Focus on Rights

"Disconnecting" the rule of law

By: Kishali Pinto Jayawardene

If awards are handed out for the most telling phrase in the year 2000, World Bank Vice President Mieko Nishimizu's sense of a "disconnect" between fairy tales of good governance doled out to the international community by the People's Alliance and the ground reality in this country, would be my favourite. In short, what the Paris Development Forum was concerned about was more accountable governance.

Encompassing, one would add, an improved culture of human rights with an acceptable electoral process, an uncensored media and the negation of state terror. All of which, needless to say, palpably contradicts Constitutional Minister GL Peiris' wholly baffling assertion in Paris that individuals in Sri Lanka are now being protected by law as never before. Undoubtedly a prime example of "disconnect" as one would see it in an extended meaning of Nishimizu's expression.

But other and more striking examples of this most profound "disconnect" between a professed governmental commitment to the rule of law vis a vis its actual disregard were manifest in this recent visit to Paris. Take, for instance, what President Chandrika Kumaratunga said in her address to a gathering at the Sciences Po institute of the University of Paris, as reported in the Daily News; "We do not have a two thirds majority in Parliament due to a bizarre electoral system. But we are trying other ways of bringing the new constitution even without the two thirds majority. We will bring it soon in the New Year. This mechanism may not strictly be in keeping with the present constitution but it is not illegal. It is a simple majority referendum and then the proclamation of the new constitution by the president." Unconstitutional but not illegal? This is "disconnect" terminology of the highest degree and worthy of its own special place in our Millennium lexicon of untenable words and phrases. Let us now see what this ominous New Year promise is all about.

Framers of the 1978 Sri Lankan Constitution incorporated provisions relating to referendum in accordance with their intention of enthroning a powerful presidency. This was however with the safeguard that a presidential suppression of Parliament could only go so far and no further.

The Constitution mandates that a referendum can be held in three instances. Firstly, by the provisions of Article 85(1) where a Bill is certified by the Cabinet as being intended to be submitted to a referendum or where the Supreme Court has determined as requiring the approval of the people at a referendum.

This is if the number of votes in favour of the Bill amounts to not less than two thirds of all the members, including those not present. Secondly, Article 85(2) of the Constitution specifically gives the President the power of submitting to the people, by referendum, a Bill which has been rejected by Parliament. At the time of enactment, this provision was seen as an unprecedented departure from the principle of the supremacy of Parliament. But the balance was maintained to some extent by that same Article itself mandating that the presidential power of going directly to the people will not apply in regard to Bills for the repeal or amendment of any provision of the Constitution, for the addition of any provision to the Constitution, for the repeal or replacement of the Constitution or which is inconsistent with any provision of the Constitution. In other words, presidential authority overriding parliament could not be seen to undermine the basic structure of the Constitution.

This thinking is further reflected in the third provision authorising use of referenda, which is Article 86, under which any matter which, in the opinion of the President, is of national importance, could be put before the people at a Referendum. Here again, presidential authority was made subject to the rule that it does not disturb the fundamental constitutional structure. Striking this balance was an obvious imperative in the intention of the framers of the Constitution.

The Constitution goes on to specify that all Bills put before the people at a referendum should be approved by an absolute majority. Initially, it was mandated that such a Bill would become law after such approval when the President certifies that the Bill has been so approved and that every such certificate shall be final and conclusive and shall not be called in question in any court.

The Fourteenth Amendment to the Constitution, certified in May, 1988, however provided that the President cannot endorse such a certificate of approval on a Bill which had come before the people at a referendum until the expiration of the period within which the referendum may be challenged. Where, in fact, a petition had been filed challenging the validity of the referendum, no presidential endorsement can be made until after the Supreme Court determines that such referendum was valid.

These latter provisions were, of course, not in force when Sri Lanka's hugely infamous 1982 referendum was held extending the life of the 1977 Parliament for another term. And at this point of time, perhaps it would be pertinent to recall exactly what happened then and what, in fact, led to the Fourteenth Amendment being enacted. The 1982 referendum was characterised by widespread electoral irregularities such as the public display of marked ballot papers, liberal display of party symbols and the intimidation of polling observers. These irregularities may however now seem tame in comparison with the absolute electoral terror that took place in Wayamba in 1999 and Kandy in 2000.

