|A Lawyer's reply to
FEDERALISM: A BEGUILING SERPENT by H L de Silva
by Wakeley Paul
At a Seminar on "Indian Federalism" organized by the Bandaranaike Center for International studies, Mr. H L de Silva, a leading Sri Lankan constitutional lawyer, said
"The Federal solution to end the ethnic conflict is like a snake a drowning man clutches onto in desperation to stay afloat." He went on to say that that "Federalism is the beguiling serpent which by its fatal sting will bring an end to his precious Republic."
My question to my friend and former colleague, Mr H.L.de Silvia, is "Who does the serpent entice - the likes of him or the likes of me?" Do those Sinhalese who cling to the gift of a Unitary government, mistakenly bequeathed to them by the British, exhibit a desperate desire to retain uncontrolled power over the Tamils and Muslims and Burghers and Malays, whose rights and hopes and aspirations they have dashed from the day the Sinhalese attained their Independence from Britain.
Let us go back to the history of this nation. Way back in 1939, Governor Andrew Caldecott, referring to the question of minority representation, said , "All our fissures radiate from here." Ever since the Sinhalese politicians realized they had majority voting power in the west and denied to Sir Ponnambalam Arunachalam the previously promised Colombo Tamil seat in the Legislative Council, the ethnic issue has dominated the politics of this island.
In order to avoid Sinhala domination of a national parliament under an Unitary Constitution, Mr G.G.Ponnambalam demanded 50 / 50 representation, 50 for the Sinhalese and 50 for all the others combined. In this way it was hoped that a single nation could be preserved with the rights of all being protected. It did not foresee opportunistic ethnic coalitions and collaborations with the Sinhalese, but this is neither here nor there. The Soulbury Constitution ignored Mr Ponnambalam's suggestion and gave Ceylon a single national parliament that was to be dominated by the Sinhalese..
The British were not unwary of the dangers emanating from this arrangement. One British Parliamentarian warned that the Tamils and others would be a permanent minority in a single central parliament under such an Unitary Constitution.
The Soulbury Commission, aware of this danger, did not grant to the Sinhalese majority absolute independence. They granted them conditional Independence, subject to the provisions of Section 29  which made void any legislation which discriminated against any "community" or "religion" or ""granted to any "community" or "religion" rights and privileges not granted to any other community or religion.[paraphrased] How long did it take the Sinhalese rulers to find ways to avoid these strictures and favor themselves and their people at the expense of the others ? .
First came the Ceylon Citizenship Act, 1948 followed by the Ceylon [Parliamentary Elections] Amendment Act 1949, by which those described by the Sinhalese as Indian Tamils were first denied citizenship and then disenfranchised. These Tamils of more recent Indian origin, who had lived for nearly 100 years on the island; and who had voting rights under the Constitution granted to us by the British, lost them. All their seats in Parliament became gifts to the Sinhalese to increase their already dominant majority in
that institution. The Privy Council upheld the government's right to determine who its citizens should be, so that went by the board. The promise made by D S Senanayake to the minorities on November 9, 1945 in parliament "Do you want to be governed from London, or do you want to help govern Ceylon.....On behalf of the Congress and on my own behalf, I give the minority communities the sincere assurance that no harm should you fear at our hands in a fee Sri Lanka". also went by the board. This statement ended up as one more fraudulent, hollow Sinhalese politician's false promise.
Sinhalese rulers now sensed the power of partisan ethnic politics. They went against former commitments for parity of status of national languages and passed the Sinhala Only Act. Non violent protests by Tamils were met with brutal communal riots in 56 and 58. The draft of the Bandaranaike-Chelvanayagam Pact promising some autonomy for Tamils and Tamil speakers, which was a very far cry from Federalism, was torn up. Mr Bandaranaike, who was assassinated by a Sinhala monk, was succeeded by Mrs Bandaranaike, who vowed to restore the Sinhalese to their rightful place of superiority over the rest. Tamils lost job opportunities with government, the armed forces and government-dominated cooperatives. The Tamils resorted to education as their last resort. Affirmative action in favor of the majority Sinhalese community to enter the Universities was the result. Each and every successive Tamil aspiration was systematically and deliberately stymied by each and every successive Sinhala government.
But let me go back again. In 1961, Mrs Bandaranaike's armed forces attacked Tamil men and women peacefully performing non violent "Satyagraha" against the Sinhala Only Act on the lawns of government Kacheries in the Tamils' own strongholds in the North & East. In 1972, she unconstitutionally abolished the Constitution granted to us by the British with its constitutional safeguards and protections, by the utterly unconstitutional creation of an entity called a "Constituent Assembly." Did Mr de Silva or Sinhalese lawyers of his caliber like Lakshman Kadirgama, challenge these disgraceful illegal maneuvers? This was in fact engineered by a very distinguished Sinhalese lawyer in the form of Dr Colvin R de Silva. Did they applaud or condemn him
at the time? Where were the Tamil lawyers he might ask? Hiding and shielding themselves from Sinhala discrimination having been forced by circumstance to live abroad, is the answer.
