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Selected Writings by Nadesan Satyendra - நடேசன் சத்தியேந்திரா

Language Provisions of 1978 Constitution

Sri Lanka Ceylon Daily News, 4 October 1978

A people who desire peace and development must cultivate justice and the provisions relating to language in the new Constitution may rightly he regarded as a measure of the commitment of the people of Sri Lanka to achieve a fair balance in the area of language rights as well as a reflection of their felt need to secure justice as between the two major communities that inhabit this country and who have come to regard this land as their home. The language provisions of the new Constitution represent a watershed in the development and growth of the Sri Lankan state and therefore merit something more than passing consideration from each one of its citizens.

National Language

Many years ago in 1958, the Sri Lanka Freedom Party Minister of .Justice in the Bandaranaike Government when introducing the Tamil Language (Special Provisions) Act in the Senate remarked that the "question of the official language itself has been occasionally misunderstood by people" and went on to point out, quite rightly, that "by official language is meant the language of record for public purposes". In a State where more than seventy percent of its people belong to the Sinhala community and speak the Sinhala language, it is perhaps, a matter of convenience that, as a general rule, the language of records for public purposes should be Sinhala and this the new Constitution recognises and section 1 8 provides that the official language of Sri Lanka shall be Sinhala. 

But for the first time in the political history of this country the new Constitution recognises the existence of the Tamil community as a distinct nationality with a separate language and section 19 provides that the national languages of Sri Lanka shall be Sinhala and Tamil. This is a step which previous governments have been unable or unwilling to take and the status afforded to Tamil as a national language in the new Constitution is in itself a significant step forward in the attempt to bring about a unity of purpose amongst members of the Sinhala and Tamil communities in this country and thereby foster the growth of a truly national awareness and consciousness. A constitution is concerned with constituting and constitutional provisions are but the ground rules which constitute a State. It is wholly appropriate therefore that the Sri Lankan state should be constituted on the basis of the recognition of the Tamil community as a distinct nationality with its own language and culture and the acceptance of Tamil as a national language.

It may however be legitimately asked whether the status afforded to Tamil as a national language by section 19 of the new Constitution is merely an empty gesture devoid of tangible content. Is section 19 merely an attempt to placate sentiment ? What are the practical consequences of Tamil being made a national language of Sri Lanka and to what extent do the new language provisions satisfy the rightful aspirations of a national minority ? Answers to questions such as these must be found by an examination of not only section 19 but also of the immediately succeeding sections of the Constitution which relate to the use of the Tamil language in the legislative process, in education, in administration and in the courts and such an examination may most usefully be made in the context of an understanding of the legitimate rights of a national minority in the area of language.

Basic Rights

What are these rights and from where do they spring? The State exists to protect amid serve all its people, irrespective of race, religion or language and it is on this basis that the people, in turn, give their allegiance to the State. It is this allegiance which cements the constitution of the State. If a State seeks the continued loyalty of its citizens it must treat them equally and this means that in a multinational state, a national minority cannot be required to change its language and speak in the language of the majority, as a condition precedent to the State rendering service or giving protection. No State can survive if there is continued discrimination against any section of its people on the ground that such section belong to any one community or speak any one language. Where such discrimination becomes a way of life, it will not be possible for people belonging to different nationalities and languages to live peacefully together within the confines of a single political state. This is common sense amid not surprisingly it is also a lesson of history. 

The recurrent claims of the French in Canada and of the Scots and the Welsh for devolution in Great Britain show the need to recognise that matters of language and culture are deep seated in the human consciousness and can neither be ignored nor suppressed. It is said that in a democracy people govern themselves and this means that in a political state which consists of more than one nationality effective democracy will not be possible unless the members of each nationality are able to participate in the legislative process in their own language, transact business with the State in their own language, present their claims and disputes for adjudication in their own language and if they choose to do so educate their children in their own language. If these then are the basic civil rights in the area of language to what extent do the provisions in the new Constitution secure and guarantee such rights?

Legislation

Section 21 of the new Constitution provides that a Member of Parliament or a Member of a Local Authority shall be entitled to function in Parliament or in any Local Authority in either of the national languages and section 23 requires that all laws and subordinate legislation shall be enacted in both national languages. This represents a distinct departure from the past when the right of a Member of Parliament to participate in proceedings in Tamil was a matter that was governed by the Standing Orders of the National State Assembly and were subject to alteration by the legislature by a simple majority. In 1960, for instance, there was much controversy in the House of Representatives in respect of the question whether Order Papers should be printed in the Tamil language. 

The provisions of the new Constitution secure for the first time in Sri Lanka a constitutional guarantee In respect of the fundamental right of a Member of a national minority to function in his own language In the national legislature as well as in any Local Authority, wherever such Authority may be established. These provisions give a new constitutional status to Tamil and protect and guarantee its use in the legislative process and taken in the context of the decision of the government to publish electoral registers in both national languages they may be understood as reflecting an intent to draw the Tamil community into the main stream of legislative and political activity in this country.

