SJV Father of Tamil Nationalism

SJV  Father of Tamil Nationalism

Expansion of  speech by V. Thangavelu, President Canada TNA at the 125th birth anniversary of SJV held in Toronto

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தந்தை செல்வநாயகத்தின் குடும்பத்தாருக்கும் அவையோர்க்கும் மாலை வணக்கம்!

தந்தை செல்வாவின் 125 ஆவது பிறந்த நாளை கொண்டாடும் முகமாக இந்த நிகழ்ச்சியை ஒழுங்கு செய்த Chelvanayakam Memorial Trust     (CMT) (செல்வநாயகம் நினைவு அறக்கட்டளை)  மற்றும் Chelvanayakam Charitable Foundation (CCF)  (செல்வநாயகம் அறக்கட்டளை) இரண்டுக்கும் எனது பாராட்டுதல்களை தெரிவித்துக் கொள்கிறேன்.

திருக்குறளில் மகன் தந்தைக்கு ஆற்றும் உதவிபற்றி ஒரு குறள் இருக்கிறது.

மகன்தந்தைக்குக்கு ஆற்றும் உதவி இவன் தந்தை
என்னோற்றான் கொல்எனும் சொல்
(அதிகாரம் மக்கட் பேறு, குறள் 70)

மகன் தன் தந்தைக்குச் செய்யத்தக்க கைம்மாறு, இவன் தந்தை இவனை மகனாகப் பெற என்ன தவம் செய்தானோ என்று பிறர் புகழ்ந்து சொல்லும் சொல்லாகும்.

தந்தை செல்வநாயக்தின் பிள்ளைகள், பேரப்பிள்ளைகள்  தந்தைதாயார்களது பெயரில் ஒன்றுக்கு இரண்டு  அறக்கட்டளைகளை நிறுவி அறப்பணியில் ஈடுபட்டு வருகிறார்கள்.

இந்த நிகழ்வில் ஒரு பேச்சாளனாக எனது பெயரை என்னைக் கேட்காமலேயே இதன் ஒழுங்கமைப்பாளர் மைதிலி வில்சன் நிகழ்ச்சி நிரலில் போட்டுவிட்டார்.

நான் தமிழில் பேசுவேன் என்று சொன்னேன். இல்லை, இல்லை சிலருக்குத் தமிழ் தெரியாது, பாதி தமிழ் மீதி ஆங்கிலத்தில் பேசுங்கள் எனக் கேட்டுக் கொண்டார். ஆங்கிலத்தில் பேசுவதில் சிக்கலில்லை. ஆனால் ஆங்கிலத்தில் பேசினால் தமிழ் படிக்க வேண்டும் என்ற எண்ணம் அவர்களுக்கு வராது. கனடாவுக்குப் புலம் பெயர்ந்த இளையோர் அல்லது இங்கேயே பிறந்த பிள்ளைகளில்  90 விழுக்காட்டினர் வீட்டில் ஆங்கிலேய மொழியிலேயே பேசுகிறார்கள்.  தாய் தந்தையர்களுக்கு முற்றாக ஆங்கிலம் தெரியாது போது மட்டும் அவர்கள் தமிழில் பேசுகிறார்கள். ஆனால் தமிழைப் படிக்க எழுதத் தெரியாது. விதிவிலக்கு உண்டு.

Satyagraha Galle Face

தமிழ் மூவாயிரம் ஆண்டுகள் பழமை வாய்ந்த மொழி. உலகில் 2021  இல் எடுத்த கணக்கின்படி 7,139 மொழிகள் பேசப்படுகின்றன. அவற்றுள் 293 மொழிகளுக்கு மட்டும்  வரிவடிவு (script) உண்டு. இந்த மொழிகளில் செம்மொழி எனத் தகுதி பெற்ற 7 மொழிகளில் தமிழ் மொழியும் ஒன்று. மற்றவை அரபு, இலத்தீன்,கிரேக்கம், சீனம்,  கீப்புரு  மற்றும்  பாரசீகம் ஆகியவை. இந்த ஏழு செம்மொழிகளிலும் தமிழ்மொழி மட்டுமே இன்றும் உயிர்ப்போடு வாழும் மொழியாகும்.

ஒன்றை மட்டும் கூறிக் கொள்ள விரும்புகிறேன். தமிழ்மொழி வெறுமனே ஒருவரோடு ஒருவர்  கருத்தைப் பரிமாறிக் கொள்வதற்கான கருவி அல்ல.  அது மனித பாரம் பரியத்தின் கடத்தல் (அடையாளம், வரலாற்று, கலாச்சார மற்றும் மொழியியல் பொருள்) கருவியாகும்.

தமிழ் புரியாதவர்களுக்கும், தமிழ் தெரியாதவர்களுக்கும் ஒன்று மட்டும் சொல்ல விரும்புகிறேன். உலகில் உயிரோடு இருக்கும் மொழிகளில் தமிழ்மொழி முதல் இடத்தில் உள்ளது.  தமிழ் மொழி உலகம் முழுவதும் 9 கோடி மக்களால் பேசப்படுகிறது. இது இந்தியா, குறிப்பாக தமிழ்நாடு, இலங்கை, இந்தியா, சிங்கப்பூர், ரீயூனியன், கனடா, பிரிட்டன், அமெரிக்கா, அவுஸ்திரேலியா போன்ற நாடுகளில் பரவலாகப் பேசப்படுகிறது. தமிழ் திராவிட மொழிக் குடும்பத்தைச் சேர்ந்த மொழியாகும்.

எனவே தமிழ்மொழியில் பயிற்சி இல்லாதவர்கள் அந்த மொழியில் உள்ள  இலக்கிய வளத்தை, வாழ்வியல் நெறிகளை, அறங்களை  அறிந்து கொள்ள முடியாமல் போய்விடும்.  மனித வாழ்க்கைக்கு இவை மிகவும் அவசியமானவை.

தந்தை செல்வநாயகம் அவர்கள் ஒரு அபூர்வபிறவி. மனிதருக்குள் ஒரு மாணிக்கம். வாய்மை, நேர்மை, பற்றுறுதி படைத்தவர். தமிழ்மக்களுக்கு ஒரு கலங்கரை விளக்காக விளங்கியவர். நான் மொத்தம் ஒரு 12 ஆண்டுகள் அவரோடு நெருங்கிப் பழகியவன். அவர் தொடக்கிய இலங்கைத் தமிழ் அரசுக் கட்சியின் வளர்ச்திக்கு துணையாக இருந்தவன்.  அன்றைய காலகட்டத்தில் அரச ஊழியர்களுக்கு அரசியல் உரிமை இருக்கவில்லை. இருந்தும் அரசாங்க ஊழியனாக இருந்தாலும் மறைமுக அரசியலில் தீவிரமாக ஈடுபட்டவன்.  இந்த இடத்தில் எனது தமிழ் உரையை நிறுத்தி ஆங்கிலத்தில் உரையாற்ற விரும்புகிறேன்.

As I was saying in Tamil firstly, I would like to express my appreciation to Chelvanayakam Memorial Trust (CMT) and Chelvanayakam Charitable Foundation (CCF) for organizing this program to celebrate Thanthai Chelvanayakam’ s 125th birth anniversary.

In Thirukkural there is a couplet about father-son relationship.

To sire, what best requital can by grateful child be done?
To make men say, ‘What merit gained the father such a son?’
(Kural 70)

The way of showing filial devotion is to make others exclaim within the hearing of the father what penance the father must have performed to beget such a son. What is said about the son applies equally to daughter as well.

Thanthai Chelvanayakam children and grandchildren have established not one but two Charities to engage in charitable activities in his name.

Maithili, the organizer of this event, put my name as a speaker on the agenda without asking me. In Tamil there is a proverb that in a village where there is no sugar mill, then the flowers of Iluppai tree (Butter tree) will be called as sugar.

I told Maithili that I will speak in Tamil, since Prof. Chandrakanthan will be speaking in English. She said some people are not proficient in Tamil, they don’t know Tamil, speak half in Tamil and the rest in English. I have no problem is speaking in English, but if I speak in English, they (younger generation) want think of studying Tamil.  A majority of young people who migrated to Canada when they were in their teens or those second generation born and bred in Canada speak English at home. They speak in Tamil only when their parents do not know English at all. Even then the children do not know how to read and write Tamil. There are exceptions. A few do speak fluent Tamil.

In this respect I just want to say one thing. Tamil is not just a tool for communicating with others and exchanging information between two or more people.  Tamil is at least two thousand five-hundred-year-old language. We have a grammar book Tholkappiyam which is about 2,200 yeas old.

There are 7,139 languages spoken all over the world. Among them only 293 languages have script. And Tamil is one of the 6 languages recognized as classical languages along with Arabic, Latin, Greek, Chinese and Persian.

According to Prof. George Hart Tamil is a classical language based on 4 criteria among others.

 (1)  Considerable antiquity, it predates the literatures of other modern Indian languages by more than a thousand years.  

 (2)  It has its own poetic theory, its own grammatical tradition, its own esthetics, and, above all, a large body of literature that is quite unique. 

 (3)  The quality of classical Tamil literature is such that it is fit to stand beside the great literatures of Sanskrit, Greek, Latin, Chinese, Persian and Arabic. and

 (4) Tamil is one of the primary independent sources of modern Indian culture and tradition. 

Gal Oya Colonization Plan

Language is a carrier of human heritage (in identity, historical, cultural and linguistic material) and also the the instrument of transmit human heritage. For those who are not proficient in Tamil or don’t know to speak Tamil, I would like to say they are losing a part of the rich Tamil heritage.  Tamil Language is the oldest living language in the world. Tamil language is spoken by 9 crores of people all over the world. It is widely spoken in countries like India, especially Tamil Nadu, Ceylon, India, Singapore, Reunion, Canada, Britain, USA, Australia etc. Tamil belongs to the Dravidian language family.

My first brush with politics and political parties was during the elections for the first parliament in 1947. In the Jaffna electorate there was battle royal between the All-Ceylon Congress Party (ACTC) and the United National Party. The contestants were the charismatic and popular leader GG Ponnambalam, QC the leader of the of the ACTC and Arunachalam Mahadeva contesting on the UNP platform. A. Mahadeva, Home Minister in the DS Senanayake is the son of Ponnambalam Arunachalam, brother of Ponnambalam Ramanathan. The battle cry was “Down with Mahadeva, the traitor who killed Kandasamy!”  (“கந்தசாமியைக் கொன்ற துரோகி மகாதேவா ஒழிக”).

On 05, June 1947   Kandasamy, a young member of the General Clerical Union (GCSU) , was killed while participating in a demonstration called by the leftist parties.  The Police fired several rounds at the demonstrators injuring quite a few and killing Kandasamy. A bullet went through his left eye to shatter his brain.

ACTC leader GG Ponnambalam lost no time to exploit the brutal death of Kandasamy. He carried his body to the Fort railway station and flew to Jaffna to receive the remains of Kandasamy. Unfortunately, Mahadeva has to accept responsibility since he was the Home Minister in charge of law and order. (To be continued) (Canada Uthayan – April 28, 2023)

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SJV Father of Tamil Nationalism

An expansion of the speech by V. Thangavelu at the 125th birth anniversary held in Toronto

Part 2

Continued from last week………..

During the1947 parliamentary campaign, I recollect joining a procession of ACTC supporters carrying the cycle flag and shouting slogans at the top of their voices “Down with traitor Mahadeva”. The most popular slogan was “எங்கள் பலம் பொன்னம்பலம்” (Our strength is Ponnambalam”) a spin on the Tamil word ‘பலம் ’. During the campaign trail I saw A. Mahadeva, dressed in white sherwani with a walking stick in hand looking speck and clean. He was going around meeting voters canvassing and speaking in smattering Tamil. Born in an aristocratic family, his mastery of spoken was substandard. In contrast, GG Ponnambalam was an eloquent orator in Tamil. Though black in complexion, he wore silk verti, salvai and national shirt. He also used to place a sandal-wood pottu on his forehead to show he is a staunch Hindu. His charismatic personality and oratorical skills always mesmerized the crowd. When the results came GG Ponnambalam soundly beat A. Mahadeva, polling 14,324 (73.28%) votes as against 5,224 for his opponent. 

In the same election (1947) contesting as a candidate of ACTC, SJV Chelvanayakam won in Kankesanthurai electorate beating his nearest rival P. Nagalingam by a majority of 5191 (12,126 – 6986). S. Nadesan who contested on the UNP platform came a distant third polling 4,605 (21.04%) votes. He is the son-in-law of Sir Ponnambalam Ramanathan. He was first elected to the State Council in a byelection held in 1934 and subsequent election in 1936 for the KKS constituency. No election was held in 1931 because of a boycott called by the Jaffna Youth Congress.

S. Nadesan avenged his defeat at the next parliamentary election held in 1952 by a majority of 3,766 votes. It was widely reported during the election campaign S. Nadesan played the Hindu card against his Christian opponent asking voters to choose between Spear (வேல்) and Cross (சிலுவை).

SJV lost this seat in 1952 but continue to hold from 1956 to 1977. Hindus formed a predominant majority (82.6%) of voters in KKS electorate, yet SJV won in 1947, 1956, March 1960, July1960, 1965 and 1970 and 1975.  This earned him the title ‘Christian leader of Hindu Tamils.’

My first encounter with ITAK was in 1949, when I was studying at St. John’s College. I attended a rally organized by the ITAK in Muththurai santhai, Jaffna. There was a procession and I was given a small flag with an image of a bull embedded in the middle. I did not know the significance of the bull flag; it was years later I learnt that this flag was the flag of the kings of Jaffna kingdom ruled by the Aryasakravarthy kings (1215 – 1619).  

Unfortunately, the meeting was wrecked by supporters of the ACTC and I saw Dr. Naganathan receiving a blow to his chest and others thrown out of the platform. It came as a shock to me and only later I learnt that GG Ponnambalam was directing operations from the Jaffna Rest House to disrupt the meeting.

I will skip history from 1949 to 1955 for sake of brevity. The introduction of Sinhala Only as the official language of Ceylon in 1956 and the attack on peaceful satyagrahis by Sinhalese goons came as a bolt from the blue. I was then working at the Ratnapura Kachcheri as a clerical servant. Like myself many Tamils public servants were members of the Government Clerical Service Union. The enactment of Official Language Act 33 (1956) and making Sinhala as the language of administration made Tamil public servants illiterates overnight. The cordial relationship that existed between Tamil and Sinhalese public servants suddenly turned sour, if not hostile. The political atmosphere got heated up. There was bad blood between the Tamils and the Sinhalese. Newspapers reported dire warnings by Sinhala – Buddhist extremists that river of blood will flow.

Riots broke out in Colombo, Batticaloa, especially in Gal Oya in the East. Sinhalese hoodlums attacked Tamils, their homes and business establishments. Colombo was flooded with Tamil refugees in their thousands. The 1956 anti-Tamil pogrom was the first state organised violence against Ceylon Tamils after independence. The worst of the violence took place in the Gal Oya valley, where local majority Sinhalese colonists and employees of the Gal Oya Development Board commandeered government vehicles, dynamite and weapons and massacred minority Tamils.

D.S. Senanayake was the brain behind the creation of Gal Oya colonization scheme. It commenced in 1949 to settle landless peasants in formerly jungle land. Gal Oya river in the Batticaloa district   was dammed at Inginiyagala and a tank was built capable of supplying water to 40,000,000 acres (160,000 km2) of irrigated land. The development scheme, which encompassed 120,000 acres was divided into 40 settlements and in each settlement 150 farmer families were allocated five acres each. Only six of those settlements were allocated to 900 Tamil families mostly local residents. Over 50,000 Sinhalese families were settled in the settlements allocated to the Sinhalese. They were mainly brought from Kandy and Kegalle. Thus, D. S. Senanayake, whom the Sinhalese call the father of the nation, became the father of state aided Sinhalese colonization of the traditional homeland of the Tamils.

The Gal Oya scheme has altered the demography of the Eastern province, especially

During the 1956 riots, Tamil settlers were chased away from their homes. Subsequent attempts to resettle them in their lands proved futile.

The Official Language Act (No. 33 of 1956), commonly referred to as the Sinhala Only Act, was an act passed in the Parliament of Ceylon on July 07, 1956. The passing of the Sinhala Only Act in 1956, brought about a profound change in the political history of Ceylon. It took 22 years to make amends by elevating Tamil also as an Official language, at least symbolically. The 1972 constitution was amended by an act of parliament on September 07, 1978 which added Tamil also as an official language along with Sinhalese.

Tamil public servants who joined the service through English medium sought the help of GCSU leadership controlled by Sinhalese who were supporters of the Ceylon Communist party and later by the LLSP. There was no response. We were advised to learn Sinhala, write exams and fall in line. It is at this stage some of us who were very active in the GCSU decided to break away from the GCSU and form the Eluthuvinaignar Sankam (AES). The first meeting was held at a restaurant in Fort and S. Sivanandasunderam was elected president. I was elected to the executive committee. Later when the AES decided to publish a newspaper, I was appointed as the editor. I continued in that post till I left the service in June, 1966. (To be continued) (Canada Uthayan May 04, 20263)


SJV Father of Tamil Nationalism

Expansion of speech by V. Thangavelu, President Canada TNA at the 125th birth anniversary of SJV held in Toronto

Part 3

Continued from last week………….

Thanthai Chelvanayakam arranged M. Tiruchelvam QC and C. Ranganathan QC and P. Navaratnarajah, QC to appear for the case. The case was filed in the district court of Colombo presided over by O.L. de Kretzer. Attorney General Victor Tennakoon, who later got promoted as Chief Justice of the Supreme Court, appeared for Respondent.  In order to avoid an awkward hearing on the validity of the Sinhala Only Act, the Attorney General raised a preliminary objection that a public servant was not entitled to sue the Crown (i.e., the State) for arrears of salary. He holds office at the pleasure of the Crown. This objection was over-ruled by the presiding Judge O.L. De Krester.

