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The Ethnic or Tamil question in Sri Lanka

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by Jayadhamma Athukorala

(Continued from last week)

The first recorded South Indian invasion occurred when two Tamils, Sena and Guttika, wrested the kingdom from King Suratissa in the 2nd Century B.C. The Mahavansa ( Geiger translation – p 142/143) says ” Two Damilas Sena and Guttika….conquered the king Suratissa …..and reigned…. for twenty two years justly(my emphasis) There is no denouncing of the Tamil conquerors. The description of the reign of the next Tamil conqueror, Elara, was even more generous. The Mahavansa (Geiger -p 143-145) devotes no less than 20 Pali stanzas to extol his virtues (some, obviously exaggerated).

Then, after Dutugemunu’s victory over him, the first act of the victor, to his eternal credit, was to perform the funeral rites of his fallen enemy with royal honours, erect a monument in his honour and decree that even royals passing that site must pay due honour – MV p. 175 ( a decree that even as late as 1818 Keppetipola Nilame fleeing the British after the failure of his rebellion is reported to have obeyed). Many Sinhala kings sought their consorts or consorts for their siblings in the Dravidian royal courts of South India – at the beginning, even Vijaya himself reportedly sought and obtained his queen from the royal court of Madura in South India.

Vijayabahu I whose own queen was from Kalinga gave his sister Mitta in marriage to a Pandyan prince who became eventually the paternal grandfather of Parakramabahu the Great (who therefore had Pandyan blood in his veins). Parakramabahu had two generals named Rakkha and Aditya who are both referred to in the Mahavansa as Demala Adhikari ( Ch. 75 & 76) . In the Kotte royal court of later times, we see the presence of many Perumals in responsible positions.

Even Sapumal Kumaraya was originally Sembahap Perumal, reportedly the orphaned son of an aristocratic Keralite warrior who died in combat in the service of Parakramabahu VI. Sapumal ascended the throne later as Buvanekabahu VI. In the early Kotte period, it is also intriguing that the Chinese admiral Zhen He, who carried off Vira Alakeshvara to China as a prisoner, erected in Galle a trilingual stone inscription, using the Chinese, Persian and Tamil languages. In the Kandyan kingdom, kings from Rajasinghe II appear to have sought consorts from Madura resulting in the mothers of Vimaladharmasurya II and Narendrasingha- the reputed last Sinhala king, being South Indian Tamil princess).

I have already referred to the in-migration of large groups from South India in the 14th or 15th centuries, now indistinguishably part of the mainstream. It is known that certain Kandyan aristrocrats of the present day have acknowledged their South Indian (though Brahmanic) provenance. Few knowledgeable people in the country today are not aware of the comparatively recent, documented and admitted, South Indian antecedents of some very prominent Sinhala leaders of the present day. Such information has even ceased to be of much interest.

What I have been trying to point out is that historically the relations between the Sinhalas and Tamils have far from being hostile all the time. We are not congenital enemies. We have no tradition of enmity to pursue – as it was between the Montagues and the Capulets in Romeo and Juliet.

 

The emergence of a Tamil kingdom

in the North

It is time to turn to another aspect of history – the establishment of a Tamil kingdom in the North. By about the 10th century, Sinhala kings appear to have lost control over the territory beyond Anuradhapura and by about the 14th century an independent Tamil kingdom appears to have been established in the Jaffna peninsula, with the intervening Vanni being under many semi-independent Vanniyars. Only once for a brief period under Parakramabahu VI the overlordship of Sinhala kings had been re-established thereafter in Jaffna (-Sapumal Kumaraya’s famous conquest of Yapapatuna). Once Sapumal left Jaffna to become King in Kotte, the Sinhala suzerainty over the Jaffna peninsula again lapsed.

To make matters worse some Jaffna kings (like Arya Chakravarti) became so powerful even to challenge the Gampola period Sinhala kings and exact taxes in some areas of their kingdom, up to about Matale. Arya Chakravarti even overran the western seaboard up to at least Panadura at one time. He was only checked by Alakeshvara, (who himself may have been an immigrant) who founded the capital at Kotte. This sequence of events is no doubt painful to any Sinhala brought up on the tradition of Tri Sinhala, but these are solid historical facts that we have to accept whether we like them or not.

