The Legal Dimensions of the Sovereignty Claim of the Tamil Nation of Sri Lanka

 

 A Focus on the Role of Leader S J V Chelvanayagam QC in evolving the concepts of self –rule, autonomy and federalism in Sri Lanka                    

                   The Memorial lecture delivered  on 28  April 2017  in London

 By Dr. Sandrasegaram  Paramalingam B A (Cey)LLM (Hull)UK PhD (Keele)UK ,  Attorney at Law  [Sri Lanka ] Solicitor  of  England [retired] Formerly visiting Post-doctoral  research fellow at the Centre for Socio –Legal Studies  University of Oxford

Mr Chairman,

Honourable   Minister Mr Mano Ganeshan MP

Ladies and gentlemen

Good evening

I wish to express my pleasure             in being with all of you this evening. I am much obliged to the organisers of this event for honouring me by inviting to deliver the memorial lecturer today. The leader S J V Chelvanayagam QC whom we are remembering today, was an outstanding personality in the fields of politics and law in Sri Lanka.  He devoted his life and wealth to the well-being of the Tamil nation. The political and constitutional programmes he proposed and advocated were aimed at preserving the dignity and identity of the nation in their homeland. Before I focus on the topic, I feel it is most important to set the scene and begin the lecture by referring to a statement made by an MP in the House of Commons of the British parliament.

Dear friends,

Before many of you and I were born, a bill titled “Ceylon Independence Bill-1947” was presented to the House of commons to de-colonise Ceylon and grant independence due to the fact that after the British India was decolonised by creating two states India and Pakistan in 1947, the island would be less beneficial based on the facts of cost and benefit analysis .The beneficial factors of Britain were protected by signing   a defence    agreement for the use of Trincomale naval base and the air force base at Katunayaka.

During the debate of the above bill few MPs participated in the debate and they conveyed their greetings to the people of Ceylon and warned the danger of communism   which would be threat to the democracy of the country.  However Mr Gammans the MP for Hornsey electorate considered the socio-political aspect of the island and   stated as follows

“Ceylon is not a single racial unit. There are two races in Ceylon, the Sinhalese and 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 in race, religion and to a larger extent in background. They are extremely capable and intelligent people. Where there is a racial minority in the country, the danger is that it may become a permanent political minority and if it does become a permanent political minority, Ceylon’s evolution on a democratic basis is bound to fail.

———— This imposes on the two peoples of Ceylon a very great responsibility. It imposes on the  Sinhalese the responsibility  of seeing that   they grant  fair and , if necessary , rather more than fair treatment to  the minority  not only in the political power  but also in the administrative  responsibility , so  that  the minority is  not inevitably  driven  to regard itself as a permanent political minority” 

Against this background, if we consider the politics and the treatment given to the Tamil nation and the Tamil speaking people during the last seven decades, the above statement of the MP could be treated as the perfect political prediction on the post –colonial politics of Sri Lanka.18155862_955982067878266_3176989664726178486_o

Enactment of the Citizenship Act 1948:-

The first government of Ceylon, led by D. S Senanayakie enacted the act to de-franchise the Tamils who were the backbone of the plantation economy of the country over the one and half –centuries. When the bill was submitted to the House of Representatives, the lower house of the bi-cameral parliament Mr Chelvanayagam vehemently opposed the injustice caused to the people who gave their blood to the country by working in pathetic socio-economic conditions. He crossed the floor and resigned from the Tamil Congress which was in the governing coalition led by the United National Party. G.G Ponnampalam QC continued to remain in the government while Chelvanayagam and few other Tamil MPs crossed the floor in search of future political action. During the debate of the bill, he made a comparison that periodically Tamils from South India were brought in during the colonial rule and settled in the South of Ceylon where they had lost their identity and assimilated with wider society. However, the Tamils in the plantation area brought in by the British had maintained their socio-cultural identity. Therefore, they were punished by the proposed Citizenship Act.  The Tamil MPs of the plantation area and the MPs of the leftist parties also pointed out the danger of terminating the citizenship of the plantation Tamils. As far as the government was concerned the act contained two edges for reducing the strength of the Tamils in the parliament as well as the leftist who had the vote bank in the plantation area. The fate of the hard working of Tamil people of the plantation area and who were the backbone of the country’s economy were left to be determined by the Governments of India and Ceylon .In the later years, the initiatives of the governments were formulated as treaties known as Nehru –Kothalawell and Sasthiri and Srimavoe pacts without the participation of the affected people.

