6 December, 2022

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How Did We Become A Lawless State?

The talk given by Rajan Hoole at the release of the book Democracy Stillborn, which took place at Trimmer Hall, Jaffna, on 11th November 2022. The fellow speakers were Devanesan Nesiah, Ahilan Kadirgamar, Swasthika Arulingam and Kirupaimalar Hoole, the meeting was chaired by Mahendran Thiruvarangan   

Dr. Rajan Hoole

First, a message from K. Sritharan, who was with Rajani Thiranagama and Rajan Hoole in the University Teachers for Human Rights (Jaffna).

“The rule of law is in decline and has provoked much discussion even in developed countries, where it has been the norm for over a hundred years. The West which continually championed democracy and the rule of law itself is facing a major crisis as populist right-wing politics make inroads into the mainstream. In the US the legitimacy of institutions which are crucial for accountability and the rule of law are questioned and conspiracy theories of utter distrust of authority become the fare among the masses. This crisis can lead to many upheavals.  We may eventually overcome and stabilize with more meaningful and broadened democratic formations. But the path towards that may not be smooth and the trend shows the moral high ground is ill-defined.  

But as an island nation, we have gone through major crisis after crisis and in the process have ruined and bankrupted our country. Many youths are now looking for the root causes for this plight. Our modern history is one of cohabitation with dominant colonial powers. During the British period, a cause of major social transformation was the colonial state formation. The vested interest of the British Colonial project, brought in institutional mechanisms and nurtured a political class to manage them. The question is how the ruling elite of Ceylon used those institutions. In the balance, was it to enhance the interest of the people, or in pursuit of their short-term interests? Did their hold on power, unleash forces which of their own nature created a series of fault lines by a perversion of nation building? In addressing these we need to charter a new path. Of course, this cannot be done in isolation but it is necessary to identify the internal developments, and form broad solidarities that would get us out of this impasse.” End of message.

About Social Democracy

Arunachalam, was the first civil servant who radically stood for social democracy. He wanted the British officers responsible for excesses during the Sinhalese Muslim riots of 1915 punished according to the law. In 1920, the British authorities, supported by Sinhalese nationalists, undermined the man hitherto deemed indispensable, and put him out to grass.   Provoked by the economic collapse of 2019 the Aragalaya protesters realised the state of acute lawlessness and got rid of the President and Prime Minister. We have Mahinda Rajapaksa finally admitting his mistakes, all implicitly permitted under the Constitution, and pleaded for another chance. Mahinda Rajapaksa comes in a line of leaders charged with murder, not only of journalists but also of war crimes and robbery. There were of course two parties to the war. But the Government’s intransigence made it intractable.  

The law was simple, but we have muddled and obscured it. Had we followed it, we could have avoided this present impasse. Article 29 of the Constitution of 1948 had the provision, not to ‘Make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable …’ Quite simply it means treat everyone equally. The Government being in a minority after the 1947 elections, used threat and bribery to disqualify Plantation Tamils from citizenship. What we may forget today is the Sinhalese opposition, left and liberal, for example H. Sri Nissanka, were united and firm in standing by the Plantation Tamils.   

Britain’s gift to the Sinhalese leaders of cancelling the 1941 elections, gave them an eight-year free ride of power without an electoral mandate from 1940, during which time they were allowed to colour the future constitution. It led to indifference and apathy among opponents of the Citizenship Bill. Neither the Government nor the Supreme Court offered a cogent reason for the disenfranchisement of estate workers. The Supreme Court held that since Article 29 had no reference to race, taking away the franchise of a community was not a violation of Article 29, it was administrative. The Government was nervous when the Plantation Tamils appealed to the Privy Council.

The Privy Council first retreated because Parliament by defining citizenship indirectly by ancestry, had evaded the principle of equality in 29 (2). It however passed the Bill misquoting the Soulbury report which actually made clear that over 80 per cent of Plantation Tamils were in 1941 either born in Ceylon or had resided over ten years.  

