Broader commitment to justice as an essential complement for a democracy that delivers Donoughmore experience
A talk delivered by the writer at a recent function at the BMICH to celebrate 85 years of Universal Adult Franchise, organised by the Election Commission, Sri Lanka
by Rajan Hoole
( December 6, 2016, Colombo, Sri Lanka Guardian) The Donoughmore proposals of September 1928, sought to replace the Legislative Council, elected under limited franchise with a State Council elected under universal adult franchise, conferring on it shared executive power.It was a salutary measure, which was an opportunity to prepare ourselves for full independence. Instead they began a curious saga ending with independence where the ominous signs were masked by the ceremony of the British exit.
To begin with the Legislative Council in November 1928 defeated universal franchise, the main thrust of the reforms, by an amendment to the Donoughmore proposals by Molamure and Senanayake. It made five years residence in addition to passing a literacy test mandatory for the franchise. It was in effect a class qualification. The British compromised and agreed instead to a test of domicile, after which the Bill passed 19 for and 17 against in December 1929. It was an inadvertent precedent for racial and religious discrimination. In using domicile as qualification for the franchise, the target group was plainly the Indian Tamils.
By then an estimated 70 to 80 percent of the Indian Tamil population had been born here and would have in time qualified for domicile. Their right to be treated as in all respects equal to British subjects in Ceylon was part of the 1923 treaty with India governing migration of labour. The effect of requiring proof of domicile was to slow down voter registration.
Ceylon domicile could mean, domicile of choice, to have an abiding interest in Ceylon; or domicile of origin, that is, father having Ceylon domicile. The registering officers took the practical way out, and registered those with five years residence as qualified for domicile of choice and those born here as having Ceylon domicile of origin. S.W.R.D. Bandaranaike, Minister of Home Affairs, was outraged. In 1938, a House committee of seven chaired by Bandaranaike, decided by a majority against changes to the registration as it ‘would be disastrous to the Indian estate labourer.’ Bandaranaike vehemently opposed this considerate view.
In February 1940, Bandaranaike wanted the new Legal Secretary Drayton to move legislation requiring inquisitorial conditions for registration, including for example that the registrant has owned a business here for ten or fifteen years and that he is married and settled down here. Drayton declined after seeing the committee decision. He explained to the House in May the practical limits of registering officials: A child born in Ceylon having a Sinhalese name was presumed to have Ceylon domicile of origin; officials did not inquire into the father’s domicile or the child’s legitimacy as strict legal procedure demanded.
Bandaranaike’s truculence was however rewarded. Governor Caldecott cited ‘growing unrest’ and in June 1940 decided to postpone the elections due in January 1941 by two years. Bandaranaike earlier told the House, “nothing will please me more than to see the last Indian leaving the shores of Ceylon…[in which event], I will die a happy man.”It was the voice of contradiction, ‘I love the fruits of Indian labour without the Indians.’The consensus among British interests and the Ceylonese legislators, several of them planters, was that Indian labour was essential and the latter routinely approved permits for their import.
Indian labour as Bandaranaike stated during the 1948 debate on the Citizenship Bill was cheap, efficient and docile. It was when Indian Tamils were set to vote under the Donoughmore reforms they had themselves sanctioned, that members of the Sinhalese establishment took alarm. Yet when Nehru’s visit in 1939 resulted in India banning export of labour here, our leaders were dismayed. After all they came cheap. The PWD hired them at 40 cents a day, when a single meal cost 15 cents, and local labour was hard to obtain for a rupee a day. It was almost slave labour, and when the Citizenship Bill was before Parliament, Senanayake and Bandaranaike graciously pledged the continued employment of the Indian labour, but no civic rights.
The Donoughmore Reforms instead of preparation for nationhood led to leading members of the Sinhalese establishment prosecuting a guerrilla war against the British authorities to stop Indian franchise, and won at heavy moral cost to our future. A crucial milestone was the successful arm-twisting of the colonial government to scrap the elections due in 1941.
It was when Sinhalese leaders proposed an Immigration Bill in March 1941 that the British Governor for the first time advised the House comprehensively of Ceylon’s treaty obligation from before 1923. The Governor cited a leaflet of 1930 with translations in Telugu and Tamil issued by the Government of Ceylon with India’s approval, which stated: “Indians in Ceylon have the same legal rights as the local population…” This had been the accepted basis on which the House continually granted licences to import Indian labour.Besides, Britain relied crucially on Indian industries and two and a half million Indian soldiers as part of its war effort.
