This meeting has been called in remembrance of Audrey, whom many of you will recall as an ever-present and ever-willing friend regardless of the cost to her. Before I get on to the subject of the book Democracy Stillborn: Lanka’s Rejection of Equal Rights at Independence?; which I coauthored with Kirupaimalar Hoole, I will say a few words about Audrey.

We got to know Audrey Rebera when she came to spend time with Rajani Thiranagama at her parents’ home in Nallur in 1988 when the train services resumed after the Indian Army’s takeover. That was shortly after Rajani, Dr. Sritharan, Daya Somasundaram and I had completed the writing of the Broken Palmyra. Since then our relationship with Audrey had been very close as it had been for many others.

Audrey gave up her well-paid job at the Central Bank to take over one nominally paid, as Secretary of the SCM in the early 1970s. That was just after I had ceased to be a member of the University SCM of which Rajani became an active member during that decade when the country and the world faced a lurch to radicalism with which Audrey was in active sympathy.

Audrey has been known under various labels, a Christian, a feminist, a left radical, to name a few, but most of all she represented the best of humanity. One instance related by Rajani’s husband Dayapala Thiranagama says it best. Though belonging to a left group hunted by the JVP Dayapala was also on the Government’s wanted list, going from refuge to refuge. Then famished and a stranger to Audrey, he knocked on her door in the dangerous year of 1988. Audrey did not ask who he was, but asked if he had eaten and invited him in. That portrays in miniature the singularly compassionate and courageous nature of Audrey.

Audrey’s politics came from her having been a devoted Christian. The first thing that confronted a visitor to her home was her prayer desk before which she knelt, a Bible and monthly bible-reading notes. She was voluntarily poor, but immensely rich in important ways. Her life reminds us of the story of Christ feeding the five-thousand. That was how she helped many people in need. You told her a difficult problem and to one’s surprise she found an answer. She knew whom to tap. She had helped many in need and had immense credibility.  

Those of us born on or near that fatal year 1948, of independence and the Citizenship Act, could not help being pursued by an uneasy feeling. The Labour so punished with deprivation was until the mid-1960s earning 65 percent of our foreign exchange. They were the mainstay of the free education and free health we enjoyed. Their shameful state raised the question if we were living in the real world. The book records the deliberate, statutory neglect of the Plantation Tamil community. Worst of all was the humiliating, and heart-rending deportations to India of a people who satisfied every token of citizenship based on a crude Pact between the Governments of Ceylon and India, prompted by the Sino-Indian War of late 1962 and General Ne Win’s forced deportations of Indians in Burma in 1963.

These events are not bygones that affect us no more. They were an intimate influence on our politico-legal culture, the end of the habeas corpus right that was our anchor of freedom, the permissibility of arbitrary arrest and torture under the PTA and the bizarre law to suppress free-expression, mis-called the ICCPR Act. It was all to do with labour.

The Arunachalam Era

Arunachalam’s entry into Ceylon’s political life in 1913 fired a generation of youth to a measure of radicalism inspired by the socialist movements of Europe and his own Tamil classicism, drawn from Thiruvalluvar. He symbolised breaking barriers of custom and ushering in a vision of universal brotherhood. His aim for Ceylon was a welfare state after the models of Switzerland and Denmark with universal franchise, free education and unionised labour. He was welcomed because the country’s political life was paralysed by the Sinhalese-Muslim riots of 1915 and he alone had the stature to provide the leadership and hope for forward movement. But his crowning moment in December 1919, when the Ceylon National Congress (CNC.) was formed, also activated a compact of the colonial power and the local elite who found his vision objectionable and manoeuvred his political demise. As part of his lasting legacy, we may list universal franchise and free education. Communal politics has its roots in the undermining of his vision.

As leader of the CNC, Arunachalam tried to steer the country’s politics in a social-democratic direction. At the foundation meeting of the Ceylon Workers’ Federation on 9^th February 1920 presided over by Arunachalam, he called for unionised labour to protect the interests of workers, a call he had already made to Plantation labour in 1913. D.B. Jayatileka signalled the emerging divisions by striking a patronising note saying that unlike in Europe, there was no ‘antagonism between labour and capital in Ceylon’ and strikes were unnecessary.

