Tamil Issues In Back Burner: The Problem The Broken Covenant – UK’s Future Role?
Usha S Sri-Skanda-Rajah
So far the new Sri Lankan President Maithripala Sirisena has been paying only lip service to reconciliation with the Tamil people and nothing else. Not even in his proposals for constitutional reforms [1] has he made any inroads or mentioned any power-sharing arrangement. What he has said however regarding the military deployment in the North and East – that it would remain as it is – is shocking and is hard to comprehend when he came to power riding on the back of the Tamil vote.
In the backdrop of this climate of uncertainty for Tamils with no offers in sight, nothing whatsoever in their pockets to crow about, nothing reciprocal coming from the new regime, for the goodwill [2]shown by Mr. Sampanthan and Mr. Sumanthiran of the TNA [3] who attended the independence day celebrations, breaking a long tradition of non-attendance. The Tamil people have waited and waited with no avail and still in the hope for scraps that may be thrown at us, we are forever destined to playing the waiting game.
The Transnational Government of Tamil Eelam (TGTE) has come out scathing against any postponement, and so have, many members of the ITAK [7] [8]and the TNA. [9] In a “key development” NPC Chief Minister Justice Wigneswaran has called for an “international Investigation on Genocide,” the recording of which TamilNet released today Tuesday morning in its website [10]:
“In a key development, the Chief Minister of Northern Provincial Council (NPC), Justice CV Wigneswaran, on Tuesday called for real international investigations on genocide against Tamils committed by the successive governments since Ceylon’s independence from the British in 1948. Passing a resolution in the council that demanded international investigations on genocide, the Chief Minister has called for criminal prosecutions at the International Criminal Court (ICC) and urged the on-going OHCHR Investigation on Sri Lanka (OISL) to investigate the claim of genocide and recommend appropriate investigations and prosecutions by the ICC.”
The TGTE has called on the UNHRC to strictly adhere to the mandate given to the OISL and ensure its presented to Council on 25 March 2015, extracts of the statement to Colombo Telegraph of TGTE’s letter is given below:
“The Transnational Government of Tamil Eelam Ministry of International Affairs has today written to all members of the UNHRC to strictly adhere to the mandate given to the OISL, stating that it is important that the March 2014 resolution for an international independent investigation is not compromised but completed and report presented to Council on 25 March 2015 as planned, with recommendations for further action and referral to the ICC with an action plan for implementation.
“Only a UNHRC mandated comprehensive independent international investigation will be accepted by the victims, their dependents, by the Tamils worldwide, and to all other victims worldwide waiting with hope for justice and accountability, for the truth on how, why and by whom this massacre took place. TGTE request the international community to come forward and ensure OISL completes its mandate, for the victims and for justice and accountability, knowing the past history of deceit and deviation by the successive Sri Lankan regimes, with continued subjugation under the military, it is now the responsibility and obligation of the international community (and through this report), to take urgent appropriate action on the plight of the Tamils in Sri Lanka.”
“TGTE request the international community to come forward and ensure OISL completes its mandate, for the victims and for justice and accountability, knowing the past history of deceit and deviation by the successive Sri Lankan regimes, with continued subjugation under the military, it is now the responsibility and obligation of the international community (and through this report), to take urgent appropriate action on the plight of the Tamils in Sri Lanka.”
There is also a concern, that the US and India having effected a regime change will not push for more than the “minimalist” 13th amendment; that they are also behind the postponement of the report finding its way to the UNHRC sessions in March in order give President Sirisena time to come up with a credible domestic investigation, that Tamils think would end up a “farce”[11] . The Tamil Diaspora and the people of the NorthEast are up in arms at this latest development which puts in jeopardy the interests of the living and the dead victims of Mullivaikkal.
Whilst everyone keeps Tamil issues in the backburner (we really do not know if the TNA has been promised a deal which it’s not fully ready to reveal or if Mr. Sampanthan is having too much hope and expectation and could be let down at one point), we need to as Tamils also go ahead seek other avenues and make a case with Britain that it has a duty to look after our interests in the name of remedial justice for war crimes and for their abandonment of the Tamil people. It must not be denied that Prime Minister David Cameron kept to his word and pushed for an international investigation [12] for which the Tamil people are grateful.
- Was there a sacred covenant, agreed upon under the guardianship of Britain, between the Sinhala and Tamil communities at independence that was later broken?
- Was Section “29/2 safeguard” an entrenched provision or not? A Tamil patriot said it wasn’t, “29/2 is not foolproof,” he said.
- Did Tamils do enough politically to secure their rights and freedoms at the time when the Soulbury constitution along with Section 29/2 was abolished? Did they mount a strong enough challenge against an illegal action to establish a Sinhala Buddhist State? The Tamil patriot points to the futility of legal challenges, but I say…discussion later.
