The Sri Lanka that went down the drain

Towards a Peaceful, Equitable and Sustainable Sri Lanka: Part 5

“We have to learn from experience as to why 13th amendment failed as an instrument of resolving the ethnic conflict in Sri Lanka and better understand the causes of the intractable conflict. After twenty years of its enactment, Sinhala chauvinism’s current affinity to the 13th Amendment has come about as it has now dawned on it that the 13th Amendment too can be abused to sustain and advance the chauvinist agenda.”
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By Arular Arudpragasam

(September 07, Geneva, Sri Lanka Guardian) The idea of a plural unitary Sri Lanka promoted as Ceylonese nation during the time of independence is not new. It was the concept that preoccupied the British rulers as well as politicians of the time both Sinhalese and Tamils for over half a century of engagement that led to the enactment of the first independent constitution of Sri Lanka and its independence in 1948. The framers of the constitution made every effort to provide for the plural Sri Lanka that could be shared by all Sri Lankans on the basis of equality and fraternity and share and cherish the resplendent island without acrimony and discord.Read the full story »


During the time of emotional charge towards freedom and independence too much was a taken for granted and left to the magnanimity and fair play of the Sinhalese leadership by the Tamil leadership, who were well to do people based in Colombo and had little in common with the people in the North East. The failure of the British to foresee the consequences of the dishonest relationship the Sinhalese leadership had to the idea of a plural united Sri Lanka and deal with it in a firm manner before independence was to bring disaster to the Tamil people and the country in subsequent years.

The Kandyan Sinhalese in their representation to the Donoughmore Commission (1928) and to the Soulbury Commission (1944) that finalised the Constitution of Independent Ceylon, put forward their demand for a Federal constitution. There was hardly any enthusiasm from the Tamils for a Federal form of government during this period or there was any move to join hands with the Kandyans to demand a federal constitution for Ceylon. The Tamil leadership, including S.J V.Chelvanayagam, who subsequently formed the Federal Party after the British have left, was wedded to the plural Ceylonese nation idea as a solution to the ethnic problem. The failure of the Tamils to demand a federal form of government or join hands with the Kandyans, during the pre independence period, is one of the many blunders of the Tamil leadership of the time, which were to bring so much suffering to Tamils in later days.

The danger was spotted and concerns were expressed. However the desire for freedom and self rule as well as protecting their self interest in Colombo made the Tamil leadership endorsed the constitution for a unitary Sri Lanka which was soon to bring great disappointment to the Tamils. The British were determined to leave behind a unitary constitution with one parliament to exercise legislative and executive powers and a senate to provide a feeble supervision. The constitutional safeguards were integrated to deter any usurpation by anyone community which was all Tamils could have and the rest were all mere assurances and promises.

However the surge of Sinhala Chauvinism in the post independence days sent the plural Sri Lanka down the drain and it never emerged. The Sri Lanka came to be firmly anchored on the chauvinist foundation and the on set of majoritarian tyranny of Benthamist simple majoritarian democracy which the British could only look with dismay and disappointment. The superstructure envisioned in the constitution never emerged. As the polity drifted into the realm of strife and discord, the pillars and foundation on which the constitution stood, collapsed one after the other.

As independence was granted, these principles, that were the corner stone of the constitution of independent Ceylon, became incomprehensible to the post independent politicians, both Tamils and Sinhalese. The constitution came into being mainly through the discussions that took place between the two individuals, D.S.Senanayake, the first Prime Minister and Sir Ivor Jennings, which brought into existence the so called Minister’s draft which in effect became the draft constitution.

The exercise of the constitutional evolution of independent Ceylon can be best described as an attempt to shift the rule of the island which the British obtained by the right of conquest to the Sinhalese facilitated through the majoritarian democracy. It is apparent from the post independence political experience, that the Sinhalese did not approach the affairs of the constitution in the same spirit as Sir Ivor Jennings and the dishonest relationship of the Sinhalese leadership they had to the idea of a plural united Sri Lanka were purposefully ignored, that led to Sri Lanka emerging as strife torn nation. The reservations expressed by the Tamil leadership of the time proved to be true.

The ethnic problem during the time of independence was popularly known as the minority problem. To understand how the ethnic problem was purportedly resolved during the time of independence, Sir Ivor Jennings’s observations on this matter are important.

The major difficulty, however, was the minority problem. As it always happens when constitutional reform is under discussion for long periods, members had pledged themselves to conflicting principals. A majority would insist upon territorial representation, but strong minorities would insist upon communal representation. That issue could not be burked, for it had to be the one or the other. As the success of a constitution depends in a large measure on the spirit in which it is accepted, the ideal choice would be to obtain unanimity; but if that was impossible it has to be as large a majority as possible and in any event not less than three quarters.

Two factors helped towards a solution. One was the knowledge that most of the minority members were as anxious for self government as the majority members and would not wish to hold up a real constitutional advance merely because all their claims were not met, the other was the fact that a large proportion of the minorities was concentrated in specific areas, so that increased minority representation could be accorded within the principle of territorial representation, by giving those areas representation on a higher numerical basis.- [The Constitution of Ceylon, Sir Ivor Jennings, page 6.]