Senanayake in a furious rejoinder to the Governor deprecated the treaty as claiming rights for labour coming at 20, 30 and 40 cents a day from squalor and poverty he eloquently pictured as obtaining in India. Bandaranaike’s main concern couched in innuendo was that several Kandyan electorates would elect low caste Sinhalese socialists on the Indian vote.Nationalist leaders feared the emerging social disposition of representation consequent to enfranchisement of Indian labour, and rise of an organised Left in the Lanka Sama Samaja Party from 1935.
It was T.B. Jayah’s statesmanship that clinched the issue of the origins and rationale behind the treaty: The 1909 Lahore All India Congress session in the wake of India’s national awakening and the struggle for dignity in South Africa, adopted equality of political status for Indians abroad as its unwavering policy. It became Indian government policy.
By 1943 with the war secured, Britain was preparing to ditch the Indian immigrant population. Its Declaration of 1943 invited Ceylon’sministers to prepare a draft constitution in anticipation of Dominion Status. By the tone of the draft and reassuring demeanour, the Sinhalese leaders sought cleverly to exclude Indian labour along the draconian lines Bandaranaike attempted in 1940. The Soulbury Commission in its report of August 1945 largely rubber-stamped the Ministers’ draft; and crucially left the migrants’ citizenship and franchise matters for the Government of Ceylon, in the disingenuous hope that ‘the Ceylon Government has the ability and desire to assimilate the Indian community and make it part of a single nation’.
Finally thus the new constitution was adopted in November 1945 by the State Council minus the key left members N.M. Perera and Philip Gunawardena who had faced imprisonment. Many councillors were uncomfortable. A superannuated Council not empowered to pass even minor finance bills was adopting a new constitution. In sharp contrast, India was meticulous about the legitimacy of constitution-making. In 1946 India elected a Constituent Assembly ensuring that even small minorities were heard and deliberations lasted three years. The constitution in Ceylon was a slick affair of the Emperor’s New Clothes enacted by the British and local elite.
The long delayed elections in 1947 to the new Parliament evidenced a clear change in social configuration. It was a close call where the UNP with 42 among 95 elected seats captured the government by selling positions, including to several Tamil leaders, and particularly a portfolio to G.G. Ponnambalam who had earlier solemnly pledged to defend the rights of the Indian Tamils. The Government moved fast with a Citizenship Bill, not to affirm civic rights of the native born as in India and Britain, but to take away those of Indian labour. Although the Bill passed 53 for and 35 against, twenty Sinhalese MPs, nearly all first time elected, voted against it.
The manner in which independence was secured, and citizenship bills passed, left deep wounds in our body politic. Judicial culture became markedly positivistic – in short ‘Don’t rock the boat’. The Bills hurt not just the Indian Tamils, but had grave repercussions for us all. They advanced arbitrary rule and dangerously distanced the State from the people.
Elections are meant to be happy informal events that symbolise the power of us the people over the government we elect and hold answerable. H.R. Freeman, representing Anuradhapura, explained to the State Council, ‘the main thing is to get names on to the [electoral] register and not keep them off. The correct principle in registration is to be generous and not to be stingy.’ If someone objects, it is left to him, Freeman said, to try to take the name off.
Legal Secretary Drayton told the Council, “May I suggest…that the disfranchisement of a category of persons in any country is a serious step for anybody to take? Once having given the vote or at least, or once having established the theoretical position of persons being able to prove their right to vote, it is taking a very serious step to withdraw that right under the law.”
After the 1949 Franchise Act, our leaders simply deleted from the electoral register persons presumed to be of Indian descent and placed on them the burden of proof to get back on.The franchise is the basic protection residents of this country received under the law. A state that tampers with the composition of the electorate by measures outside the law, involving arbitrariness and bias, has taken a giant step towards becoming a police state.
The Citizenship Act of August 1948 that took away from hundreds of thousands born in Ceylon, the civic rights they had enjoyed in common with others as fellow British subjects, began our tryst with the irrational. To distinguish between the rights of two persons born in Lanka, the Act entailed going into ancestry, which is unpleasant and uncertain business and manifests, besides, a racial principle. Then the question, how many generations? A cut-off date of birth, necessary for exclusion to work, led to cases of the elder sibling becoming a citizen and the younger, so-called stateless. So crass was the idea that the Federation of Malaya Agreement of January 1948 did not venture into denial of citizenship;but more recent immigrants were subject to a time lag.
