A lasting political solution through power-sharing..!!!

A lasting political solution through power-sharing
May 9, 2011, 12:00 pm

By M. A. Sumanthiran
BSc (Physics), LLM (Internet and Electronic Law), Attorney at Law, Member of Parliament.


I consider it a great honour to have been asked to deliver the Thanthai Chelva memorial oration this year. Last year, too, I had the honour of delivering the key-note address at the annual commemoration ceremony held in Jaffna on the 26th of April. Today, I am doubly delighted since Thanthai Chelva’s true disciple Mr Sampanthan presides over this event. I am truly humbled by this singular honour bestowed on me.


Some years ago, at a ceremony to unveil the bust of Dr Colvin R de Silva at the Colombo Law Library, Colvin’s junior-most junior, Ms Chamantha Weerakoon Unamboowe recounted an anecdote. One day Colvin was greatly worried about a criminal appeal that he was going to argue before the Supreme Court that day. Chamantha had told him, "Sir, why are you so worried; half the criminal law of this country was made by you", to which Colvin is supposed to have replied: "And the other half was made because they did not listen to me"!


I think it would be right to say that the state of our country is what it is today, because they did not listen to Thanthai Chelva. Ironically, it was Colvin who eventually did not listen in the Constituent Assembly in the early 1970s, after having himself prophesied in 1956: "Two languages – one country; one language – two countries".


The first Republican Constitution of 1972 gave the last rites to the slow death for ethnic coexistence in this country that started when a unitary constitution was handed to us by the departing British. Having earned the distinction of being the first Asian country to enjoy universal suffrage, we buried all the benefits of democracy to this island by ignoring the rich diversity of its Peoples and their different heritages, and treating it like a homogenous society.


In my view, fundamentally what really suffered was democracy itself, since the system of government that was enacted in 1948, undermined the very essence of it.


Wikipedia has the following definition for Democracy:


"Democracy is a form of government in which all citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal (and more or less direct) participation in the proposal, development and passage of legislation into law. It can also encompass social, economic and cultural conditions that enable the free and equal practice of political selfdetermination."


It continues later, "[M]ajority rule is often listed as a characteristic of democracy. However, it is also possible for a minority to be oppressed by a "tyranny of the majority" in the absence of governmental or constitutional protections of individual and/or group rights… It has also been suggested that a basic feature of democracy is the capacity of individuals to participate freely and fully in the life of their society."


This is perhaps why, Thomas Jefferson, in his inaugural address, on 4th March 1801, stated that, "Though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; the minority possess their equal right which equal laws must protect, and to violate would be oppression."


This is also the reason why when Britain granted Dominion Status to the island of Ceylon, a prohibition was placed on the legislature on passage of any bill that disadvantaged one community or granted a privilege to one community over the others. According to Section 29(2) of the Ceylon (Constitution) Order in Council, Parliament was not competent to pass laws that,


a) Prohibit or restrict the free exercise of any religion;


b) or make provisions of any community or religion; or make provisions of any community or religion liable to disabilities or restrictions to which persons or 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.


Any law that might be passed which conflicted with these four provisions was expressly declared to be null and void and of no legal effect.


Lord Pearce on behalf of the Privy Council described this prohibition in the case of The Bribery Commissioner v. Ranasinghe in this way:


"[Article 29(2)] represents the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution: and these are therefore unalterable under the Constitution."


Professor Lakshman Marasinghe says that the Privy Council may have had the benefit of a plethora of background material to have been able to come to the conclusion that Section 29(2) was an unalterable, entrenched feature of the Soulbury Constitution. These may include the following:


During the debate on the Ceylon Independence Bill in the House of Commons in November 1947, the then Secretary of State for the Colonies, Mr. Creech Jones declared:


"I should perhaps also mention that the Government of Ceylon, while able in the future to amend their own Constitution, has felt that the provisions of the existing Constitution safeguarding minorities should be retained.


"(The Government of Ceylon) would obviously not wish to provoke any controversy on these issues in Ceylon. Thus… the provision barring discriminatory legislation will be retained by the Ceylon Government."


This was in reply to the concern raised by Mr Gammans, from the Conservative opposition when he said:


"The Second danger which Ceylon faces is one which the right Hon. Gentleman, the Secretary of State for the Colonies has not mentioned except very shortly today. It is that Ceylon is not a single racial unit. There were two races in Ceylon, the Sinhalese and the Jaffna Tamils, who are in the northern part of the Island, and number 1,500,000, out of a total of 6,500,000. They differ from the Sinhalese race, language, religion, and to a large extent, in background. They are extremely capable and intelligent people. I have had a lot to do with them because they played a very large part in development of Malaya. It was the Jaffna Tamils who came over in large numbers and started the railways and Government services. Where there is a racial minority in the country the danger is that it may become a permanent political minority, Ceylon’s evolution on a democratic basis is bound to fail."


Many years later, in 1963, Lord Soulbury, writing the foreword to B H Farmer’s Ceylon: A Divided Nation, himself regretted that his Commission did not recommend the entrenchment of guarantees of fundamental rights, on the lines enacted in the constitutions of India, Pakistan, Malaya, Nigeria and elsewhere.


Around the same time the founding father of Singapore, and former Prime Minister, Lee Kuan Yew commented as follows: "When Ceylon gained independence in 1948, it was the classic model of gradual evolution to independence. Alas, it did not work out. One-man-one vote did not solve a basic problem. The majority of some 8 million Sinhalese could always outvote the 2 million Jaffna Tamils who had been disadvantaged by the switch from English to Sinhalese as the official language."


This then was the real ‘ethnic’ problem that has besieged this country – the problem being that a significant section of the citizenry was excluded from exercising any meaningful democratic choice in respect of all matters in which they rivaled the major community. The problem was that of a permanent minority that could not have a say in respect of their political destiny in this island. This did not only afflict the Tamils; a very important section of the country – the Burghers – left Sri Lanka in great numbers. The safety-valve in the form of Section 29(2) did not work; it was a failed experiment by the British who thought that an entrenched prohibition to safeguard the People who were inferior in number would solve the issue of ensuring full and inclusive citizenship to all the Peoples who inhabited the island. Full and equal access to political power for all citizens could not be achieved within the unitary model constitution that was granted to us.


Instead of such a unitary model, the British Government utilized the model of the linguistic States and other different forms of federations, in countries where different linguistic and ethnic communities live. Those models have largely contributed to neutralizing ethnic tensions and rivalries. Unfortunately, however, in Ceylon the call for a federal structure of governance by the Ceylon Federal Party (ITAK) fell on deaf ears. Within two years of independence, on 18-12-1949, Thanthai Chelva made this call at the inaugural meeting of the ITAK held at the Government Clerical Services Union building in Maradana.


It is pertinent to state here that although the All Ceylon Tamil Congress (ACTC) did not make such a demand prior to independence the Kandyan League and notably S.W.R.D. Bandaranaike mooted the federal idea. Bandaranaike wrote six letters to the Ceylon Morning Leader in 1926 seeking to introduce the idea of federation. In his famous Jaffna lecture on 17th July 1926 he openly advocated a federal system of government for Ceylon and stated that the model of federation obtaining in Switzerland afforded a better example for Ceylon.



To be continued tomorrow

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