R. Balasubramaniam, the then General Secretary of the AES toiled hard to do all the groundwork in connection with the case. When M. Tiruchelvam became Minister of Local Government following the Dudley – Chelva pact in June, 1965, R. Balasubramaniam became his personal secretary. He too like Kodeeswaran joined the law college and passed out as an Attorney at Law. He practiced in Jaffna and I used to meet him very often when I was attached (1966 -1972) to the Jaffna Municipal Council

SC order sought barring Mahinda, Basil, Cabraal and more from leaving  country

During the trial in the Colombo District Court, M. Tiruchelvam fell ill, his place was taken over by C. Ranganathan, another able lawyer. Later, when an appeal was filed against the verdict of the Ceylon Supreme Court to the Privy Council, Ranganathan went to London to assist the English lawyers who argued the appeal.

In a carefully considered judgment O.L. de Krester, Colombo District Court Judge, inter-alia – stated thus:

If the members of each community were able to speak, read and write the language of each of the other communities, then it is obvious that the selection of the language of one community as the Official Language could not cause any handicap to the members of the communities whose language was not chosen, however much they resented the fact that their own language was not given pride of place. But every member of the community is not literate in the language of the other communities and then the selection of the language of one community cause at least inconvenience, if not disability, to the communities who are not literate in that language. 

The learned Judge further concluded that the purpose of an Act must be found in its natural operation and effect. While it was a legitimate function for parliament to decide in what language official business should be carried out and in making that decision the language spoken by the largest number of people would ordinarily be the choice, the Act gave advantage to one community which the community did not have. Accordingly, he held that the Official Language Act to be an infringement of Section 29 of the constitution and, therefore, void.

Stung by the judgment delivered by the Colombo District Court Judge O.L. De Krester in 1964, the Attorney General appealed against it to the Supreme Court. The case was argued before a bench comprising Chief Justice H.N.G. Fernando and Justice G.P.A. Silva. The team for the Crown (Defendant – Appellant) was led by Walter Jayawardena QC, Acting Attorney General, who was assisted by H. Deheragoda and H.L. de Silva. The lawyers for Kodeeswaran (Plaintiff-Respondent) were led by C. Ranganathan QC.

Walter Jayawardena QC, Acting Attorney General, who appeared for the state, submitted that the relationship between a government servant and the state was governed by the English Common Law which does not permit a public servant to sue the state for arrears of salary. Ranganathan Q. C. who appeared for Kodeeswaran submitted that the relationship was governed by the Roman Dutch Law which did permit a public servant to sue the state.

H, N, G.  Fernando CJ, in his judgement, ruled in favour of the state, holding the relationship between the state and its servant was governed by the English Common law and Kodeeswaran could not sue for arrears of salaries and set aside the verdict and decree of the District Court. He also stated in his judgement that he had not called upon Jayawardene to submit his arguments on the Sinhala Only Act, since the action had been decided on a point of a general law.

The verdict was delivered in 1967 by H.N.G. Fernando CJ, setting aside the verdict and decree of the District Court (70 NLR 121). The arguments used are both illuminating and at the same time problematic. Below are extracts from the lengthy judgment of the Supreme Court of Ceylon.  

 APPEAL from a judgment of the District Court, Colombo.

H. N. G. Fernando, C.J. – The plaintiff was appointed an Officer of the General Clerical Class of the General Clerical Service on 1st November 1952, and on 1st October1959 he was promoted to Grade II of the Executive Clerical Class of the General Clerical Service on a salary scale of Rs. 1,620 to Rs. 3,780 per annum with annual increments of Rs. 120. An increment of Rs.10 per month fell due to the plaintiff on 1st April 1962, but on 28th April 1962 he was informed by a letter (P2) from the Government Agent, Kegalle (at that time the Head of the Department in which the plaintiff was serving), that the increment had been suspended under the provisions of a Treasury Circular No. 560 of 4th December 1961. The plaintiff sought in this action a declaration that the Circular is unreasonable and/or illegal and not binding on the plaintiff, and that the plaintiff is entitled to payment of the increment which fell due on 1st April 1962. This appeal is from the judgment of the learned District Judge granting such a declaration.

At the time when the plaintiff was promoted to the Executive Clerical Class, the Minutes applicable in relation to recruitment, conditions of service, and salary scales were those published in the Gazette of October 1,1955. Paragraph 5 of the relevant Minute provided that appointments to the Executive Clerical Class will be made from among members of the General Clerical Class (to which the plaintiff belonged until 1959) on the results of a competitive examination.

The regulations and syllabus for the examination were set out in Appendix D to the Minute which prescribed three subjects of examination, i.e., (1) Accounts, (2) Regulations, procedure and office system, and (3) Sinhala or Tamil. The plaintiff, who is Tamil by race, chose Tamil as his language subject for the examination. Paragraph 7 of the Minute provided that Officers in Grade II of the Executive Clerical Class must pass an examination in National Languages prescribed in Appendix C before they proceed beyond the Efficiency Bar at the stage of R s. 3,180. Appendix C required clerks of Sinhala, Tamil or Moor parentage to pass in one language. Thus, under Appendix the plaintiff could have chosen Tamil as his language subject for this examination as well. (To be continued)

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SJV Father of Tamil Nationalism

Expansion of speech by V. Thangavelu, President Canada TNA at the 125th birth anniversary of SJV held in Toronto

Part 4

Continued from last week………….

As a nation our forefathers have failed to record our past history in a systematic and methodical way. History of Tamils have to be reconstructed based on stone inscriptions, copper plates, ola leaves etc. “Mangulam inscription” is often regarded as one of the oldest Tamil Brahmi inscriptions, 3rd century BCE, found in Madurai district. Tamil copper-plate inscriptions are records of grants of villages, plots of cultivable lands or other privileges to private individuals or public institutions by the members of the various South Indian royal dynasties. A typical Chola copperplate inscription currently displayed at the Government Museum, Chennai, India, is dated 10th century C.E. It consists of five copper plates stringed in a copper ring, the ends of which are secured with a Chola seal bearing in relief, a seated tiger facing the right, two fish to the right of this, the study of these inscriptions has been especially important in reconstructing the history of Tamil Nadu. Tamil palm-leaf manuscript of Tholkappiyam and Sankam poems have survived, but some important works have been lost to the elements.

In contrast, Greeks, Romans and Egyptians have kept historical records from earlier times. The Egyptian hieroglyphs date to between 3400 – 3200 BCE and are the oldest recorded history discovered so far in the world. The hieroglyphs were found in Tomb U-j, which is believed to hold the remains of Scorpion I, one of the first rulers of Ancient Egypt.

The ancient records like the Mahavamsa are full of myths, fantasies, superstitions beliefs and legends, but it also covers the history of royal dynasties that ruled Ceylon beginning with the arrival of legendary Vijaya in 543 BC.  Therefore, while reading Mahavamsa, one should separate facts from fiction.   Mahavamsa was compiled mainly for the serene joy and emotion of the (Buddhist) pious. It identifies the original inhabitants of Lanka as Nagas, Devar, Vedas, Yakshas and Rakshas.  Of course, there is no mention about Sinhalese. It was Buddhist Nagas in due course who metamorphosed into Sinhalese around the 7th century. Likewise, Vedic Nagas were assimilated into Tamil language and culture.   

With all its shortcomings, there is no chronical like Mahavamsa in South Asia, including India. As stated above, Mahavamsa narrates the ‘history’ from the arrival of Vijaya in 543 BC to Mahasenan (463AD – 479AD) the 64th king. It identifies Devanampiya Tissa as a Naga king, not Sinhalese king. This is because there were no Sinhalese at that point in time

Only from Mahavamsa we learn that Tamil settlements existed to the north of Mahaweli Ganga. It  says when Viharamahadevi asked Duttu Gemunu (161 BC-137 BC) why he is sleeping curled up in a large bed and why not stretch out and sleep comfortably, he answered thus: “On one-side there is the dumb ocean and on the other side beyond the Maha Ganga River there are Damilas. How can I stretch out and sleep comfortably?”

During the period of preparations for war with King Ellalan, the Kataragama deity appeared in front of King Dutugemunu and gave him a sword for him to use in the war at the present-day site of Henakaduwa temple (hena and Kaduna, meaning thunder and sword respectively in Sinhalese). Though Duttugemunu was a Buddhist, he was an ardent follower of Lord Kataragama.

When Duttu Gemunu marched his army to fight King Ellalan who ruled from Anuradhapura he has to fight and defeat 32 Tamil chieftains  before he reached Anuradhapura. He also killed around sixty thousand Tamils in the war. How could there be 32 Tamil chieftains in the area of Anuradhapura alone, if there were no Tamils or Tamil settlements? 

 In 237 BC two Saivite Tamils, Senan and Kuttakan from Tamil Nadu defeated Tissa in battle and ruled Anuradhapura for 22 years.  Anuradhapura was under 8 Saivite Tamil rule for the next 134 years ending in 103 BC for a total of 82 years.  

The language spoken by the Nagas was different from that spoken by other Tamils. This is illustrated by the story of Sathuvan in the Buddhist epic Manimekalai.  But both Nagas and Tamils were followers of Vedic religion. Nagas who were followers of the Vedic religion eventually became Tamils. Similarly, Buddhist Nagas became Sinhalese.

In what language did Mahinda Thera, son of Asoka the Great, spoke when he met King Devanampiya Tissa, the first convert to Buddhism) at a place called Mihintala?

Devanampiya Tissa, a Naga king and son of Mutasiva, one of early Sri Lanka’s most significant monarchs, given that his conversion to Buddhism set the kingdoms of the island down a religious and cultural route quite distinct from that of the subcontinent to the north. Later monarchs were to refer back to Devanampiya Tissa’s conversion as one of the cornerstones of the Anuradhapura polity. The city itself remained capital of a powerful kingdom until the early Middle Ages, when it was eventually subsumed under the Chola invasion and then superseded by Polonnaruwa.

Kodeeswaran made legal history when he filed petition challenging the withholding of his increment for failure to pass exams in Sinhalese within the period stipulated by the government. The Colombo District Court Judge ruled in his favour, but the government on appeal to the Supreme Court succeeded in overturning the judgment of the lower court. Below is the judgment of the Supreme Court continued from last week which will be of interest to students of history and law. So far, we have failed to document the entire case in print.  

H. N. G. Fernando, C.J.

I must note here that the Minute clearly states that the salary scales, cadre, and conditions of service are liable to alteration from time to time. On 4th December 1961 a new Treasury Circular Xo. 560 provided that Officers of the category to which the plaintiff belonged must pass a proficiency’ test in Sinhala. According to this Circular a Tamil officer (as the plaintiff is) is required to pass a test in Sinhala at 3rd standard level within one year from 1st January 1961, a test at 5th standard level within two years, and at J. S. C. standard within three years. The Circular provided for suspension of an increment falling due after February 17, 1962 in a case of an officer failing the test. The plaintiff did not present himself for the requisite examination, and the suspension of his increment which fell due on April 1, 1962 was ordered in pursuance of the Circular on the ground that he had not passed the first of the language tests prescribed in the Circular

One of the grounds on which the plaintiff’s action was resisted by the Attorney-General is that a public servant in Ceylon has no right to sue the Crown for the recovery of wages claimed to be due for service under the Crown. This defense, which was rejected by the learned trial Judge, raises questions of great importance and difficulty, and the Court is much indebted to Counsel for the full and able arguments presented at the hearing of this appeal.

The first question to be decided is whether the relationship between the Crown and its servants in Ceylon is regulated by the Roman-Dutch Law, or else by the English Law as altered or modified in its application in this country’. The contention that the Roman Dutch Law applies supported by two early decisions of this Court which are reported in Ramanathan’s Reports 1863-68. (To be continued)

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SJV Father of Tamil Nationalism

Expansion of speech by V. Thangavelu, President Canada TNA at the 125th birth anniversary of SJV held in Toronto

Part 5

Continued from last week ………………..

H. N. G. Fernando, C.J.

The earlier of the two decisions (Jansz v. Tranckell) was in a case in which the question arose whether the salary of a public servant could be seized in execution of a decree against him. The Court there stated that it is certain, and that the Queen’s Advocate admitted, that the salary of a public officer, when his service has been properly performed, is due to him as a debt. The Court proceeded to consider the Roman Dutch Law regarding the liability to seizure of the salary of a public servant, and held that the salary was sizeable, but only if other assets of the debt or were not available to satisfy the decree, and if a Court in its discretion regarded the seizure as not being contrary to the public interest in the circumstances of a particular case. The order ultimately made was that the salary of the public servant concerned was not, in the circumstances, liable to seizure. Thus, the Roman-Dutch Law was held applicable to the question whether the salary is sizeable. But it is not clear from the Judgment on what basis the Court thought it certain that the salary is a debt due1 Ramanathan’s Reports (1863-68) p. 160.

There is no statement that this is a principle of Roman-Dutch Law or else of English Law. Nevertheless, it is a fair implication that the Crown did not in this case contend that no action lies for the recovery of a public servant’s salary.

The later decision in Fraser’s case 1 was in a suit against the Queen’s Advocate, for the recovery of balance salary due to the plaintiff as Postmaster of Galle and as a packet agent, on the ground that he had been wrongfully dismissed from those offices. The first of these offices was held under the Ceylon Government, and the second under the Imperial (British) Government. The action was dismissed by the Supreme Court on the ground that the plaintiff held his offices during pleasure, and that he had no right of action at all, so far as the (Ceylon) Postmaster ship was concerned, as to anything that happened after the date of his dismissal, because it had been shown that he had in fact been paid his salary up to that date.

Nevertheless, in considering the plaintiff’s claim for his salary as the holder of an office under the Imperial Government, the Court drew a distinction between the respective rights of such an officer and of unemployed under the Ceylon Government. The Court was of opinion that whereas an action would not lie at all in the former case, an action for earned salary would lie against the Queen’s Advocate in the latter case. The entire relevant passage in the Judgment has to be cited here: — “We humbly consider that Her Majesty’s predecessors and Her Majesty have been graciously pleased to lay aside, as to this island, part of the prerogative of the Crown as to immunity from being sued. By proclamation of the 23rd September 1799, it was amongst other things published and declared that the administration of ‘ justice and police in the settlements and territories in the Island of Ceylon with their dependencies, shall be henceforth and during Her Majesty’s pleasure exercised by all courts of jurisdiction, civil and criminal, magistrates and ministerial officers, according to the laws and institu­tions that subsisted under the ancient Government of the United Provinces, subject to such deviations and alterations by any of the respective powers and authorities hereinbefore mentioned, and to such other deviations and alterations as shall by these present or by any future proclamation and in pursuance of the authorities confided to us, deem it proper and beneficial for the purposes of justice, to ordain and publish, or which shall or may hereafter be by lawful authority ordained and published.’”

Afterwards, the Ordinance No. 5 of 1835, (which was allowed and confirmed by Her Majesty) repealed parts of the said proclamation, but expressly reserved and retained so much of it as doth publish and declare that ‘ the administration of justice and police within the settlements then under the British dominion and known by the designa­tion of the maritime provinces should be exercised by all the courts of judicature, civil and criminal, according to the laws and institutions that subsisted under the ancient Government of the United Provinces.’1 Bam. p. 316.

Thus, the Roman – Dutch Law was held applicable to the question whether the salary is sizable. But it is not clear from the Judgment on what basis the Court thought it certain that the salary is a debt due to a public servant. There is no statement that this is a principle of Roman – Dutch Law or else of English Law. Nevertheless, it is a fair implication that the Crown did not in this case contend that no action lies for the recovery of a public servant’s salary.

The later decision in Fraser’s case 1 was in a suit against the Queen’s Advocate, for the recovery of balance salary due to the plaintiff as Postmaster of Galle and as a packet agent, on the ground that he had been wrongfully dismissed from those offices. The first of these offices was held under the Ceylon Government, and the second under the Imperial (British) Government. The action was dismissed by the Supreme Court on the ground that the plaintiff held his offices during pleasure, and that he had no right of action at all, so far as the (Ceylon) Post master ship was concerned, as to anything that happened after the date of his dismissal, because it had been shown that he had in fact been paid his salary up to that date.

Nevertheless, in considering the plaintiff’s claim for his salary as the holder of an office under the Imperial Government, the Court drew a distinction between the respective rights of such an officer and of one employed under the Ceylon Government. The Court was of opinion that whereas an action would not lie at all in the former case, an action for earned salary would lie against the Queen’s Advocate in the latter case.

“We humbly consider that Her Majesty’s predecessors and Her Majesty have been graciously pleased to lay aside, as to this island, part of the prerogative of the Crown as to immunity from being sued. By proclamation of the 23rd September 1799, it was amongst other things published and declared that the administration of ‘ justice and police in the settlements and territories in the Island of Ceylon with their dependencies, shall be henceforth and during Her Majesty’s pleasure exercised by all courts of jurisdiction, civil and criminal, magistrates and ministerial officers, according to the laws and institu­tions that subsisted under the ancient Government of the United Provinces, subject to such deviations and alterations by any of the respective powers and authorities hereinbefore mentioned, and to such other deviations and alterations as shall by these present or by any future proclamation and in pursuance of the authorities confided to us, deem it proper and beneficial for the purposes of justice, to ordain and publish, or which shall or may hereafter be by lawful authority ordained and published.’ (Canada Uthayan)

(To be continued …)


SJV Father of Tamil Nationalism

Expansion of speech by V. Thangavelu, President Canada TNA at the 125th birth anniversary of SJV held in Toronto

Part 6

Continued from last week ………………..

