A Look Back with Fresh Hope

Photograph courtesy Al Jazeera

DEVANESAN NESIAH AND RAJAN HOOLE on 08/05/2017

Introduction

Many Sri Lankans trace the ethnic problem back to the movement for Sinhala
Only and the passage of the Official Language Act in 1956. In fact, the
problemneeds to be traced back to at least the first year of Independence in
which over one million people of recent Indian origin but well settled in the
plantation districts, were deprived of citizenship and voting rights. Perhaps the
conflicts need to be traced further back to the anti-Muslim riots of 1915.
Curiously, the Sri Lankan Tamil leadership (with a few exceptions) as well as the
Muslim leadership weresupportive of the acts against the Up Country Tamils, and
the Sri Lankan Tamil leadership was also indifferent to the plight of the Muslim
victimsof the 1915 riots. In fact, in the first general electionafter Up Country
Tamils were deprived of citizenship and franchise rights, the Tamil party which
opposed these acts was routed in the North and East. In the years that followed,
Up Country Tamilshave faced discrimination on many fronts; moreover, in all the
anti-Tamil pogroms they were the most vulnerable and suffered greatly.

When Justice ceases to be the Mainspring of Law

One of the main themes in our paper is that while the Citizenship Acts were a
great injustice inflicted on the Up Country Tamils, we did far more long term harm
to ourselves. It is fear of justice that our national leaders manifested in the run up
to independence. The independence constitution was a coup by an
unrepresentative State Council that scuppered elections due in early 1941 with
British connivance, and functioned like Jayewardenes long parliament. Indias
poets Bharathy and Tagore and leaders, particularly Gandhi, Ambedkar and
Nehru, reflected and spoke with deep conviction on means of justice for the
diverse multitudes in independent India. Such voices here were ominously stilled
in the torpor of the 1940s.

The Ceylon Constitution (Order in Council), or the Soulbury Constitution,

approved by the State Council in November 1945 had the provision 37 (f) that
reserved for the Governor the right to withhold his assent from any bill that
invokes serious apprehensions of injustice or oppression in any racial or religious
community.However the Sinhalese nationalist leaders, were then all sweetness
and there was a general belief that 37 (f) which would lapse when the British left
was amply covered by Section 29, which barred discriminatory legislation.

This expectation was legitimate as Roman law, which forms the base of our legal
system, places great emphasis on the written law. In the Roman tradition, as in
monarchical France, judges were instruments rather than interpreters of the law.
Whence, Judge Sivagnanasunderam of the Kegalle District Court declared the
Citizenship Act ultra vires the Constitution as violating Section 29. Prime Minister
Senanayake despaired enough to seek advice from Sir Ivor Jennings.

In 1951the Supreme Court, which deemed itself more capable than the inferior
court of rendering complete and effectual justice, held that the Citizenship and
Franchise Acts were unassailable as acts of parliament as they were linguistically
compatible and, therefore, their practical effect and the motive for their
enactment are irrelevant.S.J.V. Chelvanayakam and S. Nadesan had pleaded
without effect that The point is what the statute does and not what it says.

The Privy Council in 1953 supported the Supreme Courts ruling. Not because it
deemed the impugned Acts good, but it was to do with the Roman distinction
between Natural Law and what the French jurist Jean Domat called Arbitrary Law.
The first was divine and universal and the latter man-made and often unjust, such
as slavery. By the 18th Century, English courts discouraged slavery as having no
precedent in English law, but requiring legislative provision as a positive or
Arbitrary Law. While England fought shy of bad laws, they were allowed as
positive laws in the Dominions, whose Whites Only legal systems became the
panacea for our leaders. The Privy Council saw our Citizenship Act as a positive
law acceptable among a nation of deficient people.

The nullification of the legal protection of the minorities was in effect the suicide
of our judiciary. The Sinhala Only Act was passed in the same spirit of crude
majoritarianism. But a singular judicial rebellion occurred, which we have
successfully buried. As the Kegalle District Courts judgment was in response to
K.G. Nairs appeal to restore his franchise, Kodeeswaran appealed for his salary
increments denied under Sinhala Only.

Judge O.L. de Kretzers ruling on 24th April 1964 was devastating to the
Government. In ruling Sinhala Only to be bad in law, he brought us back to our
roots in Roman law. Contrary to the 1951 Supreme Courts ruling that the
practical effect of a law and motivations for its enactment are irrelevant, de
Kretzer ruled that that the purpose of an Act must be found in its natural
operation and effect and it therefore violated Section 29, our written law.

