An Appraisal on the Legal Dimensions of the Resolution
by Dr. Sandrasegaram Paramalingam, May 21, 2021
‘‘India’s approach was based on two fundamental considerations: One was the support to the ‘Tamils of Sri Lanka’ for equality, justice, dignity and peace. The other was ensuring unity, stability and the territorial integrity of ‘Sri Lanka’.” “We have always believed that these two goals are mutually supportive and Sri Lanka’s progress is best assured by simultaneously addressing both objectives.” “India supports the call by the international community for the Government of Sri Lanka to fulfil its commitments on the devolution of political authority, including through the early holding of elections for Provincial Councils and to ensure that all Provincial Councils are able to operate effectively, in accordance with the 13th amendment to the Sri Lankan Constitution.”
— Pawankumar Badhe Ambassador of India stated at the 46th session of the UN Human Rights Council on 23 March 2021
“— It is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression , that human rights should be protected by the rule of law ‘’
Universal Declaration of Human Rights.
Oppressive States cannot justify the territorial integrity for justifying their oppressive conditions and violations of human rights — Robert Jackson
[On 22 May 1972, the first native Constitution of Sri Lanka was adopted and enacted by the Constituent Assembly of the people of Sri Lanka. It proclaimed Ceylon as a Free, Sovereign and Independent Republic. Though this Constitution survived only for six and a half years, the Tamil People of Sri Lanka had to march over the last forty eighty years and continue to struggle for constitutional settlement without access to justice in the era of the United Nations. This paper reflects the attempts made by the noble Parliamentarians of the Tamil Nation and the legality of the claim for Constitutional Justice.]
Introduction:-
The General Election held in Ceylon in May 1970, gave two-third majorities to the coalition led by SriLanka Freedom Party, in the lower house known as House of Representatives of the bi-cameral Parliament. It was the requirement to amend or repeal the Constitution in force introduced by the British at the time of the decolonisation in 1948.This was the first time in the post-colonial history of Ceylon for a ruling party to receive such majority of the seats in the lower house. The People United Front [Mahajana Eaksath Peramuna MEP] as committed in its election manifesto, immediately after the formation of the Government, inaugurated the Constituent Assembly by inviting all the Members of the House of Representatives to take part in the proceedings to draft and proclaim a new constitution to declare Ceylon as Republic of Sri Lanka.
The Federal Party led S J V Chelvanayagam QC, continued to command the majority of the seats of the House of Representatives of the Northern and Eastern provinces in the 1970 General Election, also participated with enthusiasm and hoped to reach a constitutional settlement for the electoral demand of the provinces for a Federal Constitution since 1952. However, the Amendments of the Federal Party submitted to the main draft of the Constitution were defeated by the Constituent Assembly. Since then the Members of the Party boycotted the proceedings of the Assembly and did not participate in the drafting of the Constitution. On 22 May 1972 the government of the People United Front, proclaimed the Constitution of Sri Lanka and since Country is known as Republic of Sri Lanka.
This paper aims to bring out whether there are any convincing and compelling reasons and justifications for the Tamil United Liberation Front [TULF] to adopt The Vaddukoddai Resolution in 1976 and whether the legal dimensions and claims are in compliance with the regimes of the United Nations and the jurisprudence of international law.
The Legal Regime: –
It is relevant and appropriate to identify the international regime of the United Nations and international law that were applicable to Ceylon as a Member State of the United Nations and the Tamil Nation as Non-State Actor at the time of the inauguration of the Constituent Assembly in 1970.
The Charter of the United Nations imposes duty and responsibility on States including“—-in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion –.”[1]
Universal Declaration of Human Rights in its preamble identifies the danger of denial of human rights and emphasises as follows:
“—- It is essential, if man is not to be compelled to have recourse, as a last resort , to rebellion against tyranny and oppression , that human rights should be protected by the rule of law.”[2]
Universal Declaration of Human Rights further claimed that the Declaration as common a standard of achievement for all peoples and all nations, ——– national and international, to secure there universal and effective recognition and observance both among the peoples of the Member States themselves and among the peoples of territories under their jurisdiction. [3]
The Declaration in its first twenty Articles outlines a set of personal freedoms. It emphasises in Article 21 the right to participate in the governance of the country and the rest of the Articles narrate the importance of the community and cultural development[4]. In addition, it identifies that in the exercise of these rights and freedoms, everyone shall be subject only to such limitations as determined by law————- and the general welfare in a democratic society.[5]
Apart from the above two international instruments the following formulations are most relevant to Constitutional making of a Member State of the United Nations.
