Saddled with a failed constitutional morality
If the 1931 Donoughmore Constitution was anything to go by in terms
of universal franchise seen as symbolic of human freedom and recognition
of individual rights, what does such franchise hold in terms of equality
and justice in the human collective at macro level.
Hundreds of thousands of individual votes of one single ethnic
majority was certainly going to landscape and dominate the
socio/econ/political layout in colonies where majority rule was to later
hold floor. Though land ownership, status and education were essential
pre-requisites to membership in the legislative council - seen as unfair
and unjust, the cure was far worse than the disease. What followed was a
domineering majority whole asserting its self on the basis of its
numerical strength under the Donoughmore Constitution.
The 51 Sinhalese membered State Council followed by a pan Sinhala
Cabinet and in the aftermath of the 1936 second election to the State
Council the Board of Ministers that comprised only Sinhalese, gave rise
to Tamil fears of what their fate was going to be after the British left
Ceylon's shores leaving behind a rule of the majority. Inevitable then
was the 50/50 demand only to be rejected by the Soulbury Commission. The
Tamil leadership reconciling its self chose to place its trust on the
assurance of the Sihala leadership coupled with the fragile
constitutional safeguard of 29.2 that vetoed discriminatory legislation
against minorities.
Fortunately for the Sinhala leadership of the times, the Muslims
remained backstage in education and politics if not for which there may
have been a devastating two pronged attack on the majority leadership.
Besides, the disunity among the Tamil leadership under the CNC or
Ceylon National Congress also favoured the Sihala leadership what with
prominent Tamil leaders S. Nadesan, Nalliah, Sir Arunachalam Mahadeva
and Thiagarajah who opposed Ponnambalam's 50/50 cry. Despite the 50/50
plea for equality in representation rejected outright by the Sihala
leadership, the Tamil leaders extended their support to D. S. Senanayake
on assurance by word of honour that the Tamil people's interest would at
no point be undermined, only to find in 1949 Tamil representation cut
down by half and the citizenship bill passed by Sinhala majority opposed
only by leftist parties and some Tamil MPs. So many decades later we
find the LTTE having its pound of flesh not being present at the talks
with the Sihala leadership that walked into an empty conference room in
Norway an year ago. Viewed against the backdrop of trust and word of
honour, the benefit of the doubt certainly goes to the public.
Citizenship denied
Getting back to the Citizenship Act we find the Sihala government,
just one year following independence, depriving the hill country Tamils
of their right to citizenship despite their colossal contribution to
Ceylon's financial coffers. They that toiled from dawn to dusk climbing
uphill and downdale on those tea estates in the biting cold, underpaid,
malnourished, emaciated, contributing heavily towards Ceylon's economic
transformation - these then were the people to whom 'gratitude' was
showered by way of a rejection of their plea to be recognized as sons
and daughters of the soil. Ironically, against this backdrop comes the
recent government announcement of Italy that will confer 40,000 illegal
Sri Lankan migrants the right to that country's citizenship.
The '72 Constitution then consolidated if not heightened existing
polarization that came in the wake of the infamous Citizenship Act and 'Sinhala
only' of 1956. While proclaiming the country as a republic, draconian
legislation that came in disregarded and even undermined Tamil minority
grievances.
The desired or rather undesired consequences were seen what with the
Tamil militancy steadily rising. Surely then the '72 constitution
followed by the '78 Constitution ensured the continuity and even
fortification of the unitary State.
Disrepute
In terms of social development goals - of equity, human dignity and
social justice, the two republican constitutions, outstandingly fall
into disrepute. In framing these two constitutions its architects have
meandered from morality into political expediency - needless to say what
is politically expedient need not always be moral.
In one it was a majority dominated centre while the other had a
heavily centred majority man on whom the leadership mantle fell who
could do anything and everything but turn a man into a woman and vice
versa. Certainly an improvement of the former - a plum on the pudding as
it were. Both then have performed equally bad in throwing moral
principles to the winds being rather inconsiderate over equality of
treatment for all Sri Lankan nationals.
