By Rajan Hoole –

Dr. Rajan Hoole

One could hardly fail to detect a note of despondency among writers who advance a constitutional settlement. Kalana Senaratne (Groundviews 26 Apr.2016) envisages that a settlement agreeable to the South would lean towards Sinhalese-Buddhist pre-eminence thereby leaving the Tamils dissatisfied. The only prospect of mitigating this eventuality, he suggests, is an arrangement ‘which tries to ensure that the natural and ineradicable dominance of the Sinhala-Buddhists does not result in the perpetration of a wilful and targeted policy of discrimination of minority groups’. Laksiri Fernando (Colombo Telegraph 1 May 2016), while finding the proposals by the Tamil People’s Council clear and well-drafted, is troubled by their lack of realism, ideological dependence on the LTTE and the mutation of its innate of brutality into virtue of ‘self-defence’.

The question one needs to ask is whether the terms of the debate centring on nationalities and ‘real-estate’ (Fernando) are mistaken. If we traverse back to understand the origins of the controversy, a settlement should be easier to identify. After all in early 1948 we had the Soulbury Constitution that nearly everyone accepted. What the Tamil leader Chelvanayakam sought then, was not federalism or separation, but parity of status for the two languages, as in Canada.

The problem as addressed for many years takes for granted the inequality that has come to be embedded in our institutional orthodoxy and administrative practices as the direct result of the three Citizenship Acts of 1948/49. Its consequences are the death of secularism and the rise of extremism even among minority religious groups that now canvass external protection. Attempted devolution has so far failed, because the starting point is a framework concealing inequality in equivocation, as for example the ambivalence about religion in our present Constitution. The fate of the Bandaranaike – Chelvanayakam Pact of 1957 is fairly explanatory of the present deadlock. Bandaranaike tore it up under pressure from extremist clergy, and as I understand from contemporary observers, Chelvanayakam was not too sorry over it.

Post-War Malaya and Ceylon

As Britain accelerated decolonisation after the War in 1945, both Malaya and Ceylon had large Indian immigrant populations – in Malaya the Chinese outnumbered the Indians. Many of the immigrants knew no other country. Under the Indian Emigration Act of 1922, the Indian Government permitted emigration of unskilled labour only to countries which provided reciprocal assurance of ‘perfect equality of status of Indians’ with other local British subjects.

In Ceylon the Soulbury Commission adapted the Ceylonese Ministers’ draft constitution of February 1944, and felt the retention of its provision prohibiting discriminatory legislation against any community or group (Article 29(2)) to be an adequate safeguard for minorities.

In Malaya, after due consultation, the British on 21st January 1948 obtained the signatures of the Sultans of the States to the Federation of Malaya Agreement. No one was permanently excluded from citizenship. For non-Malays, it placed a residence qualification of 15 years or 12 years at the time of application. A child whose father was born in Malaya was conferred citizenship. The Ceylon Citizenship Act was passed by Parliament on 20th August 1948, as the first major act after Independence, and was calculated to exclude permanently Indian immigrants to the largest extent possible, by introducing cut-off dates.

T.B. Subasinghe

During the debate on the Citizenship Bills in the Ceylon Parliament, government spokesmen belittled and attacked Indian immigrants, as bearers of Cholera (Senanayake) who stole Kandyan lands from the peasants. The government insinuated that those who opposed the Citizenship Acts were traitors, both inside and outside Parliament, and aroused Sinhalese ire against them. T.B. Subasinghe (Bingiriya), himself a Kandyan, with quiet dignity exposed the hypocrisy of government leaders who wrongly blamed the Indian settlers living on large expanses of estates as responsible for landlessness among Kandyans. He pointed out that the government while vilifying the Indians, had no intention of taking over the estates to provide relief for landless Kandyan peasants; indeed they had assured European estate owners of security of their holdings.

In fact, Subasinghe dismissed accusations that Indian labour caused the ills of Kandyan peasants by pointing out that landlessness was acute even in the North-Western Province where Indian labour was scarce, but the land was owned by local capitalists.

