Ilankai Tamil Sangam

Association of Tamils of Sri Lanka in the USA

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Letter to the ICJ

by Wakeley Paul, Esq., March 7, 2006

Mr William Butler
American Association for the International Commission of Jurists, Inc.
280 Madison Avenue, Suite 1102,
NY, NY 10016

Dear Mr Butler,

I am extremely disappointed in the ICJ. They have ignored the illegal efforts by Sinhalese Buddhist political leaders in Sri Lanka to deprive all other ethnic and religious groups in that country of “ Equal Rights.” They have done everything in their power to treat everybody but themselves as undesirable outcasts.

Let me outline in a brief article, which I hope you will have the courage to publish, my legal arguments in support of my accusation, none of which were ever alluded to by your organization, who have virtually ignored the Human Rights violations that have flowed from these unconstitutional actions by successive Sri Lankan Governments.

When the British granted Ceylon [as it was then known] independence in 1948, they included the following provision in the Constitution as part of the condition on which independence was granted:

Section 29 [1] Subject to the provisions of this order, Parliament shall have power to make laws for the peace, order and good  government of the island

{2} No such law shall

[a] prohibit  the  free exercise of any religion

[b] make any person or any community or religion liable to disabilities or restrictions to which any other community or religion are not liable: or

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

[d] alter the constitution of any religious body except with the consent of the  governing  authority of that body.

{3} Any law made in contravention of Section {2} of this section shall, to the extent of such contravention,  be void.

In essence, this provision ensured that there would be no discriminatory legislation against any racial or religious group on the island. Any such legislation under 29[3] was null and void.

How did this provision come to be made an integral part of this Constitution? The leader of the Tamil Congress, Mr G.G Ponnambalam, pointed out to the Soulbury Commissioners, sent to create a Constitution for Ceylon, that if we were granted a Unitary Constitution on the pattern of Britain’s Parliament, the Sinhalese Buddhists, who were the majority, could discriminate against people of every other community and religion in the island. People on the island tended to vote on ethnic grounds.  In order to avert that possibility, Ponnambalam demanded that we should have a Constitution granting 50% representation to the Sinhalese and 50 % to all others. Instead, in order to prevent such anticipated discrimination by the Sinhalese Buddhists, the Commissioners incorporated this crucial clause as a condition upon which independence was granted, under this Constitution. 

The final clause of Section 29[4] reads as follows:

Provided that any provisions for the amendment or repeal of any provisions of this order shall not be presented for the Royal Assent unless it is endorsed on it a certificate under the  hand of the speaker that the number of votes cast in favor thereof in the House of Representatives amounted to no less that 2/3 of the whole of the members of the House [including those not present].

The British Privy Council, the highest Court of the land under the Constitution, ruled as follows in the case of Bribery Commissioner  v Ranasinghe"

[1964] 2 All England Reports 785, while referring to the provisions of Section 29[2] supra:

“They represent the solemn balance of rights between the citizens of Ceylon, the fundamental condition upon which they accepted the constitution, and these are therefore unalterable under the Constitution." [all emphases are mine]

Faced with the inability of Parliament to alter this clause, a coalition government in 1972, under the leadership of Mrs Bandaranaike, formed an institution called a “Constituent Assembly” to repeal the existing Constitution and replace it with a new one that excluded the provisions of Section 29[2].

Under Section 29[1], Parliament and Parliament alone was vested with the power to legislate. A “Constituent Assembly” not only had no such power, leave alone a power to repeal and replace the existing Constitution with a new one.

This new Constitution was also invalid in that it did not include the protective provisions contained in Section 29[2]. In short, from here on discriminatory legislation was constitutionally permissible under this new, illegal instrument.

In 1978, the Parliament abolished the illegal 1972 Constitution and replaced it with a new Constitution, which new Constitution also excluded the provisions of Section 29[2] of the original Constitution. Since the 1972 Constitution was illegal and unconstitutional, it follows that one could not replace it with a new Constitution. What the government should have done is abolish the original Constitution, which, however, bound them to observe the conditions in Section 29[2].

I do not have to go into the array of human rights violations that flowed from these unconstitutional and illegal actions, except to say that the Tamils have now demanded a virtual autonomy to protect them from Sinhalese Buddhist discriminatory control.

Your illustrious organization never raised a whisper of concern over these illegal activities, which fostered a rash of human rights violations against non-Sinhalese Buddhists. This is why I have not renewed my membership of your organization. Your Secretaries General have been totally remiss in this regard.

Sincerely Yours,

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