Rights of Minorities in Sri Lanka - Legislation and their Implementation
Rights Of Minorities in Sri Lanka - Legislation
and their Implementation
(A copy of a brief presentation by M.C M.Iqbal at a seminar held in Kandy
organised by the UN Human Rights Commission)
Sri Lanka has a population of about 20 million with a mixture of Sinhalese, Tamils, Muslims, Malays, Burghers and others. About 74% of the people belong to the Sinhala community while Tamils and Muslims form 18% and 7% respectively. The others form the remaining 1%.
Seventy seven percent of the Sinhalese are Buddhists while about eighty per cent of the Tamils are Hindus. The Christians in the country are nine percent of the population and consist of Sinhalese and Tamils. The language of the Sinhalese is Sinhala and that of the Tamils and Muslims is Tamil. A small percentage of these two communities have adopted English as their mother tongue.
When Ceylon, as it was known then, became independent in 1948, English was the official language. The large number of denominational schools, many of which had been established by the Dutch and the British, provided English education to those who went to school. English became the link language of the elite of the country.
Constitutional Provisions relating to Minority Rights
The Constitution of Sri Lanka adopted in 1978 has specific provisions to safeguard the interests of the minorities in the country. These provisions were incorporated to allay the fears the minorities had, based on past experiences of discrimination. Two of the chapters in the constitution have specific provisions to protect the rights of minorities viz – the chapter on Language Rights and the one on Fundamental Rights. Besides this there are other provisions such as the provisions in the Thirteenth Amendment to the Constitution which provided for the establishment of Provincial Councils with power devolved to the Provinces on subjects specified in the Ninth Schedule to the Amendment. The Proportional Representation scheme that is followed during parliamentary and local government elections as laid down in the Constitution is another means by which the rights of minorities for adequate representation in the legislature is expected to be ensured as against the first past the post system that prevailed prior to 1978.
In the Chapter on Language, it is stated that the official language of Sri Lanka shall be Sinhalese with a rider that Tamil shall also be an official language while English in referred to as the link language. Sinhala and Tamil are however declared to be the National Languages of the Country. Besides, provisions have been made pertaining to the use of national languages in the Parliament, the medium of instruction in schools and universities, the language of administration, language of the courts etc. These provisions pertaining language rights are the outcome of a series of conflicts that had arisen in the past especially following the enactment of the Official Language Act No: 33 of 1956. This Act made Sinhala the official language overnight and compelled all those who have to transact business with the state to use Sinhalese. Those who wanted to continue to be in government service had to learn Sinhalese. Tamil was relegated to a lower level making them second class citizens. This inflamed their feeling. This was one of the reasons for the race riots of 1958, 1977 and 1983. Various attempts were made to solve the problems relating to the use of the language of the minority.
Yet violation of language rights continued. To check such violations the Official Languages Commission Act No.18 of 1991 was enacted. It made provision enabling those who “wilfully neglect to transact business, receive or make such communication in Tamil” to be punished by a Court of Law. This Act has however provided that no prosecutions for violation of language rights could be made without the sanction of the Attorney General. Consequently this Commission could not effectively check violation of language rights nor could it deal effectively with violators.
The Attorney General had been understandably averse to prosecuting an officer of State whose “wilful neglect” could be difficult to prove. Any such officer could always say that he does not have the resources to use Tamil in his official work. Consequently, Tamils continue to receive replies to official correspondence in a language they do not understand. Often Tamil has no place in name boards in Government or Semi-Government institutions departmental circulars or even on street name boards. This is in total disregard of the specific provisions of the Constitution which requires the use of both official languages.
Even the Police who are enforcers of the law put up traffic and other signs blatantly violating the language rights of the Tamils. Often notices to viewers on TV are not in Tamil. None of these institutions can claim to be ignorant of the fact that Tamil is also an official language and that those who do not know Sinhalese would not be able to understand these signs and notices. Hardly do they realise that a little effort on their part in these matters could go a long way to earn goodwill and spare a lot of heart burn to those affected.
Right to be treated equally
The chapter on Fundamental Rights incorporates many of the human rights mentioned in the UN Chapter on Human Rights. Amongst them Article 12(1) of the Constitution gives special protection against unequal treatment of the citizens before the law and provides for equal protection by the law. Specific mention is made in Article 12(2) to prevent discrimination of persons on the “grounds of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds”
However, there had been a series of cases filed before the Supreme Court for a declaration that fundamental rights had been violated and many had succeeded in obtaining such declarations. A large number of complaints of such violations continue to be received by the Human Rights Commission as well. However, this Commission can only mediate in such cases and make recommendations to the parties concerned. It has no power to enforce its decisions.
Though the beginnings of the ethnic problem in Sri Lanka could be traced to the violation of the language rights of the Tamils, the failure of the many attempts made to settle the problems that arose and other discriminatory actions such as in employment in the government sector, colonisation schemes, admission to schools and universities development activities etc resulted in the minority seeking power to mind the affairs of the respective areas where they are in a majority, viz the Northern and Eastern Provinces. These led to the proliferation of militancy which the Indo Lanka Accord of 1987 hoped to stem. The Thirteenth Amendment to the Constitution created Provincial Councils for the whole country hoping to devolve power to satiate the desire of the Tamil. Many of the powers of the Central Government were devolved to Provincial Councils, with a Governor appointed by the President, exercising supervisory and directory functions over the Councils.
The main of militant group opposed the Provincial Councils system stating that it did not satisfy the expectations of the Tamils. The Indian Peacekeeping Force was brought down to ensure that the militants who rejected the Indo/Lanka Peace Accord do not obstruct the functioning of the Provincial Councils.
The Provincial Councils Elections that followed the Accord placed another group of militants who had renounced violence, contested the elections to come to power. Soon they found that the Provincial Councils do not in fact provide adequate devolution to enable the Tamils to manage the affairs of their regions, namely the Northern and Eastern Provinces which had been merged temporarily. Later this Council dissolved itself in frustration and these Provinces did not have an elected council since then. That indicates that though the Thirteenth Amendment devolved power to the minorities on paper, it was not so in practice as there are hidden provisions that negated devolution.
It is in this scenario that the militants continued fighting until the ceasefire and memorandum of understanding was signed between the government and the LTTE in 2001. After a few rounds of talks there came a pause during which time the militants have put forward their proposal for the establishment of an Interim Self Governing Authority (ISGA) with the view to manage the affairs of the Northern and Eastern Provinces until the problems of the minorities are settled finally. In the meantime the Muslims who are going to be a minority in the Northern and Eastern Provinces have asked for a place when the talks take place next to ensure that the rights of the Muslim minority are given due consideration when some settlement is finally reached.
In the absence of meaningful steps to heal the festering wounds caused by the denial of language rights and other rights of the Tamils effectively, one cannot expect peace and amity amongst the people of Sri Lanka. Violation of constitutional rights of citizens should be made a penal offence and those responsible for violations should be dealt with swiftly and effectively. What appears to be lacking with regard to rights of minorities in Sri Lanka is the absence of the will among many to treat the minorities as legitimate and equal citizens of this country who should have the same rights and privileges that members of the majority community enjoy.