Lanka is a beneficiary of common laws, the Roman-Dutch and English. Good common law whatever its origins is transposable. Lanka learnt nothing from them. Answering the challenge to the Citizenship Act in 1951, Chief Justice Edward Jayatileke rejected equality and ruled that whatever Parliament passes has to be obeyed. However, Chief Justice Abrahams replying to DSG Wijewardene asserting Parliament’s supremacy in 1937 said, that a new law must accord with those that preceded it ‘so that there be no repugnance but a concordancy in all the parts thereof.’   

Bills against the Plantation Tamils

We had Roman-Dutch law and English common law, both of which with different emphases, stood for common right. Both sets of law rejected the Citizenship and Franchise Acts from several angles. Having accepted the Donoughmore Bill in 1929 which promised the vote to everyone, we had 19 wasted years, no industrialisation, but demolish the voting rights of the Plantation Tamils. Nihal Jayawickrema gave a potent reason for treating the term community in the citizenship acts with respect: ‘Parliament must not discriminate against a particular community already resident in the country.’ 

We had in 1937 Chief Justice Abrahams upholding Habeas Corpus, no detention without the order of a judge, and freed Bracegirdle from deportation. The reversal, to detain without warrant, was legislated in the 1947 Public Security Ordinance, the last Bill passed under colonial rule. These were signposts on our march to independence and beyond.

Emergency permitted murder in ‘good faith.’ Although a British precedent was claimed for the Bill, in Britain actions under emergency became judicable once the emergency was lifted. The real fear in Ceylon was strike action by the combined unions over the Citizenship Bill of 1948. However, strike action was deterred by the ‘smash up’ of the 1947 general strike.  

Ceylon Constitution and the Citizenship Bill

Britain co-drafted a very fragile constitution to gain the Sinhalese leaders’ support during the second world war. They cancelled State Council elections due in early 1941, jailed the Left and as pointed out, allowed Senanayake to rule 8 years without a mandate prior to independence and determine the colour of the Judiciary. During this period. Left leaders N.M. Perera and Philip Gunawardena, then vocal advocates of the Indian Tamil equality, were cast into prison. Just before, the State Council in 1941 passed the Registration Bill, the precursor of the Citizenship Act of 1948. All Sinhalese, barring the imprisoned Left, voted for the Registration Bill. It required all qualifying as Ceylonese to have domicile of origin – produce father’s birth certificate – it was impossible for many in Ceylon, be it Sinhalese or Tamil, but Plantation Tamils were singled out for exclusion!

Carrot and stick on minorities to betray a fellow minority

The Muslims and Tamils were goaded to support the Citizenship Bill.  Most of the Tamil elite, including prominent Youth Congress veterans, wanted the Tamils to support Senanayake. Out of 13 Ceylon Tamil MPs, a minuscule group of two opposed the Bill, S. Chelvanayakam and K.V. Nadarajah. Ponnambalam however voted against to avoid a split in the Congress, the remaining five MPs were absent on his instruction. The two Senators E. Naganathan and S. Nadesan too opposed the Bill, tooth and nail. For the Tamil minority it was suicide. Had it shown greater conviction the Muslims and the six government appointed members need not have supported the Citizenship Bill.  

What we are left with is the Pollution of Administration of Justice by ignoring the principle of legality. The principle states that when we legislate to the hurt of a minority, it should be stated in clear unambiguous terms, acknowledging the political cost. This was never done in Lanka, although the cost was heavy. The new politics was exemplified in arm-twisting T.B. Jayah, champion of the underdog, to join the Government. But is that a way to build up a united nation?

In the 1950s any bill passed by a simple majority and signed by the Speaker was accepted as law, ignoring the two-thirds majority requirement for bills that violated the Constitution. Thus, Sinhala Only became law with 66 voting for and 29 against, short of a two thirds majority. No one challenged it in court until Ranasinghe in the early 1960s, over something unconnected, the Bribery Tribunals Act. The Privy Council ruled that the Act required a two-thirds majority the Government did not show, and ruled in favour of Ranasinghe.

Giving judgment on 5th May 1964 for Ranasinghe’s case, nine days after de Kretser’s ruling Sinhala Only unconstitutional in the Colombo District Court as violating Article 29 (2), Lord Pearce reaffirmed the long ignored ‘fundamental conditions,’ or equality, stressing Article 29. By this time the SLFP-Left coalition and the UNP wanted the Privy Council and the Soulbury Constitution out. The mutual embarrassment had become heavy. This was accomplished in the new 1972 constitution, ridding our final toehold on the rule of law. 

