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From the Introduction

Apartheid South Africa and Lanka: State Racism Replaces Natural Law

 

By giving independence to South Africa in 1910, Britain contracted out the unpleasant work of maintaining its exploitative interests in South Africa to the Afrikaner community. Ceylon received its independence from Britain after signing defence and external affairs agreements, the former principally with India in view. During the debate on the Motion of Independence (2nd December 1947), Dr. N.M. Perera pointed out the meaning of the first clause in the External Affairs agreement: The Government of Ceylon declares the readiness of Ceylon to adopt and follow the resolutions of past Imperial Conferences.” Dr. Perera quoted what the British Chancellor of the Exchequer said at the 1932 Imperial Economic Conference in Ottawa following adoption of resolutions on monetary and financial matters: “His Majesty’s Government desire to see wholesale sterling prices rise. The best condition for this would be a rise in gold prices, and the absence of a rise in gold prices inevitably imposes limitations on what can be done for sterling.” In fact gold prices went up after Britain and dominions from 1931 delinked their currencies from the gold standard.

 

The foregoing gives an idea of how gold mines in South Africa and tea plantations in Ceylon tied up with the sphere of British interests and the sterling area, and how working class solidarity across ethnic lines in South Africa and Ceylon was viewed as a threat…Adding to the alarm of India’s call for internationalism at that time, the Ceylon elections in September 1947 returned 20 Left and 7 Indian Tamil MPs out of 95 elected members. The meteoric advance of the Left in a dozen of years and the prospect of solidarity across communal lines alarmed the rulers and the British no less. Given the closeness of Ceylon’s arrangements with Britain, we would not be wrong to infer that the disenfranchisement of the Indian Tamil population in the wake of Independence was a done deal with Britain, down to the Privy Council’s predictable sanction of the Citizenship Act in 1953, using essentially the positive norm of sovereign immunity of nation states, free to enact their laws. Collusion on Ceylon is further suggested by Britain’s support for South Africa at the UN in 1946 and the attempt to deflect censure by going to the International Court of Justice…

 

Kumari Jayawardena[1] observes that when Ceylon gained independence in February 1948, the constitution then in force did not define citizenship, a singular and intentional omission which was rectified soon after. The British Nationality Act passed in July 1948 covered the needs of those in former colonies until they passed their own citizenship laws. The Indian Constitution defined a citizen as anyone domiciled in India as of 26th November 1949. Unlike the British and Indian citizenship laws of the time, which minimally preserved status quo, Ceylon’s was a citizenship act to deprive rather than confer.  The only conceivable reason for Ceylon rushing through with a citizenship bill on the heels of the British Act, which recognised jus soli, to define citizenship narrowly, was to preempt ongoing negotiations with India on the status of Indian Tamils by decitizenising them, and presenting India with a fait accompli. This was boorish diplomacy, tantamount to opening hostilities with our neighbour

 

 The Sri Lankan ruling class has lost sight of the fact that sovereignty is no proof against such brash judicial contempt for fundamental international laws.[2]

What took us firmly down this road were the three acts of parliament on exclusions from citizenship from August 1948, and in particular, the Supreme Court’s judgment in 1951 which endorsed these. They targeted the poor, mostly illiterate but economically indispensable Hill Country labour of more recent Indian extraction, then 11% of the country’s populace. What connects the judiciary of 1951 with today’s bench is the fallacy of accepting that desired by the powers that be, as just and good.[3]

 

In the Privy Council’s 1953 judgment on the Citizenship case, this fallacy is expressed in the maxim it cited, “omnia praesumuntur rite esse acta” (All things are presumed to be done in due form) and ‘the court will not be astute to attribute to any legislature motives or purposes or objects which are beyond its powers’. Law rendered the whim of a state, rules out the possibility of international law.

 

The positivism of the judgments contrasts with the Natural Law approach that comes to us directly from Grotius and the jurisprudence of the Roman Dutch Law [on which Ceylon’s Legal System is founded]. It goes back to Cicero through Thomas Aquinas’ “lex injustia non est lex” – unjust laws (laws in conflict with natural law) are not laws at all. The right of rebellion against a violent and lawless state was legitimate – Grotius cited above. The Citizenship Acts took away the rights of citizenship and franchise the victims had hitherto enjoyed and largely nullified the protection of minorities under the Soulbury Constitution

 

The Supreme Court took refuge behind the disingenuous premise that the Citizenship and Franchise Acts being not specific to any community, were non discriminatory. The fact that many educated Sinhalese continue to believe that the untidy Acts were rational and legally necessary, to meet a reasonable end, was a major blow to the rule of law in this country. It was a precursor to an era when murder would become a necessary tool of politics while the judiciary looked the other way and the police covered up…….