The First World War from 1914 – 1918 led to difficulty in food imports from India and steep rise in prices. The Low Country Products Association (LCPA) formed by local capitalists saw profit in intensifying rice production using local and imported Indian labour and acquired a large extent of land along the Kirindi River basin to this end. Several LCPA members too comprised the country’s political elite who dominated the Legislative Council. They included James Pieris, Marcus Fernando, Henry de Mel and D.S. Senanayake. The heavy demand for Indian labour in the plantations enjoying a boom after the war also resulted in pro-labour activism to demand improvements in working conditions for emigrant labour. The contemplated Indian Emigration Act, passed under Viceroy Lord Chelmsford in 1922, proposed such improvements and protections.

To understand the politics of this period, there was rising support for the Labour Party in Britain and internal battles were reflected in colonial decisions at the highest levels. For example Drummond Shiels of Scottish Labour who was on the Donoughmore Commission, had contact with local labour interests through A.E. Goonesinha. Goonesinha had been in turn a protégé of Arunachalam with Natesa Iyer and had founded the local Labour Party. Shiels played an important role in bringing us universal franchise from 1927 on.

William Manning who became our Governor in September 1918 was unsympathetic to political reform and soon acquired a reputation as a champion of the Planter Raj. Manning’s attitude helped him to form a compact with planter oligarchs who comprised the emerging Sinhalese leadership. These persons had felt threatened after the Government cracked down on the 1915 Sinhalese-Muslim riots and for a time found shelter under Arunachalam’s leadership. Manning soon formed a common interest with them in ousting Arunachalam from the leadership of the Ceylon National Congress (CNC). His radicalism went too far for both. In a makeshift arrangement, the conservative Anglican James Pieris was made leader of the CNC by late 1920 in Arunachalam’s stead.

Arunachalam had been persistent in his demand that security officials responsible for excesses in putting down the Sinhalese-Muslim riots should be identified by an inquiry and made answerable to the law. The emerging Sinhalese leadership that was drawing close to Manning would not have it. At one of the last committee meetings over which Arunachalam presided, on 30^th September 1920, a resolution tabled by the Secretary said that the political reforms proposed by Manning are ‘an affront to the people of Ceylon’ and as not providing ‘any check on excesses such as disgraced the British Administration in 1915.’ James Pieris and Jayatileke ensured that it was dropped.

The reasons were same as you find advanced in polite circles today: that as for state brutality, ‘we cultured gentlemen do not discuss divisive topics.’ Arunachalam’s exit was on the cards. The formal reason attributed for Arunachalam withdrawing from the CNC from August 1921 was the failure of its leaders to honour the pledge made in late 1918 of a special Tamil seat in the Western Province in return for the Jaffna Association joining the CNC. Arunachalam felt that the CNC’s failure to honour the pledge given to A. Sabapathy for which he stood guarantor had stripped him of his credibility. The CNC too faced a crisis of fall in numbers. A CNC memorandum sent to Governor Manning two years later in 1923 accused him of urging Tamils to boycott the Sinhalese. This we argue has absolutely no credit, and was repudiated by Jayatileka himself shortly after Arunachalam’s death in 1924, aged nearly 71.

The damage done by gossipy speculation about Arunachalam’s exit was to contort the image of the great man to a lukewarm, lacklustre and vindictive personality common in the Sri Lankan political landscape. More important was the burial of his vision for Lanka as a social democracy like Switzerland with quality education for all, widespread welfare measures and protection for the minorities. It captures what we have become today.

The Politics of Plantation Capitalism

At the 1919 inaugural meeting of the CNC presided over by Arunachalam, the CNC at the urging of Natesa Iyer and T.B. Jayah accepted a policy of treating Indian immigrants on equal terms. It further agreed to territorial representation – the system of electorates as obtains today – with adequate safeguards for the minorities. One way of doing this, as Arunachalam pointed out, was temporarily to assign a higher number of seats for a unit of population in areas where the minorities predominate, as in Ireland which was then part of Britain. This was to continue only until the minorities acquired confidence to become part of a uniform electorate.

