An Assessment and Appeal to My Sinhala, Muslim and Tamil Friends

by Nagalingam Ethirveerasingam, Ph.D., December 5, 2006

Sri Lanka is an example of the tyranny of the majority that Alexis de Tocqueville warned the world about. Tamil leaders, since 1931, have feared this “tyranny of the majority” and the dangers that the power of one-person, one vote in a country with a 70% Sinhala Buddhist majority would have on the rights of the Tamil community. Tamils protested and demanded that Britain incorporate safeguards into the constitution against such tyranny.

In response, Section 29 was entrenched in the Soulbury Constitution of 1948 and a right to appeal to the Privy Council in England was included, in order to safeguard the communities that formed 30 % of the population from the potential tyranny of the 70% Sinhala Buddhist majority. The British felt that, without such safeguards, the rights of the minority communities would not be protected.

The Official Language Act of 1956 transgressed Section 29 of the constitution.  Judge O.L. de Krester of the Colombo District Court upheld Kodesewaran's plea and ruled that the Official Language Act contravened Section 29(2).  The Government appealed to the Supreme Court, which overturned Kodesewaran's plea without  considering the constitutional issues.  Kodeeswaran appealed to the Privy Council, as provided for in the 1948 Constitution.  In 1969 (Kodeeswaran Vs the Attorney General [1969] 72 NLR 337) the Privy Council set aside the Supreme Court's decision and directed the Supreme Court to rule on the constitutional question. (New Law Reports, p.337.)

Kodeeswaran's case never came up before the Supreme Court again. Mrs. Bandaranaike's coalition government, which came to power in 1970, abolished appeals to the Privy Council by enacting Act No.44 of 1971.  Britain failed to intervene to protect the rule of law when the Bandaranaike government denied the Tamils’ the right to appeal to the Privy Council, the last protector of the Covenant. 

In Bribery Commissioner Vs Ranasinghe, the Privy Council stated that under Section 29(2) (a), (b), (c) and (d), 

"No such law shall- (a) prohibit or restrict the free exercise of any religion, there follow (b), (c), and (d), which set out further entrenched religious and racial matters, which shall not be the subject of legislation."  The Privy Council went on to say that, "They represent the solemn balance of rights between the citizens of Ceylon, the fundamental condition which inter se they accepted the constitution; and these are therefore unalterable under the constitution."  Lord Pearce in Bribery Commissioner Vs Ranasinghe [1964] 66 NLR 73, as quoted in “Sri Lanka: The National Question and the Tamil Liberation Struggle”, Sachi Ponnambalam. Pitman 1983.

In March 12, 1997, as reported in the Ceylon Daily News, Prof. G.L. Peiris, then Minister of Constitutional Affairs, pointed out that a constitutional, 

"…safeguard was provided for the minorities by Article 29(2) of the Soulbury Constitution. It prevented parliament from conferring benefits on the majority community and imposing disabilities on the minorities.  The Privy Council in Bribery commissioner Vs Ranasinghe had ruled that Article 29(2) can not be amended even with a two-thirds majority. It was on the basis of this safeguard that the Tamils acquiesced in the granting of independence in 1948." Ceylon Daily News, 12 March 1997

In 1972, the Sinhala majority Members of Parliament formed an illegal constituent assembly, discarded the Covenant, Section 29, and the Soulbury Constitution without the consent of the Tamil people – one of the other parties to the covenant. Britain, the guarantor of the covenant, did not intervene at any time on behalf of the Tamil people to restore the Covenant. C. Suntheralingam, MP, could not appeal to the Privy Council for it to rule on the legality of the constituent assembly and the 1972 constitution, because the 1971 Act No 44 prevented any appeal to the Privy Council. The illegal 1972 constitution (See Satchi Ponnambalm for the rationale), that did not have the consent of the Tamils, arbitrarily created a territorial boundary that included the territories where Tamils have traditionally lived for centuries before and after the colonial period. The Sri Lanka government therefore, by breaking the covenant, rebelled against the Tamil people. Four years later, in the 1976 elections, the Tamil people mandated that their representatives, the TULF, establish the state of Tamil Eelam in their traditional place of habitation. When that state could not be achieved by negotiation, the Tamil people took up arms to put down the rebellion of the government against the Tamil people. 