What was embodied as territorial representation was none other than the concept of homeland adopted to a multi-member parliamentary system. The mutilation of the idea of homeland to suite the parliamentary system undoubtedly facilitated the subsequent non recognition of its broad contours that were the territory of the three principal nationalities of Tamil, Kandyan Sinhalese and Low Country Sinhalese. This constitutional adventurism of Sir Ivor Jennings merging the idea of homeland and parliamentary electoral divisions, in reality, not only failed to resolve the ethnic problem but contributed greatly to the present constitutional crisis. In the words of Sir Ivor Jennings:-

"In South Africa, Natal and the Orange Free State were given higher proportionate representation. Moreover, the South Africa Act contained a provision authorising Delimitation Commission to give consideration to

(a) community or diversity of interests (b) means of communication (c) physical features (d) existing electoral boundaries (e) sparsity or density of population.-[The Constitution of Ceylon. Sir Ivor Jennings, page 6.]

In his autobiography Sir Ivor Jennings is proud of the near miracle he pulled off with regards to the intricate minority problem with an idea, which did the magic and resolved the ethnic problem within the context of a unitary state. His constitutional experiment may have succeeded if the parliamentary system automatically vested power to all those elected representatives. But unfortunately the system effectively shuts out nearly half the representatives and the Tamil members were condemned to be permanently out of the process of governance which was perfectly legitimate under the parliamentary system.

What is this idea which Sir Ivor Jennings claims as having been borrowed from the South African Constitution and integrated into the Ceylon Constitution? Undoubtedly it is the concept of homeland that was found integrated in the South African Constitution.

Further it was stated that the Ceylon constitution was an integration of the Australian Constitution and the South African Constitution. What was omitted from the Australian Constitution was the federal idea and in its place , Sir Ivor Jennings brought in the concept of homeland as found in the South African constitution. Representation was accorded to the homeland of the three principal nationalities of Ceylon.

It was desired to have a legislature of about 100 members. Examination of the census figures of 1931 showed that if one member was given for every 75,000 inhabitants and an additional member for every 1,000 square miles of area, there would be 95 members .Moreover, the additional members for area would number 25 divided as follows:-

Low country 6
Kandyan area 11
Tamil area 8

Total 25 - [The Constitution of Ceylon, Sir Ivor Jennings, page 6.]

What is the area that Sir Ivor Jennings refers to as Tamil area, to which this allocation of seats were made? The recognition of a Tamil area or a Tamil homeland in the constitution exists but not explicitly. It is the merged North East Province that has been recognised as a Tamil homeland ever since the final demarcation of them as Tamil Province took place during the early part of the last century.

The recognition of these two provinces as Tamil provinces in the Bandaranayake -Chelvanayagam Pact was not an accidental event. It was only an act to uphold an already accepted concept in the constitution which was being undermined by the Sinhala Only Act.

The recognition of homeland principle was embodied in the text of the terms of reference to the first delimitation commission as well as the articles of the constitution dealing with delimitation.

The members of the first delimitation commission were Mr.L.M.A.de Silva, Chairman, Mr.N.Nadarajah and Mr.H.E.Jansz. Their report, which obtained its ascent by proclamation, was unanimously accepted by all communities.

The terms of reference of the first delimitation commission of Independent Ceylon was:

(a) That each province of the island be divided into electoral districts the total number of which is specified in the order and the aggregate of which totals 95 for the whole island.

(b) That each Electoral District of a province shall have as nearly as may be an equal number of persons.

(i) subject to a proviso relating to transport facilities, physical features, and community or diversity of interests of the inhabitants of the Province; and

(ii) subject further to the proviso that the rule is to give way where ever it comes into conflict with the directions in (c) and (d).

(c) that the Commission may so divide a Province as to render possible the representation of minorities united by the tie of race, by the tie of religion, or by any other tie. The Commission is directed in making such division to minimise any disproportion that may arise in the population figures of the several electoral districts demarcated in the province.

(d) That the Commission may create electoral districts returning two or more members but in so doing shall not increase the number of members to be returned for the province beyond that specified in a order.

The process of delimitation was so exercised as to take cognizance of the political limitation imposed on the constitutional process by the constraints of a widely held perception of homeland among the people of the country both Sinhalese and Tamil. This was further elevated to a status of constitutional law by the section on Delimitation of Electoral Districts.

It is useful to know that the concept of homeland or the territorial representation as it is sometimes called, was carried through in the republican constitution of 1972. Whether the framers of the subsequent constitutions had the same comprehension of the principles that were cornerstone of first constitution is not known.

The first constitution of Ceylon also known as the Soulbury Constitution contained an article on delimitation with the terminology, "carrying out territorial demarcation so as to give representation to a community of interest" ( Article 41, Delimitation of Electoral Districts ) which was an act of recognition and elevation of the homeland principle as the foundation of the constitution.
What is not explicit in this constitutional specification is that the electoral divisions are taking place within each provincial boundary which itself were drawn taking into consideration the homeland principle. In the demarcation of boundaries of constituencies within provinces, care is being taken to give representation to the minorities within the provinces.

In the Republican constitution of 1972, which was purposefully enacted to undo the constitutional constraints that were left by the British as safeguards for the minorities that stood in the way of forging the chauvinist agenda over the whole isalnd, the provision detailing the nature and content of representation is repeated in the same words as in the Soulbury Constitution.

However, in the Gaullist constitution of 1978 the concept of province being a unit is retained, ( Article 96) though for the first time the concept of effecting territorial demarcation so as to give representation to a community of interest disappears. However this constitution takes into consideration the administrative districts whose boundaries have been drawn without violating the provincial boundaries.