In the meantime, the government had engaged in state sponsored colonisation in the Northern and Eastern provinces with the majority community. Mr Chelvanagagam and the other MPs who resigned from the Tamil Congress had foreseen danger to spread over the Tamils and Muslims and formed the Federal Party in 1948.

The Inauguration of the Federal Party and the Discourse of Federalism. [1948]Chelvanayakam

It has to be noted that during the latter part of the   British colonial rule there were claim for federal setup by the leaders of Kandyans. However this claim weathered away and did not have any impact on the country’s politics.

The Federal Party is the brain child of Mr Chelvanayagam and the governing model proposed by him is treated as “safe heaven” for the Tamil speaking people in the North and Eastern provinces. The party was inaugurated in 1948 for achieving constitutional justice under a federal constitution in which the Tamil speaking Northern and Eastern provinces could be federal unit. It gained few seats in the first general election held in 1952 of its formation. Since the 1956 general election, the party gained majority of the seats of the Northern and Eastern provinces and emerged as the main the party representing the Tamil nationalism. Due to the party’s strength in the parliament and for the purpose of the formation of government it had opportunities to negotiate for autonomy and federalism which is defined as governing model for unity among diversity.The leaders of the federal party entered into two political pacts with governments.  In 1958 Banda –Chelva pact and in 1965 Dudley- Chelva pact  aiming for “reasonable regional autonomy and language rights” were signed.  As these were opposed by the people of the Sinhala community, the pacts were abandoned.

1970 general election was the last general of election of leader Chelvanayagam’s lifetime. In this election too, the federal party continued to maintain its political status as the dominant party of the Tamils of the homeland.

The result of this general election clearly demonstrates the emergence of two nationalisms in the island of Ceylon. The both nationalisms represented two different goals. The Sinhala nationalism demanded the sole control of sovereign power and utmost prominent place for Buddhism, while the Tamil nationalism represented by the Federal party under the leadership of Mr Chelvanayagam relied on the grievances caused by the colonial rule, improper de-colonisation of 1948, and the local colonialism emerged since then, as the grounds for demanding federalism.

The election victory of the coalition of the MEP led by Srimavo Bandranayakie in 1970 put the government as the first time for complying the requirement of 2/3 majority as prescribed in the constitution for amending or repealing and proclaiming  a new constitution. In the election manifesto of the Mahajana Eksath Permuna [People United Front] led by Sri Lanka Freedom Party, it was stated as follows.

“We seek  your mandate  to permit  the members of the  parliament  you elect  to function  as  a  simultaneously  constituent  assembly to draft and adopt  a new constitution . The constitution will declare Ceylon to be a free, sovereign and independent republic pledge to realise objective of a socialist democracy “.

The election victory of the MEP gave the advantage legal position to repeal the existing constitution and to proclaim a new one to achieve the above mandate. Accordingly, after the election, Srimavo Bandranayakie, then PM of Ceylon invited all  MPS  to participate the inauguration of the constitutional assembly to be empowered to draft and proclaim a new constitution  to declare Ceylon as  a republic and to rectify the grievances of the people caused by the constitution in force for 22 years. In the drafting stages of the new constitution, an amendment was proposed to the main primary draft submitted by Dr Colvin R De Silva the Minister for Constitutional Affairs by the Federal Party   relying on its electoral norms formulated by the previous five general elections.

The main features of the amendments proposed by the Federal Party

The Constitutional Committee of the Federal Party drafted a model constitution. 32

The memorandum of the draft constitution outlines the historical background of the communities in the island of Ceylon and claimed the entitlement of the Tamil nation to the right to restoration of lost sovereignty.32  It emphasises that the principle of equality can only be assured by means of federal constitution and appeal, that it would be the only solution preventing the Tamil people from demanding full restoration of their sovereignty that existed prior to colonial rule.33, The memorandum of the draft constitution claimed that it was submitted with the genuine intention of creating conditions in which the cultural and social identity of the Tamil people could be preserved while maintaining co-existence with the other communities.