By the time Lord Pearce ruled for a correction in 1964, the Left and the Sinhalese right had rejected reform. The tested and potent Magna Carta right of detention only on the sufferance of a Judge was gone in 1947 and reaffirmed in the 1972 ‘progressive’ constitution. The erosion of law made communal violence, the worst manifestation of barbarity, to savage and kill an innocent person on the basis of race, acceptable. The State failed to punish and the Sinhalese were apologetic in a half-hearted way – Sinhalese they said protected Tamils.

An uneasy calm prevailed until 1977. The Muslims regarded themselves fairly safe while Jayewardene opened all stops of the 1972 Constitution. As for the criminal intent of our laws, Dr. Rajasundaram, like many Tamils, approved of the militancy only for a defensive purpose, against state-initiated attacks on civilians. The Sansoni Commission report gives several examples of such in 1977. Having committed himself to rehabilitate Tamil refugees, Rajasundaram had to face the violence of the State. What he did was far from terrorism.

He was detained under the PTA on the gossipy charge of trying to make peace between Maheswaran and Santhathiyar. When the tortured victim was produced in court, Judge Bandaranayake, instead of discharging him, announced an indefinite postponement of the hearing. Six days later he was killed in the infamous Welikade Prison massacre on 25th July 1983. While proof will never be found, it is quite certain that the massacre was organised by the Kelaniya mafia, still a major force in government, the seed planted by the PSO. This was about the time the Government viciously accused the JVP of responsibility for July 1983 and forced it underground, just when it democratically contested the Government’s foul play over the 1982 referendum. The damage was far worse than recent scams that provoked protests.

The Tamils professing to fight for liberation were also infected with the vulgar legalism inherited from the State – its constant demand for proof over complaints about missing persons. In Jaffna, the university students spontaneously went on strike in 1986 charging the LTTE with the disappearance of student Vijitharan. The LTTE leader Kittu came to discuss matters in the University of Jaffna common room. When confronted with the allegation, he responded, “Where is the proof?”  

The Government tried tactical evasion by introducing a Bureau of Rehabilitation law that was disallowed by the supreme court on 20th October 2022. The state of our laws flows directly from the Citizenship Act. No Government has tried to put us right. All worked in the same culture to our detriment. The Language issue is but a by-product of the Citizenship Act. 

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Latest comments

  • 6
    1

    This is great, Rajan.
    .
    It must have come on just about five minutes ago.
    .
    The time now is 16:07.
    .
    I will read this article, which you must have written carefully in matchless prose.
    .
    Just as your book will be:
    .
    https://slbooks.lk/democracy-stillborn-lankas-rejection-of-equal-rights-at-independence
    .
    On the other hand, flattery is not going to get me anywhere with you! I went through the two hours below, but neither you, nor Kirupa, nor your much older and distinguished cousin, Devanesan, are great orators. Actually when you spoke, seated, towards the end you were much clearer.
    .
    https://www.youtube.com/watch?v=gcxd_h_HLCY
    .
    However, for those who understand Tamil, there was much else. And Ahilan Kadirgamar and young Swastika (beware of nimal fernando, old codger, and Native Vedda!) spoke quite a bit in English. Please work out how you’re going to get some of these people into Parliament.
    .
    Panini Edirisinhe

    • 5
      0

      It had happened long, long ago, present set of political leaders were not even born at that time.
      It is true that the present ills could be traced to that single disgraceful event.
      There were many leaders including some Sinhala leaders who vehemently opposed to these exploitations even at that time. None could do anything to rectify that historical misdeeds and make necessary amendments to make amends. So injustice may be built in the system that was operating since then.
      But what is the point in engaging in blame gams.
      The present youth seems to be aware of these historic systemic transgressions.
      The only remedy is to install a new system to replace the old system completely that could be strict enough with appropriate in built systemic measures to avoid such abuses, even if some try to abuse, to make immediate corrective measures to punish and start on a new journey.
      Thanks Rajan Hoole and others for timely article to awaken the younger generation to see the world in A different perspective!