Professional capabilities do not vouch for moral eminence. A
constitution reflects the character of its architect. When it fails in
terms of equality, and human dignity, the architect invariably is a
moral failure - be he the best of legal luminaries, medical men or
whatever. On both occasions in '72 and '78 it was the case of hurried
legislation with no public debate unlike in India where every article is
debated even late into the night of the intended Constitution -
examining cautiously its impact on the country and its people. This in
itself by and large reflects the callous disregard Sri Lankan leaders
have for public opinion except of course only when engineering the
ballot the masses are given highest priority. And so, coupled with a
literati not transgressing the boundaries of ethno nationalistic
sentiments, the politicians also struck common affinity with the
literati in this regard exploring the restricted areas to their favour
in power play.
Retrospective thinking demands the mention of the UF government with
its landslide victory at the 1970 general elections was well positioned
into rendering what was past denial of Tamil rights what with its
comfortable majority of over 2/3 in the legislature. Yet with that
resounding victory and strong majority that was accompanied arrogance of
many sorts that drove the Tamil people up the wall. Colvin R. de Silva,
the '72 Constitutional maestro decided even to throw overboard the
Soulbury Constitution's article 29.2 that guaranteed minority rights.
That majority strength could ingredient into minority oppression, there
could be no better example. Humility in strength surely was not to be.
As the history of man would have it, occasions of strength directed
towards equality and social justice are extremely rare. These instances
being a rise from petty politics into statesmanship-Abraham Lincoln and
Nelson Mandela two such star studded personalities.
Majority strength
If Sinhala majority strength bulldozed its way into ushering in the
'72 heavily centred Constitution, the '46 Soulbury Constitution was the
successful outcome of all communities. The Ceylon National Congress as
it was then called had under its wings Sinhala, Tamil, Muslim leaders
fighting cheek by jowl for national independence. Why then was the
Sinhala leadership totally unmindful of all anticipated upheavals? On
independence eve, Ceylon with a positive balance of trade and communal
harmony were ideal springboard to a prosperous future. Yawning budget
deficits and a fragmented social whole were alien to this country. The
Ceylon National Congress had under its umbrella representatives of all
communities espousing a common cause - independence for this country.
However, family bandyism and ethnocentric leanings that held sway
among Sinhala leadership of post Colonal times laid 'good' foundation
for the socio/econ/political upheavals in times to follow. S. W. R. D.
Bandaranaike formed the SLFP splinter group following D. S. Senanayake's
decision to handover the leadership mantle to Dudley Senanayake. The
Tamils went their way only to hold their own.
Making matters worse were the '72 Constitution's majoritarian based
ethnocentric leanings followed by the '78 constitution that consolidated
those leanings in one single individual of the majority community.
However, the Fundamental Rights clause in the '78 Constitution and
the Proportional representation system significantly brought in some
hope in the area of such rights and minority strength. Minorities today
wield enormous influence over the divided Sinhala dominant political
parties in that, on matters of vital importance they are constantly
being wooed to muster the numerical strength of those Sinhala parties.
Indeed they have become a decisive factor. Thus a certain degree of
checks and balances is operative though the overall picture may not be
that luminous.
Yet in legitimizing a constitution significantly, the need for
people's approval should not be overlooked. After all a constitution
ideally should comprise the people's wishes and aspirations.
Recall we must of Lord Soulbury who went round the country with his
Colonial Constitution making Commission that listened to people's views
before embarking on his very responsible task from which emerged the
Westminster model which constitutional specialists such as Colvin R. de
Silva and Harry Jayawardene failed to do. Be it India's Ambedkar or
South Africa's Nelson Mandela - the need for consulting people's views
in their constitutional endeavours was not overlooked. Certainly
morality comes from listening to people's views. |