Economically, the LCPA’s plans to grow rice with the aid of Indian labour in the Kirindi Oya basin was dropped because of the reduction of prices of food imports from India after the First World War, but the demand for Indian labour was at a premium in the early 1920s because of the expanding estate sector. Governor Manning worked closely with the local planter capitalists, among whom D.S. Senanayake and W.A. de Silva were emerging leaders.

This early task in which Manning and the local capitalists got together was to dilute the effects of the 1922 Indian Emigration Act on the rights of Indian immigrant labour, to which effect they lobbied in London and India. The Indian Legislature, policy makers and the Viceroy Lord Chelmsford strongly backed the resolution of the Indian National Congress in 1909 in response to events in South Africa that the emigration of Indian Labour would be permitted only to countries where they would enjoy equality with the local inhabitants. This promise of equality, Ceylon made in inter-state diplomatic correspondence, but the legislature was not obliged to adopt it into law. This was because dominions such as Canada and Australia were allowed to adopt laws that discriminated against sections of their inhabitants. This was a critical weakness in the pledges made to Indian labour.

Equality for immigrants remained a government to government pledge, as confirmed by Governor Caldecott in his letter to the Council in 1941; but because it was not adopted into local law, Senanayake and Bandaranaike were able to deny in the 1940s that any undertakings of equality for immigrants were ever given. But as decided by the Permanent Court of International Justice in 1933 upholding, against Norway, Denmark’s claim to Eastern Greenland; agreements in writing made by accredited representatives of states, remain the position accepted in International law.  

A classic instance in Lanka was the case of the illiterate Singarasa sentenced first to 50 years of imprisonment under the PTA. Under the Optional Protocol to the ICCPR which our Foreign Minister Lakshman Kadirgamar had acceded to in 1997 on behalf of Sri Lanka, an appeal was made to the UN Human Rights Committee. The Committee concluded that justice in the case of the torture victim was miscarried and recommended either the dropping of charges or re-trial under proper standards. Contrarily, the Sri Lankan Supreme Court’s decision delivered by Chief Justice Sarath Silva in 2006 was that rights under the ICCPR “are not rights under the law of Sri Lanka.”  

It was a position similar to the denial of rights to equality of Plantation Tamils. A state could maintain at a price the position that rights embedded in a treaty between governments are not rights unless adopted by the legislature. Such casual disowning of international legal obligations renders a state a pariah state, inviting the consequences of being one. This was why one of our leading jurists H. Sri Nissanka opposed the Citizenship Act in Parliament for its rejection of jus soli – citizenship acquired by birth in a country. He said, “As somebody who is supposed to know the law, I feel that I am not in a position to vote upon a measure that ignores the first principle of the law, as I understand it.”

Jus soli is an ancient law that was reaffirmed by courts in the Empire and was part of Roman-Dutch law, our common law. Sri Nissanka, a leading Buddhist layman, realised that passing laws that put us out of step with the world, indeed with India, Pakistan and the Commonwealth, carried a severe price, not least the slow annulment of our own protective laws and the rule of law.  

In March 1923, the Legislative Council passed the Indian Labour Amendment Bill, mainly dealing with basic welfare for the Indian labour and the stationing of an Indian Agent. It slowly, but surely brought improvements to the lives of the labour, bringing their health indicators close to those of the Kandyan peasantry they lived among. But independence led to reversal.

Ceylon’s Freedom Struggle that was not about Freedom

Things in Ceylon were not going well. With the world economy expanding the 1920s and increasing militancy on the part of labour unions, the Planter Oligarchy was unable to ensure the smooth running of government under communal representation and minuscule franchise conditioned on property and literacy. Until this time there was little objection to the import of Indian labour as immigrants – who after five years were legally part of the permanent population. Requests by planters for additional Indian labour were routinely approved, first by the Legislative and after 1931 by the State Council – by Ceylonese. Coffee and, particularly, tea, to be viable as crops required a resident labour force. The deadlock over representative government was broken in 1928 by the Donoughmore Commission’s recommendation of universal franchise.