In 1982 however, the catalyst for change was the Referendum Report of the then Elections Commissioner Chandrananda de Silva (now Defence Secretary) issued in 1987 which castigated the numerous irregularities in strong terms and recommended that the Constitution be amended in order to enable a referendum to be challenged in court. The Elections Commissioner's stand was supplemented by civil society groups and professional organisations including notably the Bar Association which appointed a Bar Council Committee to lobby the Parliamentary Select Committee for change to the laws. Their lobbying papers make the valid point that while constitutional provisions relating to referenda are by no means, unique in the world, referendums are held on matters that transcend party political divisions. One example would be when Britain passed special legislation in 1974 enabling the holding of a referendum to determine whether the country should remain in the European Economic Community. Similarly, special provision to 'enable discovering the people's will' exist in the constitutional processes of Switzerland and France. Interestingly also, the lobbying papers detail that the only other occasion of a similar attempt to extend the life of Parliament was in Britain in 1945 when Churchill proposed that the war time coalition be extended until Japan surrendered and if the Labour Party would agree, to hold a Referendum for this purpose. Attlee however rejected this suggestion as "a notion alien to the British tradition." These and similar arguments were then powerfully used by national civil groups in order to demonstrate the inadvisability of using referenda for such unabashedly political gain.

Their pressure led to the amendment of the Constitution allowing a Referendum to be challenged in court.

What remains vital for present purposes are the two primary arguments advanced against the 1982 Referendum. Firstly and fundamentally, the issue was not whether the country should have a good referendum but that a referendum could not and should not have been held for the precise purpose of extending the life of Parliament without holding a general election and that therefore it was devoid of moral authority. Secondly, in any event, the referendum itself was marked by substantial irregularities and therefore devoid of legal authority.

Eighteen years later, these arguments claim an even greater validity in the face of a repeated presidential determination to bypass constitutional procedures relating to its amendment or replacement and resort to a referendum to bring in a new Constitution in the coming year.

Distinctly, this would be both morally and legally beyond the pale even more than in 1982. Ideally, by this time itself, the same civil society and professional organisations which protested so vociferously in 1982 up to 1987 and after should have reacted to the presidential statements emanating as they do so repeatedly from her and not from some lesser mortal shooting his mouth off.

Their deafening silence however is remarkable. And it is thus that Nishimizu's sense of a "disconnect" could be rightly said to extend not only to our political processes but our communal and civic life as well, pointing to more than usual surreal times ahead in the dawning New Year.

LEGAL

Appeal court ruling in ST case - IV

Continued from last week

Learned Counsel for the accused-appellant further argued that the requisite intention or knowledge on the part of the accused-appellant to defame the President has also to be established beyond reasonable doubt in order to convict him on the first count i.e. the offence of defamation. Counsel contended that since the article in question is not per se defamatory or that it is so ambiguous to be considered as defamatory, this ingredient of the offence has not been established by the prosecution. Besides the accused-appellant did not think or consider the article in question to be defamatory. It was further submitted that since the accused-appellant had given evidence referring to the close association the proprietor of the press Mr. Ranjit Wijewardena and he had with Her Excellency the President and the fact that several editorials and other articles (D4 - D22) had been written by him praising Her Excellency the President, and her government there was no intention on his part to defame the President. Thus the point was made by Counsel that the learned trial Judge has failed to take into account any of these matters that were in favour of the accused-appellant before he presumed that the required intention to defame the President has been established against the accused-appellant.

As stated earlier in this judgment in defamation the test is objective and therefore the person responsible for the defamatory article cannot be heard to say that he did not think or intend the article to be defamatory. The liability for defamation does not depend purely on what was intended by the defamer but the tendency to injure the reputation of the President in the eyes of the right thinking members of the public. The fact that the accused-appellant on earlier occasions had said good things about the President and her government does not absolve him from liability with regard to a defamatory statement subsequently made or published against the President. The vital issue is whether the particular statement or article in question is defamatory or not. Generally the intention of a person is something that is in his mind and therefore it has to be inferred from the words used, for there being no other criteria. Therefore when words and phrases used are prima facie or per se defamatory as in this case, the intention has to be presumed on the basis of the principle that a man intends the natural and probable consequences of his act. It may also be noted that in a prosecution for criminal defamation as defined in Section 479 of the Penal Code the intention or knowledge on the part of the accused-appellant to harm the reputation of Her Excellency the President by the said publication would be sufficient. When defamatory material is published in a newspaper, the intention or knowledge to harm the reputation may be more readily inferred. The article in question relating to this case being per se defamatory it would not be difficult to hold that the required intention or the knowledge to harm the reputation of Her Excellency the President has been established. The fact that the article in question is false, it would further strengthen this position. The defence submission that the accused-appellant did not intend to harm the reputation of the President has no relevance to the facts of this case. The presumption that a man intends the natural and probable consequences of his intentional acts may be rightly applied to the facts in this case, to infer the intention or knowledge since the accused-appellant had directly published the defamatory article or he had knowingly authorized or caused it to be published.