De Kretzer could not be ignored as he was a senior judge due for promotion to
the Supreme Court. It took a supposedly progressive government, whose
intellectual veneer was provided by the Left, to evade the legal issue by inserting
Sinhala Only as a positive law in the 1972 Constitution. Way back in 1940, Legal
Secretary Drayton, who understood prudent limits to positive law, warned the
State Council that to take away the franchise of Up Country Tamils given under
the law in the Donoughmore Constitution would be a grave matter.

How grave we now know in hindsight. Draytons warning was lost on

Jayewardene, who turned repressive positive laws into an art of governance from
1978. The PTA, the deprivation of Mrs. Bandaranaikes civic rights and his long
parliament are examples. As for our sovereignty, the cause of decades of
bloodletting and hot air, Chinas control of the port and environs in Hambantota
has disturbing echoes of the British consolidation of Hong Kong in 1898.

Attorney General Rose in supporting the Citizenship Act, stated, In Ceylon, as in

England, an administratively discriminatory Act is not an infringement of the
Constitution. In using this proposition to expungecursorily Up Country Tamils
from the electoral rolls, we lost all sense of shame. It was part of the colonial
framework of administrative impunity, which routinely recruited whites to
positions over well-qualified natives. British administrators were at least careful
not to use it retroactively to deprive someone of a legally acquired right as the
vote.

The old time administrator who thought through problems, and was answerable
for his actions has disappeared. They became mediocre creatures of ministers and
cronies in the hierarchy; used to implement, outside the law, racially
discriminatory measures in public appointments and university admissions. Those
familiar with the decay of our university system know the futility of seeking
remedy in our courts for abuse of power by vice chancellors and administrators.
Administrators are routinely expected to lie for their superiors or face unpleasant
repercussions.
District Judges Sivagnanasunderam and de Kretzer, who were exceptional to cross
swords with the judicial and political hierarchy, areforgotten figures in our legal
history. While their crucial judgments stand vindicated, they remain hard to get
hold of. The substance of de Kretzers ruling cited is from Dr. Nihal
Jayawickremas 2016 Dr. P.R. Anthonis memorial lecture, a welcome tribute from
a misunderstood contemporary.

The saga of Up Country Tamils ties up with our current pathological fear of foreign
judges. One could safely say that judges with a scholarly reputation, which they
are anxious to protect, would seldom go wrong. The broader implications and
responsibilities of Justice, as Cicero understood, call upon us to be world citizens:
And there will not be different laws at Rome and at Athens, or different laws
now and in the future, but one eternal; and unchangeable law will be valid for all
nations and all times. That is the great Roman law tradition we have lost.

It was this tradition that amidst pressures of colonialism in the Eighteenth

Century, impelled courts in Britain and France towards blindness to race and
colour. There is much we could have learnt from them, which sadly, we have not.
We must remember that the Up Country Tamils ironically remained British
subjects long after being robbed of Ceylon citizenship.

Affirmative Action/Reverse Discrimination

The Up-Country Tamils yet display characteristics attributed by Nigerian

anthropologist John U. Ogbu to Involuntary Minorities across the globe in a
publication in 1991.[1] Their social indicators on issues such as education, literacy,
employment, health, mortality rates and a range of other factors remain
significantly lower than the rest of the population. The Up Country Tamils need an
array of affirmative action and reverse discrimination programs including quota
intakes into selected educational and training institutions as well as employment
categories for a limited period, say for a decade or so, and extra preference in
selection to colonization and village expansion schemes.

Although this community has been predominantly engaged in plantation

agriculture, they have been deliberately and systematically excluded from
colonization and village expansion schemes from 1935 contrary to assurances
given under the Donoughmore Constitution of 1931 and the 1923 pact with India.
They (citizens by registration) have also been excluded from policies allowing the
landless to acquire land through regularization of encroachments, even though
very large numbers of other communities (citizens by descent) have become
possessors of land through that process.

For any affirmative action and reverse discrimination programs to be effective,

the Up Country Tamils need to maintain a distinctive identity for some years. The
ultimate objective, of course, should be to merge the transient census categories
of so called Indian Tamils and of so called Sri Lankan Tamils. In all this it is
important to work out programs in consultation with Up Country Tamils and their
leaders.

[1] Immigrant and Involuntary Minorities in Comparative Perspective in Margret

A Gibson and John U Ogbu (eds). Minority Status and Schooling, New York and
London: Garland Publishing.
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ICES Joint Presentation on Paper Submitted to Up-country Tamils: Charting a New

Future, Colombo 3rd August 2017.
Posted by Thavam