The absence of a lively debate on the issue of homeland of various people during the time of independence, arose mainly due to the naivety that prevailed among the native leadership, that led to the believe the communal differences will disappear and everyone would turn out to be good children of mother Lanka, by simply refraining from making any reference to the communal factor.The dishonest relationship had to the idea of a plural unitary Sri Lanka made this is an illusion and the Tamil leadership soon came to pay the price for ignoring the political realities. The ministers draft of the constitution argued passionately that undoing the communal representation, which has been the basis of representation thus far, would create a Ceylonese nation without communal differences.

Added to this, during the time of independence, an atmosphere was created, where casting any doubt on the integrity of Sinhalese leadership was seen as an unpatriotic act, an cat bad faith against the constitution and independence. The Sinhalese leaders pretended to be men of such honesty and statesmanship that the appointment of the Soulbury Commission to lead Sri Lanka into independence was seen as a challenge to their integrity and reasonableness and they refused to cooperate with the Soulbury Commission. The following observation by Sir Ivor Jennings provides some enlightenment on the thinking that lead to the Article 41 and what was expected from it.

Further, if the Delimitation Commission was empowered to take community or diversity of interests into consideration, it would be possible to give seats to any substantial concentration of Tamil or Muslim voters in the Low-country, to any substantial concentration of Muslim voters in the Northern or Eastern Province, and to Indian estate voters in the Kandyan Provinces. Even allowing for these variations the Tamils and the Kandyans would have increased representation, while the general effect of using sparsity of population as a basis for increased representation would be to benefit the backward areas. The scheme did not provide for Burgher and European representation, and so the Governor was empowered to appoint six additional members in his discretion.

Some of the minority members would not be satisfied with increased representation, since they desired parity of representation as between the majority and the minorities. It was not possible to meet this demand without losing the support of the majority; but it was hoped to allay some at least of the minority fears by imposing limitations on the power of the legislature and transferring to an independent Public Service Commission the function of making appointments to the public service. It should be added that the scheme of representation was not decided upon until it was seen that the efforts made by Mr.S.W.R.D.Banadaranayake to secure agreement among the members of the State Council had failed.

The Constitution of Ceylon, Sir Ivor Jennings, page 7.

The communal motive was dominant; that is, the primary intention was to give a greater proportionate representation to the minorities; but the other advantages were foreseen. In any event the Ministers were looking forward, as their Memorandum makes clear, to the time when the communal factor would be quite irrelevant.-[The Constitution of Ceylon], Sir Ivor Jennings, page 210.

It is now very clear, that while the concept of homeland is not new to Sri Lanka, the Sinhalese political leadership, keeping in line with a tradition of deceit and dishonesty, communalism, instead of the communal factor disappearing, it has taken to new heights undermining the very founding principles of the constitution. The substantial cause for this lay in majoritarian democracy and its flaws and the entrenchment of the chauvinist ideology in the Sinhalese leadership..

However there was the indirect recognition of homeland as envisaged by Sir Ivor Jennings and that the North East representation in the parliament, by being Tamil speaking, would be sufficient to protect the rights of minorities. It was argued the Tamil representation will give enough power to bargain and protect their interest and the power given to smaller divisions like the local government would continue to provide an opportunity to articulate the aspirations of homeland. Howver this arrangement only led to more and more ferocious engagement and the surge of the chauvinist spirit the view of overcoming these constraints and governments coming to power with mandate to take forward the chauvinist programme of excluding the Tamil people rejecting any call for justice.

S.W.R.D.Bandaranayeke, who after having made the initial mistake of riding on the surge of chauvinism, and coming to power by promising to turn Sri Lanka into a Sinhala Buddhist country in 24 hours in 1956. attempted to reverse the situation by recognising the North and East as Tamil provinces and uphold the homeland principles on which the constitution was based. However he had himself cut short by the same forces whom he embraced to bring himself to power. Since then , there has always been a half hearted and dishonest engagement to find a solution to the problem of what is now divided Sri Lanka by subsequent government, which could not be taken forward as they could overcome the chauvinist onslaught of the polity and fearing obvious electoral disaster.

The collapse of the unitary state and its constitution

The idea of an indigenous unitary Ceylonese nation state took shape during the beginning of the last century. The Ceylon National Congress, that came to be the forum where this idea was articulated was soon taken over and became the voice of the Sinhala Chauvinists .The Tamil leadership, which passionately believed in a Ceylonese nation had to leave this organisation after its usurpation by the Sinhala Chauvinists.. However the Tamil leadership continued to seek justice within a unitary Ceylon, without putting forward an alternative, by directly addressing its grievances to the British rulers.

The constitutional experience of Ceylon before this period was that of a subject nation that was dominated by the British Governor who was also the Commander in Chief of the British Settlement of Ceylon and enjoyed the support of an Executive Council and a Legislative Council. The Governor made laws with the advice and consent of the Legislative Council. He was empowered to make any law and order for good governance of the Island. The British Crown retained the power of veto.

Subsequently, the idea of an expanded Legislative Council to include Ceylonese, based on community interests, which subsequently became communal interests. Inspired by the Indian freedom movement, the demand for self-government gradually took shape and when the British had to heed to these requests, the idea of election was introduced to back the communal representation. However, the Constitutional experience during the early part of this century should be seen as a haggling between the middle class interests of the natives and the British rulers. Only four percent of the people had a right to vote in 1924 and effective power remained with the Governor. Further agitation brought the Donoughmore Commission which recommended the reduction of powers of the Governor and promoted the idea of self government.

