Dr. Sudath Gunasekara. (SLAS) and President Senior Citizens Movement Mahanuwara-Posted on September 20th, 2010 -www.lankaweb.com/news/items/2010/09/20/
Niti Niganduwa a treatise of Sinhala law composed during the Kandyan period gives evidence of a number of ancient legal treaties that had been composed during the times of the Sinhalese Kings. It has defined law as the “implementation of the charters of ancient Kings without breach” (“Niyati ti Niiti”). PƒÆ’-¦rƒÆ’-¾na rƒÆ’-¾juhi panccantta dhamman na samuccindiyanti ti niti ni pƒÆ’-¾punane”). It further identifies three broad division in law .They are a) Raja niiti, b) Dharmaniiti and Loka Niiti. Raja Niti is law laid down by the King. Dharma niiti is law that is prescribed by the Dhamma; in our case as they appear in the various suttas. Finally Loka niiti are the conventions that have evolved over time by popular acceptance which are mostly conventions. According to the ancient tradition the law is laid down after general acceptance by the people and it is called Mahasammata, approved and ratified by the people. In this context ultimately all laws have to be enacted for the good of the people and therefore they cannot be designed for the benefit of the Ruler. According to Buddhist teachings, like all other things, the law has to be there for the good of the many and happiness of the many. But unfortunately since 1815 during the Colonial times the law in this country has been designed for the benefit of the British Empire until Independence in 1948 and thereafter it is often designed more for the benefit of the native rulers more than the subjects. The successive events after 1987 have made things worse than ever before. As a result the legality of our Constitutions has undergone rapid erosion during these few decades.
In this back ground the object of this note is to draw the reader’s attention to some very important legal aspect of our Constitutions hitherto has not been given serious attention by our legal luminaries or the general public. I hope this point will open a new forum, for a wider and open discussion on this issue.
Let us begin with the Kandyan convention of 2nd March 1815. This was entered upon between two parties namely Robert Brownrigg, Governor and commander-in-Chief of Ceylon, on behalf of the King of Great Britain and Ireland, on the one part, and the Adigars, Dissawas, and other principle chiefs of the Kandyan provinces on behalf of the inhabitants of the Kandyan Provinces (Sinhale) on the other part. The Sinhala Translation clearly has said that it was an agreement between the Kingdom of Britain and Sinhale, which meant the whole Island and its maritime territories including the Maldives Islands and the ocean around. This historic Convention had only 12 sections and it was issued at Kandy as a Royal Proclamation on the 2nd of March 1815.
The most important features of this Convention.
1 It was a Convention singed between two countries (parties)
2 It was drawn and entered upon between Great Britain and Sinhale
3 King Sri Wicrama Rajasingha and all his relatives and all their claims to the dominion
of the Kandyan provinces (Sinhale) is abolished and extinguished. (Sec.2)
4 The deposed King and all his relatives are declared enemies of the Kingdom (Sec.3)
5 The Dominion of the Kandyan provinces is vested in the Sovereign of the British
Empire to be exercised through the Governors or Lieutenant Governors and their
Accredited Agents (Sec 4).
6 The religion of Buddha is declared inviolable, and its rites, ministers (monks) and
places of worship are to be maintained and protected. (Sec.5)
Of the above, the item directly relevant to this discussion is no 1. Since this was an agreement between two parties any amendment to that instrument, addition or its replacement by repeal needs the explicit consent of both parties, for such amendment to be legally valid.
But Governor Brownrigg unilaterally abrogated this Convention by his Royal Proclamation No 21 of 1818. It declared the supremacy the British Crown, exercised through the Governor and his Agents and to which obedience of all citizens is due. The Board of Commissioners and the resident Agents of the Government were vested with the sole power over the affairs of the territory. This was issued on the wake of the so-called rebellion 1818. The last section (56) stated “He (Governor) also reserves full power to alter the present provisions as may appear hereafter necessary and expedient: and he requires, in his Majesty’s name, all officers civil and military, all Adigars, Dissavas and other chiefs, and all other His Majesty’s subjects, to be obedient, aiding, and assisting in the execution of these or other his orders, as they shall answer the contrary at their peril”.