H. N. G. Fernando, C.J.

“Afterwards, the Ordinance No. 5 of 1835, (which was allowed and confirmed by Her Majesty) repealed parts of the said proclamation, but expressly reserved and retained so much of it as doth publish and declare that ‘ the administration of justice and police within the settlements then under the British dominion and known by the designation of the maritime provinces should be exercised by all the courts of judicature, civil and criminal, according to the laws and institutions that subsisted under the ancient Government of the United Provinces.’1 Bam. p. 316.

“The Ordinance of 1835, itself expressly re-enacts this, and it uses the following words, ‘which laws and institutions it is hereby declared are and shall henceforth continue to be binding and administered through the said maritime provinces and their dependencies, subject nevertheless to such deviations and alterations as have been or shall hereafter by lawful authority be ordained.’

“We humbly consider that by these declarations of the royal will, Her Majesty’s subjects in this island, who had or might have any money due to them from the local Government for wages, for salary, for work,
for materials, in short for anything due on an obligation arising out of contract, were permitted to retain the old right given by Roman Dutch Law to sue the advocate of the fiscal, now styled the Queen’s Advocate,

for recovery of their money. And if the present plaintiff could have shown that any money was due to him under his colonial appointment as Galle post-master, he might have maintained this action. He might have done so in respect of salary due for any period during which he actually served, and also in respect of the further period for which he, still holding the appointment de jure, was ready and willing to serve, but was prevented from serving by the wrongful act of his employer.”

This statement of the law of Ceylon cannot be regarded as being merely obiter. It is clear that, if any salary earned by the plaintiff prior to the date of his dismissal had not in fact been paid to the plaintiff, the Court
would have given judgment for the plaintiff for the unpaid amount; this on the basis that a right to sue for salary had existed under the Roman-Dutch Law.

The general question of the right of the subject in Ceylon to sue upon a contract with the Crown was considered in the case of Jayawardena v. Queen’s Advocate1. The Court there stated that “the right to sue the Crown in the person of the Queen’s Advocate for claims arising ex contractual has not only been upheld by the Courts of the Colony, but has been recognized by the Legislature in several enactments Reference
was thereafter made to Ordinances No. 9 of 1852, No. 7 of 1856 and No. 11 of 1868, all of which contemplated the possibility of suits upon contract by private parties against the Queen’s Advocate. There followed the following observations: — “Under these circumstances, we think it too late, at this day, to contest in this Court the validity of this practice. We are bound by the previous decisions of this Court, particularly by the considered decision of the Collective Court in the case of Fraser v. The Queen’s Advocate. To hold at this date, for the first time, that a practice, which has so long been sanctioned by the Courts and acquiesced in by the Government, is bad in law, and cannot be sustained, would necessarily create widespread confusion and inconvenience, practically amounting in many cases to injustice. If the precedents and decisions upon which this Court acts are wrong, it must be left to the Court of appeal to set us right. 1 4 S. C. Circular 77. H 9733 (12/87) 126

It was urged by the Queen’s Advocate that the practice of suing the Crown is an attempt to impugn the royal prerogative, by virtue whereof no suit or action can be brought against the sovereign; and such, no doubt, it would be if the prerogative has not been waived in this respect. This Court in Fraser’s case humbly expressed an opinion that it had been so waived, and we humbly venture to share that opinion. It should be observed that the question is, after all, one purely of procedure. If a judgment be obtained against the Queen’s Advocate, no execution can issue either against the Queen’s Advocate personally or against the Crown. See Marshall, p. 75; Thomson’s Institutes, p. 12. A judgment in an action or suit ex contractual against the Queen’s Advocate gives little, if anything, more than a successful petition of right would do in England. It is merely, as it appears to us, a mode of procedure by which a subject is able to prefer and substantiate his claim against the Crown. Compliance with the claim when substantiated must still be, as we take it, a matter of grace.

Petitions of right are now in England prosecuted as ordinary actions; and as a matter of convenience, we see no objection to parties preferring their claims against the Crown here in the form of a suit against the Queen’s Advocate.”

The learned Acting Attorney-General in his argument before us suggested that Fraser’s case, while rightly deciding that the Crown could be sued upon a contract in Ceylon, was wrong in basing the decision on the Roman-Dutch Law. He further argued on the authority in the concluding passage cited above from Jayawardena ’s case that the waiver of immunity from suit by the Crown in Ceylon consisted merely of the acknowledgment of a right to sue the Crown in lieu of the right under English Law to proceed by way of a petition of right. His argument, in my opinion, gains support from the observation in Jayawardena ’s case that a suit ex contractual against the Queen’s Advocate appears to be merely a mode of procedure by which the subject is able to prefer his claim, and is thus the equivalent of the English Petition of Right.

Shortly after Jayawardena ’s case, there was decided in the Privy Council the case of Siman Appu v. Queen’s Advocate 1, in which it was held that a suit upon a contract can be instituted in Ceylon against the Queen’s Advocate as representing the Crown. Their Lordships considered the question whether the Roman Dutch Law entitled a subject to sue an Officer of Government on behalf of the Government. The note of the argument of Counsel in that appeal shows that Fraser’s case (as reported in Creasey’s Reports p. 10) and Jayawardena ’s case (incorrectly cited as Fernandez v. The Queen’s Advocate) were considered in the discussion of this matter. But their Lordships concluded their consideration of the question with these observations:

“There certainly seems no more antecedent reason why the Counts of Holland should be exempted from suit through their officers than (1 9 App. Cases p. 571.127) existed for the exemption of the King of Scotland. And though it is very likely that whilst great potentates, like the Dukes of Burgundy and the Kings of Spain, were Counts of Holland, it would not be very safe to sue them, yet when the United Provinces became independent, suitors might find themselves more favourably placed.” (To be continued…)

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SJV Father of Tamil Nationalism

Expansion of speech by V. Thangavelu, President Canada TNA at the 125th birth anniversary of SJV held in Toronto

Part 7

“But whatever speculations may be made upon these points their Lordships cannot advise Her Majesty that such was the Roman – Dutch Law, unless it is shown to them that it was so. And neither the researches of counsel nor their own have enabled their Lordships to attain any certainty on the subject.”

It appears to me that the true ratio decided of Simon Appu ’s case can be deduced from the following passages of the judgment: —

“That a very extensive practice of suing the Crown has sprung up is certain. In his judgment in the case of Fernando, which was decided immediately before the present case came under review, Cayley, C. J.,
says, ‘The practice has been recognized in many hundreds of decisions, and long acquiesced in by the Crown, and so far, as I am aware, has not till now been called in question.’ It was recognized by the judgment of the Court in Fraser’s case, decided in the year 1868.”

“In Mr. Justice Thompson’s Institutes of the Laws of Ceylon, after referring to the English petition of right, he says that, the Ceylon Government having no Chancellor, a suit against the Government has been permitted, and the Queen’s Advocate is the public officer who issued on behalf of the Crown. He then points out that, except in land cases, this action gives little more than is given by the petition of right, for no execution can issue against the Crown or against the Queen’s Advocate.”

“It is then certain that prior to 1868 there was such an established practice of suing the Crown that the legislature took it for granted and regulated it. The same state of things must have existed prior to 1856, for the Ordinance of 1868 is only a re-enactment of an earlier Ordinance of 1856. Earlier Ordinances still have been referred to, but their Lordships do not discuss them, because, though they speak of suits in which the Crown is defendant, and though it is the opinion of the Supreme Court, and is probable, that they refer to claims ex contractual, it is not clear that they do so.”

“Whatever may be the exact origin of the practice of suing the Crown, it was doubtless established to avoid such glaring injustice as would result from the entire inability of the subject to establish his claims. And finding that the legislature recognized and made provision for such suits at least twenty-eight years ago, their Lordships hold that they are now incorporated into the law of the land.” 

The reference in the first of the passages just cited to the judgment in Fraser’s case shows that their Lordships relied on that case, not for the proposition that the Proclamation of 1799 (now chapter 12 of the Revised Edition 1956) had waived the Crown’s immunity from suits upon contract, but instead only for the fact that this Court had often recognized the practice of suing the Crown. The judgment of Cayley, C.J., in
Jayewardene’s case (incorrectly referred to as that of Fernando) was relied on in the same way.

There is accordingly the highest judicial authority, in the decision of Simon Appu ’s case in 1884, to the effect that (as stated in the head note): “There is no authority for saying that the Roman Dutch law of Holland, which was in force in Ceylon at the date of its conquest by the British, and has not since been abrogated, empowered the subject to sue the Government. Instead, the right to sue exists because there
had been a very extensive practice of suing the Crown which was recognized by the Legislature and such suits are now incorporated into the law of the land.”

The learned Acting Attorney-General has suggested certain other considerations which tend to support the view that the Proclamation of 1799 was not intended to make the Roman-Dutch Law applicable to the relationship between the Crown and public servants in Ceylon. The first is that the Proclamation, in referring to the Civil and Criminal Jurisdiction of the Courts, was not intended to cover matters which are the subject of Constitutional or public law, and that the relationship between the Crown and its servants is such a matter. I do not find it necessary to decide the point thus raised, and am content to observe that an argument which invokes the Proclamation must logically include the proposition that even the right of dismissal at pleasure existed in Ceylon by virtue of Roman-Dutch Law, and not as a principle of English Law. But I see much substance in the other suggestion that, in regard to so fundamental a matter as the relationship between the Crown and its servants (many of whom must at the time have been British by birth and race), the Proclamation could not have intended that such a matter would be regulated otherwise than by the law applicable in Britain and in other territories of the British Crown. The explanation given in Thompson’s Institutes that a suit against the Government had been permitted of necessity and in lieu of the English petition of right, because the Ceylon Government had no Chancellor, is one which is in all the
circumstances most acceptable.

When this Court in Fraser’s case assumed that the wages of a public servant in Ceylon, when earned, are a debt due to him, the Court in so doing did not consider the question whether this principle was a matter of Roman-Dutch Law or else of English law. But it is clear from the judgment that the Court did recognize that the power to appoint public officers in Ceylon was a power derived from, and exercised on behalf of, the Crown; the judgment in this connection refers to the powers of appointment granted to the Governor by his letter of appointment (presumably Letters Patent) and to Colonial Rules and Regulations (p. 321 Ram. 1863-68). The grant of such powers by the British Sovereign must fairly be presumed to have been an exercise of the Royal Prerogative under the law of England, and not to any authority of a Sovereign under Roman-Dutch law; if this were otherwise, the Court in Fraser’s case could not have held that the power to dismiss a public officer at pleasure existed in Ceylon without first deciding that such a
power existed in Roman-Dutch law. The efficacy or validity of appointments made by the executive in Ceylon was therefore referable to the law of England; and it follows in my opinion that the nature and legal effect of the relationship constituted by such appointments had also to be determined by reference to English law.

For these reasons I would hold, applying the judgment of their Lordships of 1884, that the right to sue the Crown in Ceylon upon a contract is not founded on the Roman-Dutch Law. Accordingly, even if it be the case that the ancient laws of the United Provinces entitled a public officer to sue the Government upon a contract of employment under the Government, those laws did not, and do not now, apply in Ceylon. It follows that the question whether the plaintiff in the present case has a right to sue the Attorney-General must be determined under the English law as altered or modified by the laws of Ceylon. (To be continued)

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SJV Father of Tamil Nationalism

Expansion of speech by V. Thangavelu, President Canada TNA at the 125th birth anniversary of SJV held in Toronto

Part 8

Continued from last week ………………

The question whether under English law a Civil Servant has the right to sue for earned wages, whether by way of a petition of right or otherwise, has been referred to by Judges and text writers as one of much doubt and difficulty. But the case of High Commissioner for India v. Lall is at the least a definite pronouncement on the law on this question as applicable in British India. In that case Mr. Lall, who had been a member of the Indian Civil Service, was dismissed from service by the appropriate authority, and he claimed in the action a declaration that his removal was ultra vires, that he was still a member of the Indian Civil Service, and that as such he was entitled to all rights secured to him by the covenant rules and regulations issued from time to time by the appropriate authorities. After considering the provisions of s. 240 of the Government of India Act 1935, their Lordships held that there had been a breach of a provision of s. 240 which required that a civil servant shall not be dismissed unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him and that the purported removal from office of Mr. Lall was void and inoperative. They accordingly granted a declaration to that effect and to the effect that Mr. Lall remained a member of the Indian Civil Service at the date of the institution of his action.

Their Lordships thereafter considered a submission for Mr. Lall that he was entitled to recover in the action his arrears of pay from the date of the purported order of dismissal up to the date of his action. They said that “it is unnecessary to cite authority to establish that no action in tort can lie against the Crown and therefore any right of action must either be based on contract or conferred by Statute Reliance was then placed on a judgment of Lord Blackburn in the Scottish case of Mvlvenv. The Admiralty in which the matter had been discussed as follows: —

“These authorities deal only with the power of the Crown to dismiss a public servant, but they appear to me to establish conclusively certain important points. The first is that the terms of service of a public servant are subject to certain qualifications dictated by public policy, no matter to what service the servant may belong, whether it be naval, military or civil, and no matter what position he holds in the service, whether exalted or humble. It is enough that the servant is a public servant, and that public policy, no matter on what ground it is based, demands the qualification. The next is that these qualifications are to be implied in the engagement of a public servant, no matter whether they have been referred to in the engagement or not.

If these conclusions are justified by the authorities to which I have referred, then it would seem to follow that the rule based on public policy which has been enforced against military servants of the Crown, and which prevents such servants suing the Crown for their pay on the assumption that their only claim is on the bounty of the Crown and not for a contractual debt, must equally apply to every public servant. (see (1920) 3 K. B. 663, 25 R. 112 and other cases there referred to). It also follows that this qualification must be read, as an implied condition, into every contract between the Crown and a public servant, with the effect that, in terms of their contract, they have no right to their remuneration which can be enforced in a Civil Court of Justice, and that their only remedy under their contract lies in an appeal of an official or political kind.”

Mulvane’s case itself concerned the question whether the salary of a civil employee of the Admiralty could be arrested in the hands of the Commissioners of the Admiralty at the instance of a person holding a decree against the employee for the payment of a sum of money. Although the Court, including Lord Blackburn, did refer to earlier decisions in which there had arisen the particular question whether the salary of a civil servant is attachable, it seems clear that Lord Blackburn’s own conclusion was based firmly on the primary proposition that a civil servant has no right to remuneration which can be enforced in a civil Court.

 After the passage I have already cited, there occur in the judgment the following observations: — “It further appears to me that, if this conception of the effect of public policy on the contract itself had been developed earlier, it would have led to the same conclusions in the numerous cases to which the Lord Ordinary has referred as were reached on different {1926) S. C. S42.)  and, in some cases, on somewhat unsatisfying grounds. It would also have avoided the necessity for several statutory provisions applicable to the pay of particular services which must now be regarded as merely declaratory of the common law.”

Their Lordships in Lodi’s Case referred to the provisions applicable to public servants in India prior to the Government of India Act 1935 and to the relevant provisions of the Government of India Act 1919. Section 96B of that Act had declared that a civil servant holds office during His Majesty’s pleasure, ………….but no person in that service may be dismissed by any authority subordinate to that by which he was appointed”. Under sub-section (2) of s. 96B the Secretary of State for India in Council had been empowered to make rules for regulating inter alia the conditions of service, pay and allowances, and discipline and conduct, of the Civil Services of India. One such rule had provided certain conditions precedent to the dismissal of a civil servant such as: that he must be afforded an adequate opportunity of defending himself, that charges should be framed and communicated to the person charged, that a written defence must be entertained if made, and that an enquiry must be held if the person charged so desires. These provisions were the subject of consideration in the Privy Council in 1938. In the case of Rangachari1 their Lordships held that the provision in (-s. 9 6B (1)) itself which prohibited the dismissal of an officer by any authority subordinate in rank to the authority that appointed him was peremptory, and that a dismissal purporting to be made in violation of that provision was void and inoperative. But in Venkata Rao’s case 2 decided on the same day, their Lordships rejected the contention that a dismissal in breach of the rules made under s. 9 6B could give rise to a right of action by the dismissed officer. Reference was made to an observation in Gould’s case 3: —

“The argument for a limited and special kind of employment during pleasure, but with the added contractual terms that the rules are to be observed is too artificial and far-reaching. ” Their Lordships regarded ” the terms of the section (96B (2)) as containing a statutory and solemn assurance that the tenure of office though at pleasure will not be subject to capricious or arbitrary action but will be regulated by rule………….Their Lordships are unable as a matter of law to hold that redress is obtainable from the Courts by action. To give redress is the responsibility of the Executive Government.”

Accepting these propositions, the Privy Council decided in Lall’s case that a public officer had no right to claim arrears of pay under his covenant, or in other words that he had no contractual right enforceable by action. (1 {1037) A. I. R. (P.C.) 27. * Idem p. 31. USytj) A. C. 575.)
 

I must note at this stage that at least until the coming into effect of the Ceylon State Council Order in Council, 1931, and perhaps even until the coming into operation of the Ceylon Constitution Order in Council 1946, the position of public servants in Ceylon was regulated in a manner similar to that which had obtained in India under the Government of India Act, 1919. Their Lordships in Venkata R a o ’s case referred to the fact that s. 96B, in sub-section (5), reaffirmed the supreme authority of the Secretary of State over the Civil Service, and relied on this fact for the opinion that rules made under that section did not confer rights enforceable by action in the Courts. A similar supreme authority was formerly vested in the Secretary of State for the Colonies over the public services of Ceylon. For much the greater period of British rule in Ceylon, the right to dismiss at pleasure was implied and recognized in the case of the public service of Ceylon, and the pay and conditions of service were regulated by, or under delegated authority from, the Secretary of State. Such rules and regulations, as also the Pension Minute applicable to the public service, were not statutory enactments, nor (unlike the Indian Rules after 1919) were they even made under empowering statutory provisions.


