNP and GG Ponnampalam, the leader of the All Ceylon Tamil Congress, was reported to have secretly accepted to support Dudley Senanayake and his party. In the meantime, A Aziz, a politician with left leanings and the leader of the Democratic Workers Congress – which represented the Tamil plantation workers – along with Dr N M Perera, the leader of the L SSP, also carried on negotiations with Tiruchelvam, to explore possible terms of luring the Ilankai Thamil Arasu Kadchi into supporting the SLFP to form the government.
The Tamil leadership and their political parties were a bundle of contradictions and they did everything against their declared principles. By now, the ITAK, policy-wise, was in disarray. From the very inception of the Ilankai Thamil Arasu Kadchi, their political ploy was to play on the sentiments and sensibilities of the Tamils and to influence their thinking, but they regrettably failed to deliver anything tangible. They began to lose their grasp on reality, lose pragmatism, to enter into yet another agreement with Dudley Senanayake and the United National Party.
On March 24, 1965, the party delegates, S J V Chelvanayakam, S M Rasamanickam, A Amirthalingham, Dr E M V Naganathan, V Navaratnam and M Tiruchelvam, met the UNP delegation at the house of the UNP stalwart, Dr M V P Peiris in Turret Road, Colombo. Dudley Senanayake, the leader of the party, along with J R Jayewardene, V A Sugathadasa and Esmond Wickremasinhe, represented the United National Party. The delegations mutually agreed as follows:
- To take immediate action to pass regulations to implement the Tamil Language Special Provisions Act No 28 of 1958, adopted earlier by S W R D Bandaranaiake, to enable the Tamil language to be the language of administration and of records, in the North and Eastern Provinces.
- To amend the Language of the Courts Act to provide for legal proceedings in the Northern and Eastern Provinces to be conducted and recorded in the Tamil language.
- To establish district councils on the island with authority, and the government to give directions to such councils in the national interest.
- To amend the Land Development Ordinance to allot lands under new colonization schemes to provide first preferences to the landless peasants in the North and Eastern Provinces, in any new colonization schemes opened up in the North and Eastern Provinces, second preference to the Tamil-speaking people in the North and Eastern Province and third preference to other citizens of Ceylon, with special preference to Tamils living outside these two provinces.
V Navaratnam, who participated in the negotiations, described lucidly the concluding stages of the discussions as follows, in his book The Fall and Rise of the Tamil Nation:
“I have to raise another question of great moment at the time and which too, apparently had not been raised by Tiruchelvam during his negotiations – the issue of Tamil public servants who had not acquired proficiency in the Sinhala language and who were, therefore, facing dismissal. Dudley Senanayake was willing to make certain concessions. As I started to write them down, both Wickremasinghe and Tiruchelvamm suggested that the Tamil public servants’ grievances could be adjusted administratively and it was not necessary to burden the agreement with lengthy paragraphs. The agreement was thus left incomplete on that subject and talks were concluded.
“Dudley Senanayake initialed my draft and proposed to keep it with himself. I suggested that a fair copy made in duplicate and exchanged between the two sides. For want of secretarial assistance, I had to type a fair copy in duplicate, as J R Jayewardene read out from the draft. It was signed by Dudley Senanayake and Chelvanayakam, each keeping a copy. Chelvanayakam also gave in writing, informing the Governor General that the Federal Party was supporting the UNP.” – page 225
A Jeyaratnam Wilson, in his political biography, S J V Chelvanayakam and the Crisis of Sri Lankan Tamil Nationalism, 1947-1977,described the signing of the above agreement as follows:
“Jayewardene suggested that the negotiations and conclusions be committed to writing and signed by the two leaders, and this was accepted, although a deeper implication could well have been, if Senanayake had failed to honor the agreement, he would have to resign, leaving the way clear for Jayewardene to succeed him as prime minister. Senanayake was an indecisive person given to mood swings, and this was not an unrealistic prediction. What he in fact hoped, as he later told Chelvanayakam, was that once the latter and his party became involved in his government, they would develop enough trust in it not to press for the implementation of the pact.
“Chelvanayakam, for his part, took to the legalistic view and put his trust in contractual obligations. He thought that under the circumstances he had obtained an honorable compromise on the ‘minimum demands’ of his party and that with better understandings this would pave the way for the FP to secure more concessions from Senanayake’s ‘National government.’ His declared policy, which he stated without any inhibitions to the pro-Sinhala daily The Sun [published in Colombo] was one of ‘a little now, more later.'” – pages 104-105.
Based on these points, there was an agreement between Dudley Senanayaike and Chelvanayakam, signed on March 24, 1965, and which came to be called “The Dudley Senanayake-Chelvanayakam Agreement – 1965”.
Agreement between Dudley Senanayake, MP, leader of the UNP and S J V Chelvanayakam, QC, MP, leader of the FP, on March 24, 1965:
“Mr Dudley Senanayake and Mr S J V Chelvanayakam met on the 24.3.1965 and discussed matters relating to some problems over which the Tamil-speaking people were concerned, and Mr Senanayake agreed that action on the following lines would be taken by him to ensure a stable government:
“1. Action will be taken early under the Tamil Language Special Provisions Act to make provision of the Tamil Language of administration and of records in the Northern and Eastern Provinces. Mr Senanayake also explained that it was the policy of his party that a Tamil-speaking person should be entitled to transact business in Tamil throughout the Island.
“2. Mr Senanayake also explained that it was the policy of his party to amend the Language of the Courts Act, to provide for legal proceedings in the Northern and Eastern Provinces, to be conducted and recorded in Tamil.
“3. Action will be taken to establish district councils in Ceylon, vested with powers over subjects to be mutually agreed upon between two leaders. It was agreed, however, that the government should have power under the law to give directions to such councils in the national interest.
“4. The Land Development Ordinance will be amended to provide that citizens of Ceylon be entitled to the allotment of land under the ordinance. Mr Senanayake further agreed that in the granting of land under colonization schemes the following priorities be observed in the Northern and Eastern Provinces.
“(a) Land in the Northern and Eastern Provinces should be in the first instance be granted to landless persons in the district, (b) Secondly to Tamil-speaking persons resident in the Northern and Eastern Provinces, and (c) Thirdly, to other citizens in Ceylon. Preference being given to Tamil citizens in the rest of the Island.”
This was signed by Dudley Senanayake and S J V Chelvanayakam as reported in the Illankai Thamil Arasu Kadchchi Velli Vila Malar – Silver Jubilee Celebration Souvenir, page 60.
Meanwhile, when Srimano Bandaranaike, the caretaker prime minister, came forward to tender her resignation, her Marxist allies prevailed upon her not to do so. They claimed that she could continue as prime minister with the help of the six independently elected members of parliament, including R G Senanayake and Mudyanse Tennkoon (popularly known as “Podi Putha” Nikaweratiya), who were former SLFPers, plus six appointed MPS from the Ilankai Thamil Arasu Kadchi and the All Ceylon Tamil Congress. Though arithmetically it was correct, at that time the Marxist were not aware that the ITAK and the ACTC had agreed with the UNP to form the government.