On the question of a unitary Sri Lanka, serious reservations were expressed by the Donoughmore Commission whose report appeared in July, 1928:

Not only is the population not homogeneous, but the diverse elements of which it is composed distrust and suspect each other. It is almost true to say that the concept of patriotism in Ceylon is as much racial as national; and that the best interests of the country are at times regarded as synonymous with the welfare of the particular section of the people. If the claim for full responsible government be submitted to examination from this standpoint it will be found that its advocates are always to be numbered among those who form the larger communities and who, if freed from external control, would be able to impose their will on all who dissented from them. Those, on the other hand, who form the minority communities, though united in no other respect are sole in their opposition to the proposal. A condition precedent to the grant of full responsible government must be the growth of a public opinion which will make that grant acceptable, not only to one section, but to all sections of the people.

To prevent the further escalation of the divisive tendency, the Commission proposed a scheme based on the Committee System of English Local Government in its attempt to accommodate and bring together the diverse forces under one unitary state. The communal representation of the earlier period was seen as a drawback and there was no other sound system in sight.

The commissioners put on a brave face and pretended to be optimistic that the formula would pave the way for true national unity and assumed that they had sealed the repercussions of the divisive nature of communal representation by the new scheme which was a forerunner to the consociationalist idea of power sharing. They little foresaw the incompatibility of this system with that of multi party electoral form of government which legitimised the exclusion and permanent alienation which the Sinhalese leadership showed every inclination of exploiting and was only marking time till the British parted. The Commissioners further stated:

It was generally admitted, even by many communal representative themselves, that the communal form of appointment to the Legislative Council was a necessary evil and should only continue until conditions of friendliness and acknowledgement of common aims were developed among the different communities. It is our opinion, however, that the very existence of communal representation tends to prevent the development of these relations, and that only by its abolition will it be possible for the various diverse communities to develop together a true national unity.

Contrary to the expectation of the Donoughmore Commission, the government that came into existence based on the constitution of 1931, as proposed by the Donoughmore Commission, led to the Pan Sinhala cabinet that laid the foundation of a unitary state based on the Sinhala chauvinist ideology as evidenced by their concept of national flag and national anthem that came into being during this period.

The reason given by the Sinhalese for establishing this Pan Sinhala Ministry was that the unanimity so achieved would speed up the gaining of independence and provide an opportunity for the Sinhalese to prevail upon other communities and demonstrate that their reasonableness will render any demand for a greater share of power and division of sovereignty irrelevant.

However, soon the weakness of the system was exposed by the usurpation of the constitutional process itself by the Sinhala chauvinist though outwardly they came up with one explanation after other, shrouding their true mission. The Tamils then started thinking of means and devices that would ensure them a secure share of power in the government within a unitary Ceylon.

The Tamil leaders were ill equipped to combat the situation and the dangers the situation posed. They were prisoners of their own subculture and were reluctant to break off from their traditions of their captive hold. Their class interests, subservient elitist culture and economic well being that were rooted in the South had kept them divorced from their own people. They failed to comprehend the political realities and aspirations of their people and could not articulate their political will.

The Tamil leaders sought accommodation. They tried to blunt the dreadfulness of a unitary state and parliamentary democracy which led to the tyranny of the majority. They came out with the idea of balanced representation, known as the fifty fifty demand, under which no community would be able to outvote the rest in the parliament. This idea was presented to the Soulbury Commission by the Tamil Congress Leader G.G Ponnambalam which rejected the idea outright saying it is a means of converting a minority into a majority.

However, when the Sinhala leaders felt they had exposed themselves too early, they ended the Pan Sinhala Ministry with another deceptive exercise in 1942 by appointing a Tamil, Mr.Arunasalem Mahadeva, as Home Affairs Minister.

The masters of deceit

Soon the Committee system was grinding to a halt and reforms were discussed and debates started to transfer the idea of a unitary state of Ceylon from the British rulers to the hands of the natives. As soon as the election to the new State Council was completed in March 1936 which was boycotted by the Tamils wanting speedier self rule, the Sinhalese took the opportunity to put in palace a Pan Sinhala Board of Ministers which took up the question of constitutional reform. The Board of Ministers proposed the idea of a unitary state with increased representations to the minorities and accepting clauses for the protection of minorities.

The last of the Constitutional Commission under the cahaimanship of Lord Soulbury went along recommending a new Constitution for an independent Ceylon based on the ideas included in a draft Constitution drawn by a predominantly Sinhala Board of Ministers, headed by Mr.D.S.Senanayake.

The apprehensions of the minority and their demands for share of power was to be effected through necessary safeguards in the Constitution:-

Mr.D.S.Senanayake, who had replaced Sir Baron Jeyatilleke, was more inclined to take what was offered and then ask for more, than to reject an offer because it was inadequate. A constitution drafted by Ministers, even under rigid conditions, could not be worse than the Donoughmore Constitution. If it was accepted by three quarters of the State Council, emphasis could no longer be laid upon communal disagreement. In fact, Sir Andrew Caldecott has believed - apparently wrongly - to have invented the device of the three-quarters majority in order to overcome the difficulty which has been felt even more in India. If unanimity or any appropriation to it is required, the result must be not a compromise but the acceptance of the minority demand; if, however, a three-quarters majority was required, no single minority could hold the majority to ransom, while the Sinhalese alone could not carry the Council.- [The Dominion of Ceylon - The development of its Laws and Constitution, Sir Ivor Jennings and Mr.H.W.Thambiah, page 32.]

