You Are Sitting On An Illegal Constitution – You Have No Standing To Lecture Us!

March 31, 2013 | Filed under: Colombo Telegraph,Opinion | Posted by: COLOMBO_TELEGRAPH

 

By Usha S Sri-Skanda-Rajah -

Usha S Sri-Skanda-Rajah

Kusal you have the audacity to talk about the shedding of innocent blood! Read on:

“You respect me and I respect you; this is how I look like; accept me,” said the, “compassionate and wise” Venerable Samitha Thero, who is ready and willing to start a debate on making Sri Lanka a secular state?  The country needs only a thousand venerable monks like him to ignite a thousand lights of wisdom to restore the luster to this island that’s yours (and mine on your terms).

Kusal Perera, more and more I interact with you, your true identity is revealed, possibly even without you knowing it. If I am what I am an Eelamist(I have been branded as a Snow Tiger and a Terrorist even), I would go further than Chandran and call you the chauvinist lion that you are masquerading as a kitten: “The only “sin” I committed was to argue how the SL Tamil conflict could be finally solved, or at least attempted to be solved,” you complain beginning your rebuttal to the three of us, pretending to be the sweet harbinger of good solutions, cleverly infusing your propositions with excessive amounts of benevolence to the Tamil representatives, the TNA, with out actually giving away an inch for what you think is a mile that’s being asked. I called you a hypocrite and a cynic for the right reasons.

Go and read my reasons every one of them just, fair and reasonable, demolishing your assersions, for which I would appreciate direct answers. I don’t want ‘koyathe yanne malla poll’ answers.

Alright “Let’s Leave Dichotomies & Dreams To Find  A Decent, Democratic Answer,” as you say. Are you then prepared to put your money where your mouth is and accept my challenge? Are you prepared then to say to this forum you would support a change in the constitution to guarantee equal status for all communities, meaning equal status for the Tamil language as it exists for the Sinhala language and equal status for all religious faiths, Hinduism, Christianity, Catholicism and Islam same as Buddhism, including equal rights based on self determination for all as already enjoyed by the Sinhalese people and the recognition of the existence of aTamil Nation, like the Sinhala Nation under a Secular Federal Constitution? Would you support it in your own personal right as an ordinary citizen?

This is exactly the challenge I am throwing to every legislator worth his salt in the island of Sri Lanka.

In my article: “Bishop of Mannar’s Push for Recognition of the Tamil Nation and Tamil Self Rule Sets Benchmarks for Political Solution for Eelam Tamils”, I quote His Worship who laid down in no uncertain term some clear bench marks that articulated the aspirations of the Tamil people: “Our solution does not lie in the 13th Amendment but on the Tamil nationhood to be recognised. We are not a minority. From the beginning of history there have been two nations that must be recognized,” the Bishop declared.

I wrote this soon after His Worship spoke in a Geneva forum: “The courageous and forthright spiritual leader revered by Eelam Tamils, chose a forum in Geneva where Sri Lanka’s Universal Periodic Review is set to begin any moment, to make the assertion that the “13th amendment is fundamentally flawed”, that the Tamil people have to be recognised as a nation and have a “right to rule”, reflecting in principle, the long held fundamental demand of Eelam Tamils,” I wrote.

Let me remind you that the first assassin this island ever knew of in my time is a Sinhalese and that too a Buddhist monk who killed your Prime Minister. Let me also remind you that the communal violence was started and continued by your erstwhile Sinhala politicians and sponsored and egged on by successive Sinhala governments. Any talks of concessions, or of non violent Satyagraha style protests against marginalization, triggered genocidal violence against Tamils. I grew up with it so don’t come to tell me about Prabaharan “bathing his dream in innocent blood”, you are talking to a generation of persecuted Tamils, who grew-up with Sinhalese violence, of bright young minds that decided enough is enough and had no option than to defend their rights, in an act of self preservation. Its your community that was the cause of the so called ‘dream’ born out of persecution that every right thinking Tamil nurtured, a dream that you and your community are now trying to shatter. 

I know too much Kusal having been the first group that belonged to the compulsory “swabasha” generation that caused the permanent divide, not to mention the discriminative educational and employment policies against Jaffna students and Tamil civil and government servants. I remember I watched my father a Civil Engineer by profession had to go back to his books and start studying Sinhalese from ABC – from books that kindergarten children used merely to get his measly increments, only a pass would have entitled him to get to the next level to another salary increment. There were those who on principle refused to study as an act of defiance even at the cost of losing their increments and promotions.