The word Convention was only once mentioned in Sec 2 just to refer to its date. But nothing was mentioned about the legal validity or other wise of its provisions thereafter. This shows the arrogance and the manner in which the Kandyan Convention has been ignored and abrogated by the British government. Therefore any ex-parte action will have no legal validity. It appears that there was no protest by the locals either on this draconian Proclamation by the Governor. So the presumption is that the Kandyan Convention died a natural death on the 21st of Nov.1818. There is no argument about the authority of the King of Britain over Ceylon and its territories even under the Kandyan Convention. But the powers of the native chiefs were severely curtailed by the Proclamation of Nov 1818. It also removed provisions of Section 5 of the Convention and it was replaced with some mild reference to respect to priests and processions of Buddho religion, adding some new provision to general protection to all other religions This contravenes section 5 of the Kandyan Convention. In sum the Proclamation has tightened the grip of the British authority over the Island and set the process of gradual erosion of power of the local aristocrats and the Priests
Thereafter until 1948 this country was governed under royal declarations and statutes that inherited the illegal Proclamation of 1818. In fact one can say that even the Soulbury Constitutions of 1948 to that extent was not legally valid. According to the provisions of the1815 Convention Independence should have been given to Sinhale as the convention was singed between Chieftains of the Sinhale and Brownwrigg on behalf of Great Britain. But it was given to a hybrid State called Ceylon.
There is also no mention any where in any of the subsequent legislations that the 1815 Kandyan Convention was repealed, though it was physically thrown in to the dust bin of history by the British. The 1972 Republican Constitution repealed the 1948 Soulbury Constitution but it also has not said anything about the Kandyan Convention. But it had rekindled the Sec 5 of the Kandyan Convention by inserting Sec 10 on Buddhism. The 1987 Constitution also followed suit. All these law makers appear to have acted on the presumption that what they inherited from 1818 onwards was legal. But I think the Kandyan Convention of 1815 is still valid in law as it had not been legally repealed by any subsequent legislation up to date.
The Kandyan Convention was published as part of the legislative enactment of Ceylon and it is included as a chapter in the Legislative enactment Vol X1 Chapt.390 (P376-378). It also appears in Vol XX. This was done when Dr Nissanka Wijeratna was the Minister of Justice in the 1977 government. The person behind this decision was Dr. Harischandara Wijetunga the Officer In Charge of the Sinhala translation of the Legislative enactments at that time. There were two other persons involved in this historic decision. They were W. J. M. Lokubandara, the present Hon. Speaker and Hector Deheragoda who was in charge of the English Edition. This also confirms my contention that the Kandyan Convention is still a living and valid part of our law. It is said that Brown Wrigg’s 1818 Nov 21 Proclamation was ratified by the British Parliament. It also now appears as a Chapter in the legislative enactments of Sri Lanka under Vol XX Chap 638 (P319-329) under the title Declaration of British Sovereignty. I wonder whether an illegal Proclamation could be declared legal by such ratification, by the British Parliament that represents only one party to the 1815 Convention. As such I opine that such ratification by the British Parliament is null and void. Therefore I think the 1815 Convention still holds good in law. In this back drop both the Proclamation of November 21. 1818 and all laws enacted after the prescribed date of that Proclamation and all actions taken there under should stand illegal and questionable.