The Jaffna kingdom so established surrendered finally only to the Portuguese. The Dutch took over from them and finally the British. The important legal/constitutional point to note here is the ground reality of Jaffna coming under colonial rule not as part of a subsisting all-island Sinhala kingdom but as a separate sovereign entity. This is what makes it incumbent on us to refrain from summarily dismissing the claim of Northern Tamils to some kind of special consideration. We should be happy that they did not press a claim to separate status at the time we achieved independence from the last colonial ruler (although there were some rumblings, it did not go far).

The British, to repeat, held the northern areas by right of conquest, a conquest that was separate from their subsequent conquest/annexation of the Sinhala areas. We should not be foolish to think that anybody will take us seriously in the modern world if we try to press the long obsolete all island Tri Sinhala claim. That is the bitter truth. (The situation in the Eastern province is different. Even later Kandyan kings continued to exercise suzerainty there, as is documented in treaties with colonial powers)

 

Sinhala-Tamil Co-operation during colonial times

During the British period, up to about the twenties of the 20th century Sinhala and Tamil leaders have co-operated with each other in their interactions with the colonial government as well as in other public work. In order to avoid a long exposition on this point, the following extracts from the unpublished diaries of Anagarika Dharmapala may be cited as a testament to that fact:

1889 Nov 14th

……..Went to see Muhandiram. Talked about the proposed College for the Sinhalese and Buddhists to be founded by the Hon’ble Mr. Rama Nathan and the Muhandiram promised to help it as much as he can. ………….

1911 Dec 20

………Then I went see Ramanathan and he greeted me cordially and spent about two hours in discussing over spiritual and economic subjects. A wonderfully clever man he is but he is insufficiently informed about the Dharma. …..

1915 Oct 21st

October 14

Historic meeting of the Ceylon Legislative Council. Ramanathan on behalf of the suffering Sinhalese spoke for two hours denouncing the Govt. officials for the atrocities committed on the helpless villagers during the Court Martial trials. ……

The above references are to Sir Ponnambalam Ramanathan, Member, Ceylon Legislative Council, the ‘grandfather legislature’ of Sri Lanka. His brother Sir Ponnambalam Arunachalam took the lead in forming the Ceylon National Congress and was its first President. I have heard from my father that when Sir Ponnambalam Ramanathan returned from England once, after a mission on behalf of Sri Lanka, Sinhala leaders unharnessed the horses of the carriage he was to ride home from the Colombo Jetty and pulled it themselves. Prof. K.M.de Silva has quoted in his book History of Sri Lanka, the fulsome praise given to Ramanathan by Sarasavi Sanderasa the leading Sinhala Buddhist journal of the day, ending up by saying ‘Buddhists owe Mr. Ramanathan a deep debt of gratitude’, for Ramanathan’s espousal of the cause of Sinhala Buddhists in the legislature- vide p. 461)

These fraternal relations soured later for reasons I need not go into but suffice it to say that one reason was an act of breach of faith by two Sinhala leaders who went back on a promise to help secure a seat in the legislature for Tamils in the Western Province. (vide History of Sri Lanka – K.M.de Silva, p.480) In this connection we might note that at the present time Mr. Mano Ganesan has been an elected member of Parliament for the Colombo District for a long time, without there being any special reservation either, thus providing ample justification for the old aspiration of Western Province Tamils. May not the keeping of that old promise by Sinhala leaders have changed the whole course of subsequent events, even saving many lives?

 

Special position of Tamils under colonial rule

However, it must be recognized that Tamils appeared to enjoy a privileged position under the colonial regime. This may have been due to two reasons – (a) compared with the magnitude of the population and the extent of territory occupied, Tamils seemed to enjoy more facilities for an English education than the Sinhalas. As English education was provided mostly by Christian missions and not by government I am unable to say whether this was due to deliberate colonial policy or otherwise.