Before that I remember crying and crying until my parents came home in one piece during the 1958 communal violence against Tamils. They had to risk their lives, travel from Kurnigalle where my father was an Engineer in the PWD. Having left their car they hitched a ride in a bus with Sinhalese, traveling minus the pottu and the thali hidden inside the underwear. They saw raving mobs, burnt houses and bloodied bodies and arrived in Colombo after a harrowing experience; they came home to my brothers and I, who lived and schooled with our grandmother. Even though there are many incidents of my childhood that I can’t remember, I can’t forget that picture of me crying for my parents as a seven year old, after hearing of the blood bath that was going on around me and seeing the anxiety in my grandmother’s face; I can visualize it right now as I write this. What happened to my husband was worse, it’s a story many would know about. But these pale into insignificance the suffering that came after for so many like the ‘77 and ’83 pogroms and after.

My favourite subject at school was government that was when I studied the Soulbury Constitution. I was still in Colombo but was already married when the 1972 Constitution was drafted. I knew of the constitutional assembly but it was much later that I actually came to know of the conspiracy that was hatched to attempt to kill the Soulbury Constitution in the most deceptive and deceitful and even fraudulent manner.

I’d’ like to remind you Kusal you are sitting on an illegal constitution and have no standing to lecture to us.

It came as an unpleasant surprise that Sri Lanka could do it. But they did. I knew of it only when I got a copy of a letter written to the editor of the Sunday Leader from Mr. Wakeley Paul who kindly forwarded that mail to me. Mr. Paul is now no more. The erudite Mr. Paul who established with insightful, precise, enlightened legal reasoning the illegality of Sri Lanka’s 1972 Constitution and therefore all the subsequent Constitutions opened my eyes to something that I hadn’t previously seriously researched into. His sequential legal assault (for want of a better expression), which I shall share below, totally destroys the legal validity if ever of a “constituent assembly” convened to override an unalterable, entrenched provision such as Section 29(2) of the Soulbury Constitution which protected minorities from the “tyranny of the majority.”

Mr. Paul is a “Pure Genius” – the principles of law can never be invented, it’s there to be discovered. Mr. Paul has determined what’s there but it requires a masterful scholar of his caliber to find it and elucidate it in the manner he did leaving no question unanswered.

His clear reading and legal interpretation of the Soulbury Constitution and the invalidity of the 1972 Constitution hopefully clears any lurking doubts that may remain in the minds of people, most notably our friends in the opposite corner and their kinsmen of their error or should I say deliberate conspiracy to misinterpret or need I say mislead, with but a cruel motive.

Here is Mr. Wakely Paul’s letter to the Editor of the Sunday Leader on illegality of the 1972 constitution:

Mr Sarath de Alwis’s assertion that the 1972 Constitution was legal because the coalition which was elected to create a Constituent Assembly won by a 2/3 majority is without foundation. The fact that the Federal party (Tamil) partook in the debate involving its creation without protest, does not make it legal either.  The proper procedure would have been for the 2/3 majority to have abolished the Soulbury Constitution and replaced it with a new one in Parliament, Why then one asks did they not do so? Why this use of a Constituent Assembly, whose right to exist, leave alone pass laws or replace the existing Constitution with a new one  was not recognized by the only existing legal Constitution at the time, which was the Soulbury Constitution. The answer is simple. They could not abolish Section 29[2]which protected minorities from  the tyranny of the majority.  This according to the Privy Council in  Bribery Commissioner v Ranasinghe [1966] 2 All England Reports 785  was deemed to be such an integral condition of the grant of Independence, that this provision  alone could not be abolished or amended even by a 2/3 majority, as it was an entrenched and unalterable provision of the Constitution. It was the coalitions desire to illegally eliminate the protections of Section 29[2] that motivated them to adopt the illegal procedure of using a Constituent Assembly to legitimize the 72 Constitution.

Wakeley Paul Esq. B.A. {Cantab} [Law] Cambridge University, England

LL.M.. Stanford Law School, California

Barrister at Law, Middle Temple, London

Retired Attorney at Law, New Jersey, USA

Former Crown Counsel, Ceylon

As to the treachery of Sri Lankans who participated in this scheming charade whose hands are tainted, it is but one incident in the long history of deception and betrayals by the Sinhalese which typifies the length they would go, driven by their innate Sinhala Buddhist chauvinism turned hegemony to take over the country as theirs which has brought us Tamils to the paltry position of having to ask them for what is rightfully ours!

This profound reading of the law, coming from an eminent lawyer is indeed invaluable, not only to be studied by legal analysts, taught to our children and their children and treasured for posterity but more importantly to show that justice is indeed on our side; that we Tamils have to go back and retrace our steps even to pre-Soulbury time; that the Soulbury Constitution itself was thrust on us by a colonial regime who has the moral and legal duty to put things right!

*Usha S Sri-Skanda-Rajah, Chair TGTE Senate