The new 1972 instrument which was passed off as a valid constitution put Buddhists on a pedestal. Inequality was the watchword of this illegal document. Inequality became Constitutional, Equality became Unconstitutional. Those in government had no power to abolish S 29 , because that section controlled them. They did not control it. Furthermore, under Section 29 the Ceylon parliament could not abolish the constitution altogether. They could by a 2/3 majority only amend or repeal any of its provisions. Only "The Queen in Council or the British Parliament with Royal Assent" could abolish the constitution totally. Furthermore, nowhere is there any provision for a thing called a "Constituent Assembly" to exist, leave apart have the power to abolish an
existing constitution and create a new one. Were the Sinhalese Constitutional lawyers purposefully asleep through all this because it did not affect them personally? In 1977, Mr J R Jayawardena replaced an unconstitutional constitution with another of his own, in which Sinhala Buddhists were again placed on a pedestal. Did any Sinhalese constitutional lawyers of the caliber of Mr de Silva challenge any of these illegal acts by
successive Sinhala governments? They now talk as if they are speaking from a firm constitutional platform, which any lawyer worth his salt should know they are not. They pile one illegal constitution on top of another and blithely assume that the end product is legal. No self-respecting Tamil or Sinhalese lawyer should or could ever acknowledge this. Yet Sinhalese Ministers of Constitutional affairs now use the present illegal
constitution to block the road to Federalism. Are these the law-abiding, rights-conscious Sinhalese lawyers we are supposed to applaud and trust ?
In addition to all this, we had the communal riots of '77, '79, the burning of the Jaffna Library in 81 and then the unspeakable race riots of 83. Does Mr. de Silva think a mea culpa here and a mea culpa there is sufficient to assuage Tamil fears of the inequity and unreliability of Sinhala rule over us. If so, he had better think again.
Mr Chelvanyagam, who made one desperate effort to side with the U N P in '65, found that his pact with that honorable Prime Minister yielded no fruit, because it was virulently opposed by Sinhala politicians. These politicians came up with the argument that the government was selling the Sinhala birthright to the Tamils. What birthright was that? The right to keep the Tamils in a subordinates corner for the rest of time? What did that do to the Tamil birthright, or did they have none in Sinhala eyes? After desperate efforts to obtain concessions, the Vaddukottai Resolution seeking Separation was passed. Mr C Sunderalingam was way ahead of his time when he made his demand for separation in the 50's. This was not an exclusive L T T E innovation as some desperate Sinhalese try to imply.
Since the emergence of the LTTE we have not had a single race riot in the Sinhala-dominated south or west. Since the emergence of the LTTE, there have been pathetic efforts at offering Devolution of power in place of Federalism. Do the Sinhalese like Mr De Silva, expect us to accept Devolution of power, which can be revoked or modified by the Sinhala-dominated central parliament at any time it wishes? By its very terms, under the devolution of powers offered, the central government can withdraw and modify anything it concedes. As Chief Justice Sharawananda pointed out in upholding the XIII Amendment as Constitutional, that is an essential power that has to be retained by the central parliament under an Unitary Constitution. To deny the central parliament that right is to deny them the concept of the Supremacy of the Parliament, which is an integral part of a Unitary Constitution. Is that what Mr. De Silva wants to retain? Give with one hand and take with the other when we are bad boys in the Sinhala mother's eyes?
The Tamils seek a Federal set up whereby powers granted to us are powers retained. If Mr de Silva thinks that such a surrender of power to the Tamils is detrimental to his people, and his precious republic, that's too bad. The Tamils cannot settle for less; they can, like Oliver Twist, justifiably demand more, much much more, based on the unhappy history of relations twixt the two communities.
Their worries as to our ability to survive economically are the worries of those who have to surrender power. The British used it against the Americans when they were a minuscule agrarian economy during the American War of Independence. They expressed such reservations about granting independence to India, Pakistan & Ceylon. In the last instance, they may have been right. The L T T E has built a more efficient army; run a superior administration; managed their finances with far greater discipline and efficiency than any Sinhalese government has done since getting Independence in 1948. There is no question that serious financial adjustments have to be made . Any drastic change involves such adjustments, but who are they to worry about our ability to handle our financial fate? Let them worry about theirs, and we will take care of ours. All we seek is an end to the unending Sinhala dominance over us.
The snake is coiled around the other foot, not trying to sting, but trying to save the Sinhalese from possible self extinction . We have no desire to see them bring about their own demise, They in turn should not resent our effort to control our own destinies. They sought and got it from the British. We now seek it from them.
The writer was a former Crown Counsel and colleague of Mr. De Silva in Ceylon.
He is now a Criminal defense attorney in New Jersey. He represented the
Tamils on behalf of the ILANKAI Thamil Sangam, U S A at the United Nations
Human Rights Commission in Geneva in the 80's and 90's. He is a former
President of the sangam. He is a law graduate of Cambridge University and
the Stanford Law School, California. He is also a Barrister at law of the
Middle Temple, London