By Devanesan Nesiah and Rajan Hoole –

Dr. Devanesan Nesiah

Dr. Rajan Hoole

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 problem needs 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 were supportive of the acts against the Up Country Tamils, and the Sri Lankan Tamil leadership was also indifferent to the plight of the Muslim victims of the 1915 riots.  In fact, in the first general election after 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 Tamils have 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 Jayewardene’s long parliament. India’s 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 Court’s 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 18^th 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 Court’s judgment was in response to K.G. Nair’s appeal to restore his franchise, Kodeeswaran appealed for his salary increments denied under Sinhala Only.

Judge O.L. de Kretzer’s ruling on 24^th 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 Court’s 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. Drayton’s warning was lost on Jayewardene, who turned repressive positive laws into an art of governance from 1978. The PTA, the deprivation of Mrs. Bandaranaike’s civic rights and his long parliament are examples. As for our sovereignty, the cause of decades of bloodletting and hot air, China’s 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 expunge cursorily 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, are forgotten figures in our legal history. While their crucial judgments stand vindicated, they remain hard to get hold of. The substance of de Kretzer’s ruling cited is from Dr. Nihal Jayawickrema’s 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*. 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.

*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.