H. Sri Nissanka KC, the independent MP for Kurunegala and a highly respected Buddhist layman, while affirming his love for his religion and culture, questioned the legal wisdom from which the Bill had originated and protested his inability to support a measure which ignored the first principle of the law – jus soli – the right of citizenship conferred by birth in a legal jurisdiction, which came from the ancient Greece, through Rome to France, Britain and America and is now the unexceptional norm. He expressed surprise that while the English Act and the world’s great jurists have emphasised the word ‘born’ in relation to citizenship, the Bill before the House substituted the word ‘descent’ to negate the effect of birth. Evidently, a racial principle had been introduced into the Bill. Its cynicism lay in the fact that giving it even a semblance of workability necessitated deliberate administrative abuse.

Herbert Sri Nissanka

The principle of descent required residents to produce documentary proof of their ancestry for one to three older generations. This disqualified the majority of our country folk aged over 25 years as registry of births was made mandatory only in 1895. To get over this, the Indian residents alone were targeted to produce proof of ancestry to establish their rights. This is why jurists over the centuries found jus soli an inescapable principle, as did India in 1949 and Pakistan in 1951.

The Citizenship Acts that signalled Britain’s failure to protect the rights of Ceylon’s Indian immigrants resulted in alarm among minorities in Malaya. But Malaya’s 1948 Federation Agreement excluded no one permanently as the Ceylon Acts did with cut-off dates. (Applications for registration as citizens in Ceylon were to be closed in two years.) The same year, 1949, British Commissioner General for Southeast Asia, Malcolm MacDonald initiated talks with UMNO president Dato Onn Jaafar, and won him over. Duly, the Federal Citizenship Ordinance of 1952 conferred jus soli by admitting an infant born in any Malay state as a subject of its Sultan and thereby a citizen of the Federation of Malaya. To avoid controversy, the visionary statesman Tunku Abdul Rahman who steered Malaya to independence (1957), tasked, in 1955, an independent commission chaired by Lord Reid (Soulbury’s counterpart in Malaya) with representatives from the Commonwealth nations of Britain, India, Pakistan and Australia to draw up the constitution for independent Malaya. Ceylon and South Africa were pointedly not invited. It recognised jus soli. Unlike Ceylon, Malaya prospered.

Bandaranaike’s Smutsian Solution

To Bandaranaike’s credit, being second to the Prime Minister, his contributions to the citizenship debates had the merit of being truthful in answering challenges he could simply have ignored. He said, “The difficulty has arisen in the past when some of our people wanted to have their cake and eat it – when they wanted to have Indian labour – cheap, efficient, easily managed labour – to work their estates, but also were afraid of granting them citizenship rights. You cannot have your cake and eat it.” To solve the problem, Bandaranaike’s (and the Government’s) inspiration was the South African Prime Minister Jan Smuts’ pronouncements at the 1921 Imperial Conference at 10 Downing Street, to which he referred the House (Hansard 20 Aug.1948).

Smuts, then at the height of his influence as scholar and statesman, argued that there was no common British citizenship that conferred equal rights. We were all then British subjects.

Bandaranaike however refrained from spelling out what Smuts said: the South African political arrangement, he said, was not based on “a system of equality. The whole basis of our political system rests on inequality and recognising the fundamental differences that exist in the structure of our population” – namely on race (Goolam Vahed).

Bandaranaike’s solution to the Indian problem was modelled on South Africa maintaining the Black population as a huge labour force, but denied the essentials of civic rights – such as the franchise. To detract from the embarrassment of Ceylon relying on the worst legacies of imperialism, Bandaranaike moved from Smuts to quote the scholar Arthur Keith, who said the mixing of races produces an inferior breed, sapped of mental vigour and a peaceful spirit – something Smuts had repeatedly said.

Bandaranaike elaborated, “it is not the elimination of racialism or nationalism that we want in this world today: it is only the harmonisation of racialism and nationalism for future progress (Hansard 20.8.48).” Bandaranaike’s critics held that the Indian community should be given the dignity of civic rights so that they would become loyal Ceylonese. Bandaranaike did not disagree with the facts of their situation; but his preoccupation with ‘race’ led him to reason that “if it is settled…by the grant of citizenship to all these people, that indeed will provide a Trojan Horse and a Fifth Column, which will mean the end of the country and ourselves (Hansard 10.12.48).”

