The Sunday TimesPlus

22nd Septemeber 1996



Book review

Ideology and the constitution: essays on constitutional


by Radhika Coomaraswamy

Reviewed by k. Rasaiah

The collection of essays by Radhika Coomaraswamy under the rubric "Ideology and the Constitution" is a very enlightening and instructive book on constitutional jurisprudence, invaluable not only to students in political science but also to lay persons as well. It is written in lucid language and covers a wide range of relevant subjects.

The constitution of Sri Lanka, ever since independence was granted by the British, was based on the West Minster model of parliamentary government. This constitution prevailed for nearly 25 years, till it was replaced by the Republican Constitution drafted by the UF Government in 1970. Unlike the Indian one which was an autochraneous one drafted by a body of eminent men of India headed by Jawaharlal Nehru, our government and legislations made no attempt to frame a constitution representing or reflecting the views and aspirations of all the parties and communities inhabiting the land, but one foisted on us by party in power.

The unitary state of the government on the West Minster system of democracy based on majoritarian views and rules fostered communal and ethnic strife. The National Assembly or the Parliament was the supreme body with 2/3 majority and unlimited powers. This resulted in complete politicisation of public life along partisan political lines. Buddhism was given an elevated place and Sinhala was enthroned as the official language. This resulted in the breakdown of ethnic relations and heralded the beginning of Tamil separatism. The author traces the history of this period pointing out the deficiencies and shortcomings of the constitution especially the 1978 one which replaced the Republican one within a decade by an Executive Presiding with plenipotentiary powers and the outcome was the insurrection of the youth in the south and the ethnic violence and terrorism in the North & East.

The 1978 constitution envisages also more reforms than the previous one and it was framed on the British and French style of government with a little US style also. With 4/5 majority the parliament and the Executive Presidency became authoritarian. But some of the beneficial features of this constitution was the provision of fundamental rights being made justifiable with a Bill of Rights enshrined, independence of the judiciary and public service ensured and more equitable language and citizenship rights provided. Further the constitution was amended twice to give a measure of devolution and Tamil was made an official language. Thus it became more plural and democratic. It is essential for the upward progress of the country, the racial groups that comprise or constitute the country must live in communal harmony, peace and unity. (This is a secular state).

Further the chapters, 3 8 following the preceding two chapters give a review of the civil liberties human rights, ethnicity, civil and political rights, legitimacy and the Sri Lankan constitution, devolution, law and judicial construction and the last chapter deals with a discussion on parliamentary democracy and the presidential system.

In brief the author explains that the South Asian countries have not developed the framework of polity (govt.) where civil and political rights can progress. The right to life, flows from which all other rights, flow has been violated by the state and other agencies. In these countries more ethnicity and human rights and the structure of pluralism are becoming very important issues and likely to destroy the social fabric and this has now taken a heavy toll in our country. In certain countries like Pakistan, Philippines & Korea the human rights activity has helped to transform them form authoritarian rule to democracy. The law must be enforced to promote human rights.

In the chapter 'Devolutionary law and judicial construction' the author analyses with clarity issues for devolution and judiciary construction citing cases and recommending measures overcoming controversial issues.

In Legitimacy and the Sri Lankan Constitution she says that frequent amendments would result in the fundamental aspect being lost and its legitimacy in question. It becomes a periodical as claimed by Dr. Colvin R. De Silva. The constitution also should not be amended to gain tactical advantage for the party in power. e.g.:

(a) Deprivation of Sirima Banadaranaike's rights preventing her from becoming a formidable candidate at the Presidential Election.

(b) Preventing the crossing over of opposition members to the government ranks and preventing vice versa - C. Rajadurai becoming a member.

(c) Referendums in place of general elections.

The author in conclusion advocates a realistic approach and enumerates some cardinal principles which should be embodied in the constitution as permanent laws without any amendment or annulment for good governance.

A perusal of the book leaves one with a broader and better outlook on the controversed issues that have plagued the country for more than a decade. Books of this nature must be made available to the public at reasonable rates in both official languages for their enlightenment and edification.