 

 8. Blanketing slow genocide by Census

 

The postwar years 1946 to 1953 were ones where the Indian Tamils largely had parliamentary representation and their trade unions were strong. Their average natural increase between the censuses[4] of these years was 3.2 percent, same as for the Kandyan Sinhalese they lived among. Subsequent censuses show a sharp drop in the natural increase of Indian Tamils against the rest of the country and the 1971 Census gave a natural increase for the community as 1.55 percent (2.45 for the country as a whole) while the actual census figures imply 1.07[5]. The 1981 Census showed a drop in the Indian Tamil population to 818,700, from 1,174,600 in 1971, which after accounting for 307,900 deported to India (see End Note), gives a negative natural increase – minus 0.5 percent p.a. against a national average of + 1.68.

 

The 1981 Census report argued that the low count of 818,770 for Indian Tamils owed to 200,000 other Indian Tamils having declared themselves Ceylon Tamil (see FN.50). In support of the argument the census writer cited 311,225 recorded births and 142,172 deaths among Indian Tamils between the intercensus years, which give respectively the birth rate and natural increase as 3.23 and 1.78 percent p.a.[6], defying the historical trend of decline in a decade in which ordinary Indian Tamils faced near famine conditions.

This was a time when Indian Tamils were found rummaging in city dustbins for food and many drifted to the North-East for a livelihood. Dr. Brian Senewiratne who was at Kandy Hospital stated that half of all the patients admitted from the estates had ‘severe protein malnutrition’ and several patients admitted to my ward were in advanced stages of starvation (The Health of Plantation Workers, Bull. No.4, Kandy, 1975). Behind the sharp decrease in the number of Indian Tamils is a story of famine, starvation and premature death.

However, data on deportations to India from W.T. Jayasinghe’s The Indo-Ceylon Problem enables us to calculate the average birth rates for Indian Tamils as 2.2 percent from 1965 – 1976 and 2.06 percent from 1976 – 1984 (see End Note). The birth rate of 2.67 percent for Indian Tamils given in the 1971 Census thus implies an average rate of 1.54 percent for the years 1972 to 1976. The same conditions that depress birth rates also increase death rates. Thus the number of Indian Tamils having declared themselves Ceylon Tamil in 1981 lacks evidence of being statistically significant.

 

The effects of disruption and displacement adversely affect birth rates and natural increase. In Mullaitivu District, for example, average birth rates declined from about 2.5 percent before the 2004 tsunami, to about 1.3, post tsunami. 2008 was a year of heavy displacement in the North as military operations intensified. The number of births in the Northern Province after keeping a steady average of about 20,000 a year for a decade, dropped sharply to 12,000 in 2008.[7]

We give below the projected percentages in the national population of the original Indian Tamil population (compensated for deportations). Those who went to India after the 1953 Census and before the operation of the 1964 Pact were from the 54,197 who obtained Indian citizenship under the 1954 Pact. Stateless persons had no travel documents. The second row gives the projections of the present population after taking away 400,000 persons in the 1963 Census.[8] Column 1981-1, is based on the natural increase calculated from the census count of 818,700 and 307,900 deportations between the censuses of 1971 and 1981 (Vamadevan op. cit.) using the formula in FN.42). 1981-2 is calculated from the natural increase of 169,053 and 312,000 deportees given in the 1981 Census.[9]

Year

1946

1953

1963

1971

1981-1

1981-2

Original Indian Tamils %)

11.7

11.4[10]

10.6

9.6

7.8

9.56

Present Population (%)

 

 

6.83

6.19

5.05

6.16

1981-1 adheres far better to the historical trend than 1981-2. A simple linear projection from the 1963 and 1971 figures suggests 8.45 for 1981 ignoring the peculiarly trying conditions in the 1970s.[11] The 9.56 from the 1981 census data suggests rather a high population growth commensurate with other communities.