One may get temped to think that this is only wild imagination of one man. But I think there is a strong and valid point in what I see. Therefore I invite those interested, constitutional experts, lawyers and all others interested to initiate an open debate, a serious one too, on this all important issue at a time of our history when radical changes are taking place in the political scenario in this country, since Independence
September 21st, 2010 at 3:36 pm Dr Gunasekera, I do not think this is “only wild imagination of one man”- these are very valid points. We need to work on these issues to sort out exactly where we as a nation lost the plot. At the point of the granting of “Independence” to SL which in effect ended the deal with the Queen of England we did not have people who knew our history or could see the bigger picture in high places. With all due respect to our ‘founding fathers’ of the country we depended on Western educated, whiskey drinking, tie-coat gentlemen leaders who did not have the benefit of a ‘swabhasha’ education like we were priviledged to have. That point in time in 1948 would have been a great opportunity to change the name of SL back to Sinhale and ask the tranference of power back to the Sinhale instead of Ceylon. We should also have asked the British to offer compensation or remedy for the demographic nuclear bomb they placed under us by way of an army of South Indian immigrant labour force in the hill country and the divide and rule pampering of the Dutch imported South Indian labour force in the North. These are Sinhala grievances that no local or international person is aware of or cares about. It is time we took notice of how we feel about all this. This will certainly be a more worthwhile exercise for the other doctors who write poisonous, malicious, petty, character assassinations in the web.
September 21st, 2010 at 8:53 pm I never heard the NORTH was colonised by the Dutch. Then who were the people in the North when Dutch arrived?
September 22nd, 2010 at 2:02 am M.S.Mudali,
Mayalee (Malabar) people and Sinhala people. Even the Nallur Convention was signed in Portuguese and Sinhalese languages. Tamils were a small minority.
September 22nd, 2010 at 2:06 am Malayalee people didn’t create any trouble. In fact they supported the Sinhalese in fighting off Tamil Nadu invaders and other kallathonis. Dutch imported farming caste (vellala) people from Tamil Nadu. If natural migration from Tamil Nadu was allowed there would never be so many vellalas in Jaffna. If natural migration from Tamil Nadu was allowed the fishing caste people would be the majority in Jaffna.
September 22nd, 2010 at 4:57 am Lorenzo – I hope you are clearly differentiating between ‘fishing caste people from Tamil Nadu’ and Kshatriyas. Although I hate even to engage in a dialogue on caste, I need to clarify a point here (sorry for the drift on the topic). King Parakramba Bahu the sixth sought the assistance of mercinaries and Kshatriyas volunteered to protect the maritime provinces in Sri Lanka. Kshatriyas, Aryan in origin, who were displaced towards the south of India(lasting 3000 years or more) after the war with Pandavas, began even speaking Dravidian languages and when they arrived in Lanka, they never spoke any aryan language/dialect. Since there were no activity with regards to protection of the shores, they too began fishing and thats how the great Kaurawas became known as ‘fisher folk’. However they intermingled with Sinhala people and embrased their culture. Negambo kaurawas still use Tamil for communication. In fact during Buddha’s time (who was a Sakya an off shoot of Kshatriyas/Kaurawas) and before his time, the Noble kings and warriors were at the top of the hierarchy, naturally in Indian society, then came the priests, followed by Trades people (farmers etc) and lastly the Slaves. However, the crafty priests, the Brahmins (now Hindus) concocted the creation theory and put theselves at the top coming from the mouth of Brahma the creator, and suddenly nobility came second. The greatest being, Buddha, the greatest king Asoka and the greatest kings in Lanka were all Kshatriyas/Kaurawas/Sakyans and now their decendants unfortunately are branded as ‘fisher folk’ which is pathetic indeed.
September 22nd, 2010 at 7:22 am A constitution depend on its origins or the sources.
Decrees, Conventions, Agreements between a occupying force and the subjects cannot be compared to a constitutin among a group of people.
What is important is the actions of the occupier and its actions.
The problems of Ceylon are not different to problems of the former British Empire.
In the first place is it a British Indian Empire?
For the first time in human hystory the british brougt in ther partners in large numbers. If not for that british could not have maintained such a vast Empire.
In nature this type of partners are prasites. (parasites a word I do not like to use but a perfect explanation)
During the Franco -Dutch war the Dutch Studholder asked the british to look after their colonies.
