Dr.Sudath Gunasekara. (SLAS) Retired Permanent Secretary to Mrs Sirimavo Bandaranayaka and President Senior Citizens Movement Mahanuwara

(This is an updated version of an article published on September 20th, 2010 in the Island)

21. March. 2019

To mark the completion of 204 years after signing the Kandyan Convention

The Kandyan Convention of 2nd March 1815 was the document under which this country was ceded to the British crown under mutual agreement. It was drawn between Great Britain and Sinhale, two independent Kingdoms. Since it was singed at Kandy, the capital of the Sinhale at that time, it had been named after that name. Nevertheless in paragraph 1 it is clearly mentioned that it was drawn between Great Britain and Sinhale Kingdom. It should also be noted that this country was never conquered by the British at war however powerful they may have been. The common notion among the anti-Kandyan circles that it had been betrayed by the Kandyan chieftains  is therefore not tenable.

The heroic Sinhala people have defended it for 310 years, from 1505 to 1815 against three powerful invaders with unlimited gun power, Portuguese, Dutch and the British. Finally it was ceded to the British through intrigue and deceitful maneuvering with false promises by John Doily, the cleverest spy Britain had ever produced.

The Convention includes 12 sections of which the contents of the first two paragraphs and  Sections 2, 3, 4, 5 and 8 are the most important. 

This essay is not a comprehensive critique of the whole Convention.  It deals only with the subject of discussion under the heading of this article.

The Convention was unilaterally abrogated by Governor Brownwrigg by his Royal proclamation of 21st Nov 1818 in the wake of the 1818 Uva Rebellion against the British rule, the first freedom struggle by the natives against British deception and repression.

Since this was an agreement between two sovereign States, such abrogation is legally invalid. Even an amendment to that instrument, addition or its replacement by repeal needs the explicit consent of both parties, for such amendment to be legally valid. The Royal Proclamation of Nov 21 1818 had 56 sections by which complete British rule was imposed on this island nation by throwing the March 2nd Convention in to the dust bin of history. It appointed a Board of Commissioners with British Government Agents stationed all over the country under whom all local chiefs had to work. In other words this Proclamation consolidated full British rule over the whole Island. The last section (56) of the Proclamation Sec (56) stated He (Governor) also reserves full power to alter the present provisions as may appear hereafter necessary and expedient: as 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. 

With the unification of the Maritime Provinces with the Kandayn kingdom in 1833 and the establishment of five provinces to cover the whole Island and appointing Provincial Agents of the British Government, British rule was fully and firmly established over the whole Island. This was further strengthened by increasing the number of provinces to 9 by 1890 and dividing them in to districts thereafter that were put under the control of Governments Agents as the sole representatives of the British Crown.

In the first place this decision by the Governor was legally flawed as Britain cannot abrogate a Convention drawn between the two countries unilaterally without getting the consent of the other party. There is also a court ruling against such actions in Campbell v Hall (1774) 1 Cowp 204, 98 ER 1045. The upholding of the Paul Peiris’s judgment in the 1915 Wallahagoda Perahera case by the Privy Council also has established the legality of the Kandyan Convention. To that extent legally speaking, I opine the Kandyan Convention is still valid in law.  Nevertheless as the Sinhala nation was brutally and completely massacred in the rebellion and were defeated, the natives could not resist or rise up against the all-powerful military British rule any more. Thereafter the British suppressive and exploitive colonial rule got firmly and fully established on Sri Lankan soil and continued until 1948, as the 1848 rebellion was also brutally and clinically suppressed.

The word Convention was only once mentioned in Sec 2 in the Proclamation just to refer to its date. But nothing was mentioned about ruthless manner in which the Kandyan Convention had been ignored and abrogated by the British government.  Any such ex-parte proclamation will have no legal validity unless the original agreement was duly repealed. 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. All the powers of the native chiefs were removed by this proclamation and they were made mere agents of the British Crown under the powers of the Governor. 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 complete erosion of power of the local aristocrats and the Priests. How the British respected Sec 5 of the Kandyan Convention is no better demonstrated the way they treated Buddhist monks culminating, in the murder of Kudapola Nayaka priest by shooting by a firing squad in public.

With the unification of the administration of the Kandyan Kingdom and the Maritime Provinces in 1833 once again the country became one territorial unit after 1505 and this laid the foundation for what we call Sri Lanka now (Ceylon as British called it then).

The Colebrook reforms of 1833 were followed by MaCallum Reforms (1912) Manning Reforms (1922); The Donoughmore Reforms (1926) and the Soulbury Reforms (1948). 

All these reforms in this country were made either under royal Proclamations or the way the British wanted them to be enacted and all declarations and statutes that inherited the illegal traditions of the trend set by the Proclamation of 1818. In fact one can argue that even the Soulbury Constitution  of 1948 to that extent was not legally valid.

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”).Rajuhi panccantta dhamman na samuccindiyanti ti nitipunane”). It further identifies three broad division in law .They are a) Raja niiti, b) Dharmaniiti and Loka Niiti. Raja Niti is law enacted 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.  Therefore no one can say that we did not have a legal system o four own before the advent of British.  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

 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 has not been given serious attention hitherto 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.

Going by the 1815 Convention Independence in 1948 should have been given to Sinhale as the convention was singed between the Chieftains of the Sinhale and Brownwrigg on behalf of Great Britain.  But it was given to a hybrid State called Ceylon. That is also unconstitutional. Therefore it is high time that we restore the name of the country as Sinhale at least now.

There is also no mention anywhere in any of the subsequent legislations that followed the 1818 Proclamation that the 1815 Kandyan Convention was repealed, though it was physically thrown in to the dust bin of history by the British, ex-parte by force by the British. The 1972 Republican Constitution after 24 years of fake independence of 1948 declared this country as an Independent Republic.  It 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 1978 Constitution also followed suit by inserting section 9 under which it said it gives the foremost place to Buddhism but it diluted Sec 5 of 1972 by imposing limitation on it by  Article 10 and 14 (1) (e).

 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 Brownwrigg’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.

 Last week I had the opportunity to attend a public seminar organized by the Peradeniya University at the University Auditorium.  I was very happy that two prominent lawyers from Mahanuwara, Presidents Council Samantha Ratwatte and Harendra Dunuvila also expressed the same opinion in the course of their talks. Since I made my opinion public in in an article published in the Island in September 20th, 2010, I think it has to go down in history as the first occasion this argument emerged. In this backdrop I invite our patriotic lawyers to pursue this matter seriously and take legal action against the British government for all the crimes they have committee against this country, its people and their valuable culture and claim compensation for all damages and destructions they caused to this nation. I think this is the best time to take up this issue as they are trying to fix us for human rights violation at UNCHR on bogus information given to them by the Tamil Diaspora on their voting lists. I don’t think we could ever have a better time than this to expose the nakedness of British foreign policy.

 One may get temped to think that this is only some wild imagination of one man. But I think there is a strong and valid point in what I have pointed out above. 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