Working the Citizenship Laws degraded our judiciary and devalued Parliament. When the Franchise Bill came before Parliament in 1949, S.J.V. Chelvanayakam KC raised a point of order that the Bill manifested bad faith because it violated Section 29(2) of the Soulbury Constitution which first appeared in the 1944 Ministers’ draft as ‘a general protection to minorities’ and restricts the Legislature’s power to pass discriminatory legislation. The Speaker Sir Francis Molamure ruled the Bill in order and whether the contemplated law was good or bad should be addressed to the Justices of the Supreme Court. It did go before the Supreme Court when Chelvanayakam represented K.G. Nair who challenged the deprivation of his franchise. The Court refused to look into the history or intention of the restriction 29(2), which is relevant to the question of bad faith. The Court treatedit as an arcane word game on whether or not the language of the Bill contravened that of 29(2) and found it did not.
The Court could have used the Speaker’s ruling that Chelvanayakam’s charge of bad faith was a matter for the Justices and let him speak. By its refusal to widen the scope of the hearing an opportunity was lost. Letting the matter hang gave credence to the charge that Parliament and Court conspired in an act of bad faith.
On administrative tampering with the vote register, Attorney General Sir Alan Rose told the Court, “In Ceylon, as in England, an administratively discriminatory Act is not an infringement of the Constitution.” It is surely unfair to the rich tradition of English Law to hold that it simply allowed the critical right of nearly a million people to be trashed in this summary manner. We have the 1772 judgment of Lord Mansfield that as soon as a slave set foot on the shores of England he became free. Here English Law was cited selectively to fortify virtual slavery.
We indeed lacked an independence struggle that placed humanity on a firm footing not to be tampered with by rogues in search of power. India was fortunate in having persons of the calibre of Subramanya Bharathi and Rabindranath Tagore. Tagore seeing Congressmen ill-treat Muslims, took upon himself the labour of love to translate and publish the poetry of the great humanist Kabir, the Muslim weaver, who exhorted us to find virtue in how life is lived:”…I am neither in temple nor in mosque : I am neither in Kaaba nor in Kailash…”Tagore’s debt to his spiritual forebear is reflected in his own poetry: “Go not to the temple to bow down your head in prayer;First learn to bow in humility before your fellowmen…”Bharathy espoused the sanctity of truth, an end to sectarian oppression, anddevotion to the Buddha, earnestly more sincere than those clamouring for Buddhism’s foremost place here.
These men did not commend themselves by association with religious symbols, bloodied heroes or cryptic mantras;by heroic slogans or visions of racial glory; their humanity spoke for them. They provided leaders like Gandhi and Nehru leeway to forge a secular, non-sectarian India and to advance the fight against caste by placing Ambedkar in charge of the Constitution. I believe that India’s secularism has deeper roots than could be undone by the depredations of the BJP and VHP. Our uses of religion, and ritual need to shower praises on undeserving leaders and sectarian gurus of yesteryear underlines our bankruptcy and marred humanity.
By corrupting our laws and institutions to take away rights Indian Tamils enjoyed under British rule, we condemned ourselves to standards lower than under colonial rule. Once ‘do not rock the boat’ becomes our standard denial of justice, lying and deceit progressively become the hallmark of our institutions and they cease to deliver.When the culture of law infringement is rife in our educational institutions, quality suffers and the young are denied all hope.
Painstaking briefs by complainants are not read by administrators. Judges are in no hurry to read because the date may be far away. They wait for lawyers to argue the case. In the event of gross misconduct by powerful persons, lawyers are afraid to describe harsh realities in plain language, and call black, black; because judges don’t want to rock the boat.
Supreme Court judges failed miserably in several emblematic cases as the 2000 Bindunuweva massacre case. In the 2006 Trincomalee illegal Buddha statue case, the Chief Justice arm-twisted the Attorney General into dropping it. The UTHR(J) had occasion to report on the 2006 Trincomalee Five Students and ACF cases. Both went before the special presidential commission headed by a retired Supreme Court Justice. By 2009 there was no word on the first, on the ACF massacre the Commission head blamed the LTTE by clutching at the straw of a pro-LTTE web report that it was present in Mutur at the alleged time of the murder while the Defence Ministry claimed otherwise. In adopting an advanced time, the Commission ignored a Methodist clergyman who was threatened at the commission premises and had to flee abroad in terror after testifying. The country has become inured to the gigantic scandal of keeping tens of thousands of families waiting decades in forlorn hope for closure of their grief over loved ones cruelly snatched.
Corruption in the North-East, parallel to its causes in the South, is a remnant of the freedom from accountability the elite enjoyed under the LTTE for not rocking its boat. While still taking refuge behind narrow chauvinism,it locks into the phenomenal corruption nationwide and blocks the recovery of war-torn areas. The Jaffna University Science Teachers’ Association compiled a volume of detailed reports on abuses in staff recruitment and gave them to two chairmen of the UGC and three ministers covering higher education. The feedback we got from the UGC through the FUTA was totally irrelevant to the issues raised.