  • 6
    0

    How Did We Become A Lawless State?

    The leaders foot path In the absence of those laws, you have lawlessness. You have disorder. You really can’t have a functional city.Illegality will never solve the problem of political lawlessness.

    • 0
      0

      RBH59,
      .
      It was a rule of law country until 2005.
      Even foreign affairs under the late Kadiragamar worked to set an example, but everything turned upside down when the rascals seized power. Medamulana dogs nominated dog-like candidates as representatives of the country. Srilanken main stream media was singlehanddely controlled by RASCAL brothers. Fake pubic perception was made in favour of their power gains.
      I think even in Hitler’s days, the Stasi news propaganda painted the picture that Hitler would remain in power regardless of his misdeeds.-
      Religious blindness to sinhala buddhism became the catalyst to RAJAPAKSHE power greedy tactics.
      People have been duped by “racism and so-called nationalistic agendas”: Still, the same people across the country don’t seem to be doing the right thing. They had to see that Mahinda Rajapaksa the fatal cancer of this nation was kicked out of the Prime Ministership because he showed no intention of relinquishing power. Now people have completely forgotten. So. Who is to blame?
      https://www.youtube.com/watch?v=3sNmAjfarps

      I have no sympathy for our people now. If people want to do charity work, it is better to focus on a poor country.

  • 8
    2

    “The state of our laws flows directly from the Citizenship Act.”
    What a beauty of this country. Even today the citizenship law is suffering to unable to make a decision on our former President and former Finance minister has a constitutional or legal right to have that posistions.

  • 13
    0

    Sinhala_Man

    Look at the policeman’s face in the front page of CT, full of hatred.
    Look at his hand job, holding her throat with a view to choking her from behind.
    We cannot see his other hand, what was he up to.

    Our man nimal fernando has nothing to say about this cruel Sexist pig’s behaviour, maybe he agrees with policeman, maybe not, …..
    Only on this occasion nimal has become a man of few words.
    I wonder why.

    • 5
      0

      I have my hands full …… I’m busy with the ones here I feel that can be still reformed :))

    • 11
      1

      NV: The Police Spokesman said, an “Investigation” would be conducted by an ASP of the “Division”. Mark my words. The WPC in giving evidence at the inquiry will definitely say: ” I am not humiliated or harassed. I didn’t and don’t feel degraded. We are quite used to this type of treatment. My “Bosses” do this all the time and they “LOVE” us. So do we “Love” them.

      The “Social Media” personnel will be hunted and our President will sign a “DO” to detain them under “PTA”. The END.

      • 6
        0

        Simon

        I agree everything what you say.
        However the ASP Nevill de Silva attached to Cinnamon Garden police stated at the courts that Hirunika Premachandra makes them uncomfortable when she make it a habit of embracing policemen during protests.

        I would have thought the policemen would have wanted Hirunika to show more affection.

        I am confused, perhaps nimal could help me understand what exactly the ASP wants, I mean more affection or affection shown only to him.

        • 6
          0

          NV: Yesterday the much “Celebrated” (by his own crew) IGP tendered an “UNCONDITIONAL” apology to Supreme Court for not taking action on on “ORDER” given to him to pay all the arrears of salary and other allowances to Sugath Mendis, a Police Officer who was interdicted along with Sahani Abeysekera. This Police Officer Mendis was interdicted for REFUSING to make a statement that his boss Shani Abyesekera asked him to transport police arms to Shani’s house and connect him to the murder. of a “Suspect”. In the court case, Mendis was discharged of all charges and was ordered to reinstate and pay all arrears of salary and other allowances. I salute Mendis for his heroic action.

          Why did SC accept that “Apology”? In my opinion, this”CRONY” IGP should have been PUNISHED by giving a Jail sentence.

    • 4
      3

      “holding her throat”?
      Extraordinary observation skills indeed.

      • 8
        1

        Where does her neck ends and throat starts given the size of that pig’s hand?
        Find out where did the pig held his other hand, possibly groping, rather than nitpicking ?
        The issue is about how pigs behave and not about fault-finding when highlighted the arrogance of pigs.

