The following article is based on a talk given by Rajan Hoole at the release of the book, Democracy Stillborn, at Trimmer Hall, Jaffna, on 11 November 2022. The meeting was chaired by Mahendran Thiruvarangan
“The rule of law is in decline and has provoked much discussion, even in developed countries, where it has been the norm for over a hundred years. The West, which continually championed democracy and the rule of law itself, is facing a major crisis as populist right-wing politics make inroads into the mainstream. In the US, the legitimacy of institutions, which are crucial for accountability and the rule of law, are questioned, and conspiracy theories of utter distrust of authority become the fare among the masses. This crisis can lead to many upheavals. We may eventually overcome and stabilize with more meaningful and broadened democratic formations. But the path towards that may not be smooth and the trend shows the moral high ground is ill-defined.
But, as an island nation, we have gone through major crisis after crisis and in the process have ruined and bankrupted our country. Many youths are now looking for the root causes for this plight. Our modern history is one of cohabitation with dominant colonial powers. During the British period, a cause of major social transformation was the colonial state formation. The vested interest of the British Colonial project, brought in institutional mechanisms and nurtured a political class to manage them. The question is how the ruling elite of Ceylon used those institutions. In the balance, was it to enhance the interest of the people, or in pursuit of their short-term interests? Did their hold on power unleash forces which, of their own nature, created a series of fault lines by a perversion of nation building? In addressing these, we need to charter a new path. Of course, this cannot be done in isolation but it is necessary to identify the internal developments, and form broad solidarities that would get us out of this impasse.” End of message.
About Social Democracy
Arunachalam, was the first civil servant who radically stood for social democracy. He wanted the British officers, responsible for excesses during the Sinhalese-Muslim riots of 1915, punished, according to the law. In 1920, the British authorities, supported by Sinhalese nationalists, undermined the man hitherto deemed indispensable, and put him out to grass. Provoked by the economic collapse of 201, the Aragalaya protesters realised the state of acute lawlessness and got rid of the President and Prime Minister. We have Mahinda Rajapaksa finally admitting his mistakes, all implicitly permitted under the Constitution, and pleaded for another chance. Mahinda Rajapaksa comes in a line of leaders charged with murder, not only of journalists but also of war crimes and robbery. There were, of course, two parties to the war. But the Government’s intransigence made it intractable.
The law was simple, but we have muddled and obscured it. Had we followed it, we could have avoided this present impasse. Article 29 of the Constitution of 1948 had the provision, not to ‘Make persons of any community, or religion, liable to disabilities or restrictions to which persons of other communities or religions are not made liable …’ Quite simply it means treat everyone equally. The Government, being in a minority after the 1947 elections, used threat and bribery to disqualify Plantation Tamils from citizenship. What we may forget today is the Sinhalese opposition, left and liberal, for example H. Sri Nissanka, were united and firm in standing by the Plantation Tamils.
Britain’s gift to the Sinhalese leaders of cancelling the 1941 elections, gave them an eight-year free ride of power without an electoral mandate from 1940, during which time they were allowed to colour the future constitution. It led to indifference and apathy among opponents of the Citizenship Bill. Neither the Government nor the Supreme Court offered a cogent reason for the disenfranchisement of estate workers. The Supreme Court held that since Article 29 had no reference to race, taking away the franchise of a community was not a violation of Article 29, it was administrative. The Government was nervous when the Plantation Tamils appealed to the Privy Council.
The Privy Council first retreated because Parliament by defining citizenship indirectly by ancestry, had evaded the principle of equality in 29 (2). It however passed the Bill misquoting the Soulbury report which actually made clear that over 80 percent of Plantation Tamils were in 1941 either born in Ceylon or had resided over 10 years.
Lanka is a beneficiary of common laws, the Roman-Dutch and English. Good common law whatever its origins is transposable. Lanka learnt nothing from them. Answering the challenge to the Citizenship Act in 1951, Chief Justice Edward Jayatileke rejected equality and ruled that whatever Parliament passes has to be obeyed. However, Chief Justice Abrahams replying to DSG Wijewardene asserting Parliament’s supremacy in 1937 said, that a new law must accord with those that preceded it ‘so that there be no repugnance but a concordancy in all the parts thereof.’
