Senator M Tiruchelvam QC

The Tiruchelvam I Knew

February 9th, 2008 transcurre

by Kanaganayagam Kanag-Isvaran
Presidents Counsel

On the occasion of the launch of Senator Tiruchelvams Legacy Selected Speeches of and Tributes to Senator Tiruchelvam Q.C., Sri Lanka Foundation Institute, Colombo, 1st February 2008:

The year was 1973. I had moved into my residence at Barnes Place. Soon thereafter my father visited me, and as is usual, he commenced his peregrinations in Colombo, visiting his old friends and their visits in return.

One day, he came and announced, There, Tiruchelvam wants to meet you.

Soon an appointment was made and I went to see him on a Saturday morning, at about 10.30, at his residence in Rosmead Place.

I had heard of Mr. M. Tiruchelvam but had never met him. But from what I heard, I knew him to be a Senator, a former Minister, a Queens Counsel, principal political advisor to Mr. S. J. V. Chelvanayagam, a political strategist and to be a cunning man cunning in the sense of being ingenious and skilful.

[Justice CV Wigneswaran speaking at the book launch]

I was therefore somewhat daunted and apprehensive when I entered his home.

But there he was seated on a low sofa, in a bookshelf lined lounge, in a white verti and white short sleeved shirt-(I have never seen him in a long sleeved shirt), looking quite civilized, with that infectious smile and charm and quiet dignity.

I was immediately immersed in a sense of well being in his presence. I knew I was going to like the man-and much later, I would like to believe, he became rather fond of me.

There was another gentleman with him that day, Mr. R. S. Wanasundara, the then Solicitor General and later a Justice of the Supreme Court.

After a little banter, I was told We are looking for a young man like you, why dont you join the Crown Counsels Department?

Though it was a great honour, I said that my heart was set on private practice.

A week later, Mr. Tiruchelvam called and informed me that he had nominated me as his Junior in an appeal from Batticaloa. That is how I came to work in his Chambers,-a very short time though-until his untimely demise on the 22nd of November 1976.

Nevertheless, during the three and a half years I worked with him, he has enriched me beyond my wildest dreams.

Soft spoken and charming he had humane and lovable ways. He had the humility to listen to you even as a junior lawyer. He was an educationist-keen to teach not only law, but also social and political history.

Quick to sense, that I was ignorant of the political developments in the country during the period 1960 to 1965, when I was in the United Kingdom, he took upon himself to educate me on the Struggles of the Tamil People as he called it.

When we used to travel by air to Trincomalee and Batticaloa for legal work, I will be given a lecture on the history of the place, of its ancient glories and of its peoples. Often he used to speak to me about a quaint Hindu village in the Chilaw District called Uddappu-a stronghold of his political party.

His knowledge of the history of this island from ancient times, of Tamil civilization and culture, of the Hindu religion and of other religions, religious architecture, iconography and on a whole variety of subjects was prolific and came in very useful when he was leading me in an action relating to a Hindu temple and its temporalities and succession to trusteeship in Chilaw.

In law, his forte was constitutional law, administrative law (now called public law) and the law of Trusts. He initiated me in these areas of law, for which I owe him a deep debt of gratitude.

The crowning moment in my career as his Junior came when he invited me to work with him closely as a Counsel at the trial of Appathurai Amirthalingam, when he with three others, namely M. Sivasithamparam, K. P. Ratnam and K. Thurairatnam were arraigned at a trial-at-bar on the 18th of June 1976 charged with sedition.

It was then, whilst working with him, that I was introduced to world renowned authorities on constitutional theory and law, such as Dr. K. C. Wheare, Sir Kenneth Roberts-Wray, Prof. S. A. de Smith and to A. Rubinsteins seminal work, Jurisdiction and Illegality and to jurisprudence on the subject in decisions from Uganda, Southern Rhodesia, Cyprus, Pakistan and India.

We had to work on tomes of material in preparation for the submissions Mr. Tiruchelvam had to make on the constitutional aspects of the case on behalf of the defense.

