Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
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terms, 66 and clear guidelines laid down for the restrictions <strong>of</strong> life and liberty. 67<br />
However, the Sri Lankan judiciary generally refrained from authoritative<br />
pronouncements on the protection <strong>of</strong> minorities.<br />
There are noticeable examples <strong>of</strong> this judicial caution. In 1948, the Citizenship Act<br />
was passed, disenfranchising Tamils <strong>of</strong> Indian origin, most born in Sri Lanka and<br />
living in the hill country tea plantations, and lacking Indian or any other citizenship.<br />
The Act was ruled invalid in the District Court on the basis <strong>of</strong> constitutional<br />
protections under Section 29(2), but its constitutionality was upheld by the Supreme<br />
Court in Mudanayake v. Sivanandasunderam. 68 The Court stated obiter that even if it<br />
was the intention <strong>of</strong> the framers <strong>of</strong> the Independence Constitution to have included<br />
Section 29(2) as a safeguard for minorities, such intention has not been manifested in<br />
the words chosen by the legislature. Section 29(2) decreed that Parliament could not<br />
enact any legislation that made persons <strong>of</strong> any community or religion liable to<br />
disabilities or restrictions to which persons <strong>of</strong> other communities or religion were not<br />
made liable and similarly for privileges and advantages. Considering this question in<br />
the Privy Council, 69 the Councillors pointed out that it was a perfectly natural and<br />
legitimate function <strong>of</strong> a legislature <strong>of</strong> a country to determine the composition <strong>of</strong> its<br />
nationals and that the Citizenship Act No. 18 <strong>of</strong> 1948 could not be said to be<br />
legislation intended specifically to disenfranchise the Indian Tamils. Whatever may<br />
be the legal mores <strong>of</strong> these decisions, there is no doubt that the psychological and<br />
political effect <strong>of</strong> the Citizenship Act No. 18 <strong>of</strong> 1948 on the minorities was<br />
tremendously negative.<br />
Further attempts to utilize Section 29(2) to practically benefit the minorities also came<br />
to naught. It was argued in AG v. Kodeeswaran 70 that the Official Language Act was<br />
invalid due to Section 29(2) <strong>of</strong> the Independence Constitution and that a treasury<br />
circular stopping all payments to public servants who could not pass a pr<strong>of</strong>iciency test<br />
in the Sinhala language was consequently also invalid. The Supreme Court avoided<br />
the main question in issue in the case and decided the matter on the principle that the<br />
petitioner, being a public servant, could not sue the Crown for arrears <strong>of</strong> salary.<br />
This ruling was reversed by the Privy Council, 71 wherein an earlier assertion in<br />
Bribery <strong>Commission</strong>er v. Ranasinghe, 72 was affirmed that section 29(2) <strong>of</strong> the<br />
Independence Constitution “represented the solemn balance <strong>of</strong> rights between the<br />
citizens <strong>of</strong> Ceylon, the fundamental conditions on which inter se they accepted the<br />
Constitution and are therefore unalterable under the Constitution”. The Privy Council<br />
sent the case back to the Supreme Court for determination <strong>of</strong> its constitutionality.<br />
However, the matter was not pursued further. In 1972, the interpretation <strong>of</strong> Section<br />
29(2) <strong>of</strong> the Independence Constitution became an academic matter with the<br />
enactment <strong>of</strong> the First Republican Constitution, which eliminated Section 29(2) in its<br />
entirety.<br />
66 Queen v. Liyanage [1962] 64 NLR 313; Liyanage v. the Queen [1965] 68 NLR 265; The Bribery<br />
<strong>Commission</strong>er v. Ranasinghe [1964] 66 NLR 73; Senadheera v. the Bribery <strong>Commission</strong>er [1961] 63<br />
NLR 313.<br />
67 Muttusamy v Kannangara [1951] 52 NLR, 324; Corea v. the Queen [1954] 55 NLR 457.<br />
68 Mudanayake v. Sivanandasunderam, [1951] 53 NLR 25.<br />
69 Koddakkan Pillai v. Mudanayake [1953] 54 NLR 433.<br />
70 [1967] 70 NLR 121.<br />
71 [1969] 72 NLR 337.<br />
72 [1964] 66 NLR 73, at p. 78.<br />
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