(A) International Covenant on Economic, Social and Cultural Rights 1966.
(B) International Covenant on Civil and Political Rights 1966
(C) International Convention on the Elimination of All Forms of Racial Discrimination1966 [ICERD]
The architects of the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights took the view that the right to self-determination was a pre-condition for enjoying any human rights and endorsed the right to self-determination as Article 1, in the both Covenants.
The International Covenant on the Elimination of All Forms of Racial Discrimination in its Article 1, defines the term discrimination[6] and in its following seven Articles impose obligation on State Parties to fulfil their obligation and duty under the Covenant (ICERD) and create mechanisms for the supervision and monitoring the State parties in the implementation of the Covenant.
It is further submitted that General Assembly of the United Nations has proclaimed that “As the obligation to respect human rights was placed upon Member States by the Charter, it followed that any violation of human rights was a violation of the prevision of the Charter.6
Relying on the above international instruments and their jurisprudence, the Tamil Nation of Ceylon as peoples was entitled to be the beneficiaries of all individual and collective rights, while Ceylon as a Member State of the United Nations was obliged to observe and enforce her legal obligation under the above regimes of human rights at the national level. It is therefore in 1970 Ceylon, as the Member of the United Nations was under the duty of implementing the democratic rights and entitlements of the Tamil Nation.
The Inauguration of the Constituent Assembly:-
Mrs. Bandranayakie the prime minister convened the Assembly by inviting all the Members of the House of Representatives. Kathiravetpillai, the General Secretary of the Federal Party speaking on behalf on the Party pledged to support the setting up of the Constituent Assembly.8 But he was critical of the manner in which it was to be set up.7 He further added that
“the Tamil speaking people, while supporting the Constituent Assembly, wished that fundamental rights would be protected by courts. The Federal Party is opposed to a division of the country but demands the federal system of constitution”.9
Further, he had mentioned that his party hoped that the majority would treat us according to the preaching of Lord Buddha and accepted the invitation, believing that it would happen.10
Against the above background, it is intended primarily to highlight whether the majority and minorities of Ceylon were able to restore their lost status and to formulate a Constitution to accommodate their aspirations and enforce their legitimate entitlements guaranteed under international law.11
Ceylon as a Member of the United Nations,12 British Commonwealth,8 and the Non- Aligned Movement9 was under the duty and obligation of various conventional formulations to fulfil its obligations imposed on State by virtue of this Membership. Colvin R De Silva, on behalf of the Government, submitted the first draft of the proposed Constitution. The main draft of the proposed constitution contained provisions for creating the statecraft as highly centralised and denying the principles of separation of powers while giving heavy weight to people’s sovereignty along the line of interpretation given by the thinkers of socialist school. The United National Party, the Opposition, the Federal Party of the Tamil people and the representatives of the Muslim community as well as other socio-religious groups of the country had also submitted Memorandums seeking either to include their proposals or amend the first draft of the government.13
Among the amendments, and alternative proposals, the one submitted by the Tamil Federal Party was intended to outline the aspirations which had been formulated through the electoral process since 1948. The proposal submitted by the Federal Party was fundamentally aimed to transform the unitary nature of the State of Ceylon and thereby differs from all other Memorandums submitted to the Assembly. Therefore, it is given systematic consideration below.
The Main Features of the Amendments Proposed by the Federal Party:-
The Constitutional Committee of the Federal Party drafted a model constitution.14 The Memorandum of the draft constitution outlined the historical background of the communities in the Island of Ceylon and claimed the entitlement of the Tamil Nation for the right to restoration of lost sovereignty.15 It emphasised that the principle of equality can only be assured by means of Federal Constitution and appealed that it would be the only solution preventing the Tamil people from demanding full restoration of their sovereignty that existed prior to colonial rule.16 The draft constitution, contained in the Memorandum claimed that it was submitted with the genuine intention of creating conditions in which the cultural and social identity of the Tamil people could be preserved while maintaining co-existence with the other communities.