Bills against the Plantation Tamils
We had Roman-Dutch law and English common law, both of which with different emphases, stood for common right. Both sets of law rejected the Citizenship and Franchise Acts from several angles. Having accepted the Donoughmore Bill in 1929 which promised the vote to everyone, we had 19 wasted years, no industrialisation, but demolish the voting rights of the Plantation Tamils. Nihal Jayawickrema gave a potent reason for treating the term community in the citizenship acts with respect: ‘Parliament must not discriminate against a particular community already resident in the country.’
We had in 1937 Chief Justice Abrahams upholding Habeas Corpus, no detention without the order of a judge, and freed Bracegirdle from deportation. The reversal, to detain without warrant, was legislated in the 1947 Public Security Ordinance, the last Bill passed under colonial rule. These were signposts on our march to independence and beyond.
Emergency permitted murder in ‘good faith.’ Although a British precedent was claimed for the Bill, in Britain actions under emergency became judicable once the emergency was lifted. The real fear in Ceylon was strike action by the combined unions over the Citizenship Bill of 1948. However, strike action was deterred by the ‘smash up’ of the 1947 general strike.
Ceylon Constitution and the Citizenship Bill
Britain co-drafted a very fragile constitution to gain the Sinhalese leaders’ support during the Second World War. They cancelled State Council elections due in early 1941, jailed the Left and as pointed out, allowed Senanayake to rule eight years without a mandate prior to independence and determine the colour of the Judiciary. During this period. Left leaders N.M. Perera and Philip Gunawardena, then vocal advocates of the Indian Tamil equality, were cast into prison. Just before, the State Council in 1941 passed the Registration Bill, the precursor of the Citizenship Act of 1948. All Sinhalese, barring the imprisoned Left, voted for the Registration Bill. It required all qualifying as Ceylonese to have domicile of origin – produce father’s birth certificate – it was impossible for many in Ceylon, be it Sinhalese or Tamil, but Plantation Tamils were singled out for exclusion!
Carrot and stick on minorities to betray a fellow minority
The Muslims and Tamils were goaded to support the Citizenship Bill. Most of the Tamil elite, including prominent Youth Congress veterans, wanted the Tamils to support Senanayake. Out of 13 Ceylon Tamil MPs, a minuscule group of two opposed the Bill, S. Chelvanayakam and K.V. Nadarajah. Ponnambalam, however, voted against to avoid a split in the Congress, the remaining five MPs were absent on his instruction. The two Senators E. Naganathan and S. Nadesan, too, opposed the Bill, tooth and nail. For the Tamil minority it was suicide. Had it shown greater conviction the Muslims and the six government appointed members need not have supported the Citizenship Bill.
What we are left with is the Pollution of Administration of Justice by ignoring the principle of legality. The principle states that when we legislate to the hurt of a minority, it should be stated in clear unambiguous terms, acknowledging the political cost. This was never done in Lanka, although the cost was heavy. The new politics was exemplified in arm-twisting T.B. Jayah, champion of the underdog, to join the Government. But is that a way to build up a united nation?
In the 1950s any bill passed by a simple majority and signed by the Speaker was accepted as law, ignoring the two-thirds majority requirement for bills that violated the Constitution. Thus, Sinhala Only became law with 66 voting for and 29 against, short of a two-thirds majority. No one challenged it in court until Ranasinghe in the early 1960s, over something unconnected, the Bribery Tribunals Act. The Privy Council ruled that the Act required a two-thirds majority the Government did not show, and ruled in favour of Ranasinghe.
Giving judgment on 5th May 1964 for Ranasinghe’s case, nine days after de Kretser’s ruling Sinhala Only unconstitutional in the Colombo District Court as violating Article 29 (2), Lord Pearce reaffirmed the long ignored ‘fundamental conditions,’ or equality, stressing Article 29. By this time the SLFP-Left coalition and the UNP wanted the Privy Council and the Soulbury Constitution out. The mutual embarrassment had become heavy. This was accomplished in the new 1972 constitution, ridding our final toehold on the rule of law.
By the time Lord Pearce ruled for a correction in 1964, the Left and the Sinhalese right had rejected reform. The tested and potent Magna Carta right of detention only on the sufferance of a Judge was gone in 1947 and reaffirmed in the 1972 ‘progressive’ constitution. The erosion of law made communal violence, the worst manifestation of barbarity, to savage and kill an innocent person on the basis of race, acceptable. The State failed to punish and the Sinhalese were apologetic in a half-hearted way – Sinhalese they said protected Tamils.