The British rulers as well as the Tamil leaders, in spite of scepticism, vested so much hope and trust in the magnanimity, fair play and statesmanship of the Sinhalese leaders, all of which were soon to evaporate and crumble under the onslaught of the extreme Sinhala nationalism. What unfolded was the legitimisation of the mob rule as was foreseen by Sir. Ponnabalam Ramanathan, himself a great proponent of the idea of the Ceylonese nation, as he mentions in the memorandum he submitted to the to the British Monarch in 1933. Sir P. Ramanathan known for his compassion towards the Sinhalese leaders effecting their release form British rulers after imprisonment for instigating communal riots against the Muslims, himself became a victim of Sinhala chauvinism and died an unhappy man.

The shift of power from the British to Sinhala leadership was to bring increased hardship and disappointment to the Tamil people. The Sinhala leadership violated with impunity the accepted Constitutional norms and opted to rule the country by undermining the Constitutional principles and its spirit which was sought to guarantee a harmonious Sri Lanka.

During the time of Soulbury Commission, S J V Chelvanayagam who subsequently formed the federal party was still a member of the Tamil Congress which espoused the unrealistic fifty fifty demand while no one articulated the self rule for the Tamil homeland. Affected by the Indian freedom struggle the Tamil politicians were more concerned about the British not going far enough in granting self-rule to a non-existing Ceylonese Nation, than the political future of their own people.

The constitutional pillar that facilitated the transformation of Sri Lanka from a colonial entity into an independent entity that would facilitate its fusion of it as a unitary state were the five basic instruments that were enshrined into the constitution:

(1) The recognition of the homeland aspirations in the territorial constituency which stood to placate a sense of collective right over land, sea and resources which is common to both Sinhalese and Tamil people;

(2) The article 29 which guaranteed the equality to all citizens and stood to prevent the enactment of discriminatory laws against any community;

(3) The independent Civil Service Commission which guaranteed the equal opportunity to all citizens on the basis of merit;

(4) The independent Judicial Service Commission so that judicial appointments shall be free from political influence;

(5) Greater political representations to the minorities than what they would get in terms of the ethnic proportion as a safeguard to the minorities against the tyranny of majority which the supremacy of parliament stood to legitimise and perpetuate.


Against all the odds, a lot of hope was pinned on the constitutional safeguards to sustain the unitary state. Sir Ivor Jennings commenting on the safeguards he introduced to keep the wheels of unitary state rolling states:

More important of these safeguards was the Article 29 of the first independent constitution which was to prevent enactment of discriminatory laws against any community through its limitations on the legislative powers of the Parliament.

LEGISLATIVE POWERS AND PROCEDURE

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 or restrict the free exercise of any religion; or

(b) make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable ; or

(c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions ; or

(d) alter the constitution of any religious body except with the consent of the governing authority of that body;

Provided that, in any case where a religious body is incorporated by law, no such alteration shall be made except at the request of the governing authority of that body.

(3) Any law made in contravention of subsection (2) of this section shall, to the extent of such contravention, be void.

(4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of His Majesty in Council in its application to the Island:

Provided that no bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal Assent
unless it has endorsed on it a certificate under the hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two thirds of the whole number of members of the House (including those not present).

Every certificate of the Speaker under this subsection shall be conclusive for all purposes and shall not be questioned in any court of law.

The initiative for the inclusion of the above article came from the Sinhalese leadership itself under D.S.Senanayeke who included it in the Ministers draft. This enabled the departing British to convince the Tamils that there need not be any apprehensions regarding their fate under a unitary Ceylon. If it were not for the enshrinement of these principles as a part of the Constitution, the dissension of the Tamils would have led to the creation of a federal state or separation that would have considerably delayed the attainment of a self government and independence.

Added to these shortcomings was the tendency to gloss over the basic problems with colonial generalisations and the investment of too much hope on multipartism and the parliamentary process which was subsequently exploited by the Sinhalese to undermine the rights of Tamil people. The lack of congruence between the constitutional structures and the social base was a major cause for the collapse of the first Soulbury constitution. If structures were provided that could have enabled the articulation of the aspirations of the Tamil people, and the Sinhalese people through separate arrangement based on the equality of the two principle nationalities, it would have rendered extreme postures irrelevant in subsequent periods.

Soon after the departure of the British, the Sinhalese opted to violate the foundations of unitary Ceylon with impunity pulling it down from all directions. The state aided colonisation within the Tamil homeland, which started before independence, undermined the concept of a territorial constituency which recognised the right of a particular community over a particular territory. The Citizenship Act of 1949 violated Article 29 that stood to make illegal the imposition of any disability on any particular community. These were two steps directed against the Tamils in the North East and Up Country which severely curtailed their political power.

Then came the real blow in the form of Sinhala Only Act in 1956, which completely alienated the Tamils from the idea of a Ceylonese nation. This law enabled the near total banishment of the Tamils from the government service.

S.W.R.D.Bandaranyke who promised the voters, Sinhala in twenty four hours once elected, introduced the Sinhala Only Act in the following words on the 5th June 1956.

The Sinhala language shall be the one Official Language of Ceylon.

The Sinhala only act enabled the transformation of the unitary Ceylonese nation where its various communities sought equal rights into one that would be dominated by the Sinhalese once and for all.

This act which undermined the very foundation of united Sri Lanka in violated the very principle and sprit and did away with the concept of the independent civil service and enabled the transformation of the armed forces and the police and in subsequent times the public service become totally Sinhalese.