However the fact that the Sinhala elite of the last decades of the 19th century did not wish the ordinary people to have an advanced education is proved by the following reference made by Prof. K.M.de Silva, to a speech made by J.P.Obeyesekere, Sinhala representative in the Legislative Council, sometime in the 1880s: ..And he argued forcefully for the imposition of the severest restrictions for entry to all schools, so that the children of the rural poor would be forced ‘to follow such avocations as they are fitted for by nature’ A History of Sri Lanka’ p.419. Tamils at that time apparently had no such ‘far sighted’ representatives of theirs to bother about!

Anyway, the indisputable fact is that in the matter of placement in the professions and in government employment, Tamils due to greater numbers of them being English literate, in addition to any other reasons, came to enjoy a position in excess of their ratio in the population. (b) The colonial government, as all colonial governments do, undoubtedly followed a policy of divide and rule and in this matter discriminating in favour of a minority would have been a very attractive tool. I must say I am only hypothesizing but there may be those who have researched the subject.

However, I must qualify the above statements by saying that any such privilege was enjoyed by only English educated middle-class Tamils and not the ordinary Tamil peasant, artisan and the fisherman. Their lot was the same as that of their counterparts among the Sinhalas. Anyway another point that needs emphasis is that hardly any Tamil living today had enjoyed such privilege in colonial times. ‘Sins’ of fathers should not visit innocent progeny. Resentment on that score is completely unwarranted.

 

Reversal after Independence

Whatever privilege English educated Tamils may have enjoyed in colonial times, they lost it after Independence. We made the plight of Tamils worse since then, by going in the reverse direction and denying them even what they were entitled to. Such was the imposition of the Official Language Act (‘Sinhala Only’ Act) in 1958. One example will illustrate this in practical terms. In colonial times, Sinhala and Tamil villagers, whenever they received an official letter or a telegram, had to go in search of an English educated mahattaya to get it translated.

After the full implementation of the Sinhala Only Act, a Tamil villager had still to go in search of a Sinhala knowing dorai. That was a needless harassment and humiliation. Now (after 1978) both Sinhala and Tamil have been made official languages, after many lives have been sacrificed over the issue in the subsequent decades (However still the legal position has not been made practical reality universally, as was forcefully impressed on me when I had to shamefacedly send a Treasury circular in Sinhala, on an important subject, to a Tamil University Chancellor friend, who sought my assistance to get a copy of that circular.

I had to do so because a Tamil or even an English version had apparently never been issued. I also failed in my attempts to get at least an English translation of the Minutes of the monthly Government Agents conference issued to the eight participating Tamil speaking GAs, because the senior officer responsible stubbornly avoided doing so despite the repeated instructions of her official superior.

It is worth mentioning here that at the time the Sinhala Only Act was passed, most schools in Jaffna taught Sinhala as a subject. Prof. Karthigesu Indrapala has said that Sagara Palansuriya, poet and one time MP, was his Sinhala teacher. A senior Tamil clerk of mine once taunted his Sinhala colleagues saying that he unlike them learnt Kumaratunga Sinhala in school. However, immediately after the humiliation of Sinhala being forced down their throats by the Sinhala Only Act, all that changed. Jaffna schools stopped teaching Sinhala. (At a recent gathering a Tamil engineer told me that when that happened, his father being a practical man took him to the Jaffna Buddhist temple and requested the monk to teach him Sinhala).

This whole sorry episode could have been handled differently if statesmanship had prevailed. The majority of ordinary Tamils, just like the majority of ordinary Sinhalas, are practical men, minding their own business and not playing politics. But as a self-respecting people they resented being humiliated. It was this humiliation, coupled with intransigence and stupidity on both sides that finally led to the war and the loss of so many lives on both sides. At the 1952 General Election, at a time when there was yet no language problem, the Federal Party which first raised the devolution of power issue, fared very poorly. The Northern Tamils were not so much bothered about the state power structure. However once humiliated they lost confidence in the majority dominated state structure.