An uneasy calm prevailed until 1977. The Muslims regarded themselves fairly safe while Jayewardene opened all stops of the 1972 Constitution. As for the criminal intent of our laws, Dr. Rajasundaram, like many Tamils, approved of the militancy only for a defensive purpose, against state-initiated attacks on civilians. The Sansoni Commission report gives several examples of such in 1977. Having committed himself to rehabilitate Tamil refugees, Rajasundaram had to face the violence of the State. What he did was far from terrorism.
He was detained under the PTA on the gossipy charge of trying to make peace between Maheswaran and Santhathiyar. When the tortured victim was produced in court, Judge Bandaranayake, instead of discharging him, announced an indefinite postponement of the hearing. Six days later he was killed in the infamous Welikade Prison massacre on 25th July 1983. While proof will never be found, it is quite certain that the massacre was organised by the Kelaniya mafia, still a major force in government, the seed planted by the PSO. This was about the time the Government viciously accused the JVP of responsibility for July 1983 and forced it underground, just when it democratically contested the Government’s foul play over the 1982 referendum. The damage was far worse than recent scams that provoked protests.
The Tamils professing to fight for liberation were also infected with the vulgar legalism inherited from the State – its constant demand for proof over complaints about missing persons. In Jaffna, the university students spontaneously went on strike in 1986 charging the LTTE with the disappearance of student Vijitharan. The LTTE leader Kittu came to discuss matters in the University of Jaffna common room. When confronted with the allegation, he responded, “Where is the proof?”
The Government tried tactical evasion by introducing a Bureau of Rehabilitation law that was disallowed by the Supreme Court on 20th October 2022. The state of our laws flows directly from the Citizenship Act. No Government has tried to put us right. All worked in the same culture to our detriment. The Language issue is but a by-product of the Citizenship Act.
President Ranil Wickremesinghe addressing the COP 27 Climate Change Conference in Sharm El-Sheikh, Egypt said that unbridled industrialization of the developed countries is the root cause of climate change, leaving the poor to suffer the consequences. He said that the problems facing poor countries are augmented due to the absence of adequate funding.
As a result, these countries are facing double jeopardy – struggling to develop economically while fighting to protect the living standards of their populations.
Therefore, President Wickremesinghe said that the developed countries must deliver on their pledge in Glasgow – by doubling their funding to compensate the developing countries for loss and damage.
Accordingly, he said that as proposed by the Climate Vulnerable Forum, commissioning a Special Report on this aspect to strengthen international awareness for future responses would be appropriate.
President Wickremesinghe thus proposed that before COP 28 in Dubai, like-minded nations should meet at Ministerial Level to discuss the way forward on all aspects of climate finance.
He also noted that this should be followed with a meeting of the Heads of Government of these countries on the margins of COP 28 to display a collective frame of mind to stave off the calamity.
Following is the full speech delivered by President Ranil Wickremesinghe at the Cop 27 Climate Change Summit;
“The salubrious environs of the green city of Sharm El-Sheikh will undoubtedly inspire our discussions at COP 27 to a successful conclusion. I sincerely thank the Government of Egypt for your warm welcome and hospitality.
Sri Lanka is replete with biodiversity and has consistently addressed the challenges of climate change. Let me record the action of Sri Lanka in this regard:
• Commenced the process of reducing carbon emissions by 14.5% by 2030
• Initiated Marine Spatial Planning
• Recently established a Climate Office
• Spearheaded the UN declaration of the 1st March, as World Sea Grass Day
Sri Lanka is
• Employing the National Policy for Conservation and Sustainable Utilization of Mangrove Ecosystems
• Implementing the Commonwealth Pilot project for Climate and Ocean Risk Vulnerability
• Led the Commonwealth Blue Charter Action Group on Mangrove Ecosystems and Livelihoods
• Will not increase further energy capacity via coal power
• Will phase out fossil fuel subsidies
• Will aim for 70% of renewable energy for electricity generation by 2030
• Will join the recent Global Methane pledge made in Washington
Yet, for climate action to be successful, wide-ranging measures to complement the UNFCC and Paris Agreement must be pursued.