Power was going to be an issue of numbers. Sinhalese leaders began to baulk at the threat to their power that had so far been guaranteed by imperial patronage. The immediate alarm was over the Indian immigrants, a modest 11 percent or so of the population, whose votes might be mobilised as a radical bloc, rather than in the old patriarchal fashion. For a start labour leader A.E. Goonesinha and the pro-labour and liberal elements among the Sinhalese welcomed the change.

Strong rear-guard action was led by D.S. Senanayake and A.F. Molamure. When the Donoughmore proposals were discussed in the Legislative Council, they tried to push through a motion limiting the immigrant vote to those who passed a literacy test in one of the three languages, despite it being pointed out that a programme of literacy would make everyone literate in a short time. They agreed to a compromise motion by Tambimuttu, where everyone had to pass a literacy test for the vote.

The Colonial Secretary responded, “I should not be willing to accept any amendments in principle, which would destroy the balance of the scheme [particularly universal franchise].” After a round of negotiations the Council accepted a compromise where the principle of universal franchise was preserved. Indian Immigrants would have the vote under the condition of domicile proposed by Governor Herbert Stanley, which practically involved proving five years of residence – for a start, registering officers accepted estate records as adequate proof. Elections to the State Council were held in 1931, but the truce was all too transient. Although Indian labour was essential to the economy, a racist campaign against them was aided by the depression of the 1930s. As the depression eased by 1934, more labour was needed and kept coming in smaller numbers. By this time this labour had become a settled population and hardly anyone went back to India.

The Sinhalese leaders remained unhappy with Stanley’s settlement that would consolidate the immigrant vote as registration took its course. They received fresh opportunity, when in support of Gandhi’s call for Swaraj, Sarojini Naidu in 1931 led the Salt March in place of Gandhi who had been imprisoned. Britain had been given notice. In 1931 Senanayake as Minister for Agriculture announced his Land Development Ordinance (LDO) which cut off Indian immigrants from land allocations, contrary to the undertakings on equality, by confining recipients of land to Ceylonese, whom he defined as persons having Ceylon domicile of origin – in practical terms only to those who could produce their father’s Ceylon birth-certificate. We may infer that if not alarmed by the independence struggle in India, the colonial power would not have assented to the discriminatory LDO. During Gandhi’s Ceylon visit in 1927, the Plantation labour rallied to him with wild enthusiasm. Though not seen immediately, domicile of origin coming into political parlance gave Sinhalese leaders the weapon to set the immigrant population at nought.

There was in Ceylon no preparation for independence, as the fundamental rights in the 1928 Motilal Nehru draft, which signalled how different peoples in India might live in amity. During the 20 years of the Donoughmore reforms, which held promise of better things for all, Sinhalese leaders spent their energies on anti-Indian-labour propaganda, while making horse deals with Britain to secure electoral cleansing of this labour while zealously retaining its services. With the onset of war in 1939, the British did the Sinhalese leaders a massive favour by cancelling State Council elections due in 1941 and extending the incumbency of the existing State Council, led effectively by Senanayake, after placing left leaders N.M. Perera and Philip Gunawardena under arrest. A bill proposed by Bandaranaike and passed after the outbreak of war had drastically interfered with immigrant voter registration.

Being marked up as the leader enjoying British patronage, while Bandaranaike was deemed unreliable, Senanayake enjoyed immense authority to get Sinhalese opportunists and waverers in the Council behind him. This was reflected in the Immigration and Registration Bills, which smacked of National Socialism, passed by the Council on 26^th and 27^th of March 1941. They followed the definition of Ceylonese smuggled into the Land Development Ordinance in 1935 as persons with Ceylon domicile of origin. The Registration Bill required non-Ceylonese to come forward and register themselves or face penalties. Jayah was provoked to make his last great speech before his surrender to Senanayake. The Bill recalled to him the similar 1907 Registration Bill in Transvaal, which spurred Gandhi into non-violent protest.