It is clear to me for these reasons that prior to the operation of the Ceylon Constitution Order in Council, 1946, the nature of the rights of a public servant in Ceylon was similar to that of a public servant o” India, and that upon the reasoning in the Indian decisions cited above, a public servant in Ceylon had no right of redress by action in the Courts for a breach of rules and regulations prescribing the salaries and conditions
of service of public officers. It would seem to follow therefore that the grounds of the decision in L a all’s case in particular, holding that a public servant had no right to sue for his wages, were applicable also in the case of members of the public services of Ceylon.

Counsel for the plaintiff in the present appeal referred to several decisions of English and Australian Courts in support of his argument that the Scottish case of Mulvenna was wrongly decided, and that accordingly the decision of the Privy Council in Lall’s case should not be followed. Certain of the English and Australian decisions, it was urged, did acknowledge the right of a public servant to sue for his earned wages. I must refer even briefly to some of these decisions. (To be continued)

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Expansion of speech by V. Thangavelu, President Canada TNA at the 125th birth anniversary of SJV held in Toronto

Part 9

Continued from last week…

In the case of Carey v. The Commonwealth, the Court did hold that a public servant did have the right to sue for earned remuneration. But the only precedent relied upon by the Judge in Carey’s case in support of this alleged right was the decision in William s v. Howarth. The report of this latter case, however, shows that the plea was never taken in argument that the Crown could not be sued for wages. The plea if taken would undoubtedly have succeeded, for the suit was one for wages claimed by a member of the Armed Forces of Australia who had served with the British Imperial Forces in South Africa. The only question (1 SO Comm. L. R. 132. 2 (1905) A. C. 551.) decided was whether payments made by the Imperial Government should be taken into account in determining whether the plaintiff had received the wages payable to him by the Australian Government. The case should not, J think with respect, have been regarded as authority for the proposition that a military or civil servant of the Crown had a right to sue for earned wages.

The case of Lucy. The Commonwealth was much relied on by Counsel for the plaintiff in support of the alleged right to sue the Crown on a contract of employment. The plaintiff in that case had until March 1901held office in the Postal Department of South Australia. At that stage the Department was taken over by the Commonwealth and the plaintiff was then transferred to the Commonwealth Public Service. In 1919 the plaintiff was notified that he would be retired from the Commonwealth Public Service upon attaining the age of 65 years, and in May 1919 he was actually so retired. The plaintiff claimed that under a South Australian Act of 1874 he had acquired a right to retain office until death or removal in terms of that Act and that he had been wrongfully retired at the age of 65 years. Section 60 of the Commonwealth Public Service Act provided that an officer transferred to that Service will retain all the existing and accruing rights which he had previously as a member of the South Australian Service, and it had been held in an earlier case that this Section (despite inconsistent provision in section 74 of the Act) preserved to such an officer the right to remain in service after attaining the age of 65 years.

In these circumstances the plaintiff claimed (a) a declaration that he had been wrongfully removed from service on 11th March 1919, (b) a declaration that he was entitled to retain office until his death or until his office was determined in accordance with the South Australian Act of 1874, and (c) damages for wrongful removal or dismissal. A case stated for the opinion of the High Court, after setting out the relevant facts, submitted the question “whether the damages to which the plaintiff is entitled should be measured and ascertained by any one or more of the following considerations”, and thereafter invited the Court to determine whether or not certain specified matters should be taken into account in the assessment of damages.

Despite references in the judgments to the contract which the plaintiff had as a member of the Public Service, it seems to me that the question whether a public servant had a right to sue the Crown for his wages was not in fact disputed in this case, for, as I have just stated, the Court was only invited to lay down the measure of damages as for a dismissal from service which was admitted to be unlawful. Indeed the note of the argument of the Counsel for the plaintiff contains this passage :—“ the dismissal of the plaintiff was a breach of his statutory right and not a breach of contract; whichever it is, if the plaintiff’s remedy is damages, measure is the same I must refer however to an observation in the judgment of Higgins J. that “ this position would be beyond question in a case of ordinary contract between employer and employee ; and in my opinion the relation between the Commonwealth and the officer is a relation of contract (cf. William s v. Howarth) Higgins J. was the same Judge who had decided the earlier case of Carey, and I have already stated my opinion that he had wrongly relied on the decision in Williams v . Howarth.

It seems to me that Lucy ’s case is not substantially different in principle from that of Rangachari decided by the Privy Council in 1937. In each case the plaintiff had a right of action because he had been dismissed in breach of statutory provision, and not because he was entitled to contractual rights.

The nature of service under the Crown in Canada was considered in the judgment of the Privy Council in the case of Reilly v. the K in g 1. The suppliant had in 1928 been appointed a member of the Federal Pension Appeal Board for a period of five years. In May 1930 the pension statutes were amended and in consequence the Pension Appeal Board was abolished, and a new Tribunal established in its place. Mr. Reilly was not appointed to the new Tribunal, and in October 1930 he was requested to vacate the premises which he had occupied in pursuance of his office, The following observations of Lord Atkin are important for present purposes: —

“Both Courts in Canada have decided that by reason of the statutory abolition of the office Mr. Reilly was not entitled to any remedy, but apparently on different grounds. Maclean J. concluded that the relation between the holder of a public office and the Crown was not contractual. There never had been a contract: and the foundation of the petition failed. Orde J.’s judgment in the Supreme Court seems to admit that the relation might be at any rate partly contractual; but he holds that any such contract must be subject to the necessary term that the Crown could dismiss at pleasure. If so, there could have been no breach.

Then Lordships are not prepared to accede to this view of the contract, if contract there be. If the terms of the appointment definitely prescribe a term and expressly provide for a power to determine ‘for cause’ it appears necessarily to follow that any implication of a power to dismiss at pleasure is excluded. This appears to follow from the reasoning of the Board in Gould v. Stuart. That was not the case of a public office, but in this connection the distinction between an office and other service is immaterial. The contrary view to that here expressed would defeat the security given to numerous servants of the Crown in judicial and quasi-judicial and other offices throughout the Empire, where one of the terms of their appointment has been expressed to be dismissal for cause. (1 (19U) A. G. 176. H. N. G. FERNANDO, C.J.— The Attorney-General v. Kodeeswaran 135 1 (19U) A. G. 176.)

In this particular case their Lordships do not find it necessary to express a final opinion on the theory accepted in the Exchequer Court that the relations between the Crown and the holder of a public office are in no degree constituted by contract. They content themselves with remarking that in some offices at least it is difficult to negative some contractual relations, whether it be as to salary or terms of employment, on the one hand, and duty to serve faithfully and with reasonable care and skill on the other. And in this connection, it will be important to bear in mind that a power to determine a contract at will is not inconsistent with the existence of a contract until so determined.”

The dicta of Lord Atkin in Reilly ’s case received careful examination by the Supreme Court of South Africa in the case of Sachs v. Donges1 in which it was sought to equate the case of the revocation of a passport to the Crown’s right to terminate at pleasure the employment of a public officer. Referring to Lord Atkin’s statement that “ if the terms of the appointment definitely prescribe a term, and expressly provide for power to determine for ‘ cause ’, it appears necessarily to follow that any implication of a power to dismiss at pleasure is excluded ”, two Judges of the South African Court thought it clear that Lord Atkin only contemplated cases of appointments under a statutory power, where the statute itself by implication excluded the prerogative right of dismissal at pleasure.

Van den Heever, J.A. said in this connection: — “Once it is established that an act is the exercise of discretionary executive power not regulated by statute cadit quaestio, ……… the subject’s redress, if any, is political, not judicial.” Centlivres J. expressed his disagreement with the construction placed on Lord Atkin’s dictum in the case of Robertson v. Minister of Pensions 2 where Lord Denning had stated that “in regard to contracts of service, the Crown is bound by its express promises as much as any subject”. Let me with great respect state my own reasons for disagreeing with that construction.

In the passage cited above, Lord Atkin first referred to a judgment in which Orde J. in the Canadian Supreme Court, seemed “to admit that the relation might be at any rate partly contractual; but he holds that any such contract must be subject to the necessary term that the Crown could dismiss at pleasure”. Lord Atkin then expressed inability to accede to this view of the contract, if contract there be. His subsequent statement, that, in certain cases, “ any implication of a power to dismiss at pleasure is excluded ”, is explained by his reference to the cases of “ numerous servants of the Crown in judicial and quasi-judicial and other offices throughout the Empire, where one of the terms of their appointment has been expressed to be dismissal for cause ”, This reference read together with the reference to Gould v. Stuart 3, indicate that Lord Atkin had in mind only cases in which the power to dismiss at pleasure (1 (1950) (2) S . A. L. R. 265. 1 (1948) 2 A. E. R. 767. (1896) A. C. 575. 136 H. N. G. FERNANDO, C.J.— The Attorney-General v. Kodeeswaran) becomes excluded by contrary provision in a statutory power of appointment. (Canada Uthayan) (To be continued)

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SJV Father of Tamil Nationalism

Expansion of speech by V. Thangavelu, President Canada TNA at the 125th birth anniversary of SJV held in Toronto

10

Continued from last week…

Had he intended to say that the power could be excluded by contract, he would surely not have failed to refer to de Dohsev. Reg1and to Dunn v. Macdonald 2, both cases in which the contrary opinion
had been strongly expressed.

In Gould v. Stuart itself, Lord Hobhouse, in delivering the judgment of the Privy Council observed that “ servants of the Crown hold their offices during pleasure ; not by virtue of any special prerogative of the
Crown, but because such are the terms of their engagement, as is well understood throughout the public service ”, But the case itself concerned an office the tenure of which was regulated by the Civil Service Act of
New South Wales, the provisions of which were inconsistent with the power to dismiss at pleasure. The power of dismissal being thus excluded by statute, it was not material to decide the precise base on which the
power rested. Moreover, it is not easy to understand why an arbitrary power of dismissal is to be implied in a contract of employment except upon a supposition that such a power exists aliunde. And if such a power does exist, it is only the prerogative to which the power is fairly referable.

With much respect, therefore, I doubt whether the dictum of Lord Hobhouse can now be regarded as authority for the proposition that the terms of the engagement of servants of the Crown impose on the Crown contractual obligations, the breach of which may properly be the subject of dispute in Petitions of Right or (in Ceylon) in suits against
the Attorney-General.

I do not consider it useful to refer to other cases cited during the argument, many of which were concerned with alleged wrongful dismissals of servants of the Crown. It suffices for me that we have not been referred to any decision holding, despite objection directly taken on behalf of the Crown, that a Petition of Right or civil suit lies against the Crown to enforce the performance of the terms of the engagement of
a servant of the Crown, not being terms laid down by statute.

The Ceylon decision in Fraser ’s case is thus quite exceptional. The decisions of the Privy Council in the appeals from India lay down clearly the principle that the provisions of the covenants and rules governing the public service are not enforceable by action. This principle must apply to all such provisions, including those which prescribe rates of pay and increments, and it denies to this plaintiff a right to sue for the increment alleged to be due to him under the Minutes.

There remains one possibility to which I must advert, namely whether the provisions of the Ceylon Constitution have affected the operation in Ceylon of the principle formerly applicable. (i (1897) 68 L. J. Q. B. 422. * (1897) 66 L. J. Q. B. 423.)

Section 57 of the Order in Council declares that (with some exceptions not here relevant) every person holding office under the Crown holds the office during Her Majesty’s pleasure. Sections 58 and 60 establish a
Public Service Commission, and vest in the Commission “the appointment, transfer, dismissal and disciplinary control of ‘public officers”, i.e., of persons holding a paid office……… as a servant of the Crown in respect of the Government of Ceylon (vide s. 3, definition). Section 61authorises the Commission to delegate any of its powers, subject to the right of appeal to the Commission itself. Thus, the powers of appointment and dismissal, which were those of the Sovereign in early English law, are now exercisable by the Commission. It is not disputed that the plaintiff in this case is a public officer within the meaning of these provisions.

Neither in Part VII of the Order in Council, under the title “The Public Service”, nor in any other provision of the Order, is there express statutory declaration vesting in any specified authority the power to
prescribe the salaries and conditions of service of public officers. But Part V, which is entitled “The Executive”, vests in Ministers the subjects and functions which may be assigned to them by the Prime Minister.
The subject of “the public service” has been so assigned to the Minister of Finance, and I have no difficulty in assuming that the Minutes and Circulars referred to in this case, which were issued by the Secretary to
the Treasury or his Deputy, were in fact issued under the authority of the Minister of Finance. Under s. 51, the Secretary to the Treasury, who is also the Permanent Secretary to the Ministry of Finance, exercises control over the departments of Government in charge of his Minister and is thus the head of the Public Service, subject only to the special powers reserved by s. 60 to the Public Service Commission. The Minister of Finance, or his Permanent Secretary, in the exercise of their powers of control and administration of the public service, have necessarily to adhere to decisions of Parliament, particularly those decisions which are incorporated in the Appropriation Acts which appropriate funds for various public purposes ; they have also to adhere to decisions of the Cabinet, which under s. 46 of the Order in Council is charged with the general direction and control of the government of the Island. There has been no suggestion during the argument of this appeal that the act of the plaintiff’s head of department in withholding the plaintiff’s increment in any way infringes or usurps powers which under the Constitution are vested in Parliament, the Cabinet, the Public Service Commission, or the Minister of Finance. The head of department acted under the provisions of a Circular issued by an authority fully competent to issue it.

I find nothing in the relevant provisions of the Constitution (which have just been examined) which can in any way be construed as altering or affecting, either expressly or by implication, the principle that the terms of a public officer’s engagement to serve the Crown in Ceylon do not entitle him to institute a suit to recover earned wages or to enforce the terms of his engagement. The case of Silva v. The Attorney -General is easily distinguishable, for we are not here concerned with anything resembling the dismissal from service of a public officer by an authority not legally competent to dismiss him.

Counsel for the plaintiff argued that, although the Crown or the Executive Government in Ceylon has a power freely to alter the terms and conditions of service prescribed in the relevant minutes in force at the time of the plaintiff’s promotion to the Executive Clerical Class, that power was unlawfully exercised when the Treasury Circular No. 560 was issued in December, 1961. The ground of this argument was that the Circular was issued for the purpose of the implementation of the Official Language Act, No. 33 of 1956. Referring to the terms of the Circular itself, and to those of a Cabinet memorandum containing directions as to the implementation of that Act, Counsel submitted that the Treasury Circular had to be issued under the compulsion of the Act and relying upon certain decisions in the United States, he further submitted that anything done under the compulsion of an invalid statute is itself invalid, despite the fact that what is done may be valid if done in the exercise of some ordinary contractual right or other power. (To be continued)


SJV Father of Tamil Nationalism

Expansion of speech by V. Thangavelu, President Canada TNA at the 125th birth anniversary of SJV held in Toronto

11

Continued from last week…..

These submissions regarding the Treasury Circular depend on Counsel’s other submission that the Official Language Act of 1956 was ultra vires (beyond the legal power or authority of the person or authority of the person performing an action) on the ground that in enacting it Parliament transgressed the prohibitions against discrimination contained in Section 29 of the Constitution.

Indeed, the learned District Judge who heard the instant case has held the Act to be void on that ground. In considering whether this Court should now make any pronouncement as to the validity of the Act of 1956, I take note of the reluctance of the American and Indian Supreme Courts to make such pronouncements. The principle is thus expressed in Cooley, Constitutional Limitations (8th Ed. p. 332): — “It must be evident to anyone that the power to declare a Legislative Enactment void is one which the Judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility.”

In Burton v. United States 2 it was observed that “It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of a case”. Again, in silver v. Louis Ville N. R. Co .3 the Court stated that if a case could be decided on one of two grounds, one involving a constitutional question, and the other a question of statutory construction or general law, the Court will decide only the latter. (1 (1958) 60 N. L. R. 115. 3 196 V. S. Reports at p. 295. 3 213 U. S. Reports at p. 191).

 In the instant case, it is not even clear whether the question of the compulsion of a statute does arise. I have already reached the conclusion that under our Law a public servant has no right to sue for his wages. Accordingly, the plaintiff is not entitled to a remedy in the Courts for any alleged default in the payment to him of the increment, even if the relevant minutes and regulations had not been altered or modified by the Treasury Circular No. 560.

The position of the Crown here is not that there was an alteration in the terms and conditions of service in consequence of which the plaintiff has become disentitled to the increment. The Crown’s position is that the plaintiff cannot sue for the payment of the increment, even if the minutes and regulations provide for such a payment. Since such in my opinion is the correct position in law, this Court should not now venture to rule upon the submissions as to the invalidity of the Language Act. As a note of caution, I must say also that the ruling on that submission made by the learned District Judge in this case must not be regarded in any way as a binding decision.

We did not call upon the learned Acting Attorney-General to submit his arguments on the question of the validity of the Language Act. Instead, at the close of the hearing of this appeal, I indicated my intention that if our findings on the other issues arising in this case necessitate consideration of that question, I would in exercise of my powers under Section 51 of the Courts Ordinance refer the question for the decision of a Bench of five or more Judges. That course is not now necessary; but I should here express the firm opinion that a question of such extraordinary importance and great difficulty, if and when it properly arises for decision, must receive consideration by a Bench constituted under Section 51.

The judgment and decree of the District Court are set aside. I do not in the circumstances make any order as to the costs in the District Court, but the plaintiff must pay the costs of this appeal.
G. P. A. Silva, J.—I agree. Judgment and decree set aside.

The judgment of the Supreme Court came as no surprise. It was expected as told earlier; we filed the case to register our opposition to the Official Language Act (No.33 1956) popularly styled Sinhala Only Act) which turned Tamil public servants’ illiterates overnight. Additionally, it made Ceylon Tamils second class citizens not equal before the law at least as far as Tamil language was concerned.