The present generation, which has not lived through the gradual evolution of the so-called ethnic problem, like many of us elders have done, must not let themselves be deluded to think that everything started with a maniac called Prabhakaran. ‘Prabhakaran’ was long in the making and our Sinhala ‘leaders’ (including many Buddhist monks) have made a ‘generous’ contribution to that outcome.

In any case, when a war was forced on the country through political stupidity and lack of statesmanship, it had to be fought. In the Bhagavat Gita. Krishna explains to Arjuna that, once war has come about with his kinsmen, the Kurus, it was his duty to fight it, regardless. So, it was for our soldiers and they fought bravely. They fought suffering much hardship. We owe them much. Their victory was the basis on which we should have built a peaceful and prosperous New Sri Lanka. That was primarily what we owed the Ranavirus. We should have ensured that their children also would not be fated to get into flooded trenches and there to die. So far, we have failed them.

 

(Continued next week)



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Features

TNGlive relieving boredom

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Yes, indeed, the going is tough for everyone, due to the pandemic, and performers seem to be very badly hit, due to the lockdowns.

Our local artistes are feeling the heat and so are their counterparts in most Indian cities.

However, to relieve themselves of the boredom, while staying at home, quite a few entertaining Indian artistes, especially from the Anglo-Indian scene, have showcased their talents on the very popular social media platform TNGlive.

And, there’s plenty of variety – not just confined to the oldies, or the current pop stuff; there’s something for everyone. And, some of the performers are exceptionally good.

Lynette John is one such artiste. She hails from Lucknow, Uttar Pradesh, and she was quite impressive, with her tribute to American singer Patsy Cline.

She was featured last Thursday, as well (June 10), on TNGlive, in a programme, titled ‘Love Songs Special,’ and didn’t she keep viewers spellbound – with her power-packed vocals, and injecting the real ‘feel’ into the songs she sang.

What an awesome performance.

Well, if you want to be a part of the TNGlive scene, showcasing your talents, contact Melantha Perera, on 0773958888.

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Supreme Court on Port City Bill: Implications for Fundamental Rights and Devolution

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The determination of the Supreme Court on the Colombo Port City Economic Commission Bill was that as many as 26 provisions of the Bill were inconsistent with the Constitution and required to be passed by a two-thirds majority in Parliament. The Court further determined that nine provisions of the Bill also required the approval of the people at a referendum.

Among the grounds of challenge was that the Bill effectively undermined the sovereignty and territorial integrity of Sri Lanka and infringed on the sovereignty of the people. It was argued that several provisions undermined the legislative power of the People reposed on Parliament. Several provisions were challenged as violating fundamental rights of the People and consequently violating Article 3, read with Article 4(d) of the Constitution. Another ground of challenge was that the Bill contained provisions that dealt with subjects that fall within the ambit of the Provincial Council List and thus had to be referred to every Provincial Council for the expression of its views thereon as required by Article 154G(3).

 

Applicable constitutional provisions

Article 3 of our Constitution recognises that “[i]n the Republic of Sri Lanka, sovereignty is in the People and is inalienable”. Article 3 further provides that “Sovereignty includes the powers of government, fundamental rights and the franchise”. Article 3 is entrenched in the sense that a Bill inconsistent with it must by virtue of Article 83 be passed by a two-thirds majority in Parliament and approved by the people at a referendum.

Article 4 lays down the manner in which sovereignty shall be exercised and enjoyed. For example, Article 4(d) requires that “fundamental rights which are by the Constitution declared and recognised shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided”. Article 4 is not mentioned in Article 83. In its determinations on the Eighteenth Amendment to the Constitution Bill, 2002 and the 19th Amendment to the Constitution Bill, 2002, a seven-member Bench of the Supreme Court noted with approval that the Court had ruled in a series of cases that Article 3 is linked up with Article 4 and that the said Articles should be read together. This line of reasoning was followed by the Court in its determination on the 20th Amendment to the Constitution Bill.

