{"id":86650,"date":"2019-03-21T16:46:43","date_gmt":"2019-03-21T23:46:43","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=86650"},"modified":"2019-03-21T16:46:43","modified_gmt":"2019-03-21T23:46:43","slug":"the-kandyan-convention-of-march-2nd-1815-is-still-a-legally-valid-document-therefore-all-royal-proclamations-and-instruments-of-governance-starting-with-the-royal-proclamation-of-nov-21st-1818-and-all","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2019\/03\/21\/the-kandyan-convention-of-march-2nd-1815-is-still-a-legally-valid-document-therefore-all-royal-proclamations-and-instruments-of-governance-starting-with-the-royal-proclamation-of-nov-21st-1818-and-all\/","title":{"rendered":"The Kandyan Convention of March 2nd 1815 is still a legally valid document therefore all Royal Proclamations and instruments of governance starting with the Royal Proclamation of Nov 21st 1818 and all laws enacted thereafter are illegal ? A point of view."},"content":{"rendered":"

Dr.Sudath Gunasekara. (SLAS) Retired Permanent Secretary to Mrs Sirimavo Bandaranayaka and President Senior Citizens Movement Mahanuwara<\/em><\/span><\/h2>\n\n\n

(This is an updated version of an article <\/em>published\non September 20th, 2010 in the Island)<\/em><\/p>\n\n\n\n

21.\nMarch. 2019<\/p>\n\n\n\n

To mark the completion of 204 years after signing the\nKandyan Convention<\/strong><\/p>\n\n\n\n

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\u00a0 is therefore not tenable.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

The\nConvention includes 12 sections of which the contents of the first two\nparagraphs and  Sections 2, 3, 4, 5 and 8\nare the most important.  <\/p>\n\n\n\n

This\nessay is not a comprehensive critique of the whole Convention.  It deals only with the subject of discussion\nunder the heading of this article.<\/p>\n\n\n\n

The\nConvention was unilaterally abrogated by Governor Brownwrigg by his Royal\nproclamation of 21st Nov 1818 in the wake of the 1818 Uva Rebellion against the\nBritish rule, the first freedom struggle by the natives against British\ndeception and repression.<\/p>\n\n\n\n

Since\nthis was an agreement between two sovereign States, such abrogation is legally\ninvalid. Even an amendment to that instrument, addition or its replacement by\nrepeal needs the explicit consent of both parties, for such amendment to be\nlegally valid. The Royal Proclamation of Nov 21 1818 had 56 sections by which\ncomplete British rule was imposed on this island nation by throwing the March\n2nd Convention in to the dust bin of history. It appointed a Board of Commissioners\nwith British Government Agents stationed all over the country under whom all\nlocal chiefs had to work. In other words this Proclamation consolidated full\nBritish rule over the whole Island. The last section (56) of the Proclamation\nSec (56) stated He (Governor) also reserves full power to alter the present\nprovisions as may appear hereafter necessary and expedient: as he requires, in\nhis Majesty\u2019s name, all officers civil and military, all Adigars, Dissavas and\nother chiefs, and all other His Majesty\u2019s subjects, to be obedient, aiding, and\nassisting in the execution of these or other his orders, as they shall answer\nthe contrary at their peril.  <\/p>\n\n\n\n

With\nthe unification of the Maritime Provinces with the Kandayn kingdom in 1833 and\nthe establishment of five provinces to cover the whole Island and appointing\nProvincial Agents of the British Government, British rule was fully and firmly\nestablished over the whole Island. This was further strengthened by increasing\nthe number of provinces to 9 by 1890 and dividing them in to districts\nthereafter that were put under the control of Governments Agents as the sole\nrepresentatives of the British Crown. <\/p>\n\n\n\n