The draft constitution of the Federal party contained seven sections and 60 articles. In the preamble the concept of equality was emphasised.17
Section 1 dealt with the political structure according to which the central government would be based in Colombo and the country would be divided into five states for power sharing and administrative purposes.
Section 2 appealed for granting citizenship to persons of Indian origin who did not apply to return to India under the 1964 Indo –Ceylon Agreement.
Section 3 dealt with fundamental rights with arrangements for enforcing by courts.
Section 4 proposed that Tamil and Sinhala be declared national languages.
Section 5 said the medium of instruction should be in the mother tongue.
Section 6 outlined the objectives of economic policies.
Section 7 outlined the economic policies.
The change of name from Ceylon to Sri Lanka in Sinhala and Illankai in Tamil was not disputed but the second basic resolution, which read ‘The Republic of Sri Lanka shall be a unitary state’, started the conflict between the Sinhala and Tamil Members of the Assembly. Dharmalingam, on behalf of the Federal Party, moved an amendment on 16th March 1971, proposing that Sri Lanka should be a non- sectarian federal republic for the purpose of communal harmony, was a prerequisite for national development and could be achieved only through a federal system. He also requested that if the federal model was rejected the ruling majority should consider some meaningful decentralisation of the administration.18As all the amendments were defeated in the Assembly, and based on the decision of the Federal Party, its leader Samuel James V. Chelvanayagam Q.C. announced as follows:
“It sought to embody the language law of the country into the proposed constitution. At a time like this no one can deny the reasonableness of our demand that the language rights of the Tamil-speaking people should be defined in the constitution. We moved several amendments regarding the nature of the constitution, citizenship rights and other fundamental rights. All these amendments have been rejected. In the circumstances, we have come to the painful conclusion that as our language rights are not satisfactorily provided for in the proposed constitution, no useful purpose will be served by our continuing in the deliberations of this assembly. By taking this step we mean no offence to anybody. We only want to safeguard the dignity of our people.”19
Since then the representatives of the Tamil people have not participated in the proceedings of the Assembly. They were even unable to seek legal remedy under the constitution in force as the right to Privy Council was terminated during the drafting process of the new constitution.20
The Members who were elected from the Sinhala language belt refused accommodating the electoral mandate of the Tamil– speaking people, which had been developed since 1948. The Sinhala people were in a position to reject the electoral claim of the Tamil nation due to the political power base designed at the time of the introduction of the first colonial constitution in 1833, which failed to adopt an appropriate system of governance for the protection of territorial integrity and its historical boundaries as well as the political entities of the Tamil Nation. It is emphasised that the Britain was the only colonial ruler who dismantled the international boundaries of the Tamil Nation for its colonial advantages. Since then, constitutional changes and developments introduced by the British were confined to the unitary system.
Further, decolonisation was implemented within the colonial boundaries and the prescient warnings expressed in the House of Commons on the nature of the constitutional arrangements introduced at the time of decolonisation.21 The political history and events of Ceylon demonstrate that the Tamil Nation was the victim of colonial rule and now suffers under local colonialism.22 At the time of the drafting of the new constitution during 1970-1972, the representatives of the Sinhala people who exercised the power of the state were under legal obligation, particularly due to the fact that Ceylon was a Member of the UN, to recognise the rights of the Tamil people and other minorities which originated from the regimes of the UN.23 The improper mechanisms adopted for decolonising the Country and absence of supervision on the means and methods of decolonisation are the fundamental difficulties in eliminating the colonial wrongs and restoring the sovereignty claim of the Tamil Nation.