On the 10th of December 1947 the Ceylon Independence Bill was passed in the UK, marking the beginning of the 1947 Constitution. Ceylon officially became an independent country within the British Commonwealth of Nations on the 4th of February 1948. Simultaneously an Independence Bill was enacted in May 1946 by the State Council.  Although it was one of several constitutional documents that governed Ceylon during its Dominion period, the 1946 Order in Council is widely referred to as the “Soulbury Constitution.”    The voting in the third reading (in March) of the “Free Lanka” bill of January 1945, was supported by all the Muslim members, and by T. G. Rajakulendran, S. P. Vytilingam, and V. Nalliah.  

The voting far exceeded the 3/4 majority required by the Soulbury Commission, Senanayake had 51 votes in favour and only three votes against the adoption of the constitution. The vote was “in many ways a vote of confidence by all communities in …” D.S.  Senanayake claimed.

D.S. Senanayake went further to make a tongue in cheek pronouncement that ” “no harm needs you [non-Sinhalese] from our hands [Sinhalese] in a free Lanka”. He was speaking in the State Council in October 1945 when all the Tamil members had unanimously voted for the acceptance of the constitution in a White Paper. He went further and asked rhetorically “Do you want to be governed from London or do you want, as Ceylon, to help Ceylon? On behalf of the [Ceylon National} Congress [founded by Sir Ponnambalam Arunachalam in 1919] and on my behalf, I give the minority communities the sincere assurance that no harm needs you fear at our hands in a free Lanka”. 

This turned-out to be an empty rhetoric and a sugar-coated pill to entice the Tamil legislators to vote for the  Soulbury constitution.   Gullible Tamil legislators reposed trust in DS Senanayake not knowing his ulterior motive and subterfuges. Before the ink on the Independence Act could dry, D.S. Senanayake went for the kill. He brought in the Ceylon Citizenship Act 1948 which disfranchised more than 800,000 Tamils in 1948, the very year of Independence. D.S. Senanayake blatantly went back on his promise and bared his true colours as an unrepentant champion of Sinhala chauvinism. (To be continued)

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SJV Father of Tamil Nationalism

Expansion of speech by V. Thangavelu, President, Canada TNA at the 125th birth anniversary of SJV held in Toronto

12

Continued from last week ….

Ceylon Citizenship bill was passed on August 20, 1948 and signed into law on November 15 of the same year. However, GG Ponnambalam joined DS Senanayake’ s cabinet and took oaths as Minister of Industries, Industrial research and Fisheries on September 3, 1948 just two weeks after the passage of the Bill! That is to say negotiations with D.S. Senanayake for a cabinet portfolio commenced weeks before August 20, 1948.

On the following year in 1949 the Ceylon Parliament passed the Ceylon (Parliamentary Elections) Amendment Act No.48 of 1949 which stripped the Indian Tamils of their franchise. The amendment simply said that only citizens are eligible to vote. Prior to independence Tamils of Indian origin have voted in parliamentary elections held in 1947 and all State councils held since 1931. Seven of the 95 MPs elected at the 1947 general elections were of Tamils of Indian origin. The Indian Tamils also influenced the result in 20 other constituencies where leftist parties contested.

Ceylon would not have gained independence if not for the votes cast by Tamil legislators for the Independence Bill introduced by DS Senanayake in 1946. Gullible Tamil legislators reposed trust in DS Senanayake not knowing his ulterior motive and subterfuges, His infamous pronouncement that “Do you want to be governed from London or do you want, as Ceylon, to help Ceylon? On behalf of the [Ceylon National} Congress [founded by Sir Ponnambalam Arunachalam in 1919] and on my behalf, I give the minority communities the sincere assurance that no harm needs you fear at our hands in a free Lanka”. As subsequent events proved this was empty rhetoric and a sugar-coated pill to entice the Tamil legislators to vote for the constitution. When the Bill was put to vote, 51 of the 53 councillors voted in favour.

To revert back, it would be seen that Chief Justice H.N.G.  Fernando and Justice G. P. A. Silva agreeing concluded that Kodeeswaran’s right to sue the crown must be determined under English common law and not under Roman – Dutch law. Under English law a civil servant had no right to remuneration that could be enforced against the State. The Supreme Court failed to consider the constitutional issue but gave judgement on the preliminary point to the Crown. The Supreme Court, however, stated that if it became necessary to consider the constitutional issue, the matter would be placed by the Chief Justice before a five-judge court. This was the decision the government wanted; it was politically acceptable but legally erroneous.

 The Soulbury constitution left important subjects undefined, namely the Official Language of an independent Ceylon, who are its citizens, individual and group rights particularly in a multi ethnic state.  Though D.S. Senanayake and his Ministers “officially” boycotted the Soulbury Commission, but they worked behind the curtains to influence the Commission. It is they who asked the Soulbury Commission leave those subjects to an independent Ceylon. Obviously, DS Senanayake had other plans up his sleeve in an independent Ceylon.

The Soulbury constitution itself was more or less similar to the draft constitution presented to the Commission   by D.S. Senanayake and the Board of Ministers.  This draft constitution, authored by Sir Ivor Jennings, conferred Dominion status to Ceylon. The draft constitution also allocated 57 seats for the Sinhalese, 15 seats for the Ceylon Tamils, 14 for Tamils of Indian origin and 8 for Muslims in a parliament consisting of 95 elected and 6 appointed members. The demography of Ceylon according to 1946 population census is as follows:

When results of the 1947 general elections came, the UNP won 42 seats, the LSSP 10, the Tamil Congress 7, the CIC 7, the BLP 5, the CP 2, the Labor Party 1, with 21 independents winning. Ethnic-wise, the Sinhalese won 68 out of 95 seats, while the Ceylon Tamils won 13 seats in both the North and Eastern provinces, 7 seats were won by the Tamils of the Indian origin, while Muslims won 6 seats, and one went to the Burgher community.

A total of 1,710,150 people cast their votes, which amounted to 55.8 percent of the total eligible voters. The results of the 1947 elections to parliament revealed that   UNP won 42 seats, the LSSP 10, the Tamil Congress 7, the CIC 7, the BLP 5, the CP 2, the Labor Party 1, with 21 independents winning.  Ethnic-wise, the Sinhalese won 68 out of 95 seats, while the Ceylon Tamils won 13 seats in both the North and Eastern provinces, seven seats were won by the Tamils of the Indian origin, while Muslims won six seats, and one went to the Burgher community.

This figure excludes voters in the Puttalam electorate, where the H S Ismail (UNP) was elected uncontested. Accordingly, 71.58 % of the seats went to the Sinhalese against the 63 % they managed in the State Council general elections held on 1936. Ceylon Tamils managed to obtain 13.8 % of the seats. The losers were the Tamils of Indian origin who secured only 7.37% of the seats.  So, it was obvious, that DS Senanayake in the draft constitution submitted to the Soulbury Commission deliberately understated the Sinhalese representation in the first parliament while inflating the Indian Tamil representation. The Soulbury Commission exhibited blissful ignorance that DS Senanayake was clandestinely scheming to deprive the Indian Tamils their citizenship within 285 days of independence in 1948. Or the Indian Tamils of their franchise the following year 1949. It also opened the floodgates for  more discriminatory legislation like the Sinhala Only Act in 1956 and Standardization of Education Act in 1971Thus the Soulbury Constitution  made the Tamils a minority community under the over lordship and at the  mercy of the Sinhalese.

Even though GG  Ponnambalam had pleaded with the Soulbury Commissioners for the introduction of measures to check the Sinhalese dominance and their practice of discrimination against the Tamils,  the Commissioners adamantly refused to consider his plea. As an act of revenge, GG Ponnambalam defeated all the Tamil leaders who supported the Soulbury Commission Report and came forward to contest on the UNP ticket. Sir Arunachalam Mahadeva succumbed to a humiliating defeat in Jaffna. SJV Chelvanayakam, a complete newcomer to politics, defeated S Nadesan. An independent candidate, C Sittampalam, squarely defeated Jeganathan Thiagaraja in Mannar. Sir Arunachalam Mahadeva and Thiagaraja subsequently never returned to politics.

Once the results were announced, G G Ponnambalam dispatched an urgent cable to the Colonial Office, claiming that the election results had vindicated his stand for balanced representation, and he called for the rejection of the Soulbury Constitution. He also claimed that the Tamil Congress had sought and obtained a mandate from the Tamils for his party to render “responsive cooperation” with the “progressive-minded” Sinhala parties. (See the annex for the Soulbury Commissioners’ Report on G G Ponnambalam’ s submissions.) 

Although the Soulbury Commission thought Section 29 of the constitution, which prohibited Parliament from enacting discriminatory legislation, is unalterable in perpetuity and an iron clad safeguard for the minority communities against tyranny by the majority Sinhalese, in practice it proved otherwise.

Lord Soulbury, after having served a term as governor general of independent Sri Lanka, in a spirit of repentance for the failure of the British, took the blame upon himself and later admitted: “I now think it is a pity that the Commission did not also recommend the entrenchment in the constitution of guarantees of fundamental rights.” (To be continued)

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SJV Father of Tamil Nationalism

Expansion of speech by V. Thangavelu, President, Canada TNA at the 125th birth anniversary of SJV held in Toronto

(13)

As I narrated above the judgment of the Supreme Court came as no surprise. When it came to fundamental rights and judicial restraint the Ceylon Supreme Court and the Privy Council exercised judicial review cautiously the Soulbury constitution designed on Westminster format.  Neither was prepared to question acts of the Ceylon Parliament that discriminated against minority groups, especially Section 29 considered entrenched clause in the constitution.  This clause was supposed to prohibit Parliament from enacting discriminatory legislation against minorities.  It set forth constitutional safeguards to minorities against discrimination on grounds of race or religion or both.

I append below Section 29 of the Soulbury constitution, though this Section along with the Soulbury constitution was thrown overboard by the Republican Constitution enacted by Mrs. SWRD Bandaraike’s government in 1972. It is now only of historic interest to academics. The deliberate exclusion of a provision similar to section 29(2) and (3) in the 1972 Constitution was more catastrophic, if not utterly myopic. This Republican constitution gave Buddhism foremost place and state duty to protect and foster Buddha Sasana, in effect status of state religion. This had led protracted conflict, both violent and non-violent, between Sinhala Buddhists and Tamil Hindus as we witness today. This Republican constitution also formally abolished appeals to the Privy Council,

EGISLATIVE POWERS AND PROCEDURE
Power of Parliament to make laws.
Section 29.

(1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island.

(2) No such law shall-

(a) prohibit or restrict the free exercise of any religion ; or

(b) make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable ; or

(c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions.

The question as to whether the provisions of the Citizenship Act of 1948 were contrary to Section 29(2)(b) and (c) of the Soulbury constitution, which prohibited the Ceylon parliament from enacting any law which would impose disabilities or restrictions on members of any community or religion, came to be decided by the Privy Council in the case of Kodakan Pillai v Mudanayake in 1953.

The appellant, an Indian national resident in Sri Lanka for two years prior to June 1950, was first refused registration as a voter under the 1949 franchise law, on the ground that he was not a citizen, by the registering officer. He appealed to the Revising Officer (a district judge), who held that the Citizenship Act, 1948, and the Ceylon (Parliamentary Elections) Amendment Act, 1949, were ultra vires vis a vis the constitution. He also stated that the Citizenship Act was in no true sense legislation to create the status of citizen, but was, with the 1949 act, part of a legislative plan to reduce the electoral power of the Indian community.

The Crown appealed to the Supreme Court, which allowed the appeal. Then the appellant appealed to the Privy Council, which, while dismissing the appeal, stated inter alia as its reasons:

It is . . . a perfectly natural and legitimate function of the legislature of a country to determine the composition of its nationals. Standards of literacy, of property, of birth or of residence are, as it seems to their Lordships, standards which a legislature may think it right to adopt in legislation on citizenship, and it is clear that such standards, though they may operate to exclude the illiterate, the poor and the immigrant to a greater degree than they exclude the other people, do not create disabilities in a community as such, since the community is not bound together as a community by its illiteracy, its poverty or its migratory character, but by its race or its religion. The migratory habits of the Indian Tamils are facts which . . . are directly relevant to the question of their suitability as citizens of Ceylon, and have nothing to do with them as a community.

On the legal question of the vires of the acts in question, the Privy Council stated:

The principle that a legislature cannot do indirectly what it cannot do directly has always been recognized by their Lordships’ Board . . . But . . . the court will not be astute to attribute to any legislature motives or purposes or objects which are beyond its power. It must be shown affirmatively by the party challenging a statute which is, on its face intra vires, that it was enacted as part of a plan to affect indirectly something which the legislature had no power to achieve directly.

The Privy Council went on to declare that a community is not bound together by its illiteracy, poverty or migratory character; yet, in reality, these were the very characteristics that made the Indian Tamils a collective community The Privy Council, in its exposition of the law, and in its inclusion of literacy and property as possible “standards” for citizenship, give one the impression that their Lordships were holding court in another world.

Their interpretation of the legislative power of the Sri Lanka parliament rendered the safeguards in Section 29(2), in legal language, otiose, i.e., serving no useful purpose. The government of Sri Lanka hailed this decision as a great victory, and later governments were encouraged to use other legislative measures depriving Tamils of other rights. This decision provoked widespread disillusionment.

The disfranchisement of the Indian Tamils had two effects. Firstly, it made them a community with no representation in the future legislatures of the country. Secondly, all eight electorates in which they were represented— Nuwara Eliya, Talawakale, Kotagala, Nawalapitiya, Maskeliya, Haputale, Badulla and Bandarawela—came to return Sinhalese MPs to parliament, with very few voters in each of them. This increased the Sinhalese representation in parliament from 67% in the 1947 election to 73% in the 1952 election and, after the l959 delimitation, to 78%. This was considerably more than the proportion of the Sinhalese population, which was 67.3% in the 1953 census and 71.2% in the 1963 census.

And, in the 1970 election, Sinhalese comprised 80% of the legislature when their population was only 71.2% in the 1963 census and 72.9% by 1971. It was a case not simply of the head count and the arithmetic of the ballot box, but of a predominant ethnic majority squeezing out an ethnic minority by every means that the electoral system provided. (Extract from: Sri Lanka The National Question and the Tamil Liberation Struggle)

The failure of the cases filed challenging both the Citizenship Act, 1948, and the Ceylon (Parliamentary Elections) Amendment Act, 1949 are ultra vires of the constitution placed the AES in a quandary.   Should we appeal to the Privy Council or not? After consultation with our lawyers, we decided to appeal to the Privy Council. (To be continued)  


SJV Father of Tamil Nationalism

Expansion of speech by V. Thangavelu, President Canada TNA at the 125th birth anniversary of SJV held in Toronto

Part 14

Continued from last week ………………..

As a nation our forefathers have failed to record our past history in a methodical way.  History of Tamils have to be reconstructed based on stone inscriptions, copper plates, ola leaves etc. “Mangulam inscription” is often regarded as one of the oldest Tamil Brahmi inscriptions, 3rd century BCE, found in Madurai district. Tamil copper-plate inscriptions are records of grants of villages, plots of cultivable lands or other privileges to private individuals or public institutions by the members of the various South Indian royal dynasties. A typical Chola copperplate inscription currently displayed at the Government Museum, Chennai, India, is dated 10th century C.E. It consists of five copper plates stringed in a copper ring, the ends of which are secured with a Chola seal bearing in relief, a seated tiger facing the right, two fish to the right of this, the study of these inscriptions has been especially important in reconstructing the history of Tamil Nadu. Tamil palm-leaf manuscript of Tholkappiyam and Sankam poems have survived, but some important works have been lost to the elements.

In contrast, Greeks, Romans and Egyptians have kept historical records from earlier times. The Egyptian hieroglyphs date to between 3400 – 3200 BCE and are the oldest recorded history discovered so far in the world. The hieroglyphs were found in Tomb U-j, which is believed to hold the remains of Scorpion I, one of the first rulers of Ancient Egypt.

The ancient records like the Mahavamsa are full of myths, fantasies, superstitions beliefs and legends, but it also covers the history of royal dynasties that ruled Ceylon beginning with the arrival of legendary Vijaya in 543 BC.  Therefore, while reading Mahavamsa, one should separate facts from fiction.   Mahavamsa was compiled mainly for the serene joy and emotion of the (Buddhist) pious. It identifies the original inhabitants of Lanka as Nagas, Devar, Vedas, Yakshas and Rakshas.  Of course, there is no mention about Sinhalese. It was Buddhist Nagas in due course who metamorphosed into Sinhalese around the 7th century. Likewise, Vedic Nagas were assimilated into Tamil language and culture.   With all its shortcomings, there is no chronical like Mahavamsa in South Asia, including India. As stated above, Mahavamsa narrates the ‘history’ from the arrival of Vijaya in 543 BC to Mahasenan (463 – 479AD) the 64th king. It identifies Devanampiya Tissa as a Naga king, not Sinhalese king. This is because there were no Sinhalese at that point in time

Only from Mahavamsa we learn that Tamil settlements existed to the north of Mahaweli Ganga. It  says when Viharamahadevi asked Duttu Gemunu (161 BC-137 BC) why he is sleeping curled up in a large bed and why not stretch out and sleep comfortably, he answered thus: “On one side there is the dumb ocean and on the other side beyond the Maha Ganga River there are Damilas. How can I stretch out and sleep comfortably?”

During the period of preparations for war with King Elalan, the Kataragama deity appeared in front of King Dutugemunu and gave him a sword for him to use in the war at the present-day site of Henakaduwa temple (hena and Kaduna, meaning thunder and sword respectively in Sinhalese). Though Duttugemunu was a Buddhist, he was an ardent follower of Lord Kataragama.