In\nthe first place this decision by the Governor was legally flawed as Britain\ncannot abrogate a Convention drawn between the two countries unilaterally\nwithout getting the consent of the other party. There is also a court ruling\nagainst such actions in Campbell v Hall (1774) 1 Cowp 204, 98 ER 1045. The\nupholding of the Paul Peiris\u2019s judgment in the 1915 Wallahagoda Perahera case by\nthe Privy Council also has established the legality of the Kandyan Convention. To\nthat extent legally speaking, I opine the Kandyan Convention is still valid in\nlaw.  Nevertheless as the Sinhala nation\nwas brutally and completely massacred in the rebellion and were defeated, the\nnatives could not resist or rise up against the all-powerful military British\nrule any more. Thereafter the British suppressive and exploitive colonial rule\ngot firmly and fully established on Sri Lankan soil and continued until 1948,\nas the 1848 rebellion was also brutally and clinically suppressed.<\/p>\n\n\n\n

The\nword Convention was only once mentioned in Sec 2 in the Proclamation just to\nrefer to its date. But nothing was mentioned about ruthless manner in which the\nKandyan Convention had been ignored and abrogated by the British\ngovernment.  Any such ex-parte\nproclamation will have no legal validity unless the original agreement was duly\nrepealed. It appears that there was no protest by the locals either on this\ndraconian Proclamation by the Governor. So the presumption is that the Kandyan\nConvention died a natural death on the 21st of Nov.1818. All the powers of the\nnative chiefs were removed by this proclamation and they were made mere agents\nof the British Crown under the powers of the Governor. It also removed\nprovisions of Section 5 of the Convention and it was replaced with some mild\nreference to respect to priests and processions of Buddho religion, adding some\nnew provision to general protection to all other religions  This contravenes section 5 of the Kandyan\nConvention.  In sum the Proclamation has\ntightened the grip of the British authority over the Island and set the process\nof complete erosion of power of the local aristocrats and the Priests. How the\nBritish respected Sec 5 of the Kandyan Convention is no better demonstrated the\nway they treated Buddhist monks culminating, in the murder of Kudapola Nayaka\npriest by shooting by a firing squad in public.<\/p>\n\n\n\n

With\nthe unification of the administration of the Kandyan Kingdom and the Maritime\nProvinces in 1833 once again the country became one territorial unit after 1505\nand this laid the foundation for what we call Sri Lanka now (Ceylon as British\ncalled it then). <\/p>\n\n\n\n

The\nColebrook reforms of 1833 were followed by MaCallum Reforms (1912) Manning\nReforms (1922); The Donoughmore Reforms (1926) and the Soulbury Reforms\n(1948).  <\/p>\n\n\n\n

All\nthese reforms in this country were made either under royal Proclamations or the\nway the British wanted them to be enacted and all declarations and statutes\nthat inherited the illegal traditions of the trend set by the Proclamation of\n1818. In fact one can argue that even the Soulbury Constitution  of 1948 to that extent was not legally valid.\n<\/p>\n\n\n\n

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\u201d\u009d (Niyati ti Niiti\u201d\u009d).\u0081Rajuhi panccantta dhamman na samuccindiyanti ti niti\u0081punane\u201d). 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. \u00a0Therefore no one can say that we did not have a legal system o four own before the advent of British.\u00a0 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 <\/p>\n\n\n\n

 In this back ground the object of this note is\nto draw the reader\u2019s attention to some very important legal aspect of our\nConstitutions has not been given serious attention hitherto by our legal\nluminaries or the general public. I hope this point will open a new forum, for\na wider and open discussion on this issue.<\/p>\n\n\n\n

Going\nby the 1815 Convention Independence in 1948 should have been given to Sinhale\nas the convention was singed between the Chieftains of the Sinhale and\nBrownwrigg on behalf of Great Britain. \nBut it was given to a hybrid State called Ceylon. That is also\nunconstitutional. Therefore it is high time that we restore the name of the\ncountry as Sinhale at least now.<\/p>\n\n\n\n