The foregoing carries ample testimony to the fact that denial of political rights combined with systemic deprivation is a sure way towards slow genocide through structural violence. A country needs a population policy, but not one that in effect targets particular minorities. Yet the Sinhalese, Ceylon Tamil and Muslim elite were largely blind to this. In Sinhalese demonology the Indian Tamils especially were presented as quislings and fifth columnists.[12] This coupled with exaggerated beliefs, backed by official estimates, of Indian illicit immigrants going underground were the subject of scare stories that contributed to the severity of communal violence in 1977, 1981 and 1983.[13]

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[1]Kumari Jayawardena, Ethnic Consciousness in Sri Lanka: Continuity and Change, in Sri Lanka: The Ethnic Conflict, Navrang, New Delhi, 1984

[2]“The fact that torture is prohibited by a peremptory norm of international law (jus cogens) has other effects at the inter-state and individual levels. At the inter-state level it serves to internationally deligitimise any legislative, administrative or judicial act authorising torture. It would be senseless to argue on the one hand, that on the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio, and then be unmindful of a state, say, taking national measures authorising or condoning torture, or absolving its perpetrators through an amnesty law…” –Prosecutor vs Furundzija, Trial Judgment, International Criminal Tribunal for the Former Yugoslavia, 10. Dec.1998

[3]This positivist approach is reflected in the English legal philosopher John Austin’s definition of law (in 1832) as ‘rule laid down for the guidance of an intelligent being by an intelligent being having power over him’ – or more plainly ‘Might is Right’ Compare with Friedrich Hegel’s, ‘The State knows what it wills’, published eleven years earlier (1821) in Philosophy of Right (see Karl Popper’s Open Society and its Enemies II).

[4] The census dates were 19.Mar.1946, 20 Mar.1953, 8 Jul.1963, 9 Oct.1971 and 17. Mar.1981.

[5] Indian Tamil population in 1963, 1,123,000 and that on census day 1971 1174,600 enumerated, corrected for 46,460 deported to India and natural increase, gives 1,221,554(figures of deportations from M. Vamadevan’s, ‘Sri Lankan Repatriates in Tamil Nadu’, (Zen Publishers, Madras, 1989). We ignore Indian Tamils who were already citizens of India in 1963, resulting possibly in an error of 2 percent.

[6]To a linear approximation we use the formula P + nTP = Q + E + nTE/2, where P is the population of the initial census, Q that of the second census T years later, n the rate of natural increase and E the number deported during the T years at an approximately uniform rate. In the case above P = 1,123,000, E = 307,900 (from Vamadevan op. cit.). Q = 1,174,600 and T = 9.43 years.

 

[7] Northern Provincial Council Statistical Information, 2010

[8] Assuming a mean death rate of 1.5 percent p.a. for Indian Tamils, which is close to the 1.39 suggested by the 1981 Census, the 337,066 of the 1964 population who reached India mainly between 1969 and 1984 would suggest an original population in 1964 of about 400,000.

[9] In calculating the natural increase between the 1971 and 1981 censuses to the first order, the original population is corrected to 1,174,600 – 312,000 x ½ = P – E/2 = 1,018,600 (FN.42).

[10] The 1953 figure was calculated after deducting 50,000 from the 1953 Indian Tamil population of 974,100 to account for those who obtained Indian citizenship under the 1954 agreement.

 

[11] 9.6 – (10.6 – 9.6) x (9.45/8.25) = 8.45

[12] Retired Archaeological Commissioner, Dr. C.E. Godakumbura, on declaring KoneswaramTemple, Trincomalee, a Hindu sacred area: “[It] can easily give shelter in advance to quislings, collaborationists and fifth columnists, who will welcome the invading enemy and assist them against the Sinhalas” (The Sun, 18 Sept.1968). He speculated on a possible boom of Indian tourists/ pilgrims to Trincomalee, like Russian tourists to Czechoslovakia earlier that year, to prepare the ground for the invasion. Prime Minister Dudley Senanayake refused the request for the sacred area on grounds of ‘national security’. Similar sentiments were expressed in the Citizenship debates (see Kumari Jayawardena, Roshan de Silva Wijeratne op. cit.).

[13] W.T. Jayasinghe (The Indo-Ceylon Problem p.339) discloses that in 1964, an estimated 200,000 Indian illicit immigrants hiding mainly in urban areas. In fact the 1963 Census shows 84 percent of the Indian Tamils were part of the estate population. Only 179,168 belonged to the non-estate population. Even if we take all of them to be illicit immigrants, we cannot account for 200,000 such persons.

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