Under Article 154G(3), Parliament may legislate on matters in the Provincial Council List but under certain conditions. A Bill on a matter in the Provincial Council List must be referred by the President, after its publication in the Gazette and before it is placed in the Order Paper of Parliament, to every Provincial Council for the expression of its views thereon. If every Council agrees to the passing of the Bill, it may be passed by a simple majority. But if one or more Councils do not agree, a two-thirds majority is required if the law is to be applicable in all Provinces, including those that did not agree. If passed by a simple majority, the law will be applicable only in the Provinces that agreed.

 

Violation of fundamental rights and need for a referendum

Several petitioners alleged that certain provisions of the Port City Bill violated fundamental rights. The rights referred to were mainly Article 12(1)—equality before the law and equal protection of the law, Article 14(1)(g)—freedom to engage in a lawful occupation, profession, trade, business or enterprise— and Article 14(1)(h)—freedom of movement. Some petitioners specifically averred that provisions that violated fundamental rights consequently violated Articles 3 and 4 and thus needed people’s approval at a referendum.

The Supreme Court determined that several provisions of the Bill violated various fundamental rights and thus were required to be passed by a two-thirds majority in Parliament. The question of whether the said provisions consequently violated Article 4(d) and thus Article 3 and therefore required the approval of the People at a referendum was not ruled on.

The Essential Public Services Bill, 1979 was challenged as being violative of both Article 11 (cruel, degrading or inhuman punishment) and Article 14. Mr. H.L. de Silva argued that a Bill that violates any fundamental right is also inconsistent with Article 4(d) and, therefore, with Article 3. The Supreme Court held that the Bill violated Article 11 but not Article 14. Since a Bill that violates Article 11 has, in any case, to be approved at a referendum as Article 11 is listed in Article 83, the Court declined to decide on whether the Bill offended Article 3 as well, as it “is a well-known principle of constitutional law that a court should not decide a constitutional issue unless it is directly relevant to the case before it.”

A clear decision on the issue came about in the case of the 18th Amendment to the Constitution Bill; a seven-member Bench of the Supreme Court held that the exclusion of the decisions of the Constitutional Council from the fundamental rights jurisdiction of the Court was inconsistent with Articles 12 (1) and 17 (remedy for the infringement of fundamental rights by executive action) and consequently inconsistent with Article 3, necessitating the approval of the Bill at a referendum.

When the 20th Amendment to the Constitution Bill sought to restore the immunity of the President in respect fundamental rights applications, the Supreme Court determined that the “People’s entitlement to remedy under Article 17 is absolute and is a direct expression of People’s fundamental rights under Article 3 of the Constitution.”

In the case of the Port City Bill, however, the Supreme Court only determined that certain provisions of the Bill violated fundamental rights and thus required a two-thirds majority, but did not go further to say that the offending provisions also required approval of the people at a referendum.

Perhaps, the Court took into consideration the Attorney-General’s assurance during the hearing that the impugned clauses would be amended at the committee stage in Parliament.

However, Parliament is not bound by the Attorney-General’s assurances. In the absence of a clear determination that the clauses concerned required a referendum as well, Parliament could have passed the clauses by a two-thirds majority. The danger inherent in the Supreme Court holding that a provision of a Bill violates fundamental rights and requires a two-thirds majority but makes no reference to the requirement of a referendum is that a government with a two-thirds majority is free to violate fundamental rights, and hence the sovereignty of the People by using such majority. It is respectfully submitted that the Court should, whenever it finds that a provision violates fundamental rights, declare that Article 3 is also violated and a referendum is necessary, as it did in the cases mentioned.

 

The need to refer the Bill to Provincial Councils

The Port City Bill had not been referred to the Provincial Councils, all the Provincial Councils having been dissolved. The Court, following earlier decisions, held that in the absence of constituted Provincial Councils, referring the Bill to all Provincial Councils is an act which could not possibly be performed.