The draft constitution of the Federal party contained seven sections and 60 articles. In the preamble the concept of equality was emphasised. 34

  1. Section 1 dealt with the political structure   according to which the central government would be based in Colombo and the country would be divided into 5 states for power- sharing and administrative purposes. In the amendment it has outlined three federal units for Sinhalese and one each for Tamils and Muslims and to declare Ceylon as Federal Republic of Sri Lanka.
  2. Section 2 appealed for granting citizenship to persons of Indian origin who did not apply to return to India under the 1964 Indo –Ceylon Agreement.
  3. Section 3 dealt with fundamental rights with arrangements for enforcing by courts.
  4. Section 4 proposed that Tamil and Sinhala be declared national languages.
  5. Section 5 said the medium of instruction should be in the mother tongue.
  6. Section 6 outlined the economic policies and objectives.
  7. Section 7 outlined the economic policies.

The change of name from Ceylon to Sri Lanka in Sinhale and Illankai in Tamil was not disputed but the second basic resolution, which read ‘The Republic of Sri Lanka shall be a unitary state’, started the conflict between the Sinhala and Tamil members of the Assembly. Dharmalingam, on behalf of the Federal Party, moved an amendment on 16th March 1971, proposing that Sri Lanka should be a non- sectarian federal republic for the purpose of communal harmony, was a prerequisite for national development and could be achieved only through a federal system. He also requested that if the federal model was rejected the ruling majority should consider some meaningful decentralisation of the administration.35 As all the amendments were defeated in the assembly, and based on the decision of the Federal Party, its leader Samuel James V. Chelvanayagam Q.C. announced   as follows:

“It sought to embody the language law of the country into the proposed constitution. At a time like this no one can deny the reasonableness of our demand that the language rights of the Tamil-speaking people should be defined in the constitution. We moved several amendments regarding the nature of the constitution, citizenship rights and other fundamental rights. All these amendments have been rejected. In the circumstances, we have come to the painful conclusion that as our language rights are not satisfactorily provided for in the proposed constitution, no useful purpose will be served by our continuing in the deliberations of this assembly. By taking this step we mean no offence to anybody. We only want to safeguard the dignity of our people.” 36

Since then the representatives of the Tamil people have not participated in the proceedings of the assembly. They were even unable to seek legal remedy under the constitution in force as the right to Privy Council was terminated during the drafting process of the new constitution.37

The members who were elected from the Sinhala language belt refused to accommodate the electoral mandate of the Tamil– speaking people, which had developed since 1956. The Sinhala people were in a position to reject the electoral claim of the Tamil nation due to the political power base designed at the time of the introduction of the first colonial constitution in 1833, which failed to adopt an appropriate system of governance. Since then, all constitutional changes and developments introduced by the British were confined to the unitary system. Further, decolonisation was implemented within the   colonial boundaries and the prescient warnings expressed in the House of Commons on the nature of the constitutional arrangements introduced at the time of decolonisation were not suitable for a country which was   a multi –racial and had two language speaking regions.

The political history and events of Ceylon demonstrate that   the Tamil nation was the victim of colonial rule and now suffers under local colonialism.39   At the time of the drafting of the new constitution during 1970-1971, the representatives of the Sinhala people who exercised the power of the state were under legal obligation, particularly due to the fact that Ceylon was a Member of the UN, to recognise the rights of the Tamil people and other minorities which originated from the regimes of the UN.40  Further,  as the result of the observation  of Capotorti  that “ it was a fundamental mistake  of the drafters of the Charter of the UN  to ignore the rights of minorities, and anticipating their  being enjoyed within the wider context of universality of human rights”41and the identification  of the Human   Rights Commission that  “ the rights of minorities have been  violated in many countries,” 42  there emerged   a UN minority  rights regime. For a democracy to be of good governance, it has to adopt equality and non –discriminatory participation of all people within the territory as well as federalism and protection of minorities being considered underlying features.43Therefore, Ceylon was under obligation of the UN regime to incorporate those legal rights into its new constitution.44The above-outlined political and constitutional affairs clearly demonstrate that the attempt of the Tamil-speaking people to resolve the conflicts between the two nations by peaceful means was in vain. The new constitution institutionalised denial of justice and re –confirmed the domination of the Sinhala nation over the Tamil nation. This political event led the Tamil nation to search to find an alternative arrangement for self-preservation.45