The maverick A.H. Freeman, former GA and member for Anuradhapura, said, “Sir, this is a hospitable country, but it strikes me that this is a very inhospitable Bill because it adds a great number of people to the category of ‘aliens’ and … proposes to arrest everybody committing some paltry offence … It looks as though the prosecuting habit will get considerable encouragement under this Bill.”

The Registration Bill passed 36 for and 13 against with one abstention. For the Sinhalese nationalists the only fly in the ointment was the prospective revival of the Left after the war, but alas, the Left divided during the war, which sealed its and the country’s fate.

The British were unhappy with these Bills, which antagonised Indian opinion in a time of war when Britain was relying crucially on India for men, materials and food. But Senanayake too had set his priority on ridding the challenge from the Indian labour vote, which might merge with an incipient Left; for the time silenced for opposing Ceylon’s support for the imperial war effort. The Colonial administration had made one last ditch attempt to avert the Bills passed. Governor Caldecott in February 1941 tabled documents and wrote to members of the State Council, reminding them of the undertakings given to India, which the Sinhalese leaders ridiculed. Legal Secretary Drayton confronted the Council with evidence that over 80 percent of the immigrant population by 1941, had either been born in Ceylon or were resident more than ten years; meaning nearly all of them were domiciled, entitled to the vote and qualified for citizenship.

The uncertainties of war also caused the Sinhalese leaders to rethink. The country was desperately short of food. In mid-1942, the Council sent D.B. Jayatileka to several parts of India to purchase food. The mission aided by the Government of India was a success. For a time the Sinhalese leaders caught in the uncertainties of war felt deep gratitude for India. The Indian Press quoted Senanayake as contemplating federation of Ceylon with India, a prospect repeated by J.R. Jayewardene when discussing the Free Lanka Bill in February 1945.

Following the fall of Malaya and Burma to the Japanese, Britain found Ceylon crucial as a base and, following its declaration of full responsible government for Ceylon in May 1943, asked the ministers to draw up a Constitution for the Dominion of Ceylon. Britain chose to cave in to the demands of Sinhalese leaders. Senanayake sought the aid of Ivor Jennings to draw up a Constitution for Independent Ceylon.

Jennings’ Constitution

It was recognised in discussions that the crucial task of the Constitution was the protection of minorities. To address this Jennings borrowed from the 1920 Constitution for Ireland: that neither the Parliament of Southern nor Northern Ireland ‘shall make a law so as either directly or indirectly to … give a preference, privilege, or advantage, or impose any disability or disadvantage, on account of religious belief or religious or ecclesiastical status…’

This was adapted into the 1946 Ceylon Constitution Order in Council that was to become our Constitution; but with a fatal difference. Article 29 (2) of the Soulbury Constitution said that no community (social or religious) would by law be conferred privileges or be subject to disadvantages different from others. The difference was the missing ‘directly or indirectly.’

Surprisingly, the Ceylon Constitution did not define a citizen in contrast to the Indian Constitution, which more or less defined a citizen as an ordinary resident or by jus soli. After several years of negotiation the 1955 Malayan Constitution which too involved Jennings, accepted jus soli as a basis for citizenship. The leaders of Lanka evidently had up their sleeve a novel definition of citizenship unknown to the world. The electors were defined in a separate Elections Order in Council in 1946. It followed the Donoughmore Constitution which defined an elector as one domiciled in Ceylon, which, if properly implemented, amounts to residence. The catch was that an amendment to the Constitution Order in Council required two thirds majority of the total House; however, changing the election law and disenfranchising any segment of the population could be done by a simple majority, provided it did not violate other protections in Article 29: that is to say, if it did not discriminate between communities.

