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Tamils never approved the Sinhala constitution

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Ceylon was granted independence in 1948 under the Soulbury Constitution which conformed to the well established constitutional principles of separation of powers and rule of law. The inhabitants of the island through their representatives had agreed unanimously on this constitution for governing the island. This constitution made the island a unitary state and the minority communities agreed to this structure on account of Article 29 of the constitution which prohibited discrimination.

However, the Sinhala majority soon began to pass anti-minority, discriminatory legislation such as the Official Languages Act. Matters came to a head in an unrelated case that arose in 1964 – the Bribery Commissioner v Ranasinghe which reached the Privy Council. Analysing the law making powers of Parliament as contained in Article 29 their Lordships of the Judicial Committee of the Privy Council stated that “Article 29 represents the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which they accepted the constitution and these are unalterable under the constitution”.

Thus Article 29 could not be amended even with a two-third majority in the House of Representatives. Thus all discriminatory legislation including the Official Language Act were rendered invalid. The only way open to the Sinhala majority to get rid of Article 29 was to get rid of the whole constitution using a two-third majority in the House of Representatives and then draw up a new constitution that allowed discrimination.

All Sinhala political parties were united in this aim. The SLFP-LSSP-CP alliance led by Srimavo Bandaranaike campaigned for the 1970 general election asking the Singhalese people to give them this two-third majority needed to abolish the Soulbury constitution. The general election gave them a landslide victory and they secured the two-third majority.

Srimavo then went about dismantling democracy in Ceylon. First the upper house (Senate) was abolished. Then the right of appeal to the Privy Council was abolished. The government declared that all elected members of the House of Representatives were concurrently members of a parallel body called the “Constitutional Assembly” and went about drafting a new constitution.

The Federal Party initially attended the Assembly but when their suggested amendments to protect the Tamils were rejected they walked out. So the constitutional procedure was a sham.

The draft produced by the Sinhala MPs ignoring Tamil rights was not then put to a constitutional referendum which would have resulted in all the Tamils totally rejecting it. The draft was produced and approved by the Sinhala MPs in the House of Representatives.

The move was a legal nonsense. It is the people who are sovereign, not parliament, which is only an elected body. The draft had no legal status until it has been validated by the people in a constitutional referendum. It is not even an approved draft because the Tamils MPs did not approve it. In 1977 the UNP alliance won a two-third majority and similar constitutional sham was repeated by the newly elected Sinhala MPs producing a new draft.

By way of comparison, in 1993 post-Soviet Union Russia produced a proper new constitution when the draft approved by the assemblies of the various the states and regions was validated by a constitutional referendum. In 1994 South Africa held a constitutional referendum to validate a new draft constitution produced by the elected members of the assembly. A few months ago a new constitution was brought into force in Iraq by a referendum.

The Tamils around the world should call for an international constitutional court to examine the constitutional process in Sri Lanka, allowing both the majority and minority communities to present historic evidence.

There is a recent precedent for such a move. In March 2001 an international constitutional court comprising a panel of 5 international and Commonwealth judges heard the dispute (the two sides were represented by British barristers) and declared that the Fiji military takeover of government was illegal and made to resign.

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