The independent Judiciary too was not spared. Tamil people lost confidence in the Judiciary for three reasons. Firstly, it could not provide redress against state sponsored discrimination by allowing for its own politicising. Secondly its arm, the police force, losing its national character by becoming Sinhala only and becoming the arm of Sinhala Chauvinist state to be deployed to impose an oppressive rule could not serve the Tamil people throughout Ceylon. Thirdly, through its materialisation it came to served the military rule that was subsequently imposed on the North East.

Further divorce of the Tamils from the unitary state came about by the intolerable atmosphere created in the South by the effective deployment of the factor mobbery as a political weapon. The resulting pogroms led to immense physical harm and violence against the innocent Tamils in the South leading to the break down of personal relationship between the two people further weakening the foundations of Sri Lankan nation.

The arrogance of the Sinhalese in abusing every instrument of state to forge the chauvinist agenda and exclude the Tamils led to the emergence of armed struggle and the acrimonious atmosphere spreading to every part of the globe wherever Sinhalese and Tamil live. Since independence, the communal riots one after the other, planned and executed, aided and abetted by the governments in power, was mainly directed against the Tamils, first following the peaceful protest against the Sinhala Only bill in 1956 and subsequently in 1958, 1962, 1977 and 1983. The orchestrated attacks against the Tamils became increasingly ferocious as time went on until it was taken over by the state terrorism, escalating into full scale war and repression directed against the Tamil people in their own homeland.

The collapse of the unitary state created by the failure of the Sinhalese to uphold the terms and principles of the Soulbury constitution and the abuse of the power of parliament to undermine the constitutional norms and the grip of the chauvinist ideology over the mindset of the Sinhalese gave no hope to the Tamil people that they can share a unitary state with the Sinhalese creating a political void among the Tamil people forcing them to seek alternate political arrangement that would assure them a secure and prosperous life in their homeland.

The single act of Sinhala Only set in motion a chain reaction the enabled the domination of one people over the rest, their only seeming virtue being their number. This enabled and legitimised the usurpation of all institutions of state by the Sinhalese at the expense of a multi ethnic polity to the extent its reversal became soon an impossible affair. The sudden demand from the experienced government servants and professionals to work in Sinhala language was a challenge to their pride and integrity and many of them choose to quit the service and their position was taken over by lower level inexperienced carders with political patronage substantially lowering the standard of the government service.
The armed forces and the police received high priority in this chauvinist transformation. The emergence of war led to the total transformation of these instruments of state as tools of oppression of Tamil people. With the increase number of men it has become possible to provide welfare system exclusively to the Sinhalese who generate no productive wealth and are a burden to the nation in the name of security which could have been avoided through providing for a just rule The destruction the misrule of the Sinhalese as brought to the Tamil people is nothing but the result of implementation of the chauvinist agenda over the Tamil homeland.
The right of the state to settle people of another community in an electorate that has been marked out as a territorial constituency to provide representation to a particular community so as to alter the representation of that community, clearly violates and undermines the principles that are the cornerstone of the constitution of independent Ceylon. The assertion that the state has a right to settle the majority Sinhalese anywhere it wants is a violation of the constitutional law which it pretends to uphold.

The contention of the successive Sinhala Governments is such, it is possible to settle Sinhalese in every electorate in the North East making them Sinhalese majority electorates that would completely end the Tamil representation in parliament and other representative bodies making Sinhalese the sole recipients of Sri Lanka. Though land settlements have largely stopped, now the game is to hand over large chunks of valuable state land in the North East, especially in the Trincoamlee district has been handed over to private firms in the south and security forces through the abuse of Presidential powers so that they will employ Sinhalese in the companies and deny the lands to the Tamil people in the North East. Foreign interests too are engrossed in the scheme. By the time land powers will be handed over to the Provincial Council no state lands will be left for the people in the north East.

Lord Soulbury’s Lamentation.

Among all the Englishmen who served Sri Lanka, Lord Soulbury had the golden opportunity to leave behind a peaceful Sri Lanka as he had the responsibility of formulating the constitution of an independent Sri Lanka. However his efforts were in vain as Sri Lanka, instead of emerging as a peaceful and prosperous nation, digressed into going down the drain no sooner the British parted form Ceylon.
Lord Soulbury’s grief and dismay at the happenings in Sri Lanka which were not what he hoped for, appeared as a forward to B. H . Farmers book, Ceylon: A Divided Nation, which appeared in 1964, long before Vaddukottai Resolution and Tamil militancy. The whole forward is included as Lord Soulbury takes the opportunity to discuss his personal observations and disappointment over happening in Sri Lanka. Due to its pertinence to the current situation, the whole forward is being reproduced, as many people still seems to hold the same perconceived mind of Lord Soulbury with which he approached the Sri Lankan problem. This vital page of Sri Lankan history, which largely remains unknown in Sri Lanka. Since the passing of the Sinhala Only Act in 1956 and the crumbling of the foundations of the nation, Sri Lanka has been a nation of divided sovereignty. Only the accommodation of this reality in a new constitution or constitutions can bring peace to Sri Lanka.

Lord Soulbury’s Forward to B.H. Farmer’s Book, Ceylon : A Divided Nation
In promoting the advance to self-government and independence of the various communities comprised within the British Commonwealth and Empire, the relations of minorities to majorities have constituted one of the most contentious and complicated problems confronting successive British Governments. Mr. Farmer's brilliant exposition of this problem, as it has affected Ceylon, provides a striking example of its complexity.

