RIGHT TO SELF DETERMINATION
Paper presented by a Working Group of the International Federation of Tamils,
at the London Seminar, Towards a Just Peace, February 1992
Apart from the right to self determination, the demand for Tamil Eelam may also be justified in international law under the concept of reversion of sovereignty.
The island of Sri Lanka, then known as Ceylon, was ceded to the British Crown in 1802 by the Treaty of Amiens of that year. The map of Ceylon attached to the Treaty of Amiens call the Arrow Smith Map of Ceylon depicts the Island of Ceylon as two (if not three) different countries – a Tamil country composed of the Northeast and a Sinhala country composed of the South West and central parts.
In an oft quoted minute, Sir Hugh Cleghorn wrote in June 1799 to the UK Government : “Two different nations from a very ancient period have divided between them the possession of the Island. First the Singhalese, inhabiting the interior of the country in its Southern and Western parts, and secondly the Malabars who possess the Northern and Eastern Districts. These two nations differ entirely in their religion, language and manners.” (Malabar meaning Tamil).
Also Chief Justice, Sir Alexander Johnstone wrote on 1 July 1827 to the Royal Asiatic Society of Great Britain and Ireland:
“…. I think it may safely be concluded both from them and from all the different histories which I have in my possession, that the race of people who inhabited the whole of the Northern and Eastern Provinces of the Island of Ceylon, at the period of their greatest agricultural prosperity spoke the same language, used the same written character, and had the same origin, religion, castes, laws and manners, as that race of people who at the same period inhabited the southern peninsula of India:……”
The Cleghorn Minute of 1799 and the Arrow Smith Map of 1802 are official proof that the Island of Ceylon consisted of two separate countries. We quote Sir Alexander Johnstone’s letter merely to show to the conclusions of a Chief Justice on the basis of available evidence.
It is important to remember that the British Government became masters of the whole island only after the fall of the Kandyan Kingdom in 1815 and the Vanni Chieftains in 1818 and looked at this Island from the distant West as a geographical unit and not as political or national state.
It was only in 1833 that the administration was unified under a single machinery. It would be appropriate here to mention that though the British Government unified the administration in 1833 it incorporated the different native administrative structures that existed earlier, with the Kachcheri system which it introduced.
However, they were careful not to disturb the existing power balance between the different racial groups. In the Legislative Council membership was based on communal representation and there was an agreed proportion between the Sinhalese and the Tamils. Over the times this was changed and during the days of the Legislative Council (1924 to 1931) the proportion between Sinhalese and Tamils was 2:1. There were 16 Sinhalese members to the 8 Tamils. Further, the representation in the Legislature was subject to the Devonshire formula that no single community should be in a position to out vote all the others combined.
This shows that the British did not make a complete break with the past. Again, local and customary laws were allowed to govern relations amongst members of the community. In the North, Thesawalamai, the customary law of the Tamil people was recognised. The Roman Dutch Law, introduced by the Dutch in the maritime areas, was continued as the common law of the Island. This is instructive. No system of law that existed before Roman Dutch law could cover the entire Island. This again was testimony to the fact that the Island had not been one country.
The proceedings before the Donoughmore Commission in 1930 and the Soulbury Commission in 1946 are an eloquent testimony to the failure of attempts to create a homogenous single “Ceylonese” nation.
Nevertheless, the Donoughmore Constitution, chose to conclude that ‘territorial representation promoted national thinking and that community based representation promoted thinking along communal lines’. More than twenty five years later in 1946, Governor Sir Andrew Caldecot and the Soulbury Commissioners, as well as the Colonial Office, thought in identical terms. They gave no explanation for dropping the clearly enunciated Devonshire formula adopted for multi-racial colonies as well as proportional representation agreed to between the Sinhalese and the Tamils.
The political reality was that the new class of English-educated elite could not bridge the differences between the two peoples in the Island and convert them into a homogenous single nation. Needless to say with the departure of the British in 1948 the Tamils in the Island were left to the mercies of the Sinhalese, within the frame of the Soulbury Constitution that was adopted.
Article 29 of the Soulbury constitution granted powers to the Parliament to make laws for peace, security and good Government but specifically denied capability to the Parliament to make laws discriminatory to, in favour of or adverse to any one community which were not equally applicable to the other communities.
This provision in the Constitution was accompanied by a solemn assurance from the floor of the House by the then undisputed leader of the Sinhalese, the late Rt. Hon. D.S Senanayake, that no harm would befall the Tamils by their joining the Sinhalese in working the constitution.