Therefore in our view learned trial Judge was correct in holding that the required intention or knowledge to harm the reputation of the President has been established beyond reasonable doubt. Hence we hold that the learned trial Judge has correctly convicted the accused-appellant on the 1st count, since all the ingredients of the offence of defamation have been established beyond reasonable doubt.

With regard to the 2nd count in the indictment brought in terms of Section 15 read with Section 14 of the Press Council Law, learned Counsel for the accused-appellant submitted that in order to establish the said count all the ingredients of the offence of defamation have to be established. Therefore Counsel contended that in this case, since the accused-appellant did not intend to defame the President by the publication of the said article, the offence in count 2, has been committed without the knowledge of the accused-appellant. In other words the Counsel was trying to make out a point that the offence of defamation in this case has been committed without the knowledge of the accused-appellant and therefore he would come under the proviso to Section 14 of the Press Council Law. Counsel complained that the learned trial Judge has not considered this position namely the absence of intention or knowledge to defame the President. Besides Counsel submitted that it was open to the accused-appellant to establish the fact that the offence (count 2) was committed without his knowledge on a balance of probability.

It is to be noted that according to count 2, of the indictment, once it is established that the article in question i.e. P3(a) - P4 (a) which is defamatory within the meaning of Section 479 of the Penal Code has been published in the newspaper, the accused-appellant who is the editor of the newspaper is deemed guilty of the offence set out in terms of Section 14 and 15 of the Press Council Law unless he is able to bring himself under the proviso to Section 14 of the said law. In other words when it is established that the defamatory material has been published in the newspaper, where the accused-appellant is the editor, he is deemed guilty of the offence unless he could bring himself under anyone of the two defences available i.e. by proving that the offence in question was committed without his knowledge or that he exercised all due diligence to prevent the commission of the offence. In relation to the 2nd count the first matter to be considered is whether the article published in the Sunday Times Newspaper of 19.02.1995 is defamatory within the meaning of Section 479 of the Penal Code. With regard to this matter we have already decided that the offence of defamation in terms of Section 479 of the Penal Code has been proved. It is only then that the accused-appellant as the editor is deemed to be guilty under Section 14 of the Press Council Law, unless he comes within the proviso to Section 14 of the Press Council Law.

The submission of learned Counsel that since the accused-appellant did not think that the article was defamatory or that it was harmless and therefore the offence must be held to have been committed without the knowledge of the accused-appellant who should be acquitted on count 2, cannot be accepted. In terms of the proviso to Section 14 of the Press Council Law which says that "no such person shall be guilty of the offence.... if he proves that the offence was committed without his knowledge'' on a balance of probability. Therefore this submission that the accused-appellant did not have the necessary knowledge cannot hold good for the reason that the editor of a newspaper will be guilty of an offence under Section 14 of the Press Council Law if as stated in Section 15 of the said law that "any statement or matter concerning a person which will amount do defamation of the person within the meaning of Section 479 of the Penal Code" is published in the newspaper. What the accused-appellant intended is not material, but what matters is whether in the eyes of the right thinking members of the society the material published by the accused-appellant has the capacity to defame Her Excellency the President. In other words the editor of a newspaper cannot escape criminal liability by saying that he believed the article in question to be non defamatory. In order to get relief under the proviso to Section 14 of the Press Council Law the editor, - the accused-appellant in this case has to prove, on a balance of probability that the publication was without his knowledge, since there would not have been the commission of any offence had there been no publication in the newspaper. However the facts show that the accused-appellant has failed to prove on a balance of probability that the publication was without his knowledge. On the other hand there is cogent material to show that publication of the defamatory article had taken place with the accused-appellant's knowledge and on his express authorization. The fact that the publication of the relevant article P4(a) in the city edition has been freely admitted by the accused-appellant without any reservation, he has to be convicted on count 2. Even though he has taken up the position that the publication of the provincial edition P3(a) had been without his knowledge, it is to be remembered that at one stage when he gave evidence he had admitted having seen the defamatory article before publication, and the said answer included both the city and the provincial edition. Besides it should also be noted as shown above that the accused-appellant is the maker of the article in question as well. Further with regard to the provincial edition even if one were to assume that the accused-appellant's evidence that he did not see the article in question before the publication in the provincial edition created a doubt, in such a situation there is no proof, since the standard of proof is on a balance of probability. However the evidence seems to show that the accused-appellant had knowledge prior to publication of the provincial edition as well.