We dealt with a lady aspirant for lecturer who topped the list in merit and experience but was dropped. It is now over two years since the candidate’s fundamental rights case went to the Supreme Court. It is well-established the Chairman of the selection board lied to the Court under oath. Allegations of abuse that should have been resolved quickly for deterrence to take effect drag on desultorilyin courts and corridors of power for years. How could a young unemployed girl afford such justice? The higher authorities while eager to whitewash and landscape universities, abhor rocking the boat which they fear would bring down the house of cards.
The issue is finally one of Humanity, our respect for others, their well-being, and development of their potentials and for the value of their time, irrespective of who they are. This is what Tagore and Bharathy taught us and where our leaders and society have been extremely remiss. In the name of development we have made roads for our elite, administrators and security officials to travel at break-neck speed with scant thought for those on foot or bicycle.
Balu, an honest, hard-working labourer, who was injured by army shelling about 1993 leading to partial deafness, had latterly resettled in Tellipalai. While waiting to cross the KKS Rd., he was killed by a navy vehicle with, as I learn, defective brakes, driven by a man without a heavy vehicle licence. When development fails the most vulnerable and poor, we have lost our way. It is well to remember Tagore in his essay on Nationalism: “…speed comes to its end, the engagement loses its meaning and the hungry heart clamours for food, till at last she comes to the lowly reaper reaping his harvest in the sun.”
Finally, to two statesmen on the Legislative and State Councils between 1923 and 1948, whose humanity we acknowledge with pride and thankfulness. T.B. Jayah was consistent in his support for the weak. When the Government in 1939 as a theatrical gesture to solve unemployment deported thousands of Indians who mostly did menial work the locals disdained, Jayah said, the proposal ‘is calculated to bring misery to thousands of homes, misery whether it is experienced by those who are near and dear to us, or by those who are not so near to us. It is certainly misery which we cannot, as human beings, afford to overlook.’
Natesa Aiyer, Jaya’s friend, was as mindful of the well-being of India as of Ceylon, his adopted home. He was a true freedom fighter who constantly challenged British officialdom with facts where others fought shy. From his expertise on labour in India, Ceylon and Malaya, he advised the Government on 1st September 1936 on its new land settlement schemes:”If you have about twenty Indian families owning land among, say, 100 Sinhalese families, it will be to the advantage of the latter. The method of cultivation followed in Ceylon is different to that adopted in India. The Ceylon agriculturalist cultivates his land in a crude way, not in the way the Indian cultivator does in Coimbatore and Salem districts. There, with one well a family will be able to live on the produce of a small piece of land and throughout the year they will be cultivating some crop or other on that land. They are an industrious race and if you have a few Indian families in these colonies, they will set an example to the others to follow.” But the Government was firm about excluding Indian immigrants. An opportunity to save the schemes, which Bandaranaike said two years later ‘would be a miracle if they succeed’, was lost.
Colonisation, while economically dubious became politically charged by an ideology of conquest over the minorities and is reflected in the security forces occupying large swathes of land in the North-East, combined with simplistic zeal forclaiming sites as Buddhist and supported by regular presumptions of separatist threat.The climate is punctuated by spurious disorder that leaves people guessing in disbelief.
The Soulbury Constitution that brought us here flowed from the distorted working of the Donoughmore legacy which gave us the Long Council of 1936 to 1947. It was a predictable tragedy and we are still within its ambit of crude majoritarianism, whose first fruit was the Citizenship Bill. It set the scene for violations of universal norms governing the treatment of minorities including Sinhala Only and communal violence while the laws were silent.
I wonder if the present Election Commission with its powers could have had any impact on a situation such as the one created by Jayewardene taking away Mrs. Bandaranaike’s civic rights. It distorted the 1982 presidential election. This he followed with the referendum to create the Long Parliament of 1977 to 1989 as an avatar of the Long Council owed to S.W.R.D. Bandaranaike’s sabotage of the 1941 elections. The two had inspirational similarity. July 1983 had much to do with Parliament’s nervousness over its legitimacy. That in turn led to the 1987 insurgency, in the wake of the JVP leader, the only one to challenge the 1982 referendum result in court, being forced underground after Jayewardene blamed them for July 1983, which almost every policeman denied. Weare still paying for that Long Council.
We are now close to seeing a new constitution. Whether it would be decidedly non-sectarian and create conditions that place humanity on a firm footing will be decisive for our future. With these thoughts, I leave you.