John Locke, in Chapter Three: "Of the State of War," in “The Second Treatise of Government” (1681), has this to say about the state of war between two individuals (in the case of Sri Lanka, the two communities):

"17.  And hence it is he who attempts to get another man into his absolute power does thereby put himself into a state of war with him. It being to be understood as a declaration of a design upon his life. For I have reason to conclude that he who would get me into his power without my consent would use me as he pleased when he had got me there, and destroy me too when he had a fancy to it; for nobody can desire to have me in his absolute power, unless it be so to compel me by force to that which is against the right of my freedom i.e. make me a slave. To be free from such force is the only security of my preservation, and reason bids me look on him as my enemy to my preservation, who would take away that freedom which is the fence to it. So that he who make an attempt to enslave me thereby puts himself into a state of war with me."

Gandhian S.J.V. Chelvanayakam led the Tamil people for thirty years in peacefully negotiating with the Sinhala leaders for a new covenant. He dedicated his life to achieve, by non-violent means, the Tamil peoples' right to self-determination.  After thirty years, there was a ‘finality and finiteness’ in his conclusive statement to break with the past.  He said in parliament,

"We have abandoned the demand for a federal constitution. Our movement will be all non-violent . .. We know that the Sinhalese people will one day grant our demand and that we will be able to establish a state separate from the rest of the island ..."    19 November 1976 in Parliament, cited in A. Jeyaratnam Wilson. S.J.V. Chelvanayakam and the Crisis of Sri Lankan Tamil Nationalism, 1947 - 1977, A Political Biography.  Hurst, London, 1994. p129.

The Tamil community, as a Nation, after 50 years of failed negotiations, is resisting the Sinhala Nation's attempt by force of arms, humanitarian abuses and human rights atrocities to substitute for Britain as the Tamil nation's new colonial power and to assimilate the Tamils into the Sinhala Buddhist state. Abraham Lincoln said that, 

“If, by the mere force of numbers, a majority should deprive a minority of any clearly written constitutional right, it might, in a moral point of view, justify revolution – certainly would, if such a right were a vital one.” (First Inaugural Address, March 4, 1861)

US Congressman Brad Sherman in his letter to Secretary of State Madeline Albright on 1 September 2000 wrote,

"....The United States has an opportunity to make Sri Lanka a model and help it to evolve, by negotiating, two autonomous democratic political structures within a system acceptable to both parties, where ethnic communities can coexist peacefully on the Island. The US should be firm in its message to the government and the opposition, that if negotiations are not forthcoming immediately, they should be prepared to conduct a referendum of the Tamil people in Sri Lanka.

This can be done with the assistance of the United Nations similar to the referendum in East Timor. Thus, in the absence of a negotiated settlement, the Tamil people could determine whether they want a confederation or a separate state as endorsed by the Tamil people in the last democratic elections held in 1977 in the north and east of Sri Lanka…”  (Quote taken from TamilNation.org)

As a result of the hardening of the Sinhala leaders and their electorate’s political position with regard to the Tamils over the last two years, the Tamils have been left no other choice than to exercise their right to self-determination and establish a separate state of Tamil Eelam or like Thanthai Selva (Chelvanayakam) said, “perish.” John Stuart Mill in, “Of nationality as connected with Representative Government" (1861) stated,

"...it is in general a necessary condition of free institutions that the boundaries of governments should coincide in the main with those of nationalities."