At this juncture it is pertinent to refer to the nature and the manner in which the accused-appellant had given evidence before the learned trial Judge. It would appear to us, as was observed by the trial Judge himself that accused-appellant's evidence in relation to some of the material issues in this case had been very evasive, inconsistent and per se contradictory. When giving evidence at times he had been vacillating and at times he had attempted to manipulate evidence to suit his own ends. When perusing his evidence one gets the impression that the accused-appellant had lied to court on some of the material issues and had come out with the truth under incisive cross examination or when he spoke the truth not realizing the implications of the answer he had given or when had spoken the truth during his unguarded moments. Therefore it could be said without any measure of doubt that the accused-appellant had uttered falsehood on a number of matters at his convenience and for his advantage. When an accused person intentionally utters falsehood in Court such falsehood weakens his case and advances in strength the case of his adversary. In fact the view has been expressed that in certain circumstances, the lies uttered by a party could amount to corroboration of the case of his adversary. In the case of R Vs Lucas 1981 2 AER 1008 at 1011 where Lord Lane C.J. in the course of his judgement made the following observation in relation to giving false evidence by the defendant (accused-appellant in this case). "It accords with good sense that a lie told by a defendant about a material issue may show that the liar knew that if he told the truth he would be sealing his fate"...... Further he observed "As a matter of good sense it is difficult to see why, subject to the same safeguard, lies proved to have been told in court by a defendant should not equally be capable of providing corroboration. In other common law jurisdictions they are so treated....."

A submission was made by learned Counsel for the accused-appellant that an alternate count i.e., Count 2.. has been brought in the indictment under the Press Council Law, because the prosecution had doubts in establishing the first count under Section 480 of the Penal Code. In other words what the Counsel was trying to impress upon the Court was that since the prosecution had doubts in proving the first count, the alternate count under Section 15 read with Section 14 of the Press Council Law had been added to the indictment. This submission of learned Counsel is without merit for the reason that the prosecution had every right to indict the accused-appellant under both counts. The question whether the prosecution would succeed in establishing the 1st count or both counts in the indictment was a matter to be decided by Court and not by the prosecution. Hence the only permissible argument that could have been taken by the defence in this case would be a situation where it could be shown that there was no justification to have both these counts in the same indictment due to any inconsistency. However in our view there appears to be no inconsistency in having both these counts against the accused-appellant in the same indictment. (Vide provisions relating to joinder of charges in the Code of Criminal Procedure Act No. 15 of 1979). There is therefore no justification in the contention advanced by Counsel that due to the uncertainty that prevailed in proving the first count i.e., the doubt in relation to the person who published the defamatory article in question that prompted the prosecution to have the 2nd alternate count in the indictment. It would be appropriate to consider here the other point that was raised by learned Counsel for the accused-appellant that, since the second count was an alternate count, if the accused-appellant was convicted on the first count it was not possible to convict him on the second count.