After the signing the agreement with the Ilankai Thamil Arasu Kadchi, Dudley Senanayake called on William Gopallawa, the Governor-General, and informed him that, along with the 66 elected UNP members, he had the support of the SLFSP – 5, the MEP – 1, the JVP – 1, independents – 2, the ITAK – 14 and the ACTC – 3 and he was prepared to form the government. The Governor-General wanted this in writing and accordingly S J V Chelvanayakam, C P De Silva, G G Ponnampalam, Philip Gunawardene and others informed the Governor-General of their willingness to support Dudley Senanayake. These developments were relayed to Srimavo Bandaranaike by the Governor-General.
“The coalition [SLFP+LSSP+CP] had lost the election and the UNP had won. There was a time lag between Mrs Bandaranaike handing in her resignation and Mr Dudley Senanayke taking over as prime minister. Ivor Van Twest, [the Senior Superintendent of Police, Colombo] wanted me to maintain a police presence around Queen’s House, [now President’s House] and keep it clear. A heavyweight minister from the coalition ordered me to move from there and swore that if I did not obey a ministerial order I would regret it for my rest of my life. His intention was to surround Queen’s House with his own ‘goondas’ so that Mrs Bandaranaike would not be able to go in and resign and Mr Dudley Senanayake would not be able to be sworn in. I stood my ground and out there in the cold night, we exchanged words that are best not repeated here. An hour or so later Mrs Bandaranaike came unimpeded to hand in her resignation and some time later Mr Dudley Senanayke was sworn in.
“But when the dust had settled, I was told that I was transferred to Nuwera Eliya, because ‘a good officer’ was wanted there. But it was common knowledge that it was to make way for a friend of a friend who would be more amenable to political maneuvers. The Daily News of August 16, 1965, had this to say, ‘At one point that night there appeared to be a definite coalition plan to scatter their storm-troopers outside Queen’s House, thus preventing Mrs Bandaranayke from entering-to resign and preventing Mr Dudley from entering to be sworn in. One man stood between coalition activists and their plan: A S P Vamadevan. With a patrol car and a brace of armed policemen he held the area near the (sic) Celinco building, keeping the activists from moving into positions outside Queen’s House. At the height of the tension, a rumbustious coalition minister arrived on the scene and ordered the police party off, using the language that could have made even a Maradana slattern blush. He also threatened the young ASP with dire reprisals. Mr Vamadevan did not budge, as reporters who were eye witnesses will testify. Curiously he was transferred out of Colombo within a matter of weeks’.” The Ceylon We Knew by V Vamadevan – Deputy Inspector General of Police, pages 108-109.
Accordingly, Dudley Senanayake formed a national government on March 25, 1965, which included Ilankai Thamil Arasu Kadchi (ITAK), the All Ceylon Tamil Congress (ACTC), the Sri Lanka Freedom Socialist Front (SLFSP), the Mahajana Ekseth Perumuna (MEP), the Ceylon Workers Congress (CWC) and independents, to be termed asHath Haula in Sinhalese, “seven feuding partners”.
Dudley Senanayake proposed to offer three ministerial portfolios to the Ilankai Thamil Arasu Kadchi, but the party refused as they found it difficult to compromise their principles. Therefore, Chelvanayakam elected M Tiruchelvam, who was not a member of the party, for one ministerial slot – the Ministry of Local Government, and to be nominated as a Member of the Senate – the Upper House, as it was necessary for a minister to be a parliamentarian. G G Ponnampalam, the leader of the ACTC, declined the ministerial offer, but M Sivasithamparam, the member for Udupiddy, was elected as deputy speaker on some understanding that was not disclosed. S Thondaman and V Annamalai of the CWC were nominated as Members of the House of Representatives, and R Jesudasan and S Nadesan to the Senate.
Dudley Senanayake nominated C P de Silva as the Minister of Land, Irrigation and Power and also made him the Leader of the House, which was the second in command position. J R Jayewardene was appointed as Minister of State, who under normal circumstances would have been the incumbent of the high office of leader of the House, but he selflessly offered the post to the man who was responsible for the collapse of Srimavo Bandaranaike’s government.
W Dahanayake was given Ministry of Home Affairs and Phillip Gunawardene Industries. I M R A Iriyagolle was appointed Minister of Education. Among the Muslims, Naina Marikar, the UNP MP for Puttalam, was elected as speaker, M H Mohammed, the UNP member for Borella in the Colombo district and former Mayor of Colombo, as Minister of Labor, while Sir Razeek Fareed was made a nominated MP.
Esmond Wickremasinhe, the chief architect of the national government, refused to take up a ministerial portfolio, though it was offered. Dudley Senanayke understood the difficulty in holding together the seven-party coalition. As some of the leaders of the coalition were not members of the cabinet, he decided to set up a special committee of 10 members, consisting of himself as chairman, J R Jayewardene as vice chairman, Esmond Wickremasinghe as secretary, Philip Gunawardene (MEP), S J V Chelvanayakam (ITAK), Hema Basanayake (Retired Chief Justice), G G Ponnampalam (ACTC), W Dahanayake (SLFSP), C P de Silva (SLFSP), and S Thondaman (CWC). They became known as the Committee of Ten and were more powerful than the cabinet.
In the meantime, permanent high ranking officials in the government, such as the Permanent Secretary of Ministry Education, Ananda Guruge, played a leading role in the implementation of Sinhalese-Buddhist chauvinistic policies. He was responsible with his conservative Sinhala Minister of Education, I M R A Irriyagolle, to edit, print and publish Anagarika Dharmapala’s highly provocative and sectarian work, Return to Righteousness, as a government publication.
Dharamapala’s father was H Don Carolis, a furniture merchant, who was one of the few Sinhala shop owners during 1910 to 1920 responsible for causing communal disharmony and discriminatory approaches towards Muslim, Tamil and Indian businessmen. Dharmapala, a clerk turned Buddhist lay preacher, was responsible for stirring Sinhala parochial consciousness through his inflammatory anti-Muslim, anti-Indian and anti-Tamil speeches and writings in his journal called Sinhala Buddhaya. He inflamed the Sinhalese by drumming up racial sentiments, which culminated in the anti-Muslim Riots of 1915. To safeguard the Sinhalese shopkeepers who faced competition from other community traders, he put forward the concept of “alien traders” compared to “sons of the soil,” a theory that he preached and popularized. He promoted and glorified the ancient Sinhalese kings, their fame, recalling victories against the Tamils. He denounced the Tamils as low creatures, and thus created a virulent anti-Tamil consciousness in the country.