When Duttu Gemunu marched his army to fight King Ellalan who ruled from Anuradhapura he has to fight and defeat 32 Tamil chieftains  before he reached Anuradhapura. He also killed around sixty thousand Tamils in the war. How could there be 32 Tamil chieftains in the area of Anuradhapura alone, if there were no Tamils or Tamil settlements? 

 In 237 BC two Saivite Tamils, Senan and Kuttakan from Tamil Nadu defeated Tissa in battle and ruled Anuradhapura for 22 years.  Anuradhapura was under 8 Saivite Tamil rule for the next 134 years ending in 103 BC for a total of 82 years.  

The language spoken by the Nagas was different from that spoken by other Tamils. This is illustrated by the story of Sathuvan in the Buddhist epic Manimeghalai.  But both Nagas and Tamils were followers of Vedic religion. Following the Vedic religion of Sri Lanka, the Nagas eventually became Tamils. Similarly, Buddhist Nagas became Sinhalese.

Kodeeswaran made legal history when he filed petition challenging the withholding of his increment for failure to pass exams in Sinhalese within the period stipulated by the government. The Colombo District Court Judge ruled in his favour, but the government on appeal to the Supreme Court succeeded in overturning the judgment of the lower court. Below is the judgment of the Supreme Court continued from last week which will be of interest to students of history and law. So far, we have failed to document the entire case in print.  

H. N. G. Fernando, C.J.

I must note here that the Minute clearly states that the salary scales, cadre, and conditions of service are liable to alteration from time to time. On 4th December 1961 a new Treasury Circular Xo. 560 provided that Officers of the category to which the plaintiff belonged must pass a proficiency’ test in Sinhala. According to this Circular a Tamil officer (as the plaintiff is) is required to pass a test in Sinhala at 3rd standard level within one year from 1st January 1961, a test at 5th standard level within two years, and at J. S. C. standard within three years. The Circular provided for suspension of an increment falling due after February 17, 1962 in a case of an officer failing the test. The plaintiff did not present himself for the requisite examination, and the suspension of his increment which fell due on April 1, 1962 was ordered in pursuance of the Circular on the ground that he had not passed the first of the language tests prescribed in the Circular

One of the grounds on which the plaintiff’s action was resisted by the Attorney-General is that a public servant in Ceylon has no right to sue the Crown for the recovery of wages claimed to be due for service under the Crown. This defense, which was rejected by the learned trial Judge, raises questions of great importance and difficulty, and the Court is much indebted to Counsel for the full and able arguments presented at the hearing of this appeal.

The first question to be decided is whether the relationship between the Crown and its servants in Ceylon is regulated by the Roman-Dutch Law, or else by the English Law as altered or modified in its application in this country’. The contention that the Roman Dutch Law applies supported by two early decisions of this Court which are reported in Ramanathan’s Reports 1863-68. (To be continued)

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SJV Father of Tamil Nationalism
Expansion of speech by V. Thangavelu, President, Canada TNA at the 125th birth anniversary of SJV held in Toronto
(15)

Continued from last week ….

An appeal to the Privy Council, the apex body under the Soulbury Constitution, is easily said than done. It involves money, time and effort. The AES leadership has already spent huge amounts fighting the case in the Colombo High Court and in the Supreme Court from 1962. This despite the fact our lawyers appeared pro-bono.

To retain English lawyers to argue the case in the Privy Council, we needed sterling pounds to pay their fees. Therefore, we decided to launch a campaign to collect funds from our members as well as supporters. The AES membership, numbering about 3,000,  rose to the occasion by contributing liberally. We went  and met our members working in Ministries and Department. I recollect on such occasion when Kodeeswaran and myself went to the Department of Treasury, one of our members bought a whole book containing 20 tickets and gave us Rs.200 then and there. This was a extremely large amount those days. Travel by third class between Colombo and Jaffna by train costed only Rs.13.50!

It was decided to retain the services of the then famous civil lawyer Sir Dingle Foot, QC with C. Ranganathan, Q.C., M. P. Solomon, S. C. Crossette-Thambiah and M. I. Hatnavi Haniffa, for the plaintiff- appellant. C. Ranganathan, QC, appeared for Kodeeswaran both in the Colombo High Court and the Supreme Court. E. F. N. Graliaen, Q.C., with R. K. Handoo and H. L. de Silva, for the defendant-respondent. After prolonged delay judgment was delivered by Lord Diplock on December II, 1969. The Privy Council in favour of Kodeeswaran vs Attorney General.

In its judgment the Privy Council directed the Supreme Court to address the constitutional question of whether the Official Language Act of 1956 which made Sinhala the official language was in violation of Section 29 of the Soulbury constitution, which prohibits discrimination.  Dr Colvin R de Silva, a staunch Trotskyite and Minister for Constitutional Affaires in Mrs Srimavo Bandaraike’s cabinet (1972), changed the constitution so that there will be “no more Kodeeswaran type challenges”.

This case is famous because it highlighted a conflict between the Roman-Dutch Law and English Law in Sri Lanka. As already told Kodeeswaran sued the Government for arrears in pay, and the Sri Lankan Supreme Court dismissed the action, saying that under English law a civil servant had no right to remuneration that could be enforced against the State. Kodeeswaran appealed to the Privy Council, claiming that Roman-Dutch law governed the issue, and that under R-D Law, an action against the State for arrears in pay was allowed. The Privy Council said that neither English Law nor R-D Law allowed for the type of action Kodeeswaran was bringing, but that the Sri Lankan courts, over the years, had recognized such an action. In other words, what the Privy Council said was that the Sri Lankan courts had developed, through interpretation, a body of laws, and that this was what constituted the “common law” of Sri Lanka. The Privy Council therefore held in favour of Kodeeswaran.

The issue with regard to language policy was a secondary issue in this case, and the Privy Council emphatically refused to comment on it. Here’s what the Privy Council actually said: “There are more important constitutional issues to be decided upon which neither the Supreme Court nor their Lordships have heard argument. As already indicated, their Lordships would think it inappropriate to enter into any of these matters without the considered opinion of the Supreme Court of Ceylon thereon.” (Kodeeswaran v. Attorney General (1969) 72 NLR 337, pp. 347)

For purpose of record, I give below the text of the judgment.

Judgment of the Privy Council in Kodeeswaran vs Attorney General, Ceylon New Law Reports Volume 72, p 337

PRIVY COUNCIL

1969 Present: Lord Hodson, Viscount Dilhorne, Lord Donovan, Lord Pearson, Lord Diplock

C. KODEESWARAN, Appellant, and THE ATTORNEY-GENERAL,

Respondent

PRIVY COUNCIL APPEAL NO. 38 OF 1968

S. C. 408/64-D.C. Colombo, 1026/Z.

Constitutional law-Public servant–Contract of service with the Crown-Action for recovery of arrears of salary due-Maintainability-Roman-Dutch law- Effect of Proclamation of 23rd September 1799-Applicability of English law.

A civil servant in Ceylon is entitled to sue the Crown for arrears of salary which, have accrued due, by the terms of his appointment, in respect of services which he has rendered during the currency of his employment. In such a case the fact that his appointment as a Crown servant is terminable at will, unless it is expressly otherwise provided by legislation, is not relevant.

Privy Council Rules In Favor Of Opposition In St. Kitts/Nevis ...

” Although the Roman-Dutch law as applied in Ceylon under the Government of the United Provinces is the starting point of the ‘ common law ‘ of Ceylon, it is not the finishing point. Like the common law of England, the common law of Ceylon has not remained static since 1799. In course of time, it has been the subject of progressive development by a cursus curia (Samed v. Segutamby, 25 N. L. R. 481) as the Courts of Ceylon have applied its basic principles to the solution of legal problems posed by the changing conditions of society in Ceylon. In their Lordships’ view if long established judicial authority for a proposition of law not inconsistent with the British constitutional concept of the exercise of sovereign authority by the Crown can be found in the decisions of the Ceylon courts themselves there is no need to go back to see whether any precedent can be found for it in the jurisprudence of the Courts of the United Provinces or the doctrine of the Roman-Dutch jurists of the eighteenth century. Still less is it necessary to find a precedent for it in English common law.”

APPEAL from a judgment of the Supreme Court reported in (1967) 70 N. L. R. 121.

Sir Dingle Foot, Q. C., with C. Ranganathan, Q.C., M. P. Solomon, S. C. Crossette-Thambiah and M. I. Hamavi Haniffa, for the plaintiff-appellant.

E. F. N. Gratiaen, Q.C., with R. K. Handoo and H. L. de Silva, for the defendant-respondent.

December 11, 1969. [Delivered by LORD DIPLOCK]-

The appellant has been for many years a civil servant in Ceylon. He is one still. He brings this action against the Attorney-General as representing the Government of Ceylon. Its subject matter is the salary which he has received as a civil servant. He says that he was entitled to be paid more under the terms of his appointment and claims the balance which he alleges he has earned but which the Government of Ceylon has refused to pay him. He is a Tamil and the balance of salary that he claims is due to him is an increment which was denied to him because he did not pass a test in the Sinhala language. The requirement that he should pass such a test as a condition precedent to his being paid the increment was imposed by a Treasury Circular expressed to be issued in implementation of the Official Language Act, 1956. In the action he claims that the Official Language Act is unconstitutional and void and that the circular which was issued to implement the Act and which purported to vary the existing terms of his appointment is also void and ineffective to disentitle him to the increment to which he would have been entitled under those terms. (To be continued)

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SJV Father of Tamil Nationalism

Expansion of speech by V. Thangavelu, President, Canada TNA at the 125th birth anniversary of SJV held in Toronto
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Continued from last week ….

The appellant’s action, if it lies at all, thus raises issues of the highest constitutional importance, all of which were argued before the District Judge. There is however a preliminary issue, viz. whether a civil servant has any right of action against the Crown for salary due in respect of services which he has rendered. If, as the Attorney-General contends, there is no such right of action, the broader constitutional issues as to the validity of the Official Language Act and as to the right of the Ceylon Government to impose a language test upon its civil servants as a condition of entitlement to higher pay, cannot be raised by the plaintiff in the present action. It fails in limine (at beginning or on the threshold).

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The Judicial Committee of the Privy Council

This preliminary issue was decided in the plaintiff’s favour by the District Judge. He accordingly went on to deal with the other issues which he also decided in favour of the plaintiff. On appeal to the Supreme Court (Fernando C. J. and Silva J.) the preliminary issue was argued first. On this issue that Court reversed the decision of the District Judge. This made it unnecessary for the two judges who constituted the Supreme Court to enter upon the consideration of the remaining issues which had been dealt with in the judgment of the District Judge. They accordingly heard no argument and expressed no views on them. The learned Chief Justice expressly stated that had it been necessary to decide these other issues he would have exercised his discretion to convene a full court of five judges to adjudicate upon them in view of their outstanding constitutional importance.

Upon this appeal, their Lordships have also confined their consideration to the preliminary issue whether or not a civil servant has any right of action in Ceylon against the Crown for salary due in respect of services which he has rendered. They too have heard no argument and express no view upon any of the other issues raised in the action and dealt with in the judgment of the District Judge. They would not think it proper to do so without the assistance of the considered judgment of the Supreme Court.

The preliminary issue is, however, one of importance in its own right. It falls to be decided by the law of Ceylon. English law is relevant only to the extent that it has been adopted as part of that law.

In the case of most former British colonies which were acquired by conquest or cession, the English common law is incorporated as part of the domestic law of the now independent State because it was imposed upon the colony by Order in Council, Proclamation, or otherwise under the prerogative powers of the Crown. But in the case of Ceylon, upon the acquisition of the maritime areas which had previously been settled by the Dutch, the Crown did not impose English law.

By Proclamation of 23rd September 1799, it was proclaimed-

” 1. WHEREAS it is His Majesty’s gracious command that, for the present and during His Majesty’s will and pleasure, the temporary administration of justice and police in the settlements of the island of Ceylon, now in His Majesty’s dominion, and in the territories and dependencies thereof, should, as nearly as circumstances will permit, be exercised by us in conformity to the laws and institutions that subsisted under the ancient government of the United Provinces, subject to such deviations in consequence of sudden and unforeseen emergencies, or to such expedients and useful alterations, as may be rendered a departure there from either absolutely necessary and unavoidable or evidently beneficial and desirable.

2. We therefore, in obedience to His Majesty’s commands, do hereby publish and declare, that the administration of justice and police in the said settlements and territories in the island of Ceylon, with their dependencies, shall be henceforth and during His Majesty’s pleasure exercised by all courts of judicature, civil and criminal, magistrates and ministerial officers, according to the laws and institutions that subsisted under the ancient government of the United Provinces, subject to such deviations and alterations by any of the respective powers and authorities herein-before mentioned, and to such other deviations and alterations as we shall by these presents, or by any future Proclamation, and in pursuance of the authorities confided to us, deem it proper and beneficial for the purposes of justices to ordain and publish, or which shall or may hereafter be by lawful authority ordained and published. “

In 1835 this was extended to the whole of the island.

The first problem raised by this Proclamation is whether the Supreme Court were right in thinking that its subject matter is restricted to private law applicable to transactions between subject and subject so as to exclude the whole of the former Roman-Dutch public law applicable to transactions between subject and sovereign. The words of the Proclamation must be understood in the meaning attaching to them in the closing years of the eighteenth century and in the light of the historical circumstances in which the Proclamation was made. The East India Company which captured Trincomalee and Colombo from the Dutch in 1795 abolished the existing system of administration through local officials. This led to a revolt in 1797. Governor North was sent out from England and the Proclamation marks his restoration of the old system of civil administration. Furthermore, as the Proclamation itself indicates, the British occupation was expected to be temporary only. It was not until the Peace of Amiens in 1802 that Ceylon became a Crown Colony. Read in this historical context, the actual wording of the Proclamation with its references to ” police ” (which at that date was commonly used in the generalised sense of ” civil administration “) to ” institutions ” and to ” ministerial officers “, is in their Lordships’ view more apt to indicate an intention to restore in the recently acquired territory the previously existing system of law as respects the civil administration of Ceylon, rather than to exclude this branch of public law from its ambit.

But even if the relationship between the Government of the United Provinces and  its civil servants in Ceylon had formerly possessed the legal characteristics of a contract of service and they had been entitled to sue that government for arrears of salary, it does not follow that a corresponding contractual relationship and right of suit between the British Crown and its civil servants in Ceylon was created by the Proclamation. (To be continued)


SJV Father of Tamil Nationalism

Expansion of speech by V. Thangavelu, President, Canada TNA at the 125th birth anniversary of SJV held in Toronto

(17)

As was pointed out by Lord Stowell in Ruding v. Smith [(1821) 2 Hag. Con. at p. 282.] when territory is acquired by conquest or cession “no small portion of the ancient law is unavoidably superseded. . .. The allegiance of the subjects and all the law that relates to it-the administration of the law in the sovereign and appellate jurisdictions-and all the laws connected with the exercise of the sovereign authority-must undergo alterations adapted to the change “. In the Cape Colony, of which Lord Stowell was speaking, Roman-Dutch law continued in force by virtue of a Proclamation almost contemporaneous with that applicable to Ceylon but which omitted any reference to ” police “, ” institutions ” or ” ministerial officers “. What he said, however, would in their Lordships’ view apply also to Ceylon to abrogate any rule of law previously in force there under the government of the United Provinces if it was incompatible with the British concept of the exercise of sovereign authority by the Crown. It is therefore necessary to consider first whether the existence of a relationship which possessed any of the legal characteristics of a contract between the Crown and a person appointed by the Governor in Ceylon to serve in the civil administration of the territory would have offended against the fundamental Concept of the rights and immunities of the sovereign at the close of the eighteenth century.

Privy Council hands down landmark decision on trustee liability and ...

In their Lordships’ view there is no such incompatibility. In the eighteenth century the principal officers of the executive government of a colony were appointed directly by the Crown in England by letters patent. This method of appointment may well have been inconsistent with the creation of a contractual relationship between the Crown and the appointee, but the Proclamation was local in its ambit and would not affect the legal relationship between these officers and the Crown. It applied only to subordinate officers in the civil administration of the government of Ceylon who were appointed locally by the Governor and removable by him. It is now well established in British constitutional theory, at any rate as it has developed since the eighteenth century, that any appointment as a Crown servant, however subordinate, is terminable at will unless it is expressly otherwise provided by legislation; but as pointed out by Lord Atkin in Reilly v. The King [1 1 (1934) A. C. 176 at p. 180. 1**-J 10714 (1/70)] ” a power to determine a contract at will is not inconsistent with the existence of a contract until so determined “. In Reilly’s Case Lord Atkin, while finding it unnecessary to express a final opinion as to whether the relationship between the Crown and the holder of a public office was constituted by contract, remarked ” that in some offices at least it is difficult to negative some contractual relations, whether it be as to salary or terms of employment, on the one hand, and duty to serve faithfully and with reasonable care and skill on the other”. Their Lordships thus see nothing inconsistent with British constitutional theory in the Governor of Ceylon being empowered by the Proclamation of 1799 to enter into a contract on behalf of the Crown with a person appointed to an office in the civil administration of the colony as to the salary payable to him, provided that such contract was terminable at will.