        • 5
          3

          A pathetically extraordinary explanation!
          Calm down. It is all well intended and said in good humor.
          Most importantly, do not pump up your BP.
          *
          Any book of human anatomy will say that the throat is the front part of the neck, internally positioned in front of the vertebrae.
          “Where does her neck ends and throat starts…” is thus a flawed phrase–grammatically as well.

          • 3
            0

            I write total rubbish in this forum and do not expect so called learned people to read, review and waste their time seriously commending on it.
            Well that seems to be the quality of Mao’s ….. carriers.

            • 0
              1

              So, it seems that most readers here are considered daft!

    • 6
      0

      Native Vedda,
      A picture (a photo is even better) is worth more than a thousand words.
      If anyone is looking for more than a thousand words, what are you going to achieve with your few(er) words!

      • 1
        0

        Nathan

        Point taken.
        Thanks.

    • 0
      0

      In this wonderland, people are born sick.
      Please see the prima fasie evidence provided by them as of today.
      :
      Those who then stood vehemently against MILA SUTHRAYA (price formula) of late Minister Mangala Samaraweera, impletmented it today.
      .
      https://www.youtube.com/watch?v=6KJewf8v65Q
      .
      Mangala, May you be blessed with Niwan Suwaya !

  • 7
    1

    How Did We Bocome A Law Less State
    .
    It is sponsored by the state itself.follwing the foot path,reading the chronicle, safe guarding the 2500 heritage, and the foremost.
    Even this budget they allocated more funds for military, they feels the danger from Hindus,Muslims,Christians,Jews,Jains…

  • 3
    0

    Hitting on the head and getting hit what is the instruction that the police is giving.

    It is not always that people aggravate problem Police officers see everything, and they experience everything, and they don’t always act correctly. This action perpetuate the cycle of anger, fear and violence.

  • 0
    1

    RH, Lawlessness describes people who do not obey the laws of a loving creator God. It is not an inanimate state or nation. 2000 years ago when Jesus came, bible warned in 2 Thess.2,7 about the mystery of lawlessness, which he would destroy at his second coming, as an obedience to evil laws. Good to obey the true law.

  • 6
    5

    There is something that we need to add about the drift towards lawlessness.
    The attempted coup of 1962 failed because someone got cold feet.
    The Privy Council came to the rescue of the plotters.
    The hidden hands are now seldom spoken about.

    • 8
      1

      The drift started when peaceful protest was attacked by ….. ….. under the very nose of police in 1958.

      Excerpts:
      TAMIL PARLIAMENTARIANS ATTACKED
      BY SINHALA MOBS & 150 TAMILS KILLED – 1956

      “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” – Article 6.1, International Covenant on Civil and Political Rights

      “What happened on 6 June 1956 when the Sinhala Only Bill was being debated in Parliament? The members of the Federal Party, exercising their undoubted constitutional right, wanted to protest against the imposition of (the Sinhala Only) Bill. The Members of the Federal Party said that they would sit in silence on the Galle Face Green… It was a silent protest which they were entitled to make. They were seated there on the Galle Face Green, and Parliament was sitting solemnly listening to the Prime Minister. Troops and police were drawn round the place.

      What happened? Hooligans, in the very precincts of Parliament House, under the very nose of the Prime Minister of this country, set upon those innocent men seated there, bit their ears and beat them up mercilessly. Not one shot was fired while all this lawlessness to persons were let loose… Why?……
      ……
      https://tamilnation.org/indictment/indict005.htm

      Any doctor in the room?
      Please lets have medical reason for suffering from persistent Dementia.

      • 2
        1

        “Any doctor in the room?
        Please lets have medical reason for suffering from persistent Dementia.”
        *
        NV, I am no doctor, and am sorry to hear of your condition. Not any doctor will do, seek out a specialist.
        I promise to be kind to you in future.
        *
        BTW, there is nothing on ‘persistent dementia’ but plenty on permanent dementia.
        May I suggest not advertising your condition. Not everybody (including doctors) would be kind to people with such conditions, and some can be offensive only to make matters worse.
        Take care, and find a kind consultant.
        Best wishes.