The Privy Council had held that this Article 29 was an entrenched clause and rendered the constitution and not Parliament sovereign. This provision together with the assurance by Rt. Hon. D.S Senanayake, made the polity of the Dominion of Ceylon a conditional polity. The condition is obviously an assurance of the ethnic majority that they will not avail themselves of the numerical superiority to discriminate against the Tamils.
However on innumerable occasions this condition was violated and serious acts of discrimination did take place. That definitely gives the junior partner, the Tamils, the right to opt out of the polity.
In 1963, the architect of the 1948 Constitution, Lord Soubury was moved to comment:
“While the Commission was in Ceylon (in 1946), the speeches of certain Sinhalese politicians calling for the solidarity of the Sinhalese and threatening the suppression of the Tamils emphasised the need for constitutional safeguards on behalf of that and other minorities.. As Sir Charles Jeffries has put it… ‘the Soulbury Constitution… had entrenched in it all the protective provisions for minorities that the wit of man could devise’..
Nevertheless, in the light of later happenings, I now think it is a pity the Commission did not also recommend the entrenchment in the Constitution of guarantees of fundamental rights… (However)… the reconciliation of Tamils and Sinhalese will depend not on constituitonal guarantees but on the goodwill, common sense and humanity of the Government in power and the people who elect it.” (Lord Soulbury, Preface to Ceylon, A Divided Nation by B.H.Framer, Oxford University Press, 1963)
Be that as it may, in 1970, an ingenious device was resorted to deprive the Tamils of the constitutional safeguards and the characteristics of the conditional polity. A coalition of three Sinhalese political parties led by Mrs.Srimavo Bandaranaike, called upon the people to give a mandate (in the 1970 General Elections) for a new Constituent Assembly to scrap the 1948 dominion polity and create a new Republic of Sri Lanka. Whilst the voters in the seven Sinhalese provinces gave Mrs.Bandaranaike the mandate that she had requested, the Tamil voters in the Northern and Eastern Provinces summarily rejected her call. In the North and East, a mere 14% of the votes polled supported the call for a new constituent Assembly.
It was this Constituent Assembly which did not have the support of the Tamil people, and from which the representatives of the Tamil people walked out, which enacted the autochthonous Republican Constitution of 1972. On one hand, the 1972 Republican constitution had no legal continuity with the earlier Constitutions under British rule. On the other hand, the Tamil people did not consent to its enactment.
In the result, upon the break in legal continuity, the sovereignties of the inhabitants of the Island reverted to the situation prior to British unification and rule. The sovereignty of the Tamil people (who were ethnically, geographically and linguistically separately identifiable and distinct) revived. The legal and constitutional deficiencies in Sri Lanka’s claim to encompass the North and East should now be apparent. Sri Lanka is no successor to the earlier polities of the British dominion. Sri Lanka was constituted without the authority of the people of the North and East.
The alleged territorial jurisdiction and sovereignty for the whole Island claimed by the Sri Lankan Government are constructed on a false premise. Sri Lanka has no legitimate or legal claim to encompass the North and East, the homeland of the Tamils – Tamil Eelam. Historically the territory called Jaffna Patam that belonged to the Tamil Nation lay in the northern and eastern portions of Ceylon from the limits of Puttalam and Mannar to the Kumbukkan Oya.
In his July 1983 Report on ‘Ethnic Violence, the Independence of the Judiciary, Protection of Fundamental Rights and the Rule of Law in Sri Lanka – Fragile Freedoms?’ Mr.Timothy J. Moore, M.P. of the Australian Section of the ICJ commented:
‘The proponents of Tamil Eelam argue that the northern and eastern Provinces of Sri Lanka coincide with the historic boundaries of the kingdom of Jaffna and argue a case that seeks to establish that sovereignty over these territories was never ceded to any conqueror and that, even if such concession had been made at any time in the past, the unilateral renunciation of links with the United Kingdom which took place at the assumption of office by the government of Mrs. Srimavo Bandaranaike in 1972 resuscitated the Tamil sovereignty which had merely laid dormant until then… In the abstract theory of international law, it would appear that the Tamils have at the very least, an arguable case, and possibly a sustainable one.’
It is our submission that in international law, that since 1972, the territorial jurisdiction of the Government of Sri Lanka does not extend to the Tamil homeland in the north and east of the island. The insistence on the ‘unity, sovereignty and territorial integrity of Sri Lanka’ is legally untenable and morally indefensible and works against the legitimate aspirations of the people of Tamil Eelam.