Kumari Jayewardene, in an essay on class formation and communalism, describes, “The implications of the Sinhala-Buddhist ideologies were clear: if the Sinhala people could put forward claims to being the first civilized inhabitants and, therefore, the legitimate ‘owners’ of the country, all other migrants who had come at later date were regarded as ‘foreigners’. The concept thus grew that Sri Lanka was the land of the Sinhalese and that non-Sinhalese who resided there were allowed to do so by grace and favor of the ‘master race’ who had prior rights of possession and were exclusive ‘sons of soil’. This idea was typified in a statement made by Anagarika Dharmapala in 1922. ‘Look at the administration report of the general manger of railways … Tamils, Cochins and Hambankarayas [Muslims] are employed in large numbers to the prejudice of the people of this Island – sons of soil, who contribute the largest share.’
“The second implication was that the religion of Dhammadipa, and that all other religions were merely tolerated on the conditions of good behavior. In addition, if the minority communities were non-Sinhala and non-Buddhist, they were by definition, both racially and religiously were inferior and ‘infidels and a degraded race’, as Tamils and Europeans, were described in 1912, by Dharmapala.” Sri Lanka: racism and the Authoritarian State pages 60-61.
Dharmapala, hailed as the “Guardian of Buddhist doctrine, Sinhalese people and Sinhala race”, was one who preached and practiced anti-Tamil discrimination to glorify his race and religion at the cost of Tamils, Muslims and Hinduism and Islam. The government, which is run on the taxpayer’s money, spent a vast sum of money to print and publish anti-Tamil, anti-Muslim diatribes in his collected works, Return to Righteousness, as a government publication. Furthermore, the government changed the name of Turret Road in Colombo to Dharmapala Mawatha and erected statutes of this anti-Tamil and anti-Muslim patriarch.
Roman Catholics in the country supported the UNP and Dudley Senanayake during the parliamentary general elections, hoping that the UNP would allow the remaining 38 privately managed Catholic schools to charge tuition fees from students, but this was not granted. Instead, the government introduced weekend holidays substituting with Poya Days, ie, the day on which moon the reaches each quarter and pre-Poya days, as the weekend, instead of the normal Saturday and Sunday. This was a part of a drive to modify the country into a Buddhist state, thus reinforcing their Buddhist credentials.
When such an idiosyncrasy was introduced, Dudley Senanayake and his government gave scant regard to the sensibilities of other religious communities in the country. The new weekends did not uniformly fall on the same day of each month. This led to irregularity in fixing weekends, which caused disarray in the export industry. This weekend system was inaugurated on January 6, 1966, and discontinued by the Sri Lanka Freedom Party government that won in the 1970 general elections.
Dudley Senanayake, the prime minister, took a personal interest in the promotion of agriculture, providing new impetus to peasant agriculture in the country by introducing several development programs, envisaging to infuse educated youths to take up farming. But, unfortunately he never introduced any plan to improve the farming conditions of the cultivators in the Jaffna Peninsula. His period of rule, described as a golden era of the Green Revolution, aimed to make the country self-sufficient in food by providing better seed, adopting innovative agricultural methods and the application of fertilizer. During this period, there was a remarkable increase in paddy production. Plans were mooted for the diversion of the Mahaweli Ganga, the longest river in the country, and for to build several dams across the river, phased over a period of 15 years, to preserve water for agricultural purposes as well as to generate hydro-electric power for national consumption.
Tiruchelvam, who became the Minister of Local Government, assisted by a Parliamentary Secretary or a Junior Minister, Ranasinghe Premadasa, a confidante of Dudley Senanayake, looked over his shoulder. The first act of Tiruchelvam as a minister was to dissolve the Jaffna Municipality, over an issue of the erection of a statue to honor the “Tamil Matha” – a lady figure – Divine Mother Tamil, in front of the newly constructed Jaffna Library, by Alfred Duraiyappah, then mayor.
On January 8, 1966, the government took up for discussion the Second Reading of the Tamil Language Regulations to put into operation the Tamil Language (Special Provision) Act 28, of 1958. This act, introduced by S W R D Bandaranaiake after the 1958 racial holocaust, contained a brief version of the reasonable use of Tamil language, with provisions regarding education, entrance examination to government services and about regional administrations in the North and Eastern provinces. The act did not provide any mandatory provision for itself to go into implementation. According to the act, regulations for its implementation had to be enacted in parliament. Enacting the regulations was one of the aspects agreed in the Dudley Senanayake-Chelvanayakam Agreement. Accordingly, a compromising regulation was at last drafted by Tiruchelvam and tabled in parliament.
This was a toothless regulation and was silent about the usage of Tamil outside the North and Eastern provinces. However, the SLFP, the LSSP, CP alliance awaited this occasion to create chaos in the country and to stage violent protests. The alliance cried foul, stating that it was a sell-out to the Tamils and it infringed the Official Language Act of 1956.
In 1957, Dudley Senanayake and Jayewardene staged a protest march to Kandy against the Bandaranaike-Chelvanayakam Agreement. In contrast, the SLFP alliance, with the help of the Buddhist clergies and their political goon squads, staged a protest march through the streets of Colombo. When the protesters resorted to violence, the police opened fire, which ended in the death of Buddhist monk Dambarawe Ratnasara.
After the shooting incident, SLFP, LSSP and CP leaders converged on Vihara Maha Devi Park, earlier called Queen Victoria Park, to vow to avenge the political killing of the Buddhist Bhikku, in front of the statue of Vihara Maha Devi.
The demonstration upset and unnerved the prime minister. The police had barricaded all roads leading to parliament as a precautionary measure. When the demonstrators congregated around parliament refused to disperse police baton charged them, and when they became unruly the police opened fire. Another Buddhist monk was killed. Dudley Senanayake on his own initiative quickly requested the Governor-General to declare an emergency and to enforce a dusk to dawn curfew. He must have recollected the haunting memory of the Hartal of August 1953. Unfortunately, the emergency was in force until the end of the tenure of his office as prime minister.
In the ensuing debate, the opposition parties, the SLFP, the CP and the LSSP, vehemently opposed the regulation presented by Tiruchelvam. On the Tamil Regulation, “Tiruchelvam displayed legal perspicacity”. He interpreted the section which stated that Tamil could be used for “specific administrative purposes” to mean for “all administrative purposes in the Northern and Eastern provinces”, and logically so because Tamil would then be an administrative language in parallel with Sinhalese.
Felix Dias Bandaranaike, (SLFP, MP for Dompe) suggested that the words “Tamil shall be used” be changed to “Tamil may be used”, calculating that the latter would leave the matter to the discretion of Sinhala communal government or public officials, whereas the former would have been binding and obligatory.