The experiences of the Tamil parliamentarians from 1948-72 clearly demonstrate that negotiating for constitutional justice and settlement were an impossible task. The trend was observed by Sankaran Krishna, a commentator on South Asia’s post colonial insecurities as follows:

In the case of Sri Lanka, even the lip service paid to secularism was  dispensed with .It is, after all, a country that in 1972 rewrote its constitution to give a special place to Buddhism and explicitly avowed its  sustenance as one of the charters of the state. The idea of the nation is heavily interlaced with the notion that it is a special land because it is consecrated by Buddha and its manifest destiny is the preservation of the Buddhist faith. The liberal – democratic idea of the fundamental equality of all citizens within the national space runs directly counter to the idea of Sri Lanka as ultimately the abode of Sinhala Buddhists, a space divinely ordained for the preservation of their faith. 46

The Memorandum submitted by the All-Ceylon Moors Association:-

The All –Ceylon Moors’ Association’s memorandum has been very comprehensive and reflected the grievances   of the Muslim community in Ceylon. While it favored the unitary state, it proposed a number of amendments to the main draft of the government. It proposed a charter to guarantee a category of fundamental rights and constitutional safeguard of these rights. The memorandum also referred to the colonial grievances of the Muslim community and their lack of socio-economic development during the colonial time and proposed a provision for equality of opportunity. The Association heavily relied on a provision taken from the proceedings of the Indian Constituent Assembly as a model for protecting the rights of the Muslims in Ceylon. Although in the memorandum in a number of places it had relied on and admired the provisions of the constitution of India, it expressed the aspirations of Muslims for Ceylon as a unified country and unitary state. However, in the latter years political parties of Muslims have called for personal and regional autonomy for Muslims, in order to protect their identity.

The Proclamation of First Republican Constitution in 1972 and its important features.

The proclamation made on 22 May 1972 declared Sri Lanka (Ceylon) is  a  Free, Sovereign and Independent  Republic. It created  a president as the head of the state ,a unicameral  National State Assembly as legislature ,  the Cabinet of Ministers  as executives and the courts and other institutions  as judiciary while the  National State Assembly was empowered to  exercise directly  the judicial powers of the people according to law. Section 6 of the constitution gave Buddhism   foremost place and Section 7 endorsed the Official Language Act of No 33 of 1956 that made Sinhala only as the official language, to remain as the official language provision of the constitution while the Tamil Language (Special Provision) Act No 28 of 1958 was made clear not as a provision of the constitution and shall be deemed as secondary legislation.

The impact of the proclamation of the constitution of 1972, made the  Federal  Party and the Tamil Congress  led by G.G.Ponnampalam QC  to form the Tamil United Front which was lately named as Tamil United Liberation Front .  The front resolved on 14 May 1976 widely referred as Vaddukoddai Resolution relying on the historical events of the past three hundred years of the colonial rule. It also traces the post colonial adverse consequences and serious and systematic violations rights of the Tamil speaking people and concludes the events and practices are amounting to a denial of justice. It therefore resolved that the restoration of the lost sovereignty and reconstruction of the Free, Sovereign, Secular Socialist state of Tamil Eelam based on the right to self-determination inherent to every nation.Dr Jampathy Jeyawickrama   lawyer and academic described that the Vaddukoddai Resolution was the inevitable consequences of the constitution of 1972.

The Second Republican Constitution [1978]

The general election held in 1977, gave an opportunity to the incoming ruling party, the United National Party [UNP] which was the opposition during the tenure of the previous parliament. Its amendments to the draft of the 1972 constitution were defeated by the pro-socialist and left lean People’s United Front which was in power. The proposals for the amendments of the United National Party were mainly on the guarantee for fundamental rights through the higher court of the land and the rights of the citizens to own properties. These were alleged as “strengthening capitalism and exploitation and reactionary in nature”. The United National Party was displeased with regard to the political economical changes that were adopted   on socialist –Marxist doctrines. In order to achieve the  socio-political –economic goals the previous government it    proclaimed the 1972 republican constitution as seen above  giving weight to  socialist concept  such as people’s sovereignty and absolute  supremacy of parliament  while liberal constitutional  principles  of  separation of powers,  rule of law and guarantee for  fundamental human rights were ignored .