- Has Britain got any responsibility as a colonial power for putting things right? Can Britain absolve itself from its former colonial responsibility? If Britain has evolved itself to adapt to “power sharing” with the other nations that make the United Kingdom, why can’t Sri Lanka? Shouldn’t UK play a major role in persuading Sri Lanka to conduct that referendum?
These are reasonable questions that need answers. The 1st and the 2nd second question can be put to bed as you will see later, as far as the 3rd, the jury is still out on that one, but there could have been more done in protest; and as for the 4th, most definitely the question is a legitimate one and must be addressed.
“Queen Victoria brought together the Sinhala and Tamil Kingdoms under her rule as one colony, Ceylon. [13] In preparations for independence, the two communities were at odds with each other with respect to power sharing in an independent Ceylon. The Crown, after many years of debate, mediated between the communities, the Covenant that brought them together. That Covenant was Section 29 of the Soulbury Constitution. At the time of independence in 1948, equality, liberty, and justice were guaranteed to the Tamils in Section 29 of the Soulbury Constitution. Under this constitution, Tamils of Ceylon had recourse to the Privy Council when their rights under the covenant is violated. The Privy Council and the Crown were thus the guardians of the covenant between the Tamil and Sinhala communities.”
Extract from : The Broken Covenant [14] Author: Niranjan
This covenant, Niranjan writes as above stated, entered into by the “Sinhala community” and the “Tamil community” was broken with the advent of the new, illegal constitution of 1972, when Ceylon became The Democratic Socialist Republic of Sri Lanka within the Commonwealth, losing its dominion status, with no governor-general (the Queen’s representative), which saw the abolition of the Soulbury Constitution, and the all-important clause, Section 29, removing outright the last vestige of protection provided to the Tamil people, “against the tyranny of the majority.”
Subsequently with the abolition of the right of appeal to the Privy Council, Tamils lost their recourse to appeal to the ultimate legal body, the one where they believed they could obtain a fair and independent ruling “when their rights were violated,” and thus lost the two guardians of the covenant – the Privy Council and the British Crown.
There are three issues (which we will discuss further below) that spring from these defining moments in the history of the Tamil people, that will always be a matter for great regret, debate and discussion – one that illustrates that we could have done more to secure our rights and freedoms at crucial events in our political history, that has lead us to think with hindsight what we could have been – a country separated at independence like Pakistan; that lead others to question the legitimacy of our right to self-determination and our status as a sovereign nation distinct with an identifiable territory, a fact that is evidenced from the writings of the following authors:
I quote Niranjan:
“The fact that two nations existed before Queen Victoria, in 1830, established her rule on the whole island of Ceylon is documented by the following authors; Fernao de Queyroz, (1692); Paviljeon, (1695); Donald Ferguson; Van Goens, (1675); Van Imhoff, (1740); Anthony Mooyart, (1766); Hugh Cleghorn, (1799); Robert Brownrigg, (1813); Emerson Tennent, (1859). They describe the extent and boundaries of the Tamil and the Sinhala Kingdoms by observation in the early years and later with maps.”
In an article: Tamil Perspective: The Dangerous and Genocidal Dayange Chinthanaya, [15] I do weigh in on the pathetic situation we are in where we are not being recognised as a distinct nation although the sea-farers dating back to centuries have said we had a distinct identity and land and constitute a nation.
I quote:
” A historical habitat, a homeland, a nation, a state, a nation-state, a country – we all know what these concepts mean, its intricacies and what it entails; a fundamental error in judgement at the critical and crucial time of independence from a colonial power has brought us to the paltry position of being forced to looking at these as mere concepts and of debating who we are, where we belong and what is our right as a Tamil nation.
Worse still we are made to suffer the indignity of having a bunch of no good racist bigots without a conscience, tell us who we are and who we are not. They have the gall, these no-gooders who rely on myths for their succour, who have systematically and intentionally made it their business and prime focus to dismantle and destroy the socio-cultural-linguistic and political fabric that binds us as a national and political entity, who are in occupation of our land, who’ve forced their authority on us, who terrorise us, to tell us what’s good for us!
This genocidal attitude pervades these bloodthirsty bigots notwithstanding the fact that the numerically larger Tamil speaking NorthEast comprising the Tamil Nation gave the Vaddukoddai Resolution which enshrines the clarion call for cessation of the Tamil Nation and, “the restoration of a Free Sovereign Secular Socialist State of Tamil Eelam,” an overwhelming mandate.”
The three issues: a) b) c)
a) If there are any nagging reservations in anyone’s mind that Section 29/2 of the Soulbury Constitution is “unalterable and entrenched” and that Section 29/4 makes 29/2 a provision that can be “amended or repealed” is without merit, considering the unambiguous and clear assertion in Section 29/3 that proves beyond a shadow of a doubt that 29/2 is entrenched.