“The Sinhala Only Act deprived the Tamil-speaking people of their self-respect in this country. By passing these regulations and thereby implementing the Tamil Language [Special Provision] Act, this lost respect is restored in some measure,” said S J V Chelvanayakam, participating in the proceedings and speaking on the floor of parliament.
Subsequently, the Tamil Language Regulation motion was put to vote in the House and 72 members voted for and 40 against it. The SLFP MP, the second member of Muthur in the Eastern Province, Abdul Majeed, a fiery Tamil orator of repute, voted with the government. Below is given the text of the regulations adopted in the parliament.
“The 1966, Tamil Language Regulation, published in the government Gazette No 14653 of March 2, 1966:
1. Without prejudice to the operation of the Official Language Act 33, of 1956, which declared the Sinhala Language to be the one official language of Ceylon, the Tamil Language be used;
2. (a) In the Northern and Eastern Provinces for the transaction of all government and public business and the maintenance of public records whether such business is conducted in or by a department or institution of the government, a public Corporation or a Statutory Institutions, and
(b) For all correspondence between persons other than officials in their official capacity, educated through the medium of Tamil Language, and any official in his official capacity or between any local authority in the Northern and Eastern Provinces which conduct its business in the Tamil Language, and any official in his official capacity.
3. To give effect to the principle and provisions of the Tamil Language [Special Provisions] Act, and those Regulations, Notifications, made or issued under any written law, the government Gazette and all other official publications and circulars, and forms issued by government, Corporations, Statutory Institutions shall be published in Tamil.”
In 1967, G G Ponnampalam, the leader of the ACTC, led a Ceylon government delegation to the General Assembly session of the United Nations in New York. G G Ponnampalam was the chairman of the delegation for two years. Other members were ELSenanayake, at that time mayor of Kandy, later appointed as a cabinet minister, Senator Stanley Kalpage, a professor at the University of Ceylon, Aelian Kannangara, who was later appointed as ambassador to Italy, Neville Jansz – later appointed as ambassador to Australia, Neville Kanakaratne, before being appointed as the minister in the High Commission in London, A C M Ameer, after relinquishing his position as attorney-general and Nimal Karunatilake, who played a dutiful role after assuming the position as press secretary to the Prime Minister. Ponnampalam was given a rousing welcome on his way back to Colombo, after attending the UN General Assembly’s annual session.
In January 1968, Tiruchelvam, represented the government of Ceylon, at the World Tamil Research Conference, held in Madras, Tamil Nadu, India. Even though the speech of the Tamil minister did not create an impact, the aftermath of the conference evinced a revival of the Tamil movement in Ceylon.
The Tamil daily Dinapathi and its weekly edition Chintamani were highly critical of the deliberate blackout by the organizers of the World Tamil Research Conference, and the state government of Tamil Nadu, for not giving prominence to the yeoman services rendered by the Tamil scholars of Ceylon. The Tamils in Ceylon were specially responsible for the revival of the language and religion, during the critical days of the Western colonization, both in Ceylon as well as in the South India. S T Sivanayakam, the chief editor of Dinapathy and Chinthamani, along with K K Ratnasingham, his news editor, and at present the editor of Sudar Oli, a Tamil Daily published from Colombo, were responsible for the resurgence of the Navalar cult – a cult of Shiva worship – among Tamils.
Srila Sri Arumuka Navalar, (1822-1879) the Hindu Savant from Nallur, was responsible for the survival of numerous ancient Tamil literary manuscripts, he brought them out, edited, printed and published them.
When the World Tamil Research Conference failed to honor one of the eminent sons of the Eelath Tamil Matha, Tamil mother, the Tamils of Ceylon got together to honor him. Due to the untiring efforts of many Tamils, a statute of Arumuka Navalar was taken in procession from Colombo to Jaffna with pomp and erected a memorial building opposite to the Nallur Kandasamy Temple. Pressure was brought to bear on the government to issue a commemorative postage stamp with the portrait of Arumuka Navalar. He was declared a Tamil national hero.
A movement for a university for Tamils started some time in the 1953, by eminent Tamils such as Professor A W Mailvaganam, Professor Chinnathamby, to be located at Trincomalee, which dragged on for years. The All Ceylon Tamil Congress leader and his party insisted on a Hindu university in Jaffna, at the same time that the ITAK anted a Tamil university in Trincomalee, the Eastern port city. The ITAK insisted on having the university in Trincomalee for one special reason – to stop the Singhalization of the Trincomalee district.
The government had largely taken steps to colonize the Trincomalee district, which was an integral part of the Tamil homeland, with Sinhalese people. Already, there was a danger of Seruwela being declared a separate parliamentary constituency for Sinhalese.
There was a Tamil population of 81.8 percent in Trincomalee in 1827, but by the census of 1963, the percentage of Tamils had dropped to 39.1 percent, whereas the earlier Sinhalese population of 1.3 percent had risen to 29.6 percent. These statistics amply explain the concerns of the Tamils.
The port of Trincomalee, which was under the British Royal Navy up to 1956, was later Ceylonized by S W R D Bandaranaiake. After the departure of the British, the port and the harbor gradually turned into one of the busiest commercial harbors on the island, controlled by shipping companies belonging to Tamils and where several hundred Tamils were employed. In 1967, the government nationalized the harbor, much against the wishes of the Tamils. Nationalization amounted to Sinhalization of the harbor. The Ilankai Thamil Arasu Kadchi, which was a constituent member of the government, could not prevent the nationalization.
In 1968, Thondaman persuaded the prime minister to enact the necessary legislation for the implementation of the Srimavo-Shastri Pact, in other words it is known as the Indo-Ceylon Agreement.
With the view to implementing the agreement entered between Srimavo Bandaranaike and Lal Bahdhur Shastri, the prime minister of India, in October 1964, popularly known as the Srima-Shastri Pact, dealing with “stateless” and “voteless” Tamils of the Indian origin. This law was required to give teeth to the above pact.
The agreement dealt with the Tamils of the Indian origin, originally brought into the country by the British as indentured laborers from South India after 1830, as cheap sources of labor, to work in the coffee, tea and rubber plantations of the British corporate entities. They remained in Ceylon without citizenship and franchise up to 1949. According to the agreement, out of an approximately 975,000 stateless Tamils of the Indian Origin:
(1) 525,000 persons would be granted Indian citizenship and repatriated to India over a period of 15 years, together with natural increase;
(2) 300,000 persons, together with natural increase, would be granted Ceylon citizenship, during the same 15-year period;
(3) Repatriation as well as granting of Ceylonese citizenship, as far as possible, to keep phase with each other and maintained according to the agreed ratio;
(4) The status of the balance of 150,000 people to be subject to further negotiations between the two governments at a future date.
The national government, in the early part of 1968, introduced the second reading of the Indo-Ceylon Implementation Bill, with the view to honoring the undertaking given to S Thondaman and the CWC.