In our view it was really unnecessary for the prosecution to have had the 2nd count in the indictment as an alternate count, since the prosecution could very well have maintained both these two counts quite independently, as there is no inconsistency in having both these counts in the same incident. Further the accused-appellant has to be automatically convicted on the 2nd count, once he is convicted on the first count. This situation arises by virtue of the strict operation of law provided for in Sections 14 & 15 of the Press Council Law which state that "every person" who publishers, or causes the publication of a defamatory statement in any newspaper, the editor of such newspaper shall be deemed to be guilty of that offence unless the editor proves that the offence was committed "without his knowledge or that he exercised all due diligence to prevent the commission of the offence". However in this case, the accused-appellant as editor failed to establish the only defence that he pleaded in connection with the 2nd count, namely that the offence was committed without his knowledge. The accused-appellant will not be prejudiced in any way by being justly convicted on both these counts in view of the operation of law, as he had defended himself in respect of both these counts. It was submitted on behalf of the accused appellant that the learned High Court Judge had failed to record a verdict and give reasons forthwith or within 10 days of the conclusion of the trial and thereby violated the requirement laid down in Section 203 of the Code of Criminal Procedure Act, No. 15 of 1979. In a case of this magnitude involving various question of law and the proceedings running up to 1393 pages, the all important question to be raised would be, whether it is humanly possible for the trial Judge to strictly comply with the said Section.

Further if that be the case, did the legislature intend the operation of Section 203 of the Code of Criminal Procedure Act, to be mandatory. In this regard it has been contended by Counsel that the failure of the trial Judge to record a verdict and give his reasons within 10 days would have a tendency to make the trial Judge lose sight of the arguments and the evidence presented in the case. On the other hand one must not fail to understand that the entire exercise of this process of decision making is to mete out justice by coming to a reasonable decision and such a decision necessarily involves the liberty of the subject. Therefore as referred to above in cases of this magnitude, what may become objectionable would be the failure of the trial Judge to take such reasonable time necessary to decide the case. Besides one must be mindful of the fact that in addition to the proceedings being available to the trial Judge to refresh his memory, he has his own notes made in terms of Section 278 of the Code of Criminal Procedure Act which could be pursued by him when writing his judgement. Hence there can be no justification in the allegation that even a reasonable delay would make the trial Judge forget or even overlook the evidence and the arguments presented in a case. The all important question to be considered here is whether the requirement in Section 203 of the Code of Criminal Procedure Act which provides that at the conclusion of the trial, the Judge shall "forthwith or within ten days of the conclusion of the trial record a verdict of acquittal or conviction giving his reasons therefore ..." is mandatory or directory. It is of interest to note that Sri Skanda Rajah J. in the case of Dayaratne Vs. Bowie 65 NLR 499 at 500 has interpreted the word "forthwith" to mean "within a reasonable time" or "as soon as practicable". This question was carefully considered in the case of Anura Shantha alias Priyantha and another Vs. Attorney General 1999 1 SLR 299, where it was held that the provisions of Section 203 of the Code are directory and not mandatory. This is a procedural obligation that has been imposed upon the Court and its non-compliance would not affect the individual's rights unless such non-compliance occasions a failure of justice. Thus in the present case it is to be observed that the learned trial Judge has delivered his verdict giving his reasons on 01.07.1997 after the proceedings were concluded on 04.06.1997. Therefore despite the large volume of evidence to be considered by the learned trial Judge, with commendable speed he has delivered his verdict giving reasons. Under these circumstances, there seems to be no merit in this compliant of learned Counsel regarding the delay on the part of the learned trial Judge to record a verdict giving reasons.

As a final note having regard to the nature of this case, a word of caution regarding the freedom of the press may not be out of place. Freedom of the press is part of the larger freedom of the individual. The public has a right of access to information which is of public concern and of which the public ought to know. The press is all about finding the truth and telling it to the people. In pursuit of that, it is necessary that the press should have the broadest possible freedom of the press. In other words if at all there should be very limited control over the newspapers. Otherwise wrong doing would not be disclosed. Charlatans would not be exposed. Unfairness would go unremedied. Misdeeds in the corridors of power - in government and private institutions will never be known. However with that great gift of press freedom comes great responsibility. In other words more powerful the press is, it should also be a responsible press which will not abuse the enormous power it has.