The United National Party in its election manifesto of 1977 had called for mandate and approval for drafting and proclaiming a new constitution. After the formation of the government, the party as the first step in the moving of its constitutional program brought an amendment, which was the second to the 1972 constitution for elevating the presidency as executive and similar to the de Gaulle model of government. Due to the consequence of the amendment, on 4 February 1978, J.R Jayewardene, then Prime Minister became the first executive president of Sri Lanka. However, many other features of the constitution remained contrary to political doctrine of the United National Party which had the majority of 5/6 in uni-cameral legislature – the National State Assembly. The government therefore introduced a comprehensive draft constitution and proceeded to proclaim the new constitution which came into force on 24 October 1978.

The Tamil United Liberation Front, the opposition in the National State Assembly, did not participate in proceedings of the constitutional drafting and debates on this subject due to the fact that its political and constitutional demands would not be accommodated. Even the UNP led   new government did not take any initiatives for negotiating with the representatives of the Tamil people. The experiences of the making of the both constitutions confirm beyond any doubts that the majority community is not prepared to accommodate the legal entitlements of the Tamil people under the UN regime.

The Denial of Constitutional Justice:-

Since the de-colonization of the island, the Tamil people have formulated their political claim by way of electoral norm by electing most of the candidates from the Federal Party and demanded for federal governance which is recognized in constitutional and international law. The complete denial of constitutional justice could be witnessed at the time of drafting stages of the first republican constitution during 1970-72.  Since the proclamation of the first Republican constitution and adoption of the Vaddukoddai Resolution parliamentary path became less effective and armed resistance as a last resort emerged to dominate the political arena and “the thirty years war “in the island.

The Political legacy of “Thanthai Chelva”

Mr Chelvanayagam QC was called affectionately by the Tamil people as “Thanthai Chelva” and Gandhi of Eelam as he advocated for and adopted ahimsha – the Ghandian philosophy of non-violence. During his political life he had met seven general elections [1948, 1952, 1956, 1960 and June 1960, 1965 and 1970] and one long delayed bye –election for which he resigned as MP of his electorate KKS rejecting   the 1972 constitution. In the bye –election he gained landslide victory defeating the candidate of the ruling party.  He has been recognised and respected even by his political opponents for his principles and democratic values he stood for. Since the formation of the Federal Party he had advocated and sought political mandate from the people of the North and Eastern provinces to take all action and negotiate for creating institutions for self rule and autonomy under a federal constitution. These concepts which were introduced and advocated by Thanthai Chelva have become undeniable legal rights as these are enshrined in the rights regimes of the United Nation.

Part 2.

In the above pages it has been noted how the claim for self rule, autonomy and federalism have emerged under the political leadership of leader Chelvanayagam. He and his party   have seriously endeavoured in reaching constitutional settlement with the leaders of Sinhalese who have denied accommodating   the legitimate rights of the Tamil people.

Now, I wish to   trace the legal status and recognition of these concepts and how these have become integral components of constitutional and international law.

Since the formation of the United Nations Organisation the concepts of sovereignty and territorial integrity have undergone tremendous changes and progressive evolution in order achieves peace, prosperity and justice to all. It’s Charter and other international instruments enacted by its Members aim to achieve these goals. The UNO as the society of states aims achieve to universal harmony, peace and friendly co-operation among the people of all continents. In order to achieve its aims it enshrines democracy, self-determination and protection of human rights as the pre-conditions. It has to be noted that the contemporary international law while recognises the sovereignty and territorial integrity of states, it imposes the duty of responsibility and accountability on states.

Professor Robert Jackson within the above context has stated in  his book , Quasi- Sovereignty and International Relations that  the States of the third world which gained their independence according to the Charter provisions were keen in order to gain the befits of the safety net of the UN provided to states while denying to fulfil their obligation under the Charter.