The trial-at-Bar was before J. F. A. Soza, H. A. G. de Silva and Siva Selliah, Judges of the High Court, with Mr. Shiva Pasupathi, A. G. prosecuting, and Messrs S. J. V. Chelvanayagam Q.C, G. G. Ponnampalam Q.C., Mr. M. Tiruchelvam Q.C. and some seventy five other Tamil Counsel appearing for the accused.

In a lighter vein, I remember that in the preparation for the trial-at-bar I had to run between the Chambers of Mr. G. G. Ponnambalam and Mr. Tiruchelvam, as they were not inclined to visit each others Chambers! And when it came to seating arrangements in Court, Mr. Tiruchelvam told me Sonna you sit between me and G.G! Thereby I earned a place in history, which is attested by a photograph in the book that is being launched today at page 320!

I believe this is the occasion on which something of the background that led to this indictment should be noted. I recount from memory what I learnt from Mr. Tiruchelvam.

The Tamil peoples relationship with the Sri Lankan State, after we achieved independence on the 4th of February1948the 60th Anniversary of which we are supposed to celebrate this year, has gone through distinct periods.

From independence, till the enactment of the Official Languages Act of 1956 the two major linguistic groups would appear to have co-operated and cohabited to ensure that the newly independent state remained a viable democracy.

Since the Official Languages Act, the old camaraderie appears to have become a little tenuous, with the result that the Tamils were seeking autonomy as articulated by the Elangai Thamil Arasu Kadchchi-The Federal Party.

Aversion to the 1972 Constitution, which is quite evident from the speeches made in the Senate by Mr. Tiruchelvam, and reproduced in Senator Tiruchelvams Legacy shows that the Tamils had lost confidence in the ability of the Sinhala Governments to redress their grievances and it would appear to have influenced the call for separatismor an ethnic divorce, culminating in the Vaddukkodai Resolution of 14th May 1976.

On that day, the Sri Lankan Tamils, the Indian Tamils and the Tamil speaking Muslims-the leaders of the Tamil United Front (TUF) met at Vaddukkodai, (which incidentally is also the village of my father as of Mr.Tiruchelvam) and reconstituted themselves as the Tamil United Liberation Front (TULF), and presided over by Mr. S. J. V. Chelvanayagam, resolved to restore and reconstitute a Tamil State, a political reality that had previously existed.

I quote below the resolution

The first National Convention of the Tamil United Liberation Front meeting at Pannakam (Vaddukoddai Constituency) on the 14th day of May, 1976 hereby declares that the Tamils of Ceylon by virtue of their great language, their religions, their separate culture and heritage, their history of independent existence as a separate state over a distinct territory for several centuries till they were conquered by the armed might of the European invaders and above all by their will to exist as a separate entity ruling themselves in their own territory, are a nation distinct and apart from Sinhalese and this Convention announces to the world that the Republican Constitution of 1972 has made the Tamils a slave nation ruled by the new colonial masters the Sinhalese who are using the power they have wrongly usurped to deprive the Tamil Nation of its territory, language, citizenship, economic life, opportunities of employment and education thereby destroying all the attributes of nationhood of the Tamil people.

And therefore, while taking note of the reservations in relation to its commitment to the setting up of a separated state of TAMIL EELAM expressed by the Ceylon Workers Congress as a Trade Union of the Plantation Workers, the majority of whom live and work outside the Northern and Eastern areas,

This convention resolves that restoration and reconstitution of the Free, Sovereign, Secular Socialist State of Tamil Eelam based on the right of self determination inherent to every nation has become inevitable in order to safeguard the very existence of the Tamil Nation in this Country.

Thereafter the TULF issued its Manifesto demanding the creation of an independent Tamil State. It read,

What is the alternative now left to the nation that has lost its rights to its language, rights to its citizenship, rights to its religions and continues day by day to lose its traditional homeland to Sinhalese colonization? What is the alternative now left to a nation that has lost its opportunities to higher education through standardization and its equality in opportunities in the sphere of employment? What is the alternative to a nation that lies helpless as it is being assaulted, looted and killed by hooligans instigated by the ruling race and by the security forces of the state? Where else is an alternative to the Tamil nation that gropes in the dark for its identity and finds itself driven to the brink of devastation?

