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In search of a formula for national reconciliation

By Somapala Gunadheera

(June 12, Colombo, Sri Lanka Guardian) Once upon a time when the Attanagalu Oya was in spate, a Sinhalese and a Muslim were crossing it in a boat. The boat capsized half way through and the Sinhalese true to tradition, started praying to God Kataragama for his salvation.

He was making a vow that he would offer seven pots of milk rice, seven fruits and a statue to the God if he was saved. The Muslim who was clinging on to the other end of the boat took a cue from his friend, although he had no faith in Kataragama. He started making a vow himself offering 700 pots of milk-rice, 700 fruits, 700 gold sovereigns, 700 elephants……….The Sinhalese could not suppress his inquisitiveness even at the point of death. He asked his friend,

"Are you mad Nana How can you afford all you promise?"

The Nana replied, "Don’t worry Iyyah. Damn the vow after we are ashore".

The following observations are made on the understanding that the promise to resolve the ethnic crisis after the war, was not influenced by the Nana of Attanagalla.

Activating the 13th Amendment

At the moment, the most favoured formula for national reconciliation appears to be the consolidation of the 13th Amendment (Amendment) and expansion beyond. According to reports, that happens to be what the APRC is struggling to recommend. The choice appears to be the most convenient because the Amendment is already in place in the Constitution.

The purport of the Amendment is decentralization of power and decentralization is intended to facilitate cultural differentiation, an essential tool for multicultural democracy. Decentralization provides a forum for the communities concerned to conduct their affairs within a common cultural background giving expression to their shared aspirations. It is expected that recognition of their identity within the nation would reduce the tensions that lead to conflict in a multicultural state.

Neville Ladduwahetty in his article on, "Group rights vs individual rights in the context of devolution" (The Island of 3rd June) questions the validity of this approach in our particular geo-political context. He argues that the implementation of the Amendment would grant political power only to the smaller segment of the Tamil community in the Northern Province. The larger segment would be outside the theater of devolved powers. Thus devolution does not address the rights of the Tamil community as a whole. The natural outcome would create discrimination among Tamils themselves by privileging the Tamils resident in the North over their own kind in the rest of the country.

The inherent inequity does not end there. What about the group rights of the Tamils in the Up-country or the Muslims in large concentrations in the East and elsewhere? None of them would get the opportunity to ‘conduct their affairs within a common cultural background giving expression to their shared aspirations’ in an exclusive environment as in the case of the North.

Gramarajya concept

Evidently the lofty intention behind the Amendment was to grant a voice to the respective minorities. Pragmatically the realization of that intention depends on the demography of the country to which it is supposed to apply. The states in India are sizable and by and large each state contains a preponderance of members of a particular tribe or race and that homogeneity renders the grant of self-rule meaningful.

On the contrary Sri Lanka is a tiny nation with its minorities thinly mixed and dispersed, a conspicuous exception being the Northern Province. For that reason devolution based on the prototype of India finds little relevance here. That does not mean to say that devolution of power which is an essential concomitant of a multicultural democracy, has no place in this country. Only that devolution has to suit the pattern of our demographic distribution, if it is to serve a purpose beyond publicity. The pattern here is such that not even a single district outside the North consists of a clear majority of persons forming a national minority.

In fact such a phenomenon can be found only at the bottom level, the village. At that level politics can find ethno-cultural expression not only for a racial minority but also for other demographic subdivisions right down to the caste system. Thus space for the minorities has to be built up from the village level through a structure that reflects the kaleidoscope of public opinion up to the top. That leads one to the Gr?mar?jya concept of our past. It is because we were not ready with a home-grown model of political integration even three decades after Independence, that India has had to superimpose their model on us as a ‘quick-fix’ for the ethnic dispute.

However it is too late in the day for us to disown the Amendment suddenly and start work on a new model. Realities of the situation would not permit such a drastic change immediately. Practically we have to live up to the undertakings given in the process of putting an end to the war. Once our credibility is established and the lopsidedness of the Amendment becomes apparent to all, attempts will have to be made to fuse the Gr?mar?jya concept with the superimposed model.

Securing individual rights

The Amendment is only a response to group rights. As important as the group rights, if not more important, are the individual rights of the minorities. The principal rights involved here are those pertaining to,

· Language

· Religion

· Equality

· Dignity

· Freedom

It is known that the JHU, JVP and the NFF are opposed to the implementation of the Amendment on the argument that it would lead to dilution of power at the centre and disintegration at the periphery. That is a political objection whereas Ldduwahetty’s argument against the Amendment is functional. In any case, JHU with its Buddhist orientation of tolerance and the other two parties with their socialist approach are unlikely to object to the grant of individual rights to the minorities. The UNP has always declared its readiness to grant such rights. Thus there would be a much broader consensus for the grant of individual rights as against group rights, to the minorities.

Victor Ivan’s observes (The Island, 01.04.09) that the main ingredients of the package of rights for the Tamils, have already been written into JR’s otherwise Bahubootha Constitution.

"While the Sinhala Language continues to be the Official language (Art. 18) both Sinhala and Tamil languages were accepted as National languages (Art. 19). The right to be educated in any of the national languages was ensured (Art. 21–1). The right is also ensured for the people of North and East to communicate with officials in the national language used for administrative purposes. (Art. 21-3).