Capotorti who was commissioned by the UN to report on the issues minorities observed that “ it was a fundamental mistake of the drafters of the Charter of the UN to ignore the rights of minorities, and anticipating their being enjoyed within the wider context of universality of human rights”24and the identification of the Human Rights Commission that “the rights of minorities have been violated in many countries.”25 Though, there emerged a UN minority rights regime the sufferings of minorities are continuing globally. For a democracy to be of good governance, it has to adopt equality and non –discriminatory participation of all people within the territory as well as federalism and protection of minorities being considered underlying features.26Therefore, Ceylon was under obligation of the UN regime to incorporate those legal rights into its new constitution.27
The above-outlined political and constitutional affairs clearly demonstrate that the attempt of the Tamil-speaking people to resolve the conflicts between the two nations by peaceful means was in vain. The new constitution institutionalised denial of justice and re –confirmed the domination of the Sinhalese over the Tamil Nation. This political event led the Tamil Nation to search to find an alternative arrangement for self-preservation.28The experiences of the Tamil parliamentarians from 1948-72 clearly demonstrate that it was an impossible task to achieve constitutional settlement by the parties as it was fundamentally a colonial wrong for constructing as a hub for its geo-political , military as well as for creating a plantation economy . The trend was observed as follows:
In the case of Sri Lanka, even the lip service paid to secularism was dispensed with .It is, after all, a country that in 1972 rewrote its constitution to give a special place to Buddhism and explicitly avowed its sustenance as one of the charters of the state. The idea of the nation is heavily interlaced with the notion that it is a special land because it is consecrated by Buddha and its manifest destiny is the preservation of the Buddhist faith. The liberal – democratic idea of the fundamental equality of all citizens within the national space runs directly counter to the idea of Sri Lanka as ultimately the abode of Sinhala Buddhists, a space divinely ordained for the preservation of their faith. 28
Vaddukoddai Resolution
On 14th May 1976 the Resolution of the Tamil United Liberation Front, widely referred to as the Vaddukkoddai Resolution, was adopted. This Resolution and its endorsement by the people in the Tamil- speaking belt demonstrate the democratic nature of the claim and legalise the demand under international law. Therefore it is appropriate to consider the contents of the Vaddukoddai Resolution of 1976 and the claim for Restoration of the Lost Sovereignty.
The Tamil United Liberation Front in its inaugural convention, presided over by S.J.V Chelvanayakam resolved to restore and reconstitute the state of Tamil Eelam. Their resolution stated.
“ The first National Convention of the Tamil United Liberation Front , meeting at Pannakam (Vaddukoddai Constituency) hereby declares that the Tamils of Ceylon, by virtue of their great language, their religions , their separate culture and heritage ,their history of independent existence as a separate nation over a distinct territory for several centuries till they were conquered by the armed might of the European invaders, and above all by their will to exist as a separate entity ruling themselves in their own territory, are a nation distinct and apart from the Sinhalese and their constitution announces to the world that the republican constitution of 1972 has made of the Tamils a slave nation ruled by the new colonial masters , the Sinhalese who are using the power they have wrongly usurped to deprive the Tamil nation of its territory ,language , citizenship ,economic life, opportunities of employment and education and thereby destroying all the attributes of nationhood of the Tamil People .Therefore this convention resolves that the restoration and reconstitution of the Free, Sovereign, Secular, Socialist State of Tamil Eelam based on the right to self-determination inherent in every nation has become inevitable in order to safeguard the very existence of the Tamil nation in this country.”
The Resolution reflects the following Legal dimensions:-
(a) Colonial wrongs and improper decolonisation:-
The Resolution in its preamble outlines the pre-colonial political and social conditions of the Island, and confirms the historical evidence that the Tamil and Sinhala Nations had lived independently in their own territories. The Portuguese, the first colonial ruler, conquered the Kingdom of Jaffna. The Vanni territory continued to maintain its independence until 1804 when Pandara Vannian the chieftain was captured by captain Drieberg of the British army. The Portuguese, and Dutch and British ruled the territory separately with out undermining the territorial integrity of the Tamil homeland. . In 1833 the British annexed the Tamil territory with the Sinhala territory according to the recommendations of the Colebrook – Cameron for their administrative and economic advantages as well for protecting British Raj as the geo- political factors of the Island were favourable to them.