The Act passed by a simple majority in August 1948 defined Citizenship in a strange way totally ignoring birth and residence. Essentially citizenship required one to produce one’s father’s Ceylon birth certificate. This was an impossible demand, as registration of births was adequately regularised only about 1898. Given the median age of first fatherhood as 25 years, it is persons born after 1923 who could have their father’s birth certificate. They would reach the voting age of 21 only in 1944, four years before the Citizenship Act. This meant that in 1948 persons 25 years and above would not have had their fathers’ birth certificate. On a rough calculation about 88 percent of the voting population was barred from citizenship.

The unworkable act is a piece of unparalleled ingenuity that had passed through expert hands and, apart from several who knew the law; a Tamil professor of Mathematics, cabinet member, and later, pioneer separatist, was among those who voted for it.

After the Citizenship Act there followed in 1949 the Franchise Act which simply said that one had to be a citizen to be a voter, once more calling for the father’s birth certificate. This was not only depriving people of a basic right retroactively, but was in direct violation of Article 91 of the Constitution which protected rights acquired under the 1931 Donoughmore Constitution.

When challenged in 1951, the Act was rightly declared unconstitutional by Judge Sivagnanasundaram of the Kegalle District Court, which concluded on the basis of the 1949 Australian case, Commonwealth v. Bank of New South Wales, that the Franchise Act was a direct, and not indirect, violation of the Constitution.

The Government appealed in the Supreme Court. This is where the missing directly or indirectly from the Irish proto-type played a crucial role. We discern that the Government figured that once it smuggled the Citizenship Act on to the statute book, it could use it as means to deprive the Plantation Tamils of the franchise they long enjoyed; which would be indirect, a secondary effect and therefore not a violation of the Constitution. Moreover, the removal of non-citizens from the voting register was an administrative task and Attorney General Rose told the Court that in Ceylon like in England administrative discrimination, which is not a direct effect of the law, even if done cursorily, is not a violation of the Constitution. Chief Justice Jayatileka held that both the Citizenship and Franchise Acts are in order. He said confirming the indirect deprivation, ‘it does not matter what effects [economically or socially] the [Acts] produce in their actual operation.’

The Appellant Nair appealed to the Privy Council, where Lord Oaksey observed in 1953 that legislation, though “framed so as not to offend directly against a constitutional limitation of power of the legislature, may indirectly achieve the same result, and that, in such circumstances, the legislation would be ultra vires.”

In other words the Privy Council tentatively rejected the Supreme Court’s ruling on the basis of the judicial maxim “What cannot be done directly cannot be done indirectly.” The maxim, or grandmother’s wisdom, contains the intuition accepted by judges that what you are prevented from doing directly, you can still accomplish by a labyrinth of indirect actions. There is no logical proof.

The Privy Council then moved to pull the Government’s chestnuts out of the fire by testing whether the Ceylon Parliament has attained indirectly something it could in fact have attained directly in the light of Parliament’s allegedly supreme legislative power. The Privy Council exonerated the Government on the basis of its subsequent legislation, The Indian Residents’ Citizenship Act, which as the court appeals record, benefitted only a privileged class with money and education. The Privy Council argued that the Citizenship Act did not, as the Act implied, cut off from citizenship in one fell blow, the unborn descendants of those refused citizenship. To this end it quoted a passage from the 1945 Soulbury Report suggesting that the Plantation Tamils, as the Sinhalese leaders held, were birds of passage who came and went according to temporary job opportunities. And such people had no claim on citizenship. But the Councillors omitted the crucial paragraph 221 from the same report which concurred with what Legal Secretary Drayton told the State Council in 1941:

“It is probably safe to say that at least 80 per cent, of the Indians whose names appeared in the Preliminary Lists for electoral districts other than Colombo were either born in Ceylon or had resided in Ceylon for at least ten years, and it is not unreasonable to anticipate that in a comparatively short time most of them will, if they take the trouble to appear for oral examination, be regarded as having an abiding interest in the country, as permanently settled in the Island and as  qualified for the franchise.”