 

The Universal Declaration of Human Rights 1948 in its preamble states

“It is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”

This Declaration that aims to clarify and develop the rights of people included in the Charter and call upon the States to undertake the duty of implementing the rights recognised therein at the national level.

Internal –Conflicts and constitutional and international law.

This aspect of law is very large and controversial subject. Therefore I wish to confine the discussion within the parameters of the sovereignty claim of the Tamil people.  The contemporary international law and the regimes of the UNO recognise the states as the primary subject and nations, peoples, minorities and other non-states actors as secondary subjects of international law.  Therefore it emerges that the State of Sri Lanka is a primary subject of international law while nations, peoples and communities fall within the category of secondary subjects of international law. A single nation or community within Sri Lanka cannot exercise and enjoy the sovereign power in order to undermine the rights of another nation or community within Sri Lanka. If it does, it would be amounting to inequality and discrimination which are not recognised in the jurisprudence of international law. The colonial consequences, improper de-colonisation, the post colonial constitutional structures and serious and systematic violations of rights of the Tamil people are the fundamental causes of the contemporary internal conflict of Sri Lanka.

It has to be emphasised that the Tamil people of Sri Lanka are under the local colonialism and prevented constitutionally in enjoying the rights granted and guaranteed by the rights regimes of the UNO. The common Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural rights states as follows.

Article 1

  1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

The General Assembly Resolution   2625 (XXV) titled Declaration on Principles  of International Law concerning  Friendly Relations  and Co-0peration  among  states ,  very comprehensively outlines the right to self-determination  and obligation of States in implementing the right.

The principle of equal rights and self-determination of peoples

By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.

Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle, in order:

      1. To promote friendly relations and co-operation among States; and
      2. To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned;

and bearing in mind that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter.

The International Court of Justice in the case of the Construction of Walls in the Palestinian territory [ 9 July 2004] observed as follows.

Every state has the duty to refrain from any forcible action which deprives peoples of their right to self-determination.”

It is appropriate to refer to few lines of the   judgment of the Canadian Supreme Court in the Quebec Sovereignty referral case below.

A state whose government  represents  the whole of the people  or  people’s within its territory , on a basis of equality  and without discrimination  and respect the principles of  self-determination  in its internal arrangements , is entitled to  maintain  its territorial integrity  under international law  and to have that territorial integrity  recognized by other states . 

The jurisprudence of the above judgment was relied upon by the US, UK and France in the proceedings   before the International Court of Justice in 2004 in the matter of the Request for Advisory Opinion on the Legality on the Unilateral Declaration of Kosovo made by the General Assembly of the UNO. The international judiciary determined the existence of the right to self –determination in the contemporary international law and the unilateral declaration of independence of Kosovo was not contrary to the principles of international law.

Since 1997, the Labour Government of the United Kingdom carried out series of devolution programs by enacting Scotland Act 1998, Government of Wales Act 1998 and Northern Ireland Act 1998, for the purposes of accommodating the aspirations of the peoples of the regions of the United Kingdom. Toney Blair, then prime minister, stated in the House of Commons that devolution programmers of his government could be treated as “British approach to global problems”. Further, it was stated in the white paper on Scotland’s parliament as follows.

The Union will be strengthened by recognizing the Scotland, Wales, and the regions with strong identities of their own. The Government’s devolution proposals by meeting those aspirations will not only safeguard but also enhance the Union.” Sri Lanka, as the member of the United Nations and Member of the British Commonwealth   has no any choice, other than learning lessons from the recent political developments of Britain and other democratic countries, for enforcing good governance through constitutional rule and deliver constitutional justice.

    Conclusion

Though the international community is optimistic on the implementation of the Resolution of the HRC which was co-sponsored by Sri Lanka, the statement made by the foreign minister is contradictory. Before I conclude I wish to leave a note on the comment made by Mr Mangala Samaraweera the Foreign Minster of Sri Lanka. He has stated the resolutions are not carved on stones. It implies the uncertainty of the commitment made by the Government of Sri Lanka to the Human Rights Council.  However, it has to be noted that Justice Weeramanthiry as the judge of the International Court of Justice, particularly in the cases of East Timor [Australia Vs Portugal] and Advisory opinion on the Legality of the Use of nuclear Weapons had relied on a series of relevant Resolutions of the UNO for reasoning his judgements.