Ilankai Thamil Arasu Kadchi was faced with a problem, when V Navaratnam, one of the founder members of the party as well as the MP for Kayts, opposed the bill. This put the ITAK in a dilemma. If Navaratnam opposed the bill, then Tiruchelvam had to resign from the ministerial portfolio, and eventually the ITAK might have to withdraw its support to the government, or else the party might have to remove Navaratnam from the party.
Ilankai Thamil Arasu Kadchi demanded three amendments, namely:-
- Banning of compulsory repatriation;
- In cases of any person repatriated compulsorily, they must be provided with the legal right to appeal against such repatriation, and;
- Registered citizens be placed in a separate register.Dudley Senanayake gave an assurance that no-one would be compulsorily repatriated.Chelvanayakam, in the end, requested Navaratnam to absent himself from parliament when the bill was taken up for debate, which he did and it was passed unanimously. Subsequently, Navaratnam issued a press statement with details of why he absented himself when such an important bill was being debated, and expressed his fears that the Indo-Ceylon Agreement Act might provide for the compulsory expatriation of those applying for Indian citizenship.
The act included a clause that was considered a marked departure from the original agreement. The government included the clause to grant Ceylon citizenship to stateless people without waiting for the repatriation of those to whom Indian citizenship had been granted. According to the original agreement, the grant of Ceylon citizenship to four stateless persons would come into effect only after the granting of seven persons with Indian citizenship and who had been repatriated to India. This departure from the agreement caused a stormy debate in parliament. After the passage of the bill, Thondaman expressed a sigh of relief, stating that the “long fight is over. Soon the stigma of statelessness suffered by the Tamils of the Indian origin will be removed.”
Again, another seemingly minor piece of legislation, but one with severe consequences, was the Registration of Persons Bill, which was introduced in the House by the national government. This was one of the most obnoxious piece of legislation passed against the Tamils and Muslims – the Tamil-speaking people, while the Ilanakai Thamil Arasu Kadchi was a constituent member of the government. The Registration of Persons Act compelled everyone to carry an identity card.
The government of Dudley Senanayake introduced the bill in the House. The Ilankai Thamil Arasu Kadchi was not consulted, although the proposals might have been discussed at the cabinet level and Tiruchelvam, the minister representing the party, might have approved the proposal.
The prime minister explained that the law was necessary to curb the influx of Tamil and Muslim illegal immigrants from South India. According to the bill, every person, aged 18 years or over would be required to register at a prescribed government department and obtain an identity card with a photograph. The card has to be carried at all times and be instantly produced on demand by a policeman. Failure to produce the card would result in immediate arrest. The ITAK decided to support the bill, but it failed to analyze its details.
Commenting on the day of the second reading of the bill, V Navaratnam, recalls, “I felt strongly about the prospect of a great calamity which the Tamils were going to face. It would be a terrible catastrophe if the bill became law. Chelvanayakam was the only man who was in a position to avert the calamity. I decided to see him and tried to persuade him to intervene, of course I had no illusions about my chances of success, but I had to try nonetheless.
“I met him alone and tried to convince him that it was unthinkable to the Federal Party to help put such manifestly Tamil-baiting law on the statute book. I pointed out the inherent and lurking dangers and said that we could not be party to a law which was almost certain to expose the entire Tamil-speaking population to untold harassment and persecution. I suggested that he should try and get the consideration of the bill put off at least until after meaningful steps were taken to implement important parts of the DS-C Pact.
“I ended up the interview by telling Chelvanayakam that I intended to oppose the bill, come what may. I said that he was making a mistake to let the bill become law now when he had the chance to prevent it and hope to deal with situations in the future. I told him that I would rather prefer to go into political wilderness than prostitute my conscience and betray the trust which the people had reposed in the Federal Party.
“When I rose from the government benches and spoke opposing the bill, there was consternation in the House because it was not anticipated. Nobody had known Federal Party (ITAK) was having difficulties over the bill. Among the opposition ranks the initial surprise gave way to unrestrained jubilation. They were all themselves supporters of the bill, but they saw in my action the first crack in the government.
“After couple of more speeches and the prime minister’s reply, the bill was put to the House and passed with my solitary vote cast against it.”The Fall and Rise of the Tamil Nation by V Navaratnam, pages 266 and 268.
V Navaratnam described the bill as a double-barreled gun, pointing at the Tamils to harass them. His prophetic words still resonate in the ears. Today, the Registration of Persons Law plays havoc in the country on the Tamil population. The government security forces use it to round up people.
The ITAK working committee, which met the next day in Colombo, decided to expel V Navaratnam from the party for defying its whip’s instruction to vote with the government.
In the meantime, on December 11, 1969, the Privy Council delivered its judgment on the Kodeeswaran appeal case. Its decision was received with jubilation in the Arasanka Eluthu-Vinayngar Sangkam (AES) circles and among Tamil-speaking people in general. The full text of the Privy Council decision is given below.
Chelliah Kodeeswaran and the Attorney-General of Ceylon
December 11, 1969. The judgment of their Lordships was delivered by Lord Diplock. The appellant has been for many years a civil servant in Ceylon. He is one still. He brings this action against the Attorney-General as representing the government of Ceylon. Its subject matter is the salary which he has received as a civil servant. He says that he was entitled to be paid more under the terms of his appointment and claims the balance which he alleges he has earned but which the government of Ceylon has refused to pay him. He is a Tamil and the balance salary that he claims is due to him is an increment which was denied to him because he did not pass a test in the Sinhala language. The requirement that he should pass such a test as a condition precedent to his being paid the increment was imposed by a Treasury Circular expressed to be issued in implementation of the Official Language Act, 1956. In the action he claims that the Official Language Act is unconstitutional and void and that the circular which was issued to implement the act and which purported to vary the existing terms of his appointment is also void and ineffective to disentitle him to the increment to which he would have been entitled under those terms.
The appellant’s action, if it lies at all, thus raises issues of the highest constitutional importance, all of which were argued before the district judge. There is, however, a preliminary issue, viz, whether a civil servant has any right of action against the Crown for salary due in respect of services which he has rendered. If, as the Attorney-General contends, there is no such right of action, the broader constitutional issues as to the validity of the Official Language Act and as to the right of the Ceylon government to impose a language test upon its civil servants as a condition of entitlement to higher pay, cannot be raised by the appellant in the present action. It fails in limine.
This preliminary issue was decided in the appellant’s favour by the district judge. He accordingly went on to deal with the other issues which he also decides in favor of the appellant. On appeal to the Supreme Court (Fernando C J and Silva J) the preliminary issue was argued first. On this issue that court reversed the decision of the district judge. This made it unnecessary for the two judges who constituted the Supreme Court to enter upon the consideration of the remaining issues which had been dealt with in the judgment of the district judge. They accordingly heard no argument and expressed no views on them. The Chief Justice expressly stated that had it been necessary to decide these other issues he would have exercised his discretion to convene a full court of five judges to adjudicate upon them in view of their outstanding constitutional importance.