There is only one alternative and that is to proclaim with the stamp of finality and fortitude that we alone shall rule over our land that our fore fathers ruled.Hence the Tamil United Liberation Front seeks in the General Election the mandate of the Tamil nation to establish an independent, sovereign, secular, socialist state of Tamil Eelam that includes all the geographically contiguous areas that have been the traditional homeland of the Tamil-speaking people in the country.

The TULF Manifesto also stated that Eelam would be ultimately established either by peaceful means or by direct action or struggle. However, despite this vow TULF members, for the most part, continued to negotiate with the government in hopes of finding a solution to the ethnic problem.

It is in this background that Mr. A. Amirthalingam was indicted on five counts of contravening the Emergency Regulations framed under the Public Security Ordinance by possessing and disseminating subversive literature, to wit the document Resolution adopted at the first Annual Convention of the Tamil United Front. Counts 1 and 2 relate to the possession and distribution of the document, which is likely to incite persons to defy or act in derogation of the Constitution of Sri Lanka. Count 3 accused him of distributing it to the public without the permission of the Inspector General of Police. Count 4, charged the accused with reading out the document as an attempt to incite the Tamil Speaking public to procure otherwise than by lawful means alterations of the Unitary State of the Republic of Sri Lanka. In the 5th Count the accused was charged with attempting to create discontent by reading out the said pamphlet. The date of the alleged offence was 22nd May 1976.

When the indictment was read out Mr. Amirthalingam stated as follows:

I humbly state that I am not pleading guilty or not guilty because this Court is not properly constituted and it is not valid and there is no jurisdiction and therefore I am not pleading guilty or not guilty to the charge.

Consequently, two preliminary objections were raised for the ruling of Court.

Firstly, that the 1972 Constitution of Sri Lanka is invalid and consequently this Court itself is a nullity.

Secondly, that the Emergency Regulations under which the accused has been indicted are invalid per se and in so far as they relate to the constitution of the Court.

The Attorney General, Mr. Shiva Pasupathi, on behalf of the Republic, raised the question of justiciability to counter the contentions of the defence. In other words, the contention was, that the preliminary objections were not suitable questions for a court of law; it is not judicially examinable. Meaning thereby that it had to be resolved by some other way e.g. political.

Mr. Tiruchelvam brilliantly argued the constitutional aspects of the case as to why the 1972 Constitution was invalid. You would see the basic framework for the argument in his speech in the Senate on the 30th of June and 1st of July 1970 which is reproduced in the book under the caption The Looming Dangers of the United Front Government especially from pages 279 et seq.

The Court however, having heard submissions throughout the month of July 1976, determined on September 10th 1976,

In these circumstances the time honoured and judicially settled principle of justiciability that a court or tribunal which owes its creation to a particular Constitution cannot embark upon an inquiry into the validity of that Constitution demands to be accepted. We therefore hold that the validity of the Constitution is not justiciable by us.

On the validity of the Emergency Regulation, the Court held-

We hold that there has been no valid declaration of a state of emergency by the President as set out in Section 134 (2) of the Constitution and that there has been no delegation of the legislative power by the National State Assembly to the President as envisaged in Section 45 (4) of the Constitution. Consequently Regulation 59 of the Emergency (Miscellaneous Provisions and Powers) Regulations No. 5 of 1976 published in Gazette No. 213/5 of May 17, 1976 as amended by Regulation 59 (1A) published in Gazette No. 214/16 of May 28, 1976 can have no sanction or validity in law. We cannot therefore continue to exercise any further jurisdiction in this case to try this accused for the offence for which he has been indicted. We accordingly discharge the accused from these proceedings.

There was an electrifying silence when the verdict was announced and then an explosion of jubilation. The historic picture of the triumvirateMr. Chelvanayagam, Mr. Ponnampalam and Mr. Tiruchelvamall smiles, reproduced in the book was taken soon after, outside the Court House.

Strangely in six months time from the date of this photograph being taken all three had passed away. Mr. Tiruchelvam in November 1976, Mr. Ponnampalam in February 1977 and Mr. Chelvanayagam in March 1977!

A new period of ethnic conflict was soon to begin in the years following.