The lack of capacity is the biggest obstacle to the implementation of Climate Action plans. Therefore, capacity building is vital in this regard.
To overcome this obstacle, we propose to establish an International Climate Change University in Sri Lanka, with an ancillary institution in Maldives, which would be the first of its type.
This seat of learning can be a trans-disciplinary global centre for green and blue studies – for scientists, environmentalists, researchers, policymakers, development practitioners, and of course, students the world over, to interchange knowledge transcending national and disciplinary boundaries.
The envisaged Climate Change University will offer both short-term courses and postgraduate academic awards to build capabilities for mitigating and adapting to climate change.
The University will also expedite the skills of the new generations to deliver the political, economic, social, cultural and digital transformations required to prevent a 1.5-degree world.
It will be the vehicle to enlighten domestic climate change challenges and prospects.
The collaboration of multilateral institutions and organizations such as the Commonwealth, World Bank and the ADB amongst others, will be sought for the establishment of this institution of higher learning – making it a multi-stakeholder partnership transcending – national boundaries.
I hope Sri Lanka’s proposal will receive extensive support and endorsement from the international community.
Since the prescriptions for addressing climate change have to be dispensed in the global domain, we will meet again next year, charged with high hopes.
However, the chequered implementation of previous decisions, including those of COP 26 is extremely disheartening.
Regrettably, the ground reality is that the fossil fuel-based industrialized countries of G7 and G20 who have been the main promoters of green hydrogen are now backtracking to use of fossil fuel.
In the last year, Carbon Dioxide emissions increased by 2bn metric tonnes – from 34.3bn to 36.3bn metric tonnes.
Such double standards are unacceptable. Developed nations should be given leadership to overcome climate challenges rather than abdicating their responsibilities.
It is no secret that climate financing has missed the target.
It is ironic that the 100 bn dollars pledged annually, have not been available in the coffers to finance climate challenges – as many developed nations deem it fit to renege on their climate financing contributions.
These countries who are also on both sides of the Ukraine war seem to have no qualms about spending for a war which will finally exceed $350bn. A conflict waged purportedly for the security interests of the combatants.
The only security at stake is food insecurity, acerbated to levels not experienced before the war. Many living both in the developed and developing world are outside the scope of three meals a day.
It is estimated that between 30 to 40 million people are being driven into hunger, especially in Africa. This war has also resulted in the upward spiralling cost of living, and shortages of oil and gas supplies, and it has brought the fight against hunger to our homes.
Expectedly, it has led to the curtailing of much-required climate finance pledged by these very same countries.
The issue we have is not finding the party responsible for the war, but the party that will end the war.
Why do we need this funding? It is a known fact that the practice of colonialism transferred the rich resources of Asia and Africa to Europe and was used to industrialize their countries. We became poor from this plunder.
The unbridled industrialization of the developed economy is also the root cause of climate change, the consequences of which, we the poor countries are forced to suffer. Our problems are augmented due to the absence of adequate funding.
Therefore, those in the South are facing double jeopardy – struggling to develop economically while fighting to protect the living standards of our populations.
It is therefore imperative that the developed countries deliver on their pledge in Glasgow – by doubling their funding. Adding insult to injury, damages caused by extreme weather conditions are increasing, and their impacts are exceedingly costly.
Developing countries which are the worst affected by the rise in emissions from the industrialized world, need to be compensated for loss and damage.
While the issue of loss and damage is now included in our formal agenda, we have to ensure that the emitters contribute financially to those affected. As proposed by the Climate Vulnerable Forum, commissioning a Special Report on this aspect to strengthen international awareness for future responses would be appropriate.
Considering the failure of the developed world in bringing about the much-discussed relief, it is proposed that before we get to Dubai for COP 28, like-minded nations should meet at Ministerial Level to discuss the way forward on all aspects of climate finance.
This should be followed with a meeting of the Heads of Government of these countries on the margins of COP 28 to display a collective frame of mind to stave off the calamity.
In conclusion, let me recall the UN Secretary-General’s recent words, “The choice is between collective action or collective suicide”.
The vacuum created due to inaction now requires the global display of sustained political will through dynamic action and constructive cooperation on the part of like-minded countries to prevent this catastrophe.
Let us traverse this path urgently.”