சவுல்பரியும் குடியுரிமையும்Soulbury and the Citizenship Act
Independence arrived with a constitution that was praised in Westminster and a Citizenship Act that, within a year, would render almost a million Tamils stateless. Both were signed by the same hand.
The Soulbury Commission reported in 1945. Its constitution, passed at Westminster in 1947, contained a provision known as Section 29(2): no law was to be enacted that conferred a privilege on any community or imposed a disability on any community. It was, on paper, a guarantee. The Tamil leadership of the day accepted it. The British departed in February 1948 with the satisfaction of a constitutional order considered exemplary across the empire.[soulbury-constitution-1947]
Nine months later, in November 1948, the new parliament in Colombo passed the Ceylon Citizenship Act. The Act defined citizenship through descent in a way that the Up-Country Tamil community — brought to the central highlands by the British in the nineteenth century to work the tea estates — could not meet. Most of them could not produce paper proof of male-line ancestry on the island going back two generations. Within a year, nearly a million people — almost a sixth of the population — were rendered stateless inside the country of their birth.[hansard-ceylon-cit]
The Act was followed, in 1949, by the Indian and Pakistani Residents Act and the Ceylon Parliamentary Elections (Amendment) Act. Together they completed the disenfranchisement. The Up-Country Tamils, who had returned seven members to the first parliament, returned none to the second.
Section 29(2) of the Soulbury Constitution did not save them. The case of Kodeeswaran v Attorney-General, heard finally before the Privy Council in 1969, raised the question of whether Section 29(2) was justiciable at all. The constitutional guarantee that had reassured the Tamil leadership in 1947 was, in practice, a guarantee that could not be enforced.[kodeeswaran-case-1969]
It is important to be precise about what this chapter is and is not arguing. It is not arguing that the Soulbury constitution was a deception. The British negotiators believed in Section 29(2). Many of the Sinhalese politicians who voted for it in 1947 believed in it too. What the chapter is arguing is something narrower and harder: that a constitutional guarantee written into a single-state architecture, in a polity where one community holds an electoral majority and a separate community holds none, is structurally fragile. It is a promise that depends on the goodwill of the body it is meant to constrain. The 1948 Act demonstrated, within a year, exactly how fragile that kind of promise is.
The Up-Country Tamils are not the same community as the Northern and Eastern Tamils. They have their own history, their own institutions, their own political tradition. The chronicle will return to them. What is true of the Citizenship Act is that it was the first act of post-independence parliament to make explicit, in law, that the new state was not equally the state of all the peoples on the island. The architecture poured in 1815 had begun to be furnished.[tlte-citizenship-acts-dossier]
"Independence in 1948 was not the failure. The failure was that the constitutional safeguard was, from the first parliament, treated as advisory."