(b) Post Colonial Violations of Rights and Denial of Constitutional Justice:-
The Resolution clearly identifies the consequences of the Sinhala aggressive nationalism, including, discriminatory citizenship laws, state- aided Sinhala colonisation,29 official language policy,30 foremost place to Buddhism31, denial of human rights and equal opportunity32, committing genocide,33communal violence34 and demonstrates the denial of justice.35
(C) Remedial Secession :-
The Resolution, based on the above grounds, declares as follows:
The Tamils of Ceylon, by virtue of their great language, their religion, their separate culture and heritage, their history of independent existence as a separate state over a distinct territory for several centuries till they were conquered. The Convention resolves that the restoration and reconstruction of the Free, Sovereign, Secular, Socialist state of Tamil Eelam, based on the right to Self- determination inherent to every nation, has become inevitable in order to safeguard the very existence of the Tamil Nation in this country.36
Within the above context of the Resolution, references to the opinions of jurists are relevant. An opinion of a jurist states that
“—- from the stand point of an international law, the unilateral right to secede- the right to secede without consent or constitutional authorisation should be understood as a remedial right only, a last resort in response to serious injustices”37.
Robert Jackson is of the view that oppressive States cannot justify the territorial integrity for justifying their oppressive conditions and violations of human rights.38
It is also relevant to refer to the judgement of the Supreme Court of Canada in the Quebec referral case and the paragraph 126 of the judgement, states as follows:
“ The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination — a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances.
The Declaration on Friendly Relations, the Vienna Declaration and the Declaration on the Occasion of the Fiftieth Anniversary of the United Nations are specific. They state, immediately after affirming a people’s right to determine political, economic, social and cultural issues, that such rights are not to be construed as authorizing or encouraging any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of people and thus possessed of a Government representing the whole people belonging to the territory without distinction.”39
In the light of the above referred international legal formulations, opinion of jurists and judicial judgements, it is submitted that the Vaddukoddai Resolution is compliance with all applicable regimes of the United Nations. Professor Nihal Jeyawickrama observed that the Vaddukoddai Resolution was the inevitable consequences of the Constitution proclaimed in 1972.40
Conflicts of Law:-
Article 157A of the present Constitution of Sri Lanka [1978] prohibits any violation of territorial integrity of Sri Lanka and declares as a crime and prescribes the punishments.41However, as seen above, the regimes of the United Nations and the jurisprudence of international law supersede and over rule any national law including Constitution which has to be made according to the regimes of the United Nations. Professor James Crawford (Now Judge of the International Court of Justice) in his treatise The Creation of States in International Law emphasises the superior nature of international law and the requirements of national legislation to be in accordance with the former.42 Georges Abi –Saab observes this trend as the structural evolution of international law beyond the state centric model.43 State as a primary subject of international law enjoys privileges, immunities and entitlements while performs its duties and fulfils responsibilities under the Charter of the United Nations. Tamil Nation as another category of subjects of international law is entitled to be the beneficiary of the rights and protection guaranteed under the regimes of the United Nations as seen above.
Footnotes
[1] Article 1.3 of the Charter of the United Nations.
[2]Preamble, Universal Declaration of Human Rights -1948.
[3] Ibid.
[4] Article 22-30.ibid.
[5] Article 29.1. Ibid.
6 G. A, O R , 3rd Session , 6th Committee 138 Meeting , 7 December 1948 p765
8 S. Kathiravetpillai M.P. Ceylon daily news. 20 July1970
7 The Proceedings of the Constituent Assembly at Navarangala. 19 July, 1970.
9 ibid ,, ,,
10 Press release of the Federal Part.12 July 1970. Daily News.
11Thornberry P. International Law and The Rights of Minorities.
12 Charter of the UN
8Harare Declaration of the British Commonwealth. The Secretariat,London.
9 The Covenant of the Non-Aligned Movement. www.nonalignmovement.org
13Buddhist Congress of Ceylon, Ceylon Moors Association, Bar Association of Ceylon and a number of other socio-political groups had submitted their proposals to be included in the constitution.