One of the stinging rebukes I received through an e-mail to part 1 of this article, by a person who I shall refer to here as “Tamil patriot”, set me thinking that I may have unknowingly and unwittingly rattled not just my Sinhala brethren but also some Tamils all because I quoted, Mr. Wakeley Paul who was critical about the lack of a robust response from the ITAK to the abolition of the Soulbury constitution. In his response the “Tamil Patriot” said the most damning thing:
” If Wakeley Paul was such a legal luminary, why did he not challenge the law in the courts himself? You rely heavily on him to claim persons like SJV Chelvanayagam and others had let down the Thamils.”
The insinuation stunned me – that I would ever contemplate even in my dreams that the darling of the Tamil Nation, Thanthai Selva [16] let the Tamils down? No never. That’s preposterous.
Truly it was not my intention to create such an impression – to say Thanthai Selva let down the Tamils. I am deeply sorry if it sounded that way.
But further to the insinuation, the implication was that the whole premise of my article was said to be flawed:
It’s important that I up the ante and respond.
That Section 29/3 entrenches Section 29/2 – is clear as crystal
This argument put forward by the “Tamil Patriot” was erroneous – he concluded that “Section 29/2 was not a foolproof provision,” and was not entrenched; the assertion being that Section 29/2 can be amended or repealed under 29/4
But the “Tamil patriot” most certainly failed to see that Section29/3 existed to protect 29/2.
A look through Section 29/3 would be prudent at this point:
Section 29/3: Any law made in contravention of subsection (2) of this section shall, to the extent of such contravention, be void.
Niranjan assails that, “a close examination of subsection (3) and the first clause of subsection (4) demonstrate the extent to which the authors went to preserve minority rights. They also demonstrate the extreme guarantees the Tamil representatives required to enter the Tamil nation into this political and economic union. Section 29 was entrenched into the Soulbury Constitution for this reason.”
Prof G L Peiris’s interpretation
Niranjan goes further to quote Professor G L Peiris, the academic turned peace-maker (before he made a complete somersault and became a Rajapaksa stooge) and his interpretation of Sections 29/2 29/3 29/4, “in a series of articles he wrote on the constitutional process, in the Sunday Island of February 25 and continued on March 5, 1995, refers to Section 29(2) and (4).”
I quote:
“…because Section 29(2) represents basic conditions subject to which minorities are prepared to accept, in the first place, in the transfer of power to Colombo. In other words there is something impregnable or invulnerable about Section 29 subsection (2). It possessed a special attribute of quality. And the powers conferred on Parliament by Section 29 subsection (4) could not legitimately be invoked in respect of letters imposed upon Parliament by Section 29 subsection (2).”
I remain steadfast and stand by my position that Wakeley Paul’s profound reading of the law is spot.
b) If the failure, to mount a vigorous legal challenge to Sirimavo Bandaranayake government’s move to abolish the unalterable and entrenched provision in the Soulbury constitution, making the 1972 illegal constitution legal by default, as Mr Wakeley Paul submitted was a, missed opportunity, there were other possible avenues that could have been considered like registering our protest with the British Government.
In my recent article [17] I quoted Mr. Wakeley Paul who argued that Section 29/2, a clause incorporated in the Soulbury Constitution for the protection of the Tamil people, “against the tyranny of the majority” was an, “unalterable entrenched” provision” which could not have been abolished even with a 2/3 majority in parliament and that the Illankai Tamil Arasu Katchchi -ITAK’s failure to mount a legal challenge, “was an omission that can never be forgiven: “The failure to challenge this blatant disregard of the law and the existing Constitution, resulted in the Constitution becoming recognized by default. The illegality got an illegal blessing as a result of inexcusable inaction by the representatives of the Tamils. The Federal Party can never be forgiven for this omission.”
Our Tamil Patriot ‘s contention was that Section 29/2 was a useless safeguard:
In retrospect section 29(2) was a useless safeguard for the Thamils as subsequent discriminatory assaults were made by successive governments. It did not help people of Indian origin when they were denied their citizenship and franchise.
The Tamil patriot takes two examples: The Koddakkan Pillai and the Kodeeswaran case :
In the Koddakkan Pillai case, according to Mr X the Privy Council had ruled that the Citizenship Act was not ultra vires of Section 29/2 of the Soulbury Constitution and ruled that: “The migratory habits of the Indian Tamils [see para 123 and para 203, Soulbury Report – given below] are facts which in their Lordships’ opinion are directly relevant to the question of their suitability as citizens of Ceylon, and have nothing to with them as a community.” The appeal was dismissed.”
In the second example, Kodeeswaran a government employee challenged the Sinhala Only Act on the premise that “it infringed on Section 29/2” and took his case to the Privy Council (that was quashed earlier by the Supreme Court of Ceylon, the highest court in the land) which sent it back to the Supreme Court asking it to rule on the constitutional question. Before the Kodeeswaran’s case could be heard, in 1971 Mrs Bandaranayaka had abolished it.
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