It does not follow, however, even if the Governor was empowered to enter into contractual relations with a civil servant in the Colony as to the payment of salary, that the servant would have a right of suit against the Crown for salary unpaid. A general Crown immunity from suit in respect of obligations ex contractu if it existed in the eighteenth century in England might also give rise to the inference that notwithstanding the contractual nature of a civil servant’s claim to salary in Ceylon the sovereign attribute of immunity from suit was not intended to be waived by the Proclamation. But by the eighteenth century it had been established that, although no writ could issue against the sovereign, monies due to the subject under a contract with the Crown could be claimed in the English courts by the Procedure of Petition of Right. Their Lordships have not been referred to any case as early as the eighteenth century in which a Petition of Right was brought by a civil servant for arrears of salary; but in 1820 it was taken for granted by Chitty in ” The Prerogatives of the Crown ” that a Petition of Right would lie ” where the King does not pay a debt, as an annuity or wages etc. due from him “. This was a work of high authority which would be familiar to the judges of Ceylon in the first half of the nineteenth century. Stuart Robertson in his ” Civil Proceedings by and against the Crown ” published in 1908 states categorically that ” payment for services rendered may be claimed by Petition of Right ” and cites two such petitions brought in the eighteen sixties of which one was successful and the other settled. It was not until cases decided in 1926 and after that any doubt was cast upon this proposition. Their Lordships will advert to these cases later. It is at present sufficient to state that, as the English law stood at the time of the Proclamation, there was no sufficient ground in constitutional theory to justify the inference that the Crown must have intended to deprive a civil servant engaged in Ceylon of any remedy in the courts of that country for arrears of salary, if a remedy had previously been available under Roman-Dutch law as applied in the island.

If therefore under the Roman-Dutch law, as it was applied in Ceylon under the government of the United Provinces, a person holding office in the civil administration of that Government was entitled to a remedy in the courts for arrears of salary agreed to be paid to him, that remedy was preserved by the Proclamation and the plaintiff is entitled to avail himself of it as against the Crown.

It is not, however, essential that it should be demonstrable that such a remedy was in fact exercised before the British occupation, for although the Roman-Dutch law as applied in Ceylon under the Government of the United Provinces is the starting point of the ” common law ” of Ceylon, it is not the finishing point. Like the common law of England, the common law of Ceylon has not remained static since 1799. ID course of time it has been the subject of progressive development by a cursus curia (Samed v. Segutamby [1 1 (1924) 25 N. L. R. 481]) as the Courts of Ceylon have applied its basic principles to the solution of legal problems posed by the changing conditions of society in Ceylon. In their Lordships’ view if long established judicial authority for a proposition of law not inconsistent with the British constitutional concept of the exercise of sovereign authority by the Crown can be found in the decisions of the Ceylon courts themselves there is no need to go back to see whether any precedent can be found for it in the jurisprudence of the Courts of the United Provinces or the doctrine of the Roman-Dutch jurists of the eighteenth century. Still less is it necessary to find a precedent for it in English common law. The absence of any supporting precedent for the proposition in Roman-Dutch law, as applied in the United Provinces, may be due to a number of reasons. It may have been ” taken for granted ” law in the United Provinces or it may deal with circumstances which did not exist there or did not attract the attention of writers on Roman-Dutch law in the eighteenth century ; or it may be a development of the common law of Ceylon itself either before or after 1799, of which the nascence and growth may be impossible to trace in the absence of any reports of decisions before 1833 and very incomplete reports thereafter until towards the end of the nineteenth century. Even a clear conflicting precedent in the eighteenth-century jurisprudence or doctrine of the United Provinces would not necessarily be a conclusive indication that a later decision of a Ceylon court is erroneous. As Wood Renton J. pointed out in Colombo Electric Tramway Co. v. Attorney-General [1 1 {1914) 16 N. L. R. 161 at p. 173. ] little is known as to the precise extent to which the doctrines of Roman-Dutch law which were applied in the United Provinces themselves were actually introduced into Ceylon while it was under Dutch rule, and if authority were found in the eighteenth century law of the United Provinces which was inconsistent with an old-established line of decisions by the courts of Ceylon, the inference may well be that the authority relates to a part of the law of the United Provinces which was regarded as unsuitable to conditions in Ceylon and was never introduced there. (To be continued)


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There is old established precedent in the Supreme Court of Ceylon that an action lies at the suit of an officer in the civil administration for unpaid salary earned during the period of his appointment. In the case of Jansz v. Tranchell [2 2 (1865) Ram. 160.] this was treated by the Supreme Court as ” taken for granted ” law and conceded by The Queen’s Advocate. The court did not find it necessary to cite any previous authority or to express any view as to the origin of the right of action, but there may have been many unreported instances of this practice known to the judges. The actual point argued was whether such arrears of salary constituted a debt which could be attached by a creditor, but the existence of a debt recoverable by suit by the civil servant against the Crown was an essential step in the reasoning. In 1868 a similar point came before the Supreme Court of Ceylon in Fraser’s Case [3 3 (1868) Ram. 316]. This was a claim for arrears of salary by a civil servant who held concurrent offices under the Imperial Government and the Government of Ceylon. It was held that as respects salary due in respect of his office under the Government of Ceylon prior to his dismissal, this was a debt due to him from the Crown in Ceylon for which he was entitled to bring an action against The Queen’s Advocate, though he failed on the facts as nothing was due to him. The Court in this case ascribed the origin of his right of action to Roman-Dutch law and cited the Proclamation of 1799.

Here then is authority dating back more than a hundred years that, under the common law of Ceylon, an action does lie at the suit of a civil servant for remuneration agreed to be paid to him by the terms of his appointment and remaining unpaid.

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The Supreme Court in its judgment in the present appeal appears to have regarded these authorities as over-ruled by the decision of the Judicial Committee of the Privy Council in Siman Appu v. The Queen’s Advocate [4 4 9 A. C. 571.]. In their Lordships’ opinion this is not so. Siman Appu’s Case was concerned with the general question whether a subject had any right of suit against the Crown in Ceylon for breach of contract. The contract sued upon was not one of service and Fraser’s Case was cited only on the point as to whether an action lay against the Crown on a contract. The Judicial Committee upon the material then before them were unable to conclude with any certainty that a right of suit in contract against the Government of the United Provinces had formerly existed under Roman-Dutch law, but they nevertheless held that whatever may be the exact origin of the practice of suing the Crown in contract it was then (i.e. by 1884) incorporated into the law of Ceylon.

IN the present appeal their Lordships have had their attention drawn to a passage dealing with this topic in the third book of De Jure Belli ac Pads by Grotius-

” According to civil law also a person can be said to be bound by his own act, either in this sense, that an obligation results not from the law of nature alone but from the municipal law, or from both together, or in the sense that the obligation gives a right to action in a court of law. Therefore we say that a true and proper obligation arises from a promise and contract of a king, which he has entered into with his subjects, and that this obligation confers a right upon his subjects ; such is the nature of promises and contracts as we have shown above ; and this holds even between God and man.

Now if the acts are such as may be done by a king, but also by any one else, municipal law will be binding in his case also ; but if they are the acts of the king as king, municipal law does not apply to him. This distinction has not been observed with sufficient care by Vazquez. Nevertheless, from both these acts a legal action may arise, at least so far that the right of the creditor may be declared; but compulsion cannot follow on account of the position of the parties with whom the business is conducted. For it is not permissible for subjects to compel the one to whom they are subject; equals, however, by the law of nature, have this right against equals, and superiors against inferiors even by municipal law.”

The words italicised strongly support the view that there existed in the United Provinces as early as the seventeenth century a right to bring a declaratory action against the government in respect of a contract entered into with the government, although execution could not be obtained upon the judgment. This bears a strong resemblance to the practice in Ceylon described by Cayley C. J. in Jayawardena v. Fernando [1 1 (1881) Supreme Court Circular p. 77.] and it may well be that had this passage from Grotius been drawn to the attention of the Board in Appu’s Case they would have ascribed the then current practice in Ceylon to a Roman-Dutch origin.

The significance of Appu’s Case is that it recognises the development of an indigenous common law of Ceylon by the decisions of the courts of that country even though the origin of a particular proposition of law cannot be traced back to the Roman-Dutch law of the United Provinces in the eighteenth century. The judgment upholds those parts of the judgments in Jansz’s Case and Fraser’s Case which recognised that the subject could bring an action in contract against the Crown in Ceylon although it does not ascribe this, as the Court in Fraser’s Case had done, to the Roman-Dutch law in force in Ceylon under the Government of the United Provinces. It was not concerned with and casts no doubt on the correctness of those parts of the judgments in Jansz’s Case and Fraser’s Case which held that unpaid salary due to a civil servant for services rendered during his period of service constituted a debt for which he was entitled to sue the Crown.

Consistently with the attitude adopted by the Board in Siman Appu’s Case to old established precedent in decisions of the courts of Ceylon it would in their Lordships’ view be wrong after this lapse of time to depart from the principle laid down in Jansz’s Case and Fraser’s Case that a civil servant in Ceylon is entitled to sue the Attorney-General on behalf of the Crown for arrears of salary.

In coming to the contrary conclusion in the instant appeal, the Supreme Court of Ceylon relied upon the decision of the Privy Council in the Indian Case of High Commissioner for India v. Lall [11 (1948) A. I. R. (P. C.) 121]. In India, unlike Ceylon, the source of the common law is English common law ; but on the assumption, which their Lordships think erroneous, that Fraser’s Case had been over-ruled by Appu’s Case the Supreme Court concluded that any right of the appellant to sue for arrears of salary fell to be determined by that branch of English law relating to the sovereign attributes or prerogative of the Crown which must have been introduced into Ceylon as a necessary consequence of the transfer to the Crown of sovereignty over the island. If this ascription of the origin of the appellant’s right of suit to English public law were right Lall’s Case would have been very much in point and in view of the importance attached to it in the judgment of the Supreme Court and the full argument which has been addressed to them upon it, it is appropriate that their Lordships should deal briefly with it.

As has already been pointed out the current of authority for a hundred years before 1926, though sparse, was to the effect that arrears of salary of a civil servant of the Crown, as distinguished from a member of the armed services, constituted a debt recoverable by Petition of Right. These authorities, including the decision of the House of Lords in Sutton v. A. G.[2 2 (1923) 39 T. L. B. 294.], are conveniently summarised in a penetrating article by Sir Douglas Logan on “The Civil Servant and his Pay” (1945) 61 L.Q.R. 260 in which he commented on the decision in Lucas v. Lucas (1943 P. 68), where Pilcher J., adopting the reasoning of Lord Blackburn in the Scots case of Mulvenna v. Admiralty (1926 S.C. 842), reached a contrary conclusion.

Unfortunately, none of these earlier authorities was drawn to the attention of the Board in Lall’s Case. Most of the argument and of the judgment in that case dealt with the question whether the dismissal of the civil servant was void under the relevant statutory provisions relating to his service, but the Board did decide that, notwithstanding that his purported dismissal was void, he had no right of action for arrears of pay. Lall’s Case can be distinguished from the instant case in that the terms on which Mr. Lall was engaged contained no express provision as to the pay he was to receive for his services. But the Board did not base their decision exclusively on this. They too adopted as a correct statement of the law the judgment of Lord Blackburn in Mulvenna v. The Admiralty (ubi sup). (To be continued)

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Continued from last week ….
 
Lord Blackburn’s reasoning in Mulvane’s  Case had not been concurred in by the other two members of the Court of Session, Lord Sands and Lord Ashmore, nor has it been subsequently treated in Scotland as correctly laying down the law. See Cameron vs. Lord Advocate (1952 S.C. 165). The conclusion which Lord Blackburn reached was that it ” must be read, as an implied condition, into every contract between the Crown and a public servant, with the effect that, in the terms of their contract, they have no right to their remuneration which can be enforced in a civil court of justice, and that their only remedy under their contract ‘ lies in an appeal of an official or political kind ‘ “.

The only cases cited in support of this proposition were the well-known cases which establish that the Crown has power to determine the employment of a public servant at will. He treated as an ineluctable consequence of this, too plain to call for further explanation, that a civil servant had no claim in law to arrears of salary accrued due before his dismissal.

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In their Lordships’ view this is a non sequitur. A right to terminate a contract of service at will coupled with a right to enter into a fresh contract of service may in effect enable the Crown to change the terms of employment in future if the true inference to be drawn from the communication of the intended change to the servant and his continuing to serve thereafter is that his existing contract has been terminated by the Crown and a fresh contract entered into on the revised terms. But this cannot affect any right to salary already earned under the terms of his existing contract before its termination.

In the opinion of their Lordships Lord Blackburn’s reasoning in Mulvane’s Case is defective and his conclusion is contrary to authority and is wrong. That portion of the judgment in Lull’s Case which adopts it as a correct statement of the law must be regarded as given per incuriam (ignorance or forgetfulness) since the relevant and prestigious authorities to the contrary appear not to have been cited to the Board.

Their Lordships will humbly advise Her Majesty that this appeal should be allowed on the preliminary issue upon which alone it was decided by the Supreme Court.

Although in their Lordships’ opinion a civil servant in Ceylon does have a right of action against the Crown for arrears of salary which accrued due during the currency of his employment, this answer to the preliminary issue does not dispose of the Crown’s appeal to the Supreme Court from the judgment of the District Judge. There are the other important constitutional issues to be decided upon which neither the Supreme Court nor their Lordships have heard argument. As already indicated, their Lordships would think it inappropriate to enter upon any of these matters without the benefit of the considered opinion of the Supreme Court of Ceylon thereon. They accordingly express no opinion upon any of the other issues as to the constitutionality of the Official Language Act or the effect of Treasury Circular No. 560 of 4th December 1961, or of any other material facts upon the plaintiff’s contract of employment. The case should be remitted to the Supreme Court for further consideration of these other issues and their Lordships will humbly advise Her Majesty accordingly.

The respondent must pay the costs of this appeal to their Lordships’ Board and of the appeal to the Supreme Court.

Appeal allowed on a preliminary issue.

Thus, on 11 December 1969 the Privy Council partially ruled in favour of Kodeeswaran in the case of Kodeeswaran vs. Attorney General. The Privy Council directed the Supreme Court to address the constitutional question of whether the Official Language Act of 1956 which made Sinhala the official language was in violation of Section 29 of the constitution, which prohibits discrimination.

This case is famous because it highlighted a conflict between the Roman-Dutch Law and English Law in Sri Lanka. Kodeeswaran sued the Government for arrears of pay, and the Ceylon  (now Sri Lanka)  Supreme Court dismissed the action, saying that under English law a civil servant had no right to remuneration that could be enforced against the State.  As I  have said, it was against the judgment of the  Supreme Court that Kodeeswaran appealed to the Privy Council, claiming that Roman-Dutch law governed the issue, and that under Roman Dutch Law, an action against the State for arrears in pay was allowed. The Privy Council said that neither English Law nor Roman -Dutch Law allowed for the type of action Kodeeswaran was brought, but that the Sri Lankan courts, over the years, had recognized such an action. In other words, what the Privy Council said was that the  Ceylon courts had developed, through interpretation, a body of laws, and that this was what constituted the “common law” of Sri Lanka. The Privy Council therefore held for Kodeeswaran.

The issue with regard to language policy was a secondary issue in this case, and the Privy Council emphatically refused to comment on it. Here’s what the Privy Council actually said: “There are more important constitutional issues to be decided upon which neither the Supreme Court nor their Lordships have heard argument. As already indicated, their Lordships would think it inappropriate to enter into any of these matters without the considered opinion of the Supreme Court of Ceylon thereon.” (Kodeeswaran v. Attorney General (1969) 72 NLR 337, pp. 347)

The  first legal challenge on the constitutionality of Sinhala Only act was in the case  Mudanayake V Sivagnasunderam. This was the Court’s first chance to interpret section 29(2) of the Soulbury Constitution, which, inter alia, prohibited the Ceylon Parliament from passing legislation that imposed “disabilities or restrictions” on any community that were not imposed on other communities. (To be continued)


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Continued from last week ….
 

Abolition of Privy Council

In Mudanayake case, two petitioners filed writs of certiorari alleging that the Ceylon (Parliamentary Elections) Amendment Act, No. 48 of 1949 (Franchise Act), read with provisions of the Citizenship Act constituted a “communal restriction” on the Indian Tamil community, violating section 29(2). The Franchise Act provided that no person could be added to the electoral registry if he/she was not a citizen of Ceylon. Sections 4 and 5 of the Citizenship Act set forth the requirements for Ceylonese citizenship by descent—requirements that became more onerous if born outside Ceylon or if one’s father was not a Ceylonese citizen.

That these provisions had the effect of denying the franchise to many Indian Tamils was not in dispute. For the Court, however, such discriminatory effects were irrelevant to the constitutionality of these laws. It adopted a rule of interpretation from “several English cases of high authority.”  The rule was that legislative intent can be “legitimately ascertained” from express words in the relevant statute or by “reasonable and necessary implication.”

By choosing this rule, the Court foreclosed any inquiry into the consequences of the Citizenship and Franchise Acts. The petitioners cited several American cases in which judges looked beyond the text to ascertain legislative intent, including Yick Wo v. Hopkins,86 a landmark U.S. Supreme Court case that held San Francisco city ordinances unconstitutional for discriminating against Chinese immigrants. The ordinances were racially neutral—they made it unlawful to operate a laundry in the city without the consent of the Board of Supervisors. The Court held that these ordinances nonetheless violated the Fourteenth Amendment to the U.S. Constitution, as they unjustly discriminated against the Chinese community, who were the chief proprietors of laundry businesses.

The Ceylon Supreme Court distinguished this case on the dubious grounds that evidence of discrimination against the Chinese community in San Francisco was not used to gauge the meaning of the ordinances but simply to establish that, in their operation, they infringed a constitutional right. Why couldn’t usee a similar rationale in the Ceylonese context? Perhaps section 29(2) of the Soulbury Constitution, unlike the U.S. Constitution, did not enumerate individual rights, and, therefore, could be read more narrowly. The Court did not explain. Instead, it dismissed the American cases with the following rationale:

[These cases] do not support the proposition . . . that it is proper to travel outside the language of the impugned enactments and to take evidence as to whether or not, in their ultimate effect, they are of a discriminatory character. . . . We have come to the conclusion that if [the Citizenship and Franchise Acts], . . . [do] not offend against S. 29 . . . it does not matter what effects they produce in their actual operation.