14 The Proceedings of the Constituent Assembly 1970-1972.Govt Printers Colombo.Sri Lanka
15 Ibid
16 Ibid
17 Ibid
18 Ibid.
19 A.J Wilson The 1970 Election of Sr Lanka ; [London 1971] 240-1 for willingness of the Federal Party and giving guidelines to the drafting committee of the constitution for very minimum rights to the usage of the Tamil language in the public affairs. As the demands of the Tamil representatives were denied it had become an issue of pride and honour for the Tamil people of the country. They also requested the inclusion of the Banda –Chelva Pact of 1957 which was entered between Bandaranaike the former prime minister and Mr. Chelvanayagam. Therefore, the leader of the Federal Party issued a statement in the Assembly as seen above and boycotted the proceedings.
20 The MEP government which came to power after the 1970 general election had 2/3 majority which is the pre-requisite to amend the 1948 constitution which was in force. The government passed an amendment to the constitution to terminate the Privy Council as the supreme authority of the judiciary of Ceylon which once pronounced that the section 29(2) cannot be alterable.
21 House Commons debates on 23 November 1947
22 Ceylon: A Divided Nation – Emergency 1958. S Sivanayagam. Sri Lanka witness To History. Ibid. Sri Lanka A Bitter Harvest . Minority Rights Group. London. Wilson A.J. Break Up of Sri Lanka supra note 1.
23 1.. UN Charter., 2 . Universal Declaration of Human. Rights. 3. Article 1 of both the covenants namely ICESCR and ICCPR (1966) According to the Article 1 of both Covenants.
24 Capotorti F. Human Rights The Hard Road Towards Universality
25 Ibid.
26 Franck M. Thomas, Fairness in International law supra note 1, 47-79, 83-109. The above view was endorsed later in the Quebec Sovereignty case (1998)
27 Recommendations made to the Government of Sri Lanka by international bodies.
28 A number of legal issues to be considered to assess the legality of treatment given to the demands of the Tamil nation by the Sinhala members of the Constituent Assembly. Steven Whitley’s view on the issue of Democratic governance is more relevant to compare the treatment given to the Tamil’s demand. He views that ‘’the people do not actually rule in any obvious sense of the term. People and the democratic government become the rule of the politicians. The aggregative model is not conducive to realising the interest and preference of those minority groups with a high degree of solidarity and shared outlook, which find themselves permanently outvoted by the majority population. ‘‘Deliberative Democracy and Minorities. In European Journal Of International law. Vol 14, Number 3,June 2003.at 509,
28 Sankaran Krishna, Postcolonial Insecurities. — India, Sri Lanka and the Question of Nationhood. University of Minnesota Press. 1999, 42-43. Also see. Neelan Thiruchelvam, The Politics of Federalism and Diversity in Sri Lanka in Autonomy and Ethnicity ed by Ghai. Cambridge 2000, 197-215. He identifies the issue as follows
“The ideology of a centralised state drew its legitimacy from two distinct sources. On the one hand, the Sinhalese ideological construction of the state was linked to the idea that the land which had certain cosmic characteristics, belonged to the Sinhalese. This was linked to the idea of the Dhamma Deepa, the land in which Theravada Buddhism had been preserved in its purity. On the other hand, the dominant political, colonial constitutional discourse had conceptualised the modern democratic state as one based on the centralisation of political and administrative space.”.
29 b ibid
30 c ibid
31 d ibid
32 e. ibid.
33 f . ibid
34 g. ibid
35 h. ibid.
36 the final version of the resolution.
37 Buchanan A. Justice, Legitimacy and Self-determination (2004). p333
38 Jackson Robert generally see. Quasi –States Sovereignty, International Relations and the Third World.
39 paragraph 128 , Quebec referral case
40 www.Sangam.org. March1, 2008
41 Article 157 A The Constitution of Democratic Socialist Republic of Sri Lanka. [1978] Also see H K Don Chandrasoma vs Mawai S. Senathirajah and others SC SPL 03/2014. The Supreme Court of Sri Lanka in its judgement states that “Advocating for a federal form of government within the existing state could not be considered as advocating separatism”
42 Generally see Crawford James The Creation of States in International Law 1st ed. (1979) Also Sinharasa Vs Sri Lanka CCPR/C/81/81/D/1033/2001 (Sri Lanka 23/8/2004. The Supreme Court of Sri
43 Georges Abi-Saab, The Structural Evolution —- in Y Sakamoto (ed) (1994) at 439
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