From Arabia to Thalduwa

by Jennifer Paladano

Wajya Waidyasekera Duwegoda Ranasinghe Mudiyanselage M. M. M. Irshad is an Ayurvedic physician. What sets him apart, his impressive name notwithstanding, is the fact that he is a descendant of the lineage of royal physicians who served King Rajasinghe 1 of Seethawaka. Irshad belongs to the fourteenth generation.

How Irshad's ancestors came to Talduwa in Avissawella during the reign of Rajasinghe 1 is a tale worth relating. The story goes that Rajasinghe's queen suffering from an incurable ailment had been attended to by many renowned physicians without success. When Irshad's ancestor arrived the king with a desire to test his competence had tied a thread to the foot of a table and given it to the physician. He rightly recognised it as a lifeless nerve. Next the thread was tied to the foot of a cat and yet again he identified it correctly. Thirdly the thread was tied to the queen's hand and the physician recognised it as the nerve of a living being. The king taken up by his cleverness assigned him the task of curing the queen. When the queen was cured completely, the king as an act of tribute settled the Muslim physician and his family in Talduwa. Irshad claims that almost half of Talduwa once belonged to their family. But today nearly after four centuries have passed Muslims are spread all over Thalduwa. Although they are not closely related, Irshad feels that they too must be descendants of his physician ancestor.

Even today one is bound to come across villages in Kandy and certain families in Avissawella who are direct descendants of Muslim traders who served Sinhala kings. They still bear "ge" names like Vedharalalage, Beth ge, Muhandiramralalage, Mudiyamselage, etc. These "ge" names indicate the village they lived in or the position they held. With the end of the monarchy many of them had to abandon their original occupations and opt for others. However there are still a few descendants who continue with their traditional occupations. Descendants of Ayurvedic physicians pass on their knowledge from father to son, and continue to treat patients according to age old remedies.

The Muslim physicians of yester year opted to practise the Sinhala Ayurveda system under the Buddhist monks. Although some practised the Middle Eastern "Yunani" system, most of them gave it up in place of the local method.

Irshad claimed that all his ancestors even his father had studied under monks. He had studied for three years in a temple. Most of their medicinal recipes are written on ola leaf in Sanskrit. They are forced to learn Sanskrit to prepare the medicines. Irshad still possesses a number of ola leaf writings in Sanskrit, Sinhala and Tamil. His ancestors specialised in curing skin diseases and paralysis, and even today people arrive in their numbers from as far as Maldives to meet Irshad.

Irshad's story is symbolic of the rich and diverse cultural tapestry of social life in our little island.

When trail blazing travellers and enterprising Arab traders came to Sri Lanka thousands of years ago, their pioneering spirit enriched our nation's history. Their advent paved the way for a once secluded island to be exposed to a quantum of new experiences. Today a few Muslim communities spread around the country symbolise this link with the past. These Muslims once served the kings of Sri Lanka and to this day proudly maintain the royal titles bestowed on them. Most of the Muslim traders impressed the monarchs of the past so much that the kings readily settled them in Ô"nindagam" and engaged them in different royal departments.

According to historical records, although there were as contact with the Arabs in the early Anuradhapura period, the real turning point occurred with the emergence of Islam in the seventh century. At this juncture the Muslims were imbued with the spirit of entrepreneurship and a desire to propagate their religion.

According to historian Dr. Lorna Dewaraja who has conducted extensive studies on the Muslims of the Kandyan kingdom, Sri Lanka's location in the middle of the Indian ocean with Mahathiththa, the great port of Mannar and Jambukola Pattanam of Jaffna connected through a highway to Anuradhpura prompted traders to travel to the interior. Even today there are tomb stones of some of these Muslims which bear witness to their travel.

Muslims also came to Sri Lanka as pilgrims. Just as Adam's Peak is important to Buddhists, so was it to Muslims at one time. Some believed that Adam's foot print was at the top of the rock while others thought that Adam's tomb was on the rock. Even the famous globe trotter Ibn Batuta states that Adam's tomb on the rock attracted large numbers of Muslim pilgrims.