Upon this appeal, their Lordships have also confined their consideration to the preliminary issue whether or not a civil servant has any right of action in Ceylon against the Crown for salary due in respect of services which he has rendered. They, too, have heard no argument and express no view upon any of the other issues raised in the action and dealt with in the judgment of the district judge. They would not think it proper to do so without the assistance of the considered judgment of the Supreme Court.
The preliminary issue is, however, one of importance in its own right. It falls to be decided by the law of Ceylon. English law is relevant only to the extent that it has been adopted as part of the law.
In the case of most former British colonies which were acquired by conquest or cession, the English common law is incorporated as part of the domestic law of the now independent state because it was imposed upon the colony by the Order in Council, Proclamation, or otherwise under the prerogative powers of the Crown. But in the case of Ceylon, upon the acquisition of the maritime areas which had previously been settled by the Dutch, the Crown did not impose English law.
By Proclamation of September 23, 1799, it was proclaimed:
1. Whereas it is His Majesty’s gracious command that, for the present and during His Majesty’s will and pleasure, the temporary administration of justice and police in the settlements of the island of Ceylon, now in His Majesty’s dominion, and in the territories and dependencies thereof, should, as nearly as circumstances will permit, be exercised by us in conformity to the laws and institutions that subsisted under the ancient government of the United Provinces, subject to such deviations in consequence of sudden and unforeseen emergencies, or to such expedients and useful alterations, as may be rendered a departure there from either absolutely necessary and unavoidable or evidently beneficial and desirable.2. We therefore, in obedience to His Majestyis commands, do hereby publish and declare, that the administration of justice and police in the said settlements and territories in the island of Ceylon, with their dependencies, shall be henceforth and during His Majesty’s pleasure exercised by all courts of judicature, civil and criminal, magistrates and ministerial officers, according to the laws and institutions that subsisted under the ancient government of the United Provinces, subject to such deviations and alterations by any of the respective powers and authorities herein before mentioned, and to such other deviation and alteration as we shall by these presents, or by any future proclamation and pursuance of the authorities confined to us, deem it proper and beneficial for the purposes of justices to ordain and publish, or which shall or may hereafter be by lawful authority ordained and published. In 1835 this was extended to the whole of the island.
The first problem raised by this proclamation is whether the Supreme Court were right in thinking that its subject-matter is restricted to private law applicable to transactions between subject and subject so as to exclude the whole of the former Roman-Dutch public law applicable to transactions between subject and sovereign. The words of the proclamation must be understood in the meaning attaching to them in the closing years of the 18th century and in the light of the historical circumstances in which the proclamation was made. The East India Company, which captured Trincomalee and Colombo from the Dutch in 1795, abolished the existing system of administration through local officials. This led to a revolt in 1797. Governor North was sent out from England and the proclamation marks his restoration of the old system of civil administration. Furthermore, as the proclamation itself indicates, the British occupation was expected to be temporary only. It was not until the Peace of Amiens in 1802, that Ceylon became a Crown Colony. Read in this historical context, the actual wording of the proclamation with its references to “police” (which at that date was commonly used in the generalized sense of civil administration), to “institutions” and to “ministerial officers” is in their Lordships’ view more apt to indicate an intention to restore in the recently acquired territory the previously existing system of law as respects the civil administration of Ceylon, rather than to exclude this branch of public law from its ambit.
But even if the relationship between the government of the Untied Provinces and its civil servants in Ceylon had formerly possessed the legal characteristics of a contract of service and they had been entitled to sue that government for arrears of salary, it does not follow that a corresponding contractual relationship and right of suit between the British Crown and its civil servants in Ceylon was created by the Proclamation.
As was pointed out by Lord Stowell in Ruding v Smith (1821) 2 (Hag Con) 371, when territory is acquired by conquest or cession. “No small portion of the ancient law is unavoidably superseded. The allegiance of the subjects and all the law that relates to it – the administration of the law in the sovereign and appellate jurisdictions, and all the laws connected with the exercise of the sovereign authority – must undergo alterations adapted to change.”
In the Cape Colony, of which Lord Stowell was speaking, Roman-Dutch law continued in force by virtue of a proclamation almost contemporaneous with that applicable to Ceylon, but which omitted any references to “police”, “institutions” or “ministerial officers”. What he said, however, would in their Lordships’ view apply also to Ceylon to abrogate any rule of law previously in force there under the government of the United Provinces, if it was incompatible with the British concept of the exercise of sovereign authority by the Crown. It is therefore necessary to consider first whether the existence of a relationship which possessed any of the legal characteristic of a contract between the Crown and a person appointed by the governor in Ceylon to serve in the civil administration of the territory would have offended against the fundamental concept of the rights and immunities of the sovereign at the close of the eighteenth century.
In their Lordships’ view there is no such incompatibility. In the 18th century the principal officers of the executive government of a colony were appointed directly by the Crown in England by letters patent. This method of appointment may well have been inconsistent with the creation of a contractual relationship between the Crown and the appointee, but the proclamation was local in its ambit and would not affect the legal relationship between these officers and the Crown. It applied only to subordinate officers in the civil administration of the government of Ceylon who were appointed locally by the governor and removable by him. It is now well established in British constitutional theory, at any rate as it has developed since the 18th century, that any appointee as a Crown servant, however subordinate, is terminable at will unless it is expressly otherwise provided by legislation; but as pointed out by Lord Atkin in Reilly v The King [1934] A C 176, 180, “a power to determine a contract at will is not inconsistent with the existence of a contract until so determined”. In Reilly’s case Lord Atkin, while finding it unnecessary to express a final opinion as to whether the relationship between the Crown and the holder of a public office was constituted by contract, remarked , at p 179, “That in some offices at least it is difficult to negative some contractual relations, whether it be as to salary or terms of employment, on the one hand, and duty to serve faithfully and with reasonable care and skill on the other”.
Their Lordships thus see nothing inconsistent with British constitutional theory in the governor of Ceylon being empowered by the proclamation of 1799 to enter into a contract on behalf of the Crown with a person appointed to an office in the civil administration of the colony as to the salary payable to him, provided that such contract was terminable at will.
It does not follow, however, even if the governor was empowered to enter into contractual relations with a civil servant in the colony as to the payment of salary, that the servant would have a right of suit against the Crown for salary unpaid. A general Crown immunity from suit in respect of obligations ex contractu if it existed in the 18th century in England might also give rise to the inference that notwithstanding the contractual nature of a civil servant’s claim to salary in Ceylon the sovereign attribute of immunity from suit was not intended to be waived by the proclamation. But by the 18th century it had been established that, although no writ could issue against the sovereign, moneys due to the subjects under a contract with the Crown could be claimed in the English courts by the procedure of petition of right.