What the press must do is to make us wiser, fuller, surer and sweeter than we are. The press should not think they are free to invade the privacy of individuals in the exercise of their constitutional right to freedom of speech and expression, merely because the right to privacy is not declared a fundamental right of the individual. However to appreciate the value of privacy in the life of an individual, it is well to remember the importance which our constitution attaches to the man's autonomous nature, through the guarantees of basic human rights. And these human rights are aimed at securing the integrity of the individual and his moral worth. Therefore to invade his privacy is to assail his integrity as a human being and thereby deny him his right to remain in society as a human being with human dignity. The law of defamation both civil and criminal is also geared to uphold the human being's right to human dignity by placing controls on the freedom of speech and expression. The press should not seek under the cover of exercising its freedom of speech and expression make unwarranted incursions into the private domain of individuals and thereby destroy his right to privacy. Public figures are no exception. Even a public figure is entitled to a reasonable measure of privacy. Therefore Her Excellency the President even though she is a public figure is entitled to a reasonable measure of privacy to be left alone when she is not engaged in the performance of any public functions. That is a no entry zone which the press must not trespass. The case in hand is one where the press has attempted to enter into that no entry zone. Even if Her Excellency the President attended a private party it should not be a matter of concern for the press. Here what the accused-appellant had done through his newspaper is to involve Her Excellency the President with a party, which she had nothing to do and never attended and had published such material as referred to and discussed above which has the capacity to defame Her Excellency the President, who is also a mother of two children. In this instance, it is really irresponsible conduct on the part of the press, misusing its freedom of speech and expression to injure another's reputation or indulge in what is called character assassination.

Therefore as observed above, we have given our most careful consideration to the submissions and the authorities cited at the hearing by the learned Counsel for the accused-appellant, the learned Additional Solicitor General and the learned Counsel for the aggrieved party. We are of the considered view that the learned trial Judge has arrived at the right decision in convicting the accused-appellant on both counts in the indictment. Hence we proceed to dismiss the appeal and affirm the conviction and the sentence.

Further we deeply appreciate the assistance given to us by Counsel.

A cry for democracy

By Victor Ivan

The secretary to the TULF R. Sambanthan had expressed his views briefly to a Sunday newspaper about the four proposed independent commissions. He had said that democracy could not be safeguarded by the appointment of these four commissions alone and that, in addition to it, the constitution too had to be changed.

What is apparent from the ideas expressed by Mr. Sambanthan is that he considers the problem of democracy and the ethnic problem as two separate problems and not as two aspects of the same problem. That may be the common Tamil view too.

However, the demands for democracy that are arising in the south and the demands relating to the rights of the minorities that have arisen in the north are not two sets of different problems but are only two aspects of the same problem. This has affected the Sinhala people of the south in a particular way and the Tamil people of the north in a different and a more oppressive way. An effective solution to this problem may be found not through an approach that two issues as two different problems but through one that considers them to be two aspects of the same problem. It is only such an approach that can help integrate these two ethnic groups.

Sri Lanka's transition from a feudalist monarchy to a capitalist democratic political system did not take place as a natural outcome of historical development or as a result of socio-political enlightenment. The democratic political system was a gift bequeathed to us by the British who also introduced capitalism to Sri Lanka. Although the society had adopted the new political system in the context of the new bougious system that was building up, there was no transition from feudalist attitudes to democratic attitudes in the process.

Although it would be essential to build a United Nation for the survival of the new political system, we as a country have been unable so far to fulfil that condition. At the time of independence the ethnic divisions in the country were more complex than they are today. The Sinhalese were divided into the low country Sinhalese and the Kandyan Sinhalese. The Tamils were divided into Ceylon Tamils and the Indian Tamils and the Muslims were divided into Eastern Muslims and non Eastern Muslims. Each of these groups had its own identity and none of them considered any outsiders as a close or fractured group. The Kandyan Sinhalese considered the low country Sinhalese, rather than the Tamils as their main threat. They were the first group who stood for federal system as a means of protecting their separate identity.

The non-democratic parochial attitudes of the Sinhala leaders as well as of the Tamil and Muslim leaders contributed to Sri Lanka's failure to build a united Sri Lankan nation within a framework that protected the separate identities of the Sinhala, Tamil and Muslim ethnic groups. The absence of a powerful freedom movement that bound together all the ethnic groups for the purpose of winning independence also influenced the parochialism of these leaders. Due to the absence of a group of leaders nominated by a powerful freedom movement, all these leaders were with such others to carry tales to the British for the purpose of showing the fruits of freedom on an ethnic basis.