A Commission, of which I had the honour to be the Chairman, was appointed by the British Government in 1944, to examine and discuss proposals for the constitutional reform of Ceylon. It did not take long to discover that the relations of minorities to majorities, and particularly of the Tamil minority in the northern and eastern provinces to the Sinhalese majority further south, were in the words of the Commission's report 'the most difficult of the many problems involved'. The Commission had of course a cursory knowledge of the age-long antagonism between these two communities, but might have been less hopeful of a solution had Mr. Farmer's book been available to underline the deplorable effect of centuries of troubled history upon the Ccylonese of today. The Commission devoted a substantial portion of its report to this minority question, and stated that it was satisfied that the Government of Ceylon was fully aware that the contentment of the minorities was essential not only to their own well-being but to the well-being of the island as a whole. And to quote the Commission's report: 'If it were otherwise, no safeguard that we could devise would in the long run be of much avail.' Recent years have shown that this observation was only too true.

But had Mr. D. S. Senanayake, the first Prime Minister of independent Ceylon, lived I cannot believe that the shocking events of 1958 and the grave tension that now exists between Tamils and Sinhalese would ever have occurred. Mr. Senanayake would have scorned the spurious electoral advantages that a less far-sighted Sinhalese politician might expect to reap from exploiting the religious, linguistic and cultural differences between the two communities, for it was his policy to make Ceylon a united nation and, as he told the State Council in November 1945 in his great speech recommending the proposals of the British Government, 'The Tamils are essential to the welfare of this island'.

Unhappily and for reasons indicated by Mr. Farmer, the death of Mr. D. S. Senanayake led to the eventual adoption of a different policy which he would never have countenanced. Needless to say the consequences have been a bitter disappointment to myself and my fellow Commissioners. While the Commission was in Ceylon, the speeches of certain Sinhalese politicians calling for the solidarity of the Sinhalese and threatening the suppression of the Tamils emphasised the need for constitutional safeguards on behalf of that and other minorities, despite the confidence felt by the Commission in Mr. D. S. Senanayake and any Government under his control. As Sir Charles Jeffries has put it in his admirable book, Ceylon-The Path to Independence, 'The Soulbury constitution ... had entrenched in it all the protective provisions for minorities that the wit of man could devise'. Nevertheless - in the light of later happenings - I now think it is a pity that the Commission did not also recommend the entrenchment in the constitution of guarantees of fundamental rights, on the lines enacted in the constitutions of India, Pakistan, Malaya, Nigeria and elsewhere.

Perhaps in any subsequent amendment of Ceylon's constitution those in authority might take note of the proclamation made by the delegates at the African conference which met in Lagos two years ago: 'Fundamental human rights, especially the right to individual liberty, should be written and entrenched in the constitutions of all countries'. Nevertheless the reconciliation of Tamils and Sinhalese will depend not on constitutional guarantees but on the goodwill, common sense and humanity of the Government in power and the people who elect it.

If, as I hope, Mr. Farmer's book will influence public opinion in that direction, he will have made a notable contribution to the peace and prosperity of Ceylon.

SOULBURY 1964

Two issues stand out in Soulbury’s observation. One is his extra ordinary trust in D.S.Senanayake. He was totally deceived by the pretentious manoeuvrings of D.S. Seananayeke. In reality D.S.Senanayake was a python lurking in the bush before delivering death blow to the future of Tamils in Sri Lanka. No sooner than the British left, he took up his favourite project of disenfranchised nearly half of Tamil population. The other, instead of emerging as the Father of the Nation, he emerged as the Father of Illegal Land Settlements of Sinhalese in areas that were recognised as Tamil areas, violating the concept of territorial constituencies, a notion that was the cornerstone of Soulbury’s constitution which he endorsed. He also nursed two other chauvinist champions in his party, S.W.R.D. Bandaranayeke and J.R.Jayawardane, who were to take forward his baton of chauvinist agenda after his death. D.S.Senanayake died suddenly in 1952 after falling from a horse.

The second issue is Lord Soulbury’s realisation of the need for the inclusion of fundamental rights. Fundamental human rights has been enshrined in the constitution subsequently (1978). But it has not had any impact on the situation or halted the usurpation and subordination of the constitution to Sinhala Chauvinist agenda or prevented its abuse. An act like the Prevention of Terrorism Act that came into force in 1979 as well as the routine extension of emergency by Parliament has made military rule the norm over the Tamil homeland and leading to the horrendous experience of the Tamil people in terms of violation of their fundamental rights in independent Sri Lanka. Today Sri Lanka has emerged as a pariah nation in the eyes of the world as a result of her human rights violations.

The causes of failure and remedies

In spite of the efforts by the British colonial administration to establish an independent united plural Sri Lanka, it was the scheme of British rulers that led to the emergence of chauvinism as the governing ideology of Sri Lanka that eventually undermined the plural Sri Lanka and led to its collapse. The Kandyan conspiracy that fused the British with the chauvinist ideology, from where originated the anti Tamil crusade of the Sinhalese which the British availed in order to dethrone the last native sovereign of Sri Lanka who was a Tamil and a Hindu. This enabled the establishment of Sri Lanka as a British colony and ended the Kandyan sovereignty as the last sovereign independent kingdom. Subsequently this led to the founding of the Sinhala Buddhist Aryan race as well as the establishment of the notion that Sri Lanka is a Sinhala Buddhist country and Tamils are all invaders.