One infers that the Privy Council was motivated by protecting British economic and military interests in Ceylon in the aftermath of World War II. What is more surprising is that these tawdry Acts, which dangerously polluted our judicial, legal and intellectual culture, have long been before us. They should have been intellectually ripped to pieces in a self-respecting nation. In fact the case was rendered unduly complicated. Judge O.L. de Kretser used a much simpler test in declaring the Sinhala Only Act unconstitutional in 1964: That is, were the consequences of the Act, which placed the community of persons not conversant in Sinhalese at a disadvantage, permissible under the law? The Supreme Court dodged the challenge.

Academic Apologetics: the Debit and Credit sides

One important justification for these Acts, implicit in the 1935 Land Development Ordinance, and popularised by Prof. S.U. Kodikara, is that there were hardly any third generation Plantation Tamils in this country. He cites for the years 1921, 1949 and 1963, the unemployed dependents per head of the working population as respectively 0.28, 0.59 and 0.94. That is to say in the crucial first half of the twentieth century, there were very few elderly from the Plantation Tamil population left in Ceylon. The inference drawn is that when they ceased to work they went back to India. The truth is as stark as it was well-hidden.

An important piece of work done by Langford C.M. and Storey P. in Australia in 1992 on the 1918 Influenza epidemic concludes that the life expectancy for Plantation Tamils from 1900 to 1920 was 24 years, while for Sinhalese, Muslims and Tamils, it was over 30. That immediately answers Kodikara: There were very few elderly Plantation Tamils left in the early part of the twentieth century, not because of return to India, but owing to miserable health conditions. They in fact left the world quite early.

We note another important study done by Godfrey Gunatilleke for the WHO in 1984:  “The crude death rates of the estate population … ranged between 26.7 per 1000 in 1935 and 17.1 in 1945 compared with the national average between 36.6 and 21.9 for the same period. The corresponding rates of infant mortality were 198 and 126 for the Indian population and 263 and 140 for the whole of Sri Lanka.”

Gunatilleke adds, “This exclusion was reflected in the widening gap in the mortality rates after 1950. In 1955 the death rate and the infant mortality rate for the Indian population were 13.3 and 115 while the national averages had declined rapidly to 11 and 71.” As calculated in the book Palmyra Fallen, the national average natural increase for the decade 1971 to 1981 was 1.66 percent, while for Plantation Tamils it was negative, at minus 0.5 percent. A case of slow genocide?

These again reinforce the points made above and that the machinery to monitor welfare of immigrants set up under the Indian Emigration Act of 1922 resulted in a marked improvement in the health conditions of immigrants. These declined disastrously after independence.

We may add that a great deal more should have been done in this country to place in clear focus the enormous injustice inflicted on the Plantation Tamil community, whose neglect and discrimination continues to shame national life. To begin with an account of the Kegalle District Court hearing of the Citizenship Act, which was closely argued by S. Nadesan with case references from other parts of the world, and the judgment by Judge Sivagnanasundaram, are hardly accessible today. It points to scholarly and civic indifference in this country. We tried to reconstruct some of this from references given in the Supreme Court judgment and an extract from the District Court judgment given in the book by Babu Lal Gupta published in India in 1963.

Indifference of Ceylon Tamils

The Ceylon Tamil attitude to the Plantation Tamils was one of indifference and perhaps contempt and they have paid a heavy price. Once the British in 1943 made clear that D.S. Senanayake was their chosen successor and, with Jennings’ Constitution, eased his way to power; most critics fell silent. Soon after independence, Tamil Congress leader G.G. Ponnambalam gave a written pledge to stand to the hilt by the rights of Plantation Tamils. However his parliamentary speeches after independence made clear that he awaited an opportunity to take his party into the Government.

In advance of the debate on the Citizenship Bill Chelvanayakam signalled his independence of the Congress party line by joining Plantation Tamil leaders in Parliament to demand the reform of estate schools and curricula. The Congress’ behaviour during the citizenship debate was a shameful betrayal of its pledge. Chelvanayakam broke ranks with the Party and went into the chamber to oppose the Bill on 19^th August 1948. Faced with division in the Party, Ponnambalam silently accompanied Chelva and voted with him. The other five MPs played truant and hid themselves in the Parliamentary Complex. Within a fortnight, Ponnambalam was declared government minister.