The parliamentary debates suggest that it was not the riddance of Indian labour that the Government sought, nor were they concerned about racial mixing. The economy needed the labour and Ceylon’s leaders (e.g. D.S. Senanayake (H 19 Mar.1941), John Kotelawala (H 3 Sept.1937) and A.E. Goonesinha (H 25 Oct.48)) are on record claiming that the work the Indians did was too harsh or humiliating for Sinhalese peasants. Bandaranaike’s Smutsian solution was that the Government would take the safe absorbable maximum (the 11 per cent who survived the obstacles the Acts placed against registration of citizenship by Indians – 1963 Census), the rest if they chose to remain would have the ‘full amenities of labour’, but no civic rights. A similar settlement had been hinted at among leaders for many years (e.g. Senanayake in 1941 above); perhaps they wished that Bandaranaike had been less frank.

Towards the end of his speech on the first bill (20.8.48), Bandaranaike recapitulated in more polished language the charge of treachery then advanced by government spokesmen against the Opposition: “[Friendship with India] on the terms of betrayal of our own people? Never, never, never can friendship be based on betrayal of our people.”

Throughout these debates, accusations of betrayal made in and out of Parliament reverberated maliciously with the general population (e.g. NM Perera H 24 Aug.48, IMRA Iriyagolla H 25 Aug.48). On 14th December 1948, W. Dahanayake (Galle) complained to Parliament of breach of privilege by an editorial in the Silumina on the Indian Residents Citizenship Bill titled ‘Members of the Ceylon Parliament who cried aloud for hire.’ It insinuated that the MPs who voted against the Bill were agents of the Nehru Government. Alongside were pictures of all these MPs. The genie of sectarian bigotry had come out of the bottle. Amidst grim forebodings of evil it would invite kindred genies to dance to the throbbing hoof-beats of doom.

Colvin R. de Silva speaking on the third and final bill – the Franchise Bill (H 20.Oct.49) – said, “[This Bill] is aimed at the alteration, in a somewhat fundamental way, of the entire political structure of the country.” The Soulbury Constitution with its carefully balanced dispositions of power was killed – thanks mainly to ten Tamil and Muslim members who sat as dumb mutes in Parliament and voted with the Government. The Opposition was quite a decent group. Of 95 elected members, 20 Sinhalese and a Burgher voted against the Citizenship Bill. We singled out Subasinghe and Sri Nissanka not because they were the leading speakers for the Opposition, but because they represented a cross section of fair-minded Buddhists having the trust and respect of Sinhalese peasantry who could challenge the Government’s bluff as protectors of the Sinhalese.
Committing to Secularism: the First Step to Resolution

The passage of the Bills and the ensuing ground-shift in the power game, swept away most Sinhalese who could keep the nation’s sanity. Being bombarded by constant sound-blasts of ‘traitor’ is hard to withstand, as many Tamils would soon discover. Its effects have distorted our values over decades, corrupted our jurisprudence and taught us administrative discrimination which eroded respect for rules.

To go back to the beginning, if we are to put the country right, federalism and devolution are not the place to start. We must recover something that was lost when the Soulbury Constitution was spiked by the Bills. The Government must commit itself without qualification to strict secularism and the first words of the French Declaration of the Rights of Man (1789) which incidentally give jus soli in its strongest form: “Men are born free and remain free and equal in rights.”

If that step is taken other issues like devolution could be discussed soberly. If the Government lacks the courage to take that step, there is no hope. We end with what Sri Nissanka said in Parliament on 25th August 1948, when the Government relying on the Communist Bogey introduced an Immigrants and Emigrants Bill giving itself greater powers of surveillance, particularly over the population denied citizenship: “…one of the best ways of meeting the Red Menace is not by attempting to crush it, but by trying to fall in line with the democratic ideals of the world and to democratise your ways of thought, your ways of government and your attitude towards other humans of the world.” That was in reply to his friend Bandaranaike.