Their Lordships have not been referred to any case as early as the 18th century in which a petition of right was brought by a civil servant for arrears of salary; but in 1820 it was taken for granted by Chitty in The Prerogatives of the Crown that a petition or right would lie “where the King does not pay a debt, as an annuity or wages, etc, due from him”. This was a work of high authority which would be familiar to the judges of Ceylon in the first half of the nineteenth century. Stuart Robertson in his Civil Proceedings by and against the Crown, published in 1908, states categorically that “payment for services rendered may be claimed by petition of right” and cites two such petitions brought in the 1860s, of which one was successful and the other settled. It was not until cases decided on 1926 and after that any doubt was cast upon this proposition. Their Lordships will advert to these cases later. It is at present sufficient to state that, as the English law stood at the time of the proclamation, there was no sufficient ground in constitutional theory to justify the interference that the Crown must have intended to deprive a civil servant engaged in Ceylon of any remedy in the courts of that country for arrears of salary, if a remedy had previously been available under Roman-Dutch law as applied in the island.
If, therefore, under the Roman-Dutch law, as it was applied in Ceylon under the government of the United Provinces, a person holding office in the civil administration of that government was entitled to a remedy in the courts for arrears of salary agreed to be paid to him, that remedy was preserved by the proclamation and the plaintiff is entitled to avail himself of it as against the Crown.
It is not, however, essential that it should be demonstrable that such a remedy was in fact exercised before the British occupation, for although the Roman-Dutch law as applied in Ceylon under the government of the United Province is the starting point of the “common law” of Ceylon, it is not the finishing point. Like the common law of England, the common law of Ceylon has not remained static since 1799. In course of time it has been the subject of progressive development by a curs us curiae (Samed v Segutamby (1942) 25 NLR 481) as the courts of Ceylon have applied its basic principles to the solution of legal problems posed by the changing conditions of society in Ceylon. In their Lordships’ view, if long-established judicial authority for a proposition of law not inconsistent with the British constitutional concept of the exercise of sovereign authority by the Crown can be found in the decisions of the Ceylon courts themselves there is no need to go back to see whether any precedent can be found for it in the jurisprudence of the courts if the United Provinces or the doctrine of the Roman-Dutch jurists of the 18th century.
Still less is it necessary to find a precedent for it in English common law. The absence of any supporting precedent for the proposition in Roman-Dutch law, as applied in the United Provinces, may be due to a number of reasons. It may have been taken for granted law in the United Provinces, or it may deal with circumstances which did not exist there or did not attract the attention of writers on Roman-Dutch law in the 18th century; or it may be a development of the common law of Ceylon itself either before or after 1799, of which the nascence and growth may be impossible to trace in the absence of any reports of decisions before 1833 and very incomplete reports thereafter until towards the end of the 19th century. Even a clear conflicting precedent in the 18th century jurisprudence or doctrine of the Untied Provinces would not necessarily be a conclusive indication that a later decision of a Ceylon court is erroneous. As Wood Renton J pointed out in Colombo Electric Tramway Co v Attorney-General (1914) 16 NLR 161, 173, little is known as to the precise extent to which the doctrines of the Roman-Dutch law which were applied in the United Provinces themselves were actually introduced into Ceylon while it was under the Dutch rule, and if authority were found in the 18th century law of the Untied Provinces which was inconsistent with an old-established line of decisions by the courts of Ceylon, the inference may well be that the authority relates to a part of the law of the Untied Provinces which was regarded as unsuitable to conditions in Ceylon and was never introduced there.
There is old-established precedent in the Supreme Court of Ceylon that an action lies at the suit of an officer in the civil administration for unpaid salary earned during the period of his appointment. In Jansz v Tranchell in 1865 Ram 160, this was treated by the Supreme Court as “taken for granted” law and conceded by the Queen’s Advocate. The court did not find it necessary to cite any previous authority or to express any view as to the origin of the right of action, but there may have been many unreported instances of this practice known to the judges. The actual point argued was whether such arrears of salary constituted a debt which could be attached by a creditor, but the existence of a debt recoverable by suit by the civil servant against the Crown was an essential step in the reasoning. A similar point came before the Supreme Court of Ceylon in Fraser’s case, 1868 Ram 316. That was a claim for arrears of salary by a civil servant who held concurrent offices under the Imperial government and the government of Ceylon. It was held that as respects salary due in respect of his office under the government of Ceylon prior to his dismissal, this was a debt due to him from the Crown in Ceylon for which he was entitled to bring an action against the Queen’s Advocate, though he failed on the facts as nothing was due to him. The court in this case ascribed the origin of his right of action to Roman-Dutch law and cited the Proclamation of 1799.
Here, then, is authority dating back more than a hundred years that, under the common law of Ceylon, an action does lie at the suit of a civil servant for remuneration agreed to be paid to him by the terms of his appointment and remaining unpaid.
The Supreme Court in its judgment in the present appeal appears to have regarded these authorities as overruled by the decision of the Judicial Committee of the Privy Council in Siman Appu v Queen’s Advocate (1884) 9 App Cas 571. In their Lordships’ opinion this is not so. Siman Appu’s case was concerned with the general question whether a subject had any right of suit against the Crown in Ceylon for breach of contract. The contract sued upon was not one of service and Fraser’s case, 1868 Ram 316 was cited only on the point as to whether an action lay against the Crown on a contract. The Judicial Committee upon the material then before them were unable to conclude with any certainty that a right of suit in contract against the government of the United Provinces had formerly existed under the Roman-Dutch law, but they nevertheless held that whatever might be the exact origin of the practice of suing the Crown in contract it was then ( ie, by 1884) incorporated into the law of Ceylon.
In the present appeal their Lordships have had their attention drawn to a passage dealing with this topic in the third book of De Jure Belli ac Pacis by Grotius: “According to civil law also a person can be said to be bound by his own act, either in this sense, that an obligation results not from the law of nature alone but from the municipal law, or from both together, or in the sense that the obligation gives a right to action in a court of law. Therefore we say that a true and proper obligation arises from a promise and contract of a king, which he has entered into with his subjects, and that this obligation confers a right upon his subjects; such is the nature of promises and contracts as we have shown above; and this holds even between God and man.
“Now if the acts are such as may be done by a king, but also by any one else, municipal law will be binding in his case also; but if they are the acts of the king as king, municipal law does not apply to him. This distinction has not been observed with sufficient care by Vazquez. Nevertheless, from both these act a legal action may arise, at least so far that the right of the creditor may be declared; but compulsion cannot follow on account of the position of the parties with whom the business is conducted. For it is not permissible for subjects to compel the one to whom they are right subject; equals, and superiors against inferiors even by municipal law.”