One infers that Chelvanayakam, whose position seemed confused in his support for the earlier Trade Unions Bill, which aimed at fragmented unionism, was fortified in opposition to the Citizenship Bill by the stout backing of Senators E.M.V. Naganathan and S. Nadesan. On the other hand Ponnambalam as a politician realised that he would get little support from leading lights of Tamil society for opposing Senanayake on citizenship. A.J. Wilson names leading Tamils who wanted the Tamil Congress to support Senanayake. They included two senior most members of the reputedly radical Jaffna Youth Congress (JYC). For them protecting government jobs for their sons was the priority. Seeing their lack of experience, Jawaharlal Nehru had cautioned the JYC when he met them in 1931 to pay greater heed to labour and plantation labour issues. One who paid heed was S. Nadesan, who should perhaps rank next to Arunachalam among our greats.

The Judiciary and Legal culture

Britain’s strong support for Senanayake and handing him the reins of state from 1941 to the eve of independence in 1947, gave him opportunity to shape the future administration and, to a critical extent, the judiciary, to suit his needs. We saw how Jennings’ omission of directly or indirectly from the Irish proto-type in Ceylon’s Article 29 facilitated the annulment of Plantation Tamil franchise. It brought Ceylon into line with slave states like colonial Virginia; but not with democracy.

Jennings himself valued freedom and would not have tolerated anything like this in England. Coming from a non-conformist working class background he has documented the role of London juries of workers and artisans in resisting the oppression of kings. Thus he gave cardinal importance to the value of habeas corpus and was insistent that any executive declaration of emergency is open to challenge in the courts. Any executive action under emergency is justiciable in courts once the emergency lapses. Note that Justice Mansfield’s 1781 judgment, using the habeas corpus right of any person on English soil, to free Somerset, the slave from Virginia, set a precedent that leveraged the abolition of slavery throughout the Empire.  

Jennings obliged Senanayake and knew what was coming. At the time of his arrival in 1941, he would have seen how the Sinhalese polity had been moulded so that nearly all Sinhalese members voted in favour of the Registration Bill, the proto-type of the Citizenship and Franchise Bills. Knowing this, to place the voting rights of the Plantation Tamils in the 1946 Parliamentary Elections Order in Council, which was open to abolition by a simple majority, was cynical of the British rulers. On the part of the Tamil elite, it was blindness amounting to wanton stupidity.

Jennings gave us what he thought we wanted and deserved. In the 1937 Bracegirdle case, Sidney Abrahams, perhaps our most independent Chief Justice, affirmed the Magna Carta right of habeas corpus as part of our legal inheritance. The Public Security Ordinance (PSO) of 1947 ditched it by rendering non-justiciable executive actions under emergency, even murder ‘in good faith’. It was the last British Governor who assented to this Ordinance, in order to spare our leaders the embarrassment of ownership. What we were left with is a caricature of British law.

What all this led to is the violent smash-up of trade unionism in 1980 using the PSO. It was built on the complicity of the Judiciary in the Citizenship and Franchise Acts, making Plantation workers an easy target. Trade unions paid for abandoning their plantation compatriots once they were rendered powerless. The Judiciary forgot that its first loyalty must be to justice and fair play and not to acts of Parliament. In Britain and South Africa judges have fought back by inventive means.

Confronted by certain dictatorial laws of James I, Chief Justice Coke shot back that ‘the king’s laws included the laws not only of the reigning monarch but also of his predecessors … who in and through their councils and their parliaments and their courts had, over the centuries, created a legal system that …  carried with it meanings remembered from the past.’

The law is timeless as is the Roman-Dutch law we have received. That was why Sri Nissanka took alarm at jus soli being abolished thoughtlessly by the Citizenship Act. We close with the prescient words of Chief Justice Holt in 1701: “[I]f Parliament violated the limitations implied by natural law, it would be dissolved, and individuals living under it would be returned to the state of nature.” Perhaps that is where we find ourselves today, in a state of nature, of lawless anarchy.