Armed with this narrow rule of interpretation, the Court upheld the constitutional validity of the impugned acts. The fact that “a large section of Indians is disqualified” from voting was “irrelevant,” as this was not a necessary legal effect flowing from the Act’s express language.

Significantly, the Court provided an additional justification for its ruling: judicial restraint grounded in Ceylon’s sovereignty. The Court did not inquire into the purpose of Section 29 or any of the political events surrounding the drafting of the Soulbury Constitution. Rather, it stated:

It seems to us that the inherent power of a sovereign state to determine who the citizens should be . . . [is] more germane to the issues . . . than a perilous expedition into the political controversies of the past. After reading the Soulbury Commission Report and the connected Sessional Papers [one of the petitioners] . . . seems to have formed the opinion that section 29 was intended to be a safeguard for minorities.

To the contrary, the Court declared that the Ceylon Parliament “has the power to alter the electoral law in any manner it pleases . . . subject to the narrow limitation in Section 29.”

On appeal, the Privy Council upheld this judgment in Kodakan Pillai v. Mudanayake. The Privy Council issued a short opinion that largely echoed the Supreme Court’s reasoning. It provided two main justifications: (1) that it is a “perfectly natural and legitimate function of the legislature of a country to determine the composition of its nationals”; and (2), that the negative effects of the two Acts on the Indian Tamil community “have nothing to do with them as a community.” On the second point, the Council referred to the Soulbury Commission Report, which confirmed the “migratory habits” of the Indian Tamils that made them unsuited to citizenship. Furthermore, the fact that citizenship laws might disproportionately harm the illiterate and the poor were irrelevant, as neither was a “community” within section 29(2).

The Privy Council’s reasoning is revealing both in its disregard for the rights of the Indian Tamil community and its endorsement of the Supreme Court’s narrow interpretation of section 29(2). As discussed, this interpretation emerged from a series of English cases, which were decided vis-à-vis a sovereign legislature. A highly deferential judicial approach was appropriate in the British context, for under the prevailing Diceyan theory of parliamentary sovereignty, Parliament was unfettered in its lawmaking. But this was not the case in Ceylon where, per Jennings, the Soulbury Constitution imposed manner and form limitations on legislative authority. The Citizenship Act, therefore, should have been invalidated for transgressing constitutional bounds. Unlike in Britain, the Constitution attained a higher status than ordinary legislation in Ceylon.

Mudanayake laid the foundation for undue judicial restraint that the Ceylon judiciary would follow in future cases involving discrimination against minority communities. As discussed, the Soulbury Constitution did not entrench fundamental rights or provide for communal representation in government. Rather, it placed its faith in Westminster institutions and the singular figure of D. S. Senanayake to protect minority rights.

D.S. Senanayake, made efforts to temper communal tensions both in his rhetoric and in his cabinet appointments. Shortly before independence, he reached out to minority groups in a speech to the State Council: “For centuries the Sinhalese and the Tamils have lived together in peace and amity. . .. We all know and admire [the minority communities’] . . . special qualities. They are essential to the welfare of this Island, and I ask them to come over and help us.” As prime minister, Senanayake ensured that his cabinet proportionately represented all minority groups. He even brought Ponnambalam, his erstwhile rival, into the cabinet as Minister of Industries, Industrial Research, and Fisheries. As political scientist A. J. Wilson put it, the “unexpressed premise” of the Soulbury Constitution was an “agreement between the English-educated elites of all the island’s principal groups” to govern cooperatively.

Where judicial challenge mounted by Mudanayake failed both in the Supreme Court of Ceylon and Privy Council in London, Kodeeswaran succeeded in securing a favourable judgment though partially. As stated above, the Privy Council directed the Supreme Court in 1969 to address the constitutional question, which it had not considered when overturning Kodeeswaran’s plea whether the Official Language Act of 1956 which made Sinhala the official language was in violation of Section 29 of the constitution, which prohibits discrimination.

Stung by the Privy Council judgment, the government lost no time in abolishing the Privy Council itself. The opportunity came when Mrs. Bandaranaike’s coalition won a landslide victory at the polls held in 1970. The coalition consisted of the Sri Lanka Freedom Party (SLFP), the Lanka Sama Samaja Party (LSSP), and the Communist Party of Ceylon (CPC) in 1968.  Dr. Colvin R de Silva, an ardent Trotskyite and a champion of workers’ rights, was appointed Minister of Constitutional Affairs. He vowed to change the constitution so that there will be “no more Kodeeswaran type challenges”. ( To be continued)


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State Religion

On 9 July 1971, the Court of Appeal Bill was presented to the House of Representatives by Maithripala Senanayake, Minister of Irrigation, Power and Highways, and was ordered to be printed. On 10 August 1971, on Mr. Senanayake moving the second reading, the House debated and passed the Bill on the same day by an overwhelming majority. On 25 August 1971, Senator A.P. Jayasuriya, Acting Minister of Justice, presented the Bill to the Senate but the adjourned debate on it was aborted when the Senate was abolished. Consequently, on 22 October 1971, the Bill was again presented to the House of Representatives by T.B. Ilangaratne, Minister of Foreign and Internal Trade, and was passed on the same day by a two-third majority. The Bar Council welcomed the decision to abolish appeals to the Privy Council as “a progressive one”, and expressed the hope that “only persons with high academic qualifications, judicial experience or specified professional standing” should be eligible for appointment.

Thus, the coalition government in 1971 abolished appeals to the Privy Council by enacting Act No.44 of 1971 (http://lawlanka.com/lal/consShortTitleView?selectedAct=1971Y0V0C44A)  and that closed Kodeeswaran’s case without a final ruling. This constitutional amendment came as no surprise to the AES leadership. The case was filed to expose the discriminatory and undemocratic nature of the Sinhala Only Act enacted by a racist government.

The decision to “discontinue appeals to the Privy Council and to establish a new judicial tribunal to adjudicate on constitutional issues as well as to entertain appeals from the Supreme Court” was first taken in 1957 by the Joint Select Committee of the Senate and the House of Representatives appointed on the initiative of the late Prime Minister S.W.R.D. Bandaranaike. That pioneering effort came to an untimely end with the assassination of Mr. Bandaranaike in 1959.

Obviously, Dr. Colvin R de Silva took a complete U-turn regarding Section 29, the only constitutional provision that offered “unalterable in perpetuity” of safeguard for minorities.  In August 1969, Ceylon’s Parliament debated constitutional reform toward a republican constitution. Sovereignty concerns would feature prominently in that discussion.  Trotskyite leader Dr. Colin De Silva, speaking for the opposition, argued that dicta from Ibealebbe and Ranasinghe made plain that Parliament lacked the authority to enact a new constitution unless it included section 29. As he put it, section 29 was “fundamental . . . cannot be touched. It is entrenched. . .. if we try to legislate in the face of, or in defiance of, this decision under the Constitution, then any citizen can take the matter to the Privy Council.”

Thus, he argued that unless the British Parliament repealed the Soulbury Constitution—an unacceptable option at the time—the only recourse would be to appeal to the Ceylonese people for a mandate to draft a new constitution.

In the lead up to the 1970 General Election the United Front Alliance (consisting the Sri Lanka Freedom Party-SLFP, the Communist Party of Ceylon—CP and the Trotskyite Lanka Sama Samaja Party—LSSP) presented an Election Manifesto specifically calling for a mandate to adopt a new constitution with the objective of establishing a republic. The republic would be a social democracy securing fundamental rights and freedoms to all citizens. Jayawickrama points out that the LSSP, with its left ideological leanings, was keen to rupture legal continuity with the colonial political and constitutional order. The new republican constitution was not to have any links with its predecessor.

On 22 May 1972. a new Constitution was adopted in the backdrop of a continuing state of emergency, even though the JVP insurrection had been crushed almost a year previously.

Dr. Colvin R. de Silva, Minister for Constitutional Affairs, was emphatic that the republican constitutional order’s primary objective was the recognition and consolidation of sovereign powers of the people. That was the rationale behind the unique features of the 1972 Constitution. Primarily among them was the supremacy of the legislature (the National State Assembly–NSA). It was considered the sole repository of the sovereign powers of the people (Articles 3 and 4) and was declared the “supreme instrument of State power” (Article 5). All State powers, including executive and the judicial powers, were channelled through the legislature. While executive power was channelled through the President and the Cabinet of Ministers, judicial powers were channelled to courts and institutions created by law (Article 5).

Dr. de Silva was of the view that incorporating Directive Principles (Article 16) in the 1972 Constitution was a vast improvement over the Soulbury Constitution’s scheme which only had Article 29 (2) for the protection of rights of ‘persons of any community or religion’ thus the justification for ditching section 29 in toto.

In 1972, the United Front coalition of socialists and Sinhalese nationalists found an opportunity to drive Sri Lanka decisively away from the old-style parliamentary democracy that had been designed during colonial times. To democratise the political structure of the government. To decentralise power to the periphery and build a state where everyone enjoys equal rights and equal opportunities. To unify a fragmented country divided in terms of ethnic, language and religious diversity. On the contrary the 1972 constitution made things worse by elevating Buddhism to the status of a state religion. The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster Buddhism while assuring to all religions the rights granted by section 18 (1) (d). This was reinstated in the J.R. Jayewardene’s 1978 constitution as well.

Today, there is an undeclared war between militant Buddhist monks bent on destroying Hindu temples and building Viharas throughout North and East. At Kurunthoormalai, the existing Athi Aiyanar temple was destroyed and the Trishul removed by the Archeological Department in consort with Buddhist monks, the army and the police.  Mixing religion with state is very problematic, if not lethal, and many counties have opted for secularism. 

There is no dispute that individual citizen should have rights such as freedom of thought, conscience and religion, but politicians should not impose their personal beliefs in a way that enables one religion to dominate. The world currently has theocracies that blatantly oppress people, but it also has majoritarian democracies that do the same. Countries like Sri Lanka may call itself a democracy, but in practice they often blatantly disregard the needs and wishes of their minorities and become “tyrannies of the majority.”

This is what is happening in Sri Lanka right now. Religious chauvinism is one of the major factors that contributed to the bankruptcy of Sri Lanka in April 2022.  Chauvinism is the unreasonable belief in the superiority or dominance of one’s own group or people, who are seen as strong and virtuous, while others are considered weak, unworthy or inferior.  (To be continued)

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SJV Father of Tamil Nationalism

Expansion of speech by V. Thangavelu, President, Canada TNA at the 125th birth anniversary of SJV held in Toronto
 (22)

I referred to the split in the ACTC and formation of the ITAK in 1949. The last straw that broke the camel’s back was GG Ponnambalam’ s decision to vote in favour of the Ceylon (Parliamentary Elections) Amendment Act, No. 48 of 1949 (Franchise Act) that robbed the 780,600 strong Tamils of Indian origin of their voting rights. In the census report for the year 1946 the Tamils of Indian origin  constituted 780,600 (11.73%) slightly more than the population of Ceylon Tamils by 46,900 (0.71%)! The following Table 1 is reproduced from the Census Department of Ceylon:

Table 1  

Population of Sri Lanka by ethnic group 1881 to 2012   
YearSinhaleseSri Lankan Tamils]Sri Lankan Moors]Indian Tamils]Sri Lankan MalaysBurghers/
Eurasian
Indian Moors]OthersTotal
No.
 
No.%No.%No.%No.%No.%No.%No.%No.% 
1881 Census1,846,60066.91%687,20024.90%184,5006.69% 8,9000.32%17,9000.65% 14,5000.53%2,759,700 
1891 Census2,041,20067.86%723,90024.07%197,2006.56% 10,1000.34%21,2000.70% 14,2000.47%3,007,800 
1901 Census2,330,80065.36%951,70026.69%228,0006.39% 11,9000.33%23,5000.66% 20,0000.56%3,566,000 
1911 Census2,715,50066.13%528,00012.86%233,9005.70%531,00012.93%13,0000.32%26,7000.65%32,7000.80%25,6000.62%4,106,400 
1921 Census3,016,20067.05%517,30011.50%251,9005.60%602,70013.40%13,4000.30%29,4000.65%33,0000.73%34,6000.77%4,498,600 
1931 Estimate3,473,00065.45%598,90011.29%289,6005.46%818,50015.43%16,0000.30%32,3000.61%36,3000.68%41,8000.79%5,306,000 
1946 Census]4,620,50069.41%733,70011.02%373,6005.61%780,60011.73%22,5000.34%41,9000.63%35,6000.53%48,9000.73%6,657,300 
1953 Censuses]5,616,70069.36%884,70010.93%464,0005.73%974,10012.03%25,4000.31%46,0000.57%47,5000.59%39,5000.49%8,097,900 
1963 Census7,512,90071.00%1,164,70011.01%626,8005.92%1,123,00010.61%33,4000.32%45,9000.43%55,4000.52%19,9000.19%10,582,000 
1971 Census9,131,24171.96%1,423,98111.22%855,7246.74%1,174,6069.26%43,4590.34%45,3760.36% 15,5100.12%12,689,897 
1981 Census10,979,56173.95%1,886,87212.71%1,046,9267.05%818,6565.51%46,9630.32%39,3740.27% 28,3980.19%14,846,750 
2001 Census]  
2012 Census]15,250,08174.90%2,269,26611.15%1,892,6389.30%839,5044.12%44,1300.22%38,2930.19% 25,5270.13%20,359,439 

As mentioned already the Ceylon Citizenship Act of 1948 is the primary law governing nationality regulations in Sri Lanka was passed by the parliament on August 20, 1948.  It came into force on 15 November 1948, just 285 days after Ceylon had gained independence from Britain. The Act granted citizenship to persons born in Sri Lanka to a Sri Lankan parent. However, it did not grant citizenship to Indian Tamils, who were about 11.73% of the population. As a result, n 780,600 people were denied citizenship and made stateless. At the first General Elections under the Soulbury Constitution (in 1947), the Ceylon Indian Congress (representing the Plantation Tamils) won seven seats and influenced the outcome of about 20 electoral constituencies.

Ponnambalam after spending 14 years in the Opposition benches was itching for a ministerial post. The ‘carrot’ of Cabinet position was too tempting for him to reject. He had earned fame as a brilliant criminal lawyer and undisputed leader of the Ceylon Tamils but not political power.   In contrast, Chelvanayakam was then a new-face in the 1947 Parliament. GG Ponnambalam joined the Sinhalese dominated DS Senanayake’s cabinet on September 03, 1948. In doing so he jettisoned the written pledge to fight for the rights of the Tamils of Indian origin. Despite the pledge he had signed with the Ceylon Indian Congress (as it was then known) in respect of Citizenship for the persons of Indian origin.  To the credit of C. Suntharalingam he voted against the Bill and resigned his portfolio. DS Senanayake has demanded his resignation for violating  joint cabinet responsibility. 

GG Ponnambalam as founder and leader of ACTC prior to 1948 has castigated Sinhalese political leadership calling names. His outbursts against Sinhalese people and Sinhalese politicians saw the first Sinhalese – Tamils riots in 1939.

Jane Russell’s book, ‘Communal Politics under the Donoughmore Constitution 1931-1947’, published in 1982, she mentions that she had interviewed Ponnambalam on March 14, 1974, for some details included in her work. [This was a doctoral thesis submitted to the University of Peradeniya in 1976.] What was interesting to me was Jane Russell’s citation of Ponnambalam’ s verbal duels in the parliament. I provide excerpts that appear in page 157 of this book, because it provides some details about Hitler surrogates among the Sinhalese politicians who had designs on suppressing the rights of Tamil in Ceylon. To quote,

“The Hitlerian philosophy and rhetoric considerably affected communalist rhetoric in Ceylon.  G.G. Ponnambalam said in Council in 1939:

‘This is our home. We are inhabitants of this country and we have as much right to claim to have permanent and vested interests in this country, politically and otherwise, as the Sinhalese people. We do not propose to be treated as undesirable aliens. We will not tolerate being segregated into ghettos and treated like Semites in the Nazi states.’ (Hansard, 1939, col. 890)

In January 1939 at a meeting in Balapitiya, [S.W.R.D.] Bandaranaike told the electors in this vein:

‘I am prepared to sacrifice my life for the sake of my community, the Sinhalese. If anybody were to try to hinder our progress, I am determined to see that he is taught a lesson he will never forget.’

At the conclusion of the meeting, a lady in the audience, Mrs. Srimati Abeygunawardene likened Mr. Bandaranaike to Hitler and appealed to the Sinhalese community to give him every possible assistance to reach the goal of freedom. (Hindu Organ, January 26, 1939). This reported remark caused G.G. Ponnambalam to term Bandaranaike ‘the pocket Fuehrer’ (Hindu Organ, May 24, 1939).”10

Ponnambalam’ s taunt of Bandaranaike as ‘the pocket Fuehrer’ in 1939 was apt indeed. That Adolf Hitler’s verbal demagoguery of Aryan dominance did influence quite a number of Sinhalese orator-politicians like Bandaranaike (1930s to 1950s), K.M. P. Rajaratne (1950s) and Ranasinghe Premadasa’s (1960s to 1980s) and Buddhist Bhikkhus, is a fact that remains hidden in the text books on contemporary Sri Lanka.

Therefore, the ill-fated decision by GG Ponnambalam to join DS Senanayake’ s cabinet as Minister of Industries, Industrial Research and Fisheries on 3 September 1948 was viewed by the Tamil people as an act of huge betrayal.  A summersault least expected by his friends and foes.  (To be continued)

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About editor 2954 Articles
Writer and Journalist living in Canada since 1987. Tamil activist.

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