This strongly supports the view that there existed in the United Provinces as early as the 17th century a right to bring a declaratory action against the government, in respect of a contract entered into with the government, although execution could not be obtained upon the judgment. This bears a strong resemblance to the practice in Ceylon described by Cayley CJ in Jayewardene v Fernando (1881) SCC 77, and it may well be that had this passage from Grotius been drawn to the attention of the Board in Appu’s case (1884) 9 App Cas 571 they would have ascribed the then current practice in Ceylon to a Roman-Dutch origin.
The significance of Appu’s case is that it recognizes the development of an indigenous common law of Ceylon by the decisions of the courts of that country even though the origin of a particular proposition of law cannot be traced back to the Roman-Dutch law of the United Provinces in the 18th century. The judgment upholds those parts of the judgment in Jansz’s case, 1865 Ram 160 and Fraser’s case, 1868 Ram 316 which recognized that the subject could bring an action in contract against the Crown in Ceylon although it does not ascribe this, as the court in Fraser’s case had done, to the Roman-Dutch law in force in Ceylon under the government of the United Provinces. It was not concerned with and casts no doubt on the correctness of those parts of the judgments in Jansz’s case, 1865 Ram 160 and Fraser’s case, 1868 Ram 316, which held that unpaid salary due to a civil servant for services rendered during his period of service constituted a debt for which he was entitled to sue the Crown.
Consistently with the attitude adopted by the Board in Siman Appu’s case (1884) 9 App Cas 571 to old-established precedent indecisions of the courts Ceylon it would, in their Lordships’ view, be wrong after this lapse of time to depart from the principle laid down in Jansz’s case, 1865 Ram 160 and Fraser’s case, 1868 Ram 316 that a civil servant in Ceylon is entitled to sue the Attorney-General on behalf of the Crown for arrears of salary.
In coming to the contrary conclusion in the instant appeal, the Supreme Court of Ceylon relied upon the decision of the Privy Council in the Indian case of High Commissioner for India v Lall (1948) LR75 AI 225. In India, unlike Ceylon, the source of the common law is English common law; but on the assumption, which their Lordships think erroneous, that Fraser’s case, 1868 Ram 316 had been overruled by Appu’s case (1884) 9 App Cas 571, the Supreme Court concluded that any right of the appellant to sue for arrears of salary fell to be determined by that branch of English law relating to the sovereign attributes or prerogative of the Crown which must have been introduced into Ceylon as a necessary consequence of the transfer to the Crown of sovereignty over the island. If this ascription of the origin of the appellant’s right of suit to English public law were right Lall’s case (1948) LR 75 I A 225 would have been very much in point, and in view of the importance attached to it in the judgment of the Supreme Court and the full argument which has been addressed to them upon it, it is appropriate that their Lordships’ should deal briefly with it.
As has already been pointed out, the current of authority for a hundred years before 1926, though sparse, was to the effect that arrears of salary of a civil servant of the Crown, as distinguished from a member of the armed services, constituted a debt recoverable by petition of right. These authorities, including the decision of the House of Lords in Sutton v Attorney-General (1923) 39 TLR 294, are conveniently summarized in a penetrating article by Sir Douglas Lagan on “The Civil Servant and his Pay” (1945) 61 LQR 260 in which he commented on the decision in Lucas v Lucas [1943] P 68, where Pilcher J, adopting the reasoning of Lord Blackburn in the Scots case of Mulvenna v The Admiralty, 1926 SC 842, reached a contrary conclusion.
Unfortunately, none of these earlier authorities was drawn to the attention of the board in Lall’s case (1948) LR 75 IA 225. Most of the argument and of the judgment in that case dealt with the question whether the dismissal of the civil servant was void under the relevant statutory provisions relating to his service, but the board did decide that, notwithstanding that his purported dismissal was void, he had no right of action for arrears of pay. Lall’s case (1948) LR 75 IA 225 can be distinguished from the instant case in that the terms on which Mr Lall was engaged contained no express provisions as to the pay he was to receive for his services. But the board did not base their decision exclusively on this. They, too, adopted as a correct statement of the law the judgment of Lord Blackburn in Mulvenna v The Admiralty, 1926 SC 842.
Lord Blackburn’s reasoning in Mulvenna’s case had not been concurred in by the other two members of the Court of Session, Lord Sands and Lord Ashmore, nor has it been subsequently treated in Scotland as correctly laying down the law: see Cameron v Lord Advocate, 1952 SC 165. The conclusion which Lord Blackburn reached was that it “must be read, as an implied condition, into every contract between the Crown and a public servant, with the effect that, in the terms of their contract, they have no right to their remuneration which can be enforced in a civil court of justice, and that their only remedy under their contract lies in an appeal of an official or political kind”.
The only cases cited in support of this proposition were the well-known cases which establish that the Crown has power to determine the employment of a public servant at will. He treated as an ineluctable consequences of this, too plain to call for further explanation, that a civil servant had no claim in law to arrears of salary accrued due before his dismissal .
In their Lordships’ view this is a non sequitur. A right to terminate a contract of service at will coupled with a right to enter into a fresh contract of service may in effect enable the Crown to change the terms of employment in future if the true inference to be drawn from the communication of the intended change to the servant and his continuing to serve thereafter is that his existing contract has been terminated by the Crown and a fresh contract entered into on the revised terms. But this cannot affect any right to salary already earned under the terms of his existing contract before its termination.
In the opinion of their Lordships, Lord Blackburn’s reasoning in Mulvenna’s case. 1926 SC 842 is defective and his conclusion in contrary to authority and is wrong. That portion of the judgment in Lall’s case (1948) AIR (PC) 121 which adopts it as a correct statement of the law must be regarded as given per incuriam since the relevant and prestigious authorities to the contrary appear not to have been cited to the Board.
Their Lordships will humbly advise Her Majesty that this appeal should be allowed on the preliminary issue upon which alone it was decided by the Supreme Court.
Although in their Lordships’ opinion a civil servant in Ceylon does have a right of action against the Crown for arrears of salary which accrued due during the currency of his employment, this answer to the preliminary issue does not dispose of the Crown’s appeal to the Supreme Court from the judgment of the district judge. There are the other important constitutional issues to be decided upon which neither the Supreme Court nor their Lordships have heard argument. As already indicated, their Lordships’ would think it inappropriate to enter upon any of these matters without the benefit of the considered opinion of the Supreme Court of Ceylon thereon. They accordingly express no opinion upon any of the other issues as to the constitutionality of the Official Language Act or the effect of Treasury Circular No 560 of December 4, 1961, or of any other material facts upon the plaintiff’s contract of employment. The case should be remitted to the Supreme Court for further consideration of these other issues and their Lordships will humbly advise Her Majesty accordingly.
The respondent must pay the costs of this appeal to their Lordships’ Board and of the appeal to the Supreme Court.