After the war British in their best of morals did not return the Dutch possesion in Ceylon.
When the Dutch governer refuced to hand over, the British brought in their Madras Regiment.
The Dutch Govenor had only one choice.
The new possesions were administred ftom the Indian subcontinent. (British have not finished making India by this time).
They brought in administrators from Malabar coast intead of using the Dutch Administration.
These new administrators screwed (taxed everything and mistreated the locals) up the locals and cheated (roots of corruption) the British. The locals killed them as the most of the land was jungle and no highways and freeways.
Thereafter British engaged the Dutch administrated.
British saw the need for road and the PWD was born. As Ceylon was close to the South of the subcomtinent most of the workers who came were from the South, mainly Dravidayans.
By this time slavery was abolished, mechnised transport has begun and mass transportation of of colonial parasites began.
Ceylon, Burma, Malasia, Fiji, Mauritius, West Indies, Uganda, Kenya, South Africa…….were colonised by the colonial parasites and the British were the absentee land lord.
Remember Low Caste are not allowed to leave their habitats and all the colonial parasites are High Caste Hindus.
Colder places like Canada, Australia was colonised by the British due to the likeliness of the climate to British Isles.
And no Indian parasites were not allowed in to Australia or Canada.
Australia White policy, Canada you have to go directly from India to Canada and there were no steamers plying directly between the two.
It is time to decolonise Indian colonies.
September 22nd, 2010 at 8:19 pm Sunil Vijaya,
That is a completely different thing altogether. By the way I have absolutely no regard for caste. All I’m saying is had Tamil Nadu people freely colonized Sri Lanka, the majority in Jaffna cannot be farmers. They must be fishermen in that case as farmers didn;t leave their fertile farmland in Tamil Nadu until the Dutch forcibly removed them.
You are referring to the “Warnakulasuriyas” I guess. My understanding is that they were from Kerala and Karnataka. They have integrated with all communities very well.
April 21st, 2013 at 6:22 am At the time British began to occupy the Kandyan Kingdom it extended to the North Central and Eastern Provinces – except the coastal area. The Maritime Provinces were already under foreign rule (the British having replaced the Dutch). So the Kandyans did not refer to the coastal belt as part of Sinhale for obvious reasons.
Needless to say, the Kandyan Convention was the outcome of the invitation extended to that same foreign power to depose King Sri Wickrema Rajasinghe who had by that earned the hatred of those around him. The Convention signed on March 2, 1815 was a farce. General Robert Brownrigg never meant to observe its conditions. Article No. 5 of the Convention which guaranteed the inviolability of the National Religion (Buddhism) and the “protection and maintenance of the rites, priests and temples” was inserted to throw dust in the eyes of the Sangha, the traditional guardians of the life and liberty of the people.
“In truth,” the General wrote in a dispatch to the Secretary of State Bathurst, “our secure possession of the country hinged upon this point. I found it necessary to quieten all uneasiness respecting it, by an article of guarantee couched in the most unqualified terms,” and he repeated this assurance to the Sangha of Malwatta and Asgiriya Viharas… (Revolt in the Temple)
It is hardly surprising the British never intended to honour this pledge.
“The Kandyans,” says Dr. Colvin R. de Silva in his Ceylon under British Occupation, “had called the Britisher for the sole purpose of ridding themselves of an unpopular monarch, and they had not contemplated the establishment of British rule.”
The ascendancy of a Christian government in the Kandyan Provinces constituted a distinct menace to Buddhism. The Colonial power was never in truth legally bound to protect Buddhist interests before or after 1818.
These were the circumstances under which the Uva uprising of 1818 occurred. The rest is history. For further background information you may read Professor Tennekoon Vimalananda’s THE STATE AND RELIGION IN CEYLON SINCE 1815 (which is the most comprehensive book on this subject).
It is therefore hardly surprising that the Ceylon we got back from the British in 1948 was not the Sinhale they occupied in 1815. They had almost erased the religious and cultural identity of that nation