In the process of conducting trade the Arabs settled and integrated into the larger fabric of society. They lived amicably with the other communities until the Portugese arrived. The Portugese and the Arabs were political and trade rivals at that time, and hence the Portugese were all out to persecute the Muslims and curb the spread of Islam.

The Muslims in turn took refuge in the Kandyan Kingdom. It was here that the Muslims were 'naturalised' and settled in different parts of the island. The men married Sinhala women and this helped them easily integrate into the Sri Lankan culture. These settlements grew with women and children becoming Muslims. Dr. Dewaraja stressed that the Kandyan King was tolerant towards other religions.

The real integration of Muslims into the Sinhala social structure took place between the 16 and 18 centuries in the Kandyan region, while Rajasinghe 1 of the Seethawaka Kingdom donated land to Muslims in the 16 century.

"They were integrated into the "badda" system of the kingdom. The king as the upholder of the social system had the right to assign anything to even aliens or indigenous people. Different people were assigned to the king's various departments. The newly settled Muslims were handed the "Madige Badda" or the transport department." explained Dr. Dewaraja.

Ò Some say that the Muslims carrying memories of their Camel driven caravans substituted it with a local "thavalama". This once trading community had close ties with the coast, which the Sinhala monarchy lacked as the Portugese and later the Dutch held the monopoly. They bartered arecanuts for salt and fish. They collected necessary articles from every harbour in the island. The Kandyan King realising the advantages treated them kindly."

The Sinhalese have traditionally occupied the status of agriculturists. They were never clever at trade. The monarch realising this as a drawback in exporting local resources, considered the industrious and enterprising Muslims to be an appropriate substitute. There are even a few recorded instances where Muslims were sent as envoys on special missions abroad. The Muslims were well versed in Sinhala, Tamil and even Portugese. The Kandyan king usually selected very loyal Muslims to be sent on missions to South India.

"When the Muslims fled from Portugese persecution and settled in areas of their choice, the king readily welcomed them as agriculture had declined considerably and the importance of trade came to the forefront."

A sign of religious tolerance is evident during this period for Muslims were allowed to live not only in Nindagam but also in Viharagam, land belonging to the temple. According to Dr. Dewaraja the Ridi Viharaya in Kurunegala owned the Rambukkandana village, where up to date Muslims continue to live. The monks had generously given vihara land to build a mosque. Extra land had been given in addition for a Muslim holy man to reside so that he could look after the spiritual needs of the people.

In return for the land given to them, the Muslims cultivated their fields and carried the grain to the royal granary. This was part of the tax they had to pay the monarchy for occupying royal land.

"The services provided by the Muslims to the Temple was highlighted as a sign of religious tolerance by a British Service Tenure Commissioner. This concept of peaceful co-existence is unique in the annals of history. For we must view this in the background of the entire world where blood was shed in the name of religion", said Dr. Dewaraja. It is important that the Muslims came to Sri Lanka not as a conquering people and it is natural that the King to tolerated them. They did not have traditional villages and were moreover flexible. They were involved in the socio-economic-political fabric of the Kandyan kingdom.

Since the Muslims were in charge of transport there are still villages in Kandy bearing the name "Madige Gama" where only Muslims live. Dr. Dewaraja pointed out that the Muslims socialised with all segments of Sri Lankan society, but they would never compromise their religious beliefs with anything. In fact the king allowed them to maintain their own laws and try their offenders accordingly.

Dr. Dewaraja said that the Muslims not only served the king as physicians, but also as traders ,soldiers, lekams and Disavas. They were often given the title Madige Badda Disava and Madige Badda Lekam.

The Muslims who carry their royal titles up to date are proud to retain a link with history. Muslims with Sinhala "vasagam" are to be found all over the country. For instance Fr. Queyroz, a Jesuit Historian complained that the king of Kandy had settled 4000 Muslims in Batticaloa with land. He complained that the king was strengthening the enemies of the Portugese. Thus similar Muslim communities are in existence not only in Kandy, but also in the South and several other areas of Sri Lanka. These people have no intention of changing their "ge" names because as in the past they have had no hindrance in practising their religion. After all what's in a name.

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