The only group that suffered from this rule and acted with a broad vision in this period was the Jaffna Youth Congress. Although there was no such movement among the Sinhalese of the south, there were two leaders who had such a vision. They were H. Sri Nissanka and Wilmot A. Perera. Although the practice of the left leaders was different from that of the traditional Sinhala, Tamil and Muslim leaders, they had curtailed the possibilities of their own triumphs. The Jaffna Youth Congress had a broad democratic outlook. Their view was that independence must be won through non-violent mass action launched after bringing together the people of all ethnic communities. They should get the credit for being the first to rise against the customs in Jaffna. They launched an extremely effective boycott in the north at the election held in 1931 under the Donoughmore Commission. Although they made a fervent appeal to the south too to join it there was no positive response. It was the Jaffna Youth Congress which first introduced to Dr. Gunapala Malalasekera the national dress which later became the next popular costume among the Sinhala leaders. The educated traditional leaders got together and suppressed the Jaffna Youth Congress. If not for that action, the Sinhala-Tamil relationship might even have taken a different turn. It was a very similar ideology that was expressed by personalities like Mr. Nissanka and Mr. Perera. Although they both had a close relationship with the Sinhala spirit they were never anti-Tamil or anti-Muslim. Both of them disapproved the citizenship bills which deprived the plantation Tamils of their citizenship rights. Mr. Nissanka said that he was opposed to these bills because they were against national justice. Although Sri Nissanka was a founder member of the SLFP he was not among the living when that party embraced the Sinhala only policy. However, Mr. Perera who was in Parliament until 1956 refrained from contesting the election of 1956 because he did not agree with Mr. Bandaranaike's Sinhala only policy. It is said that he had told his friends that it would destroy Mr. Bandaranaike as well as the whole country.

Subsequently, the country had to bleed endlessly because of the failure to create a united and democratic society and a system of national policies suited to it, that were required to sustain the independence that had been acquired with no bloodshed and with no great effort and the political system that were in relation to it. It may be called a vision of a distorted system of democracy and the ethnic crisis may be considered a product of it.

The challenge before the country today is how to overcome this crisis. For the purpose it will be necessary to bring about a demoralization of the whole country and will do away with the massive distortion that prevails. The programme of action for that purpose has to be of a major , and must incorporate a powerful social activity. Theoretically such an action may be called a political attempt to complete the freedom struggle that could not be completed. The initial dynamism for such an effort can be achieved only if the demands that are conveying the Sinhalese in the south for democratic rights are properly combined with the demands in the north for minority rights. For such a combination the enlightened Sinhala society must be sensitive to the demands for reasonable rights of the minorities and the enlightened Tamil and Muslim society must be sensitive to the desire arising in the Sinhala society for democracy. In that sense the Tamil and Muslim society must not be detached for the demand for four independent Commissions for the purpose of democratising the political system. That demand should be supported, nourished and strengthened. It is a system of government that gives more and more weight to democracy rather than one that gives weight to authoritarianism that will give the minorities a good background to win their demands. Although there is no solution to the ethnic problem in the demand for the four independent commissions, any attempts to strengthen democracy will strengthen the possibility of solving the minority problem too. For instance, an independent judiciary is vital not only to the major Sinhala community but also to the minority communities.

The enlightened Tamil and Muslim society must not forget that whatever measures the Sinhala leaders may have taken to oppress the minorities the present calamity might not have taken place if there had been an independent judiciary and a judiciary devoted to the defence of democratic freedom and rights. The Soul-bury Constitution contained provisions that did not permit legislation discriminatary of the minorities. With regard to those provisions in the Soulbury Constitution D. S. Senanayake introduced legislation to deprive the Tamil estate workers of their citizenship rights in order to weaken the left movement, and later Mr. Bandaranaike introduced legislation to make Sinhala the only official language for the purpose of pleasing the pro-Sinhala forces.

Any attempt to lengthen the recognised period of office by a legislature must not be permitted is a recognised principle. However, the move by J. R. Jayewardene for lengthening by six years the term of office of the Parliament through a referendum in such a way that distorted the entire political system against that recognised principle was given approval by the Supreme Court, not because that move accorded with the law but because the judiciary was not independent.

Even if a solution is found to the ethnic crisis it will be necessary to go before the court for the final resolution of any disparity that might arise in relation to that solution. In that sense an independent judiciary is vital not only to the Sinhala community but also to the Tamil and Muslim minorities.

The writer is the editor of Ravaya

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