There\nis also no mention anywhere in any of the subsequent legislations that followed\nthe 1818 Proclamation that the 1815 Kandyan Convention was repealed, though it\nwas physically thrown in to the dust bin of history by the British, ex-parte <\/em>by force by the British. The\n1972 Republican Constitution after 24 years of fake independence of 1948\ndeclared this country as an Independent Republic.  It repealed the 1948 Soulbury Constitution\nbut it also has not said anything about the Kandyan Convention. But it had\nrekindled the Sec 5 of the Kandyan Convention by inserting Sec 10 on Buddhism.\nThe 1978 Constitution also followed suit by inserting section 9 under which it\nsaid it gives the foremost place to Buddhism but it diluted Sec 5 of 1972 by\nimposing limitation on it by  Article 10\nand 14 (1) (e).<\/p>\n\n\n\n

 All these law makers appear to have acted on\nthe presumption that what they inherited from 1818 onwards was legal. But I\nthink the Kandyan Convention of 1815 is still valid in law as it had not been\nlegally repealed by any subsequent legislation up to date.<\/p>\n\n\n\n

 The Kandyan Convention was published as part\nof the legislative enactment of Ceylon and it is included as a chapter in the\nLegislative enactment Vol.X1 Chapt.390 (P376-378). It also appears in Vol XX.\nThis was done when Dr Nissanka Wijeratna was the Minister of Justice in the\n1977 government. The person behind this decision was Dr. Harischandara\nWijetunga the Officer In Charge of the Sinhala translation of the Legislative\nenactments at that time. There were two other persons involved in this historic\ndecision. They were W. J. M. Lokubandara, the present Hon. Speaker and Hector\nDeheragoda who was in charge of the English Edition.<\/p>\n\n\n\n

 This also confirms my contention that the\nKandyan Convention is still a living and valid part of our law. It is said that\nBrownwrigg\u2019s 1818 Nov 21 Proclamation was ratified by the British Parliament.\nIt also now appears as a Chapter in the legislative enactments of Sri Lanka\nunder Vol. XX Chap 638 (P319-329) under the title Declaration of British\nSovereignty. I wonder whether an illegal Proclamation could be declared legal\nby such ratification, by the British Parliament that represents only one party\nto the 1815 Convention. As such I opine that such ratification by the British\nParliament is null and void. Therefore I think the 1815 Convention still holds\ngood in law. In this back drop both the Proclamation of November 21. 1818 and\nall laws enacted after the prescribed date of that Proclamation and all actions\ntaken there under should stand illegal and questionable.<\/p>\n\n\n\n

 Last week I had the opportunity to attend a\npublic seminar organized by the Peradeniya University at the University\nAuditorium.  I was very happy that two\nprominent lawyers from Mahanuwara, Presidents Council Samantha Ratwatte and\nHarendra Dunuvila also expressed the same opinion in the course of their talks.\nSince I made my opinion public in in an article published\nin the Island in September 20th, 2010, I think it has\nto go down in history as the first occasion this argument emerged. In this\nbackdrop I invite our patriotic lawyers to pursue this matter seriously and\ntake legal action against the British government for all the crimes they have\ncommittee against this country, its people and their valuable culture and claim\ncompensation for all damages and destructions they caused to this nation. I\nthink this is the best time to take up this issue as they are trying to fix us\nfor human rights violation at UNCHR on bogus information given to them by the\nTamil Diaspora on their voting lists. I don\u2019t think we could ever have a better\ntime than this to expose the nakedness of British foreign policy.<\/p>\n\n\n\n

 One may get temped to think that this is only\nsome wild imagination of one man. But I think there is a strong and valid point\nin what I have pointed out above. Therefore I invite those interested,\nconstitutional experts, lawyers and all others interested to initiate an open\ndebate, a serious one too, on this all important issue at a time of our history\nwhen radical changes are taking place in the political scenario in this\ncountry, since Independence<\/p>\n","protected":false},"excerpt":{"rendered":"

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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[46],"tags":[],"class_list":["post-86650","post","type-post","status-publish","format-standard","hentry","category-dr-sudath-gunasekara"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/86650","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=86650"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/86650\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=86650"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=86650"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=86650"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}