The Tamil nation has seen many of its political leaders. Among them SJV Chelvanayagam QC was a unique leader who had played his role honestly and sincerely for the well being of the Tamil nation. His vision and mission were based on history, democracy, human rights, rule of law and non-violence   which are universally recognised legal concepts. It is therefore our social duty to recognise that these principles prevail in our struggle for constitutional justice and restoration of the legal status of the Tamil nation according to the rights regimes of the UNO

32 The Proceedings of the Constituent Assembly 1970-1972.Govt Printers Colombo.Sri  Lanka

32 Ibid

33 Ibid

34 Ibid

35 Ibid.

36 A.J Wilson supra note 3, .240-1 for willingness of the Federal Party and giving guidelines to the drafting committee of the constitution for very minimum rights to the usage of the Tamil language in the public affairs. As the demands of the Tamil representatives were denied it had become an issue of pride and honour for the Tamil people of the country.  They also requested the inclusion of the Banda –Chelva pact of 1957 which was entered between Bandaranaike PM and Mr. Chelvanayagam. See  Chapter 9 of the thesis  for details.  Therefore, the leader of the Federal Party issued a statement in the assembly and boycotted the proceedings.

37 The MEP government which came to power after the 1970 general election had 2/3 majority which is the pre-requisite to amend the 1948 constitution which was in force. The government passed an amendment to the constitution to terminate the Privy Council as the supreme authority of the judiciary of Ceylon which once pronounced that the section 29(2) cannot be alterable.

39   Ceylon :A Divided Nation – Emergency 1958.  S Sivanayagam.   Sri Lanka witness To History. Ibid. Sri Lanka  A Bitter Harvest . Minority Rights Group. London. Wilson A.J. Break Up of Sri Lanka supra note 1.

40 1… UN Charter.,    2 . Universal Declaration of Human. Rights.  3. Article 1 of both the covenants namely ICESCR and ICCPR (1966) According to the Article 1 of both Covenants.

41 Capotorti supra note 1 of Chapter 5 of this thesis.

42 Ibid.

43  Franck M. Thomas, Fairness in International law supra note 1, 47-79, 83-109. The above view was endorsed later in the Quebec Sovereignty case (1998)

44  Recommendations made to the Government of Sri Lanka by international bodies.

45 A number of legal issues to be considered to assess the legality of treatment given to the demands of the Tamil nation by the Sinhala members of the Constituent Assembly. Steven Whitley’s view on the issue of Democratic governance is more relevant to compare the   treatment given to the Tamil’s demand.   He views that ‘’The people do not actually rule in any obvious sense of the term. People and the democratic government become the rule of the politicians. The aggregative model is not conducive to realising the interest   and preference of those minority groups with a high degree of solidarity   and shared outlook, which find themselves permanently outvoted by the majority population. ‘‘Deliberative Democracy and Minorities. In European Journal Of International law. Vol 14, Number 3,June 2003.at 509,

46 Sankaran Krishna, Postcolonial Insecurities .–  India, Sri Lanka and the Question of Nationhood.    University of Minnesota Press. 1999, 42-43. Also see. Neelan Thiruchelvam, The Politics of Federalism and Diversity in Sri Lanka in Autonomy and Ethnicity ed by Ghai. Cambridge 2000, 197-215. He identifies the issue as follows. in page  199. The ideology of  a centralised state drew its legitimacy from two distinct sources. On the one hand,  the Sinhalese  ideological  construction  of the state was  linked to the idea  that the land  which had certain  cosmic characteristics, belonged to the Sinhalese. This was linked to the idea of  the  Dhamma Deepa, the land in which  Theravada Buddhism  had been preserved  in its purity. On the other hand, the dominant political, colonial constitutional discourse had conceptualised the modern democratic state as one based on the centralisation of political and administrative space.  Also see the discussion on the Colebrook –Cameron Report  (1931) in chapter 7 of this thesis . The Report of the British Govt (1829) identifies that the Island of Ceylon was a Hindu province.

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