In the case of the Divineguma II Bill, the question arose as to the applicability of the Bill to the Northern Provincial Council, which was not constituted at that time. The Court held while the Bill cannot possibly be referred to a Council that had not been constituted, the views of the Governor (who had purported to express consent) could not be considered as the views of the Council. In the circumstances, the only workable interpretation is that since the views of one Provincial Council cannot be obtained due to it being not constituted, the Bill would require to be passed by a two-thirds majority. Although not explicitly stated by the Court, this would mean that if the Bill is passed by a simple majority only, it will not apply in the Northern Province. The Bill was passed in Parliament by a two-thirds majority. The Divineguma II Bench comprised Shirani Bandaranayake CJ and Justices Amaratunga and Sripavan, and it is well-known that the decision and the decision on the Divineguma I Bill cost Chief Justice Bandaranayake her position.

It is submitted that Article 154G (3) has two requirements—one procedural and one substantive. The former is that a Bill on any matter in the Provincial Council List must be referred to all Provincial Councils. The latter is that in the absence of the consent of all Provincial Councils, the Bill must be passed by a two-thirds majority if it is to apply to the whole country. If such a Bill is passed only by a simple majority, it would apply only in the Provinces which have consented.

The Divineguma II determination accords with the ultimate object of Article 154G(3), namely, that a Bill can be imposed on a Province whose Provincial Council has not consented to it only by a two-thirds majority. It also accords with the spirit of devolution.

A necessary consequence of the Court’s determination on the Port City Bill is that it permits a government to impose a Bill on a Provincial Council matter on a “disobedient” Province by a simple majority once the Provincial Council is dissolved and before an election is held. What is worse is that at a time when all Provincial Councils are dissolved, such as now, a Bill that is detrimental to devolution can be so imposed on the entire country. It is submitted that this issue should be re-visited when the next Bill on a Provincial Council matter is presented and the Supreme Court invited to make a determination that accords with the spirit of devolution, which is an essential part of the spirit of our Constitution.

 

 

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‘Down On My Knees’ inspires Suzi

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There are certain songs that inspire us a great deal – perhaps the music, the lyrics, etc.

Singer Suzi Fluckiger (better known as Suzi Croner, to Sri Lankans) went ga-ga when she heard the song ‘Down On My Knees’ – first the version by Eric Guest, from India, then the original version by Freddie Spires, and then another version by an Indian band, called Circle of Love.

Suzi was so inspired by the lyrics of this particular song that she immediately went into action, and within a few days, she came up with her version of ‘Down On My knees.’

In an exclusive chit-chat, with The Island Star Track, she said she is now working on a video, for this particular song.

“The moment I heard ‘Down On My Knees,’ I fell in love with the inspiring lyrics, and the music, and I thought to myself I, too, need to express my feelings, through this beautiful song.

“I’ve already completed the audio and I’m now working on the video, and no sooner it’s ready, I will do the needful, on social media.”

Suzi also mentioned to us that this month (June), four years ago, she lost her husband Roli Fluckiger.

“It’s sad when you lose the person you love but, then, we all have to depart, one day. And, with that in mind, I believe it’s imperative that we fill our hearts with love and do good…always.”

A few decades ago, Suzi and the group Friends were not only immensely popular, in Sri Lanka, but abroad, as well – especially in Europe.

In Colombo, the Friends fan club had a membership of over 1500 members. For a local band, that’s a big scene, indeed!

In Switzerland, where she now resides, Suzi is doing the solo scene and was happy that the lockdown, in her part of the world, has finally been lifted.

Her first gig, since the lockdown (which came into force on December 18th, 2020), was at a restaurant, called Flavours of India, with her singing partner from the Philippines, Sean, who now resides in Switzerland. (Sean was seen performing with Suzi on the TNGlive platform, on social media, a few weeks ago).

“It was an enjoyable event, with those present having a great time. I, too, loved doing my thing, after almost six months.’

Of course, there are still certain restrictions, said Suzi – only four to a table and a maximum crowd of 50.

“Weekends are going to be busy for me, as I already have work coming my way, and I’m now eagerly looking forward to going out…on stage, performing.”

In the meanwhile, Suzi will continue to entertain her fans, and music lovers, on TNGlive – whenever time permits, she said,

She has already done three shows, on TNGlive – the last was with her Filipino friend, Sean.

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