There has been a relentless support by the British establishment to promote the version of history that provided for the legitimisation of the chauvinist ideology and the enthroning of cooked up concocted Mahavamsa as an authentic chronicle of Sri Lanka further consolidated this. The misrepresentation was absolute giving rise to the totalitarian mindset of Sinhala chauvinism. All achievements of Tamil civilisation in Sri Lanka disappeared and the notion civilisation was brought to Sri Lanka by Aryan Sinhalese settlers coming from north India 2500 years ago and the newly discovered Sinhala Aryan race, a notion which never existed in history, was imbued into the minds of the Sinhalese and intoxicating it with a mission of establishing and turning Sri Lanka into Sinhala Buddhist country pushing out everyone else.

Once this ideal and mission has emerged as the unifying ideology of the Sinhala race, the constitution could only be a formality. The chauvinist ideology was the supreme constitution. All other activity came to be subordinated to this supreme constitution. The written constitutions became irrelevant and had only a formal existence. What mattered most was the chauvinist mandate which the successive governments sought in elections to implement and take forward the chauvinist agenda, taking little care whether these mandates violated the constitution or not, arrogantly refusing to recognise its detrimental effect on all other Sri Lankan citizens other than Sinhala Buddhists. All efforts of Lord of Soulbury were in vain. Both the British colonial establishment and the parliamentary majoritarian democracy with universal suffrage they left behind, legitimised and provided for the onslaught of the polity by Sinhala chauvinism. The surge of fascism in Europe in the thirties and forties contributed to its relentless advancement in Sri Lanka.

After the onset of this cancerate, no Sinhalese government or political leader could reverse the situation. The Sinhalese leadership could not make one step to this day in earnestness towards a settlement of the conflict to this day. The disability of Sinhalese leadership even to enter into a honest discussion let alone resolve the dispute with the Tamils led to the emergence of militant movement among the Tamils and the divide stands complete today with only dreams of winning elections by galvanising the current chauvinist euphoria left. The elections have become a contest as to who is more committed to the advancement of the chauvinist ideology.

The siege of the governmental process and disabilities of the Sinhala leadership to address the Tamil grievances and their inability to transform the situation or abandon the chauvinist agenda as the supreme constitution of the land gives little hope the ethnic problem will be resolved in the near future.

The international community which shares the same naivety as Lord Soulbury, whose culture of incomprehension and preconceived closed mind approach and superficiality has only sealed the divide. Lord Soulbury’s lamentation did little to alleviate the suffering of the Tamil people or end the constitutional crisis in Sri Lanka which can only be achieved by listening to the yearning of the Tamil people and meeting it. The development card that is now being advanced over the Tamil North East, which is based on the barbaric notion that development can neutralise national aspirations, can only be considered as a fiasco intended to shroud the inherent disabilities and advance the programme of realising the chauvinist agenda over the Tamil homeland.

The current efforts to subjugate the Tamil people will not succeed. The abuse of the national security, development and scores of other factors such as unity of the nation, financial resources and other instruments of state, cabinet powers, discretionary powers and the judiciary for the advancement of the chauvinist ideology will come to an end as this cannot be pursued for long time in a world committed to human rights and freedom of people. The ststehood right of Tamil people is an inalienable right of Tamil people.

A leadership of Tamil people will not emerge out of quislings and collaborators many of whom are outcasts well known for their crimes against the Tamil people.

Democratic rights of Tamil people should be upheld and it is for the Tamil people to elect who their leaders are in a free and fair elections. The abuse of these quislings who are semi illiterate with the little capacity to handle the complex issues of constitutional restructuring and would be on tenterhook as a result of their criminal background, for the purpose of advancing the chauvinist agenda will undermine the achievement of Tamil aspiration for statehood within the framework of Sri Lanka and prolong the conflict and suffering of the people. This is not the time to return to the political culture of sixties and seventies.

13th Amendment, as it is, is a non starter. For it to be a starting point North East should be permanently merged, powers over land, law and order and powers for reconstruction, rehabilitation and economic development should be unequivocally devolved to the Regional Council and the resources found before 13th Amendment could be made to work. We have to learn from experience as to why 13th amendment failed as an instrument of resolving the ethnic conflict in Sri Lanka and better understand the causes of the intractable conflict. After twenty years of its enactment, Sinhala chauvinism’s current affinity to the 13th Amendment has come about as it has now dawned on it that the 13th Amendment too can be abused to sustain and advance the chauvinist agenda. An interim administrative council consisting of Tamil representatives reflecting the sovereign content of the Tamil homeland that could stabilise it constitutionally should assume power over the permanently merged North East.

As long as the Sinhala race remain possessed by the chauvinist ideology it will not comprehend the contours of what in effect is a condition of divided sovereignty and its course of genocide the world has witnessed in recent times cannot be reversed. For any solution to last, this fundamental reality of Sri Lankan polity has to be recognised and the Sinhala nation should come forward to abandon the chauvinist agenda and its ‘Okkama Appe, Sinhala Vitharai’ ( everything is ours, Sinhala only) mission and come forward to handover the Tamil homeland to Tamil rule and grow to understand that federalism is not division but a political arrangement to prevent division that will bring people together through mutual respect, accommodation and unification of the divided nation which is what it has been the world over and comprehend the new Sri Lanka as a union of Sinhala Ratta and Tamileelam.

The unitary and plural Ceylon that went down the drain has gone for ever.

Link Previous Part (No. 04):The British demarcation of Tamil Homeland

The author is the Director General of the programme Global Sustainability Initiative and can reached through email by: globsustain@live.co.uk

-Sri Lanka Guardian