The five year state of emergency of the United Front Government and its attendant repression brought new issues the need for guarantees of personal liberties, freedom from arbitrary arrest and detention, police excesses, rule of law, independence of the judiciary, the repeal of the ex post facto penal laws etc. And because of the Tamils demand for separation, the need to find a solution to the problem became important in Sinhala politics.

J. R. Jayawadena offered a Dharmista government. He issued commitments on constitutional reform, a package of protection for minority rights and decentralization.

The 1977 UNP election manifesto contained three major commitments relating to the Tamil question. The first stated-

We will ensure that every citizen, whether he belongs to a majority or minority, racial, religious or caste group enjoys equal and basic human rights and opportunities. The decisions of an All Party Conference (APC) will be summoned to consider the problems of non-Sinhala people and will be included in the constitution.

All possible steps to remedy the grievances of the Tamil people was said to be via the APC.

The second was a proposal to decentralize administration by the creation of District Development Councils (DDCs) down to village levels.

The third, and more significantly, was the section on the Problems of the Tamil speaking People, which listed four areas of concern-(a) education; (b) colonization; (c) use of the Tamil language and (d) public and semi-public employment.

It resulted in a massive landslide for the UNP, winning a 5/6th majority or 83% of the seats in Parliament. The Tamil people were hopeful of solutions to their problems, because of the UNPs pledges in its Manifesto.

But that was not to be.

Within a month of the UNP government taking office, the anti-Tamil riots of August 1977 engulfed the country. The UNP had in its Manifesto accepted that there were numerous problems confronting the Tamil peoples-education, colonization, use of Tamil language, employment and pledged to solve it. But once in power, it assumed a position no different from previous governments.

But that is another story, to be recounted at another time, not appropriate for discussion today.

As Dr. Neelan Tiruchelvam was to observe, years later in 1984, the Vaddukoddai Resolution represented a shift from the struggle for equality to an assertion of freedom, from the demand for fundamental rights to the assertion of self-determination, from the acceptance of pluralistic experiment to the surfacing of a new corporate identity.

Senator Tiruchelvam stood for a pluralistic society. In his speech in the Senate on the Address of Thanks for the Throne Speech (1970) he said,

That in a plural society minorities can only be satisfied by federalism or some form of regionalism is a well-recognized political solution, a solution accepted not at the point of the bayonetbut voluntarily.

For a minority people there are three solutions available in a country. The first is assimilation. That is, giving up being a Tamil.

The second course is more abhorrent, and that is the course of separation, to go our different ways, to fight it out and reach a different status.

Then, the third course is national integration. That can arise only by a recognition of the mutuality of our rights and obligations, by recognition of the fact that we exist as a people who have lived in this country for 2500 years; that we exist as a people who have a language of our own, with traditions of our own and a way of life of our own.

Then he went on to say-

We will get it one day, if not from this Government, then from the next; if not from the next Government, then may be 25 years hence; if not 25 years hence, then 100 years hence. I want to say here and now, for all time, that the cry for federalism will never be given up

Nearly thirty eight years have gone by since these words were spoken. Thirty two years, since his death. A new generation has come into being. We live in difficult times. A great transformation has and is taking place, since his time.

A Sinhala Buddhist nationalist ideology has been institutionalized as state policy, perpetuating its supremacy within a unitary state and attacking as enemies those who disagree. Traducing the Tamils has become a way of life.

Tamil nationalism-a reactive phenomenon to ethnocentric policies embraced by successive Sri Lankan governments, champions the separatist cause and struggles.

If Mr. Tiruchelvam was living today what would he have said? Would he accept that the second choice open to a minority-the abhorrent choice of separatism-is the way forward or would he still believe in a credible autonomy proposal as a sine qua non for future Sinhala-Tamil co-existence?

We would never know!

What lies ahead is any bodys guess!

Entry Filed under: Full Text of Speech

1 Comment Add your own

• 1. Siva Sivapragasam | February 10th, 2008 at 11:54 am

  This article rekindled my memories of yester year when I interviewed Mr.Tiruchelvam on many occasions as a journalist for the Daily News. He was one of those finest clear thinking politicians ,well groomed in the art of politics and a journalists delight for interviews.What a pity that we miss these heroes in times of our pre sent crisis.

  Siva Sivapragasam
  Toronto