 Justice Oliver Wendell Holmes, in his letter of July 23, 1925, to Harold Laski said,

"I have always said that the rights of a given crowd are what they will fight for."
(Holmes - Laski Letters Vol 1, (ed) Mark D. Howe. HUP, 1953, p. 762)

Velupillai Pirapakaran, the Leader of Tamil Eelam, in his Maaveerar Naal speech on 27 November, 2006 has now, after many failed negotiations, especially since 1985, committed to the establishment of the independent state of Tamil Eelam. His statement, like that of Thanthai Selva, has a “finality and finiteness” to it:

“The uncompromising stance of Sinhala chauvinism has left us with no other option but an independent state for the people of Tamil Eelam. We therefore ask the international community and the countries of the world that respect justice to recognize our freedom struggle.” 

A Process for a Peaceful and Just Resolution of the Conflict

What is now on the table from the Tamils, represented by the LTTE, is for the establishment of the independent state of Tamil Eelam.  What is being considered by the Sinhalese, represented by the SLFP, is a hitherto unspecified devolution of power to the two separate provinces of the North and the East within the “Unitary State” of Sri Lanka. What is  being discussed by the Sinhalese, represented by the UNP, is a hitherto unformulated devolution of power to the united province of the North-East within a “United” Sri Lanka.

Neither the SLFP nor the UNP will be able to get a majority of the Sinhala voters to agree to either of their proposals when they are documented [i.e. actually put in specific, written form].  The position of the SLFP, the JVP and JHU indicates that they will never support the UNP position.  If the UNP supports the SLFP position, a majority of the Sinhala people will vote for devolution within the “unitary state” and two-thirds of the members of parliament may support the required constitutional amendments. Such a solution will result in a weaker devolution of power from the center than the 1987 13th Amendment to the constitution that even the Tamils who accepted the amendment found unworkable and rejected. Hence, the LTTE, or a majority of the Tamils, even under military and economic coercion, including the deprivation of food and medicine, will never accept such a solution. 

History has taught us that with respect to the rights of the Tamil people, the 70% Sinhalese section of the population can abrogate any agreements with the Tamils and rewrite constitutions at will to withdraw any rights that they may have at one time granted. And no country will intervene to protect the Tamils in violation of the territorial integrity and sovereignty of such a Sinhala Buddhist majority state which purports to be a “democracy”. To resist such usurpation Tamils have to maintain a coercive power to prevent any such contravention of any agreements reached.

The alternative to war for permanent separation is for the SLFP and UNP to negotiate with the LTTE, who have equivalent coercive powers, for two independent political institutions, and an interim separation of all sectors of government, for a five-year period, with Norway’s facilitation and UN support.

Both sides should immediately implement the CFA, agree on the interim boundaries of the Tamil and Sinhala Nations and establish guidelines for the re-deployment of GOSL forces, establish coordinating institutions with equal representation from the Tamil-speaking and Sinhala communities for all vital sectors that are common to the welfare of both nations, such as environment, customs, coastal and economic zones, road, rail, air and sea transport, communicable diseases and quarantine, judiciary and law enforcement, education, sports and recreation.  

Benefits from such a process will build confidence, build bridges between people from all communities, and facilitate travel, commerce, an un-restricted exchange of students and professionals and cooperation in all mutually beneficial activities. Such activities will prevent hostilities and such an arrangement will provide time and space for healing, which will lead to equal and mutually profitable partnerships between individuals and institutions from all communities. Freedom of movement and investment in each other’s territories will bring the communities together to interact at will to achieve common goals for mutual benefit. International and UN institutions can help both nations to develop in cooperation and interact peacefully.  Most importantly, interaction for our mutual benefit help us to reconcile and heal.

During the five-year period, the Tamil people would have the space, time, peace and freedom to debate and decide on a constitution that would guide them on the form of government they desire, that would respect the rights of individuals and communities and promote social consciousness to act collectively for the benefit of all. 

During the same time, the Sinhala people will have the conditions necessary to enhance their culture, economic growth and education without the destruction and the cost of war.  All communities will have the opportunity to cooperate to enhance each other’s quality of life in the absence of hostilities.  Someday in the future, all communities in the Island may come together and perhaps form a union out of need (rather than by force), that respects the equality and the rights of each individual and each community and will enable the people to live in peace and harmony for their mutual benefit. 

The alternative we face is a repetition of war, death and destruction ad infinitum.

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