Education

Section 21 (1) of the new Constitution enacts that a person shall be entitled to be educated through the medium of either of the national languages. This section confers a constitutional right on a member of the Tamil community to be educated in the medium of the Tamil language. In the past the entitlement of a Tamil pupil to be instructed through the medium of the Tamil language was subject to such regulations under the Education Ordinance relating to the medium of instruction as may be in force from time to time. The right of a member of a national minority to be educated in his own language was not protected by the 1972 Constitution. Section 21 (2) of the new Constitution goes further and provides that where one national language is a medium of instruction for any course in an University the other national language shall also be made a medium of instruction for such course. Taken in the context of the decision of the Government to abolish standardisation, sections 21(1 ) and 21(2) of the new Constitution may rightly be construed as an attempt to bridge time differences that have arisen between the Sinhala and Tamil communities in the area of education.

Administration

Section 22 of time new Constitution enacts that time official language shall be the language of administration throughout Sri Lanka but this is subject to the proviso that time Tamil language shall also be used as time language of administration in the Northern and Eastern Provinces. The 1972 Constitution failed to give a constitutional guarantee in respect of the use of the Tamil language in the Northern and Eastern Provinces and restricted the right to use the Tamil language even in these areas to such matters as may he prescribed from time to time by regulations under the Tamil Language (Special Provisions) Act. Section 8 of the 1972 Constitution further expressly enacted that any such regulation "shall not in any manner be interpreted as being a provision of time Constitution", and even the validity of the regulations framed under the Tamil Language (Special Provisions) Act were made suspect in consequence of allegations that these regulations were ultra vires the Act. The new Constitution therefore gives, for the first time, constitutional recognition of the special status of the Tamil language in the Northern and Eastern Provinces, and guarantees its use as a language of administration in these two areas.

But this is not all. Section 22 also confers a constitutional right, on any person, wherever he may reside in Sri Lanka, to communicate with, receive communications from and transact business with any official in either of the national languages. This section further provides that all notifications and official documents including circulars and forms shall be published in both national languages. These land mark provisions seek to secure the basic right of a member of a national minority to deal with the State without any disadvantage in consequence of his lack of knowledge of the official language. They recognise the fundamental right of a member of the Tamil community to transact business with the State in his own language - a right which the Tamil community has sought in vain from previous governments.

On the question of admission to the public service, section 22 of the new Constitution enacts that an applicant shall be entitled to be examined through the medium of either of the national languages. This is subject to the condition that the entrant may be required to acquire a sufficient knowledge of the official language within a specified period "where such knowledge is reasonably necessary for the discharge of his duties ". This section represents an attempt to achieve a pragmatic solution to the problem of public servants acquiring proficiency in the official language in the context of the circumstance that more than seventy percent of the people served by such public servants belong to the Sinhala community and much will depend, no doubt, on effective implementation.

Courts

Section 24 of the new Constitution enacts that the official language shall be the language of the courts throughout Sri Lanka but this is subject to the proviso that the language of the courts in the Northern and Eastern Provinces shall also be Tamil. Here again for the first time, constitutional recognition is given to the special status of the Tamil language in the Northern and Eastern Provinces. But even in other parts of the country where Tamil is not the language of the courts, section 24 enables any party or any Attorney-at Law to initiate proceedings and submit to court pleadings and other documents and participate in court proceedings in either of the national languages. Again, any party or any Attorney-at-Law who is not conversant with the language used in any court shall be entitled to interpretation into the appropriate national language to enable him to understand and participate in proceedings before such court. The new Constitution thus guarantees and protects the right of a member of a national minority to present or defend a claim and participate in court proceedings in his own language.

Finally, section 25 of the new Constitution casts a duty upon the State to provide adequate facilities for time use of the national languages as specified in the Constitution.

Not paperwork

This brief examination of the language provisions of the new Constitution shows not only that Tamil has been given a new constitutional status as a national language, but also that the use of the Tamil language in time areas of legislation, education, administration and justice, has been secured by constitutional guarantees. These constitutional guarantees protect, in so far as constitutional provisions can protect any right or liberty, the basic and fundamental language rights of the Tamils of Sri Lanka as a national minority. 

It is sometimes said that constitutions are but pieces of paper and that where liberty and freedom dies in the hearts of men, no constitution, no court and no law can be of any avail. Admittedly, the effective implementation of fundamental rights and guarantees depends more on administrative action than on laws; more on tradition, politics and education than on constitutional enactments. 

But constitutions also crystalize that which is in time hearts of men and are a reflection of the desires and intent of a people at any given time in their history. Whilst it may be true that only the political culture of a country can preserve basic freedoms, it is equally true that constitutions and the placing of fundamental rights and guarantees in them, have something to do with guiding that culture. It would seem unwise and imprudent for any citizen of this country to dismiss the language provisions in the new Constitution as a mere exercise in paper work. Perhaps we should ask ourselves that if indeed this were a mere exercise in paper work, why it was that no such paper was forthcoming during the past several decades.

The language provisions in time new Constitution are not concessions granted as a matter of generosity or wrested from time weak by a show of force. It may be more fruitful and constructive to act on time basis that these language provisions are the resultant of the desire of many sections of the people of this country that the time has come when we should pool our resources and work together in an attempt to find some answers to the pressing problems of economic development that faces Sri Lanka today. The language provisions reflect, above all, a strength and the willingness to enact that which is right and there may be a need for an answering strength from all sections of the people of this country to join together in the task of securing time effective implementation of that which has been enacted.