Constitutional validity was given to the regulations approved under the Tamil languages (Special Provisions) Act No. 28 of 1958 by including them in the Constitution. The right to use a language of one’s choice was ensured in Art. 14 (1) (f)."

Rights pertaining to religion, dignity and freedom are protected in general by Art. 12 of the Constitution that grants equality to all citizens. They are further specifically secured under Articles 10 (Religion), 11 and 13 (Dignity) and 14 (Freedom). Victor Ivan argues, "The provisions stipulated in the Constitution regarding fundamental rights, were even more important to minorities. Seeking relief from the judiciary in the event of a breach of a right was assured by this provision."

From his own experience, Victor Ivan aught to have realized how difficult it is to seek ‘relief from the judiciary’. Without seeking to divulge professional secrets, I can vouchsafe to the fact that Rights litigation is expensive and cumbersome. Besides Art. 126 fixes a stiff limit of one month for action and brings only administrative action under its purview. Legislative and judicial violations find no forum. TransBoldgressions by private parties, individual or collective, are not contemplated by the Constitution.

A Bill of Rights

These infirmities call for a more robust and foolproof mechanism to ensure individual rights. The answer to this demand appears to be a Bill of Rights (BR), as hinted by Ladduwahetty at the end of his essay. The purpose behind a BR is to protect the rights named therein from infringement by the respective organs of government. An official legal BR holds more authority than normal legislation. It cannot be repealed just like any other law, without going through a procedure specially prescribed for its amendment. Such entrenchment is a necessary precaution against tinkering with the rights by the majority at their whim and fancy and to their advantage against the interests of the minorities.

Thus the rights to be enshrined in the BR are as important as the conditions of its entrenchment from the point of view of the minorities. They should be clearly acceptable to the minorities if they are to trust the instrument without hesitation. Such trust is dependent mainly on the safeguards provided in the BR to ensure its immunity to majoritarian invasion. In the background of the problems of FR litigation under the Constitution, the process of adjudication on matters arising from the Bill will have to be written into it in the nature of a Tribunal similar to an Equality Commission. Provision has to be made for any dissatisfied party to access the Tribunal identified by the BR, without cost and trouble through Epistolary (by letter) or public interest litigation or an official prosecutor.

In colonial times the Privy Council provided an outlet for those dissatisfied with the decisions of the local judiciary. The fact that some of those decisions were reversed focuses on the need to obtain an independent opinion on controversial cases, particularly those loaded with sectarian emotion. The Sri Lankan Judiciary has a reputation for impartiality but even judges, not being saints, are exposed involuntarily to prejudice based on their particular cultural environment. The need to guard against this danger is uppermost in cases involving ethnic disputes. For this reason it would be equitable to open an external outlet for reviewing decisions arising from the BR. Such mechanism will not only enhance transparency but also grant credibility to the decision concerned.

Such a mechanism already exists in the accession to the Optional Protocol to the ICCPR signed by President Chandrika Kumaratunga in 1997. The problem however, is that we have not responded positively to recommendations made on appeals submitted by nationals under the Protocol. The application by Nallaratnam Sinharasa to secure domestic implementation of the UNHRC’s findings on his appeal is an apposite case in point, particularly because it pertains to an ethnic issue. If the proposed BR is to have any meaning to the minorities, it is imperative that the instrument specifically provides for compulsory implementation of UNHCR’s decisions, (contrary to the attitude of its sitting High Commissioner).

Failures of the executive

Tardiness of implementation is the crux of the matter more markedly in the executive sphere. The impressive constitutional concessions to the minorities listed by Victor Ivan are often observed in the breach. A simple example is the language of communication to the minorities. Once I was listening to the BBC interviewing a Sinhala-proficient lady living in the Vanni. She claimed to be the unofficial interpreter for official letters in Sinhala received by Tamils living in the area. Her innocent remark at the interview was a damning indictment on the executive. She said, "We don’t ask for much. We will be happy if the letters sent to us by the government can be understood without having to run all over the place for a translator’.

Another area of executive lethargy pertains to religious intolerance. Although Art. 14 (e) generously grants the freedom to manifest one’s "religion or belief in worship, observance, practice and teaching", over 300 attacks against religious minorities including burning of churches over a period of four years are on record. Yet the Government of Sri Lanka has failed to prevent the violence or to prosecute the perpetrators. What is needed is prevention through foolproof security coverage. Knowing the exact number of police teams appointed to investigate after the event gives no satisfaction in the absence of information as to who the perpetrators were and how they were brought to book.

Instances of administrative failures to implement the fundamental rights of the people are legion. These two instances have been cited only as representative examples to stress the fact that legislative reforms to guarantee the rights of the minorities are meaningless until their implementation is assured under well defined structures and procedures. Condign punitive sanctions against failure of implementation have to be written into the statute book. Conventional ‘disciplinary action’ barks well but seldom bites. That explains the lackadaisical attitude of the administration towards human rights. Rectifying that attitude is an essential ingredient in the campaign to win over the minorities.
-Sri Lanka Guardian

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