      • 0
        0

        150 TAMILS KILLED, Native?
        Good God! I had no idea.
        I must really look into this period again. I have a book by Tarzie Vitachchi about it somewhere.
        During a peaceful protest!!

        I only have vague personal memories of that time as I never read a newspaper until after opting to do the B paper in the English O-Level exam, along with all the other fluent-in-English girls in class. Because the A paper essay topics were all on current affairs & we were shockingly ignorant of them. We all had to sit the A paper some months later, having forced ourselves to read about war & other killings, etc.. regularly — anyway, that’s the impression I had of the press those days. I was turned off by a headline I read when first here: “Son kills father with a kaththa!”

  • 4
    1

    Democracy is for English men and it was created for them and it failed when they try to implement in countries like Iraq, Afganistan, Forget about Asians, ( except a couple of countries like Singapore). Rulers in Asian, African countries manipulated Democracy and its citizens didn’t enjoy the fruit of freedom.

  • 4
    1

    Srilanka is becoming a mafia state, drug dealears shooting and the amount of drug indicates that exteranl forces are weakening our state specially younger generation.

    • 1
      0

      lankan100


      “Srilanka is becoming a mafia state,”

      Is it becoming Chinese (Triads) Mafia state only now?
      The assassination of Ranjan Wijeratne in the early 1991 was suspected of being carried out by Chinese Mafia as he was determined to cleanse all those casinos dens of Mafia. The Triard is also active in Chinese owned hotel businesses.

      We know there is one person in this forum who always defends them as being decent people, compare to Indian dacoits, Haji Mastan, Varadarajan Mudaliar, and Karim Lala.

  • 2
    1

    the photograph that CT is showing is very misleading.Those who go to chinese massage parlours know that this is a neck massage.You go for 10 minutes and sit down and get a vigorous neck massage which invigorates you.I have done it often.The woman constable may have said her neck was aching and as a result she could not arrest the protesters and the chief inspector is massaging her neck.

  • 0
    0

    https://i2.wp.com/www.colombotelegraph.com/wp-content/uploads/2022/11/Police-Sri-Lanka.jpeg?resize=150%2C130&ssl=1

    if you look at his fingers they are not grasping her neck ,but are closed up and with his knuckles he is massaging her neck and the knuckles are hurting and he is grimacing with pain.

    nowadays if you go to help a woman it may backfire on you unlike in the good old days.See what happenned to danushka after he gave that woman 4 choking ultra mega orgasms.

  • 0
    0

    ” A fish rots from the head down ” – need we say more ?

  • 3
    0

    “Carrot and stick on minorities to betray a fellow minority”
    It was not all carrot and stick. Class interests prevailed all along.
    The FP (which used the Citizenship Act to gain limelight) effectively dropped it after 1958.
    It was willing to settle for concessions on the language issue and promises of devolution for the N&E in 1958 and 1965. The Hill Country Tamils did not enter the picture at all.
    *
    The FP, however, hoped for support from plantation unions for its Satyagraha of 1961, which was not forthcoming. (Less known figures like Ilancheziyan expressed strong support, but not CWC etc.)
    *
    The FP mainly addressed issues of the Tamil elite and an educated Tamil middle class affected by the Official Language Act. Its interest in colonization issues too was pathetically weak. It was a single issue party until it performed poorly in the elections of 1970.
    It was only after the youth took the initiative that land became an issue.

  • 0
    0

    How Did We Become A Lawless State?
    The Title – question – doesn’t seem right.
    When were we a lawful State?
    .
    If I were to write about, speak of/on, or discuss the ‘right’ question, my comment would exceed the word limit!

  • 0
    0

    You guys question about them being lawless, but listen to the audio below… that will give you the answer…. PEOPLE will remain as before.
    .
    Please watch from the beginning of 5.24 minutes, where you will hear about Nakimaina’s funeral.

    https://www.youtube.com/watch?v=5ELzdOrjbu8
    .
    Who paid for these celebrations until the buggers were kicked out of the country in the last few days and let them escape on a ship?

    Is Nakimayna not ashamed? why does not he treat this nation this way ? He knows that MAJORITY OF PEOPLE are punnakku eaters. … is not that so ?

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