Sri Lanka: Anti-Discrimination Legislation as a Tool for Facilitating Social Reconciliation - 10 August 2016

 

Consulate General of Sri Lanka
Melbourne, Australia

Dear Consul General,

Submission to the Consultation Task Force on Reconciliation Mechanisms

This refers to your email of 21 July 2016, regarding submissions to the Task Force on Reconciliation Mechanisms.

On behalf of the Australian Advocacy for Good Governance in Sri Lanka, we are pleased to make the submission enclosed.

We would be grateful, if you could please arrange to forward the attached submission to the Task Force on Reconciliation Mechanisms.

Yours sincerely
Dr Lionel Bopage
President
Australian Advocacy for Good Governance in Sri Lanka Inc.
Melbourne
Australia

10 August 2016

Home: +61 (03) 8360 7557
Mobile: +61 405 452 130
Email: lionel.bopage@gmail.com

Sri Lanka: Anti-Discrimination Legislation as a Tool for Facilitating Social Reconciliation

Introduction

The only indigenous people in Sri Lanka are the veddahs. They would also have migrated to this land, at a distant past in history. Subsequently, others would have migrated at one time or another, some even recently. The majority of these migrants are believed to have arrived from diverse parts of India. These migrants being of varied backgrounds, our current population have embraced diverse habits, customs, traditions, languages, religions, cultures etc. This has influenced the everyday life in terms of our ways of living, communication, culinary practices, music, dance, arts, employment etc.

This diversity with the sum total of its differences has contributed to the richness, the generosity, the hospitality of our people. Our people, as individuals welcome and provide hospitable environments to people from diverse religious and ethnic backgrounds. Such characteristics prevail all over the country. Yet, as had happened everywhere else, controversies have arisen with older migrants considering the recent arrivals as ‘aliens’ or ‘foreign ones’. Thus, the same diversity has led to many discriminatory practices among us, based on ethnicity, caste, language, religion, disability, gender, age, colour, employment etc.

While majoritarianism in society contributes in main to these discriminatory practices, such practices can be observed in all parts of the society. This has been the result the generational psychological conditioning received during the growing up process. Electoral practices based on majoritarianism and political parties solely based on ethnicities and religions have also contributed to social and political tensions within and among the communities.

Looking at our post-independent political culture, the effects of such discriminatory practices can be considered to outweigh the positive effects generated by the very same diversity. One may suggest the social conflicts we have had during the last several decades and that continues to date, have had their genesis in such discriminatory practices, both in the south and the north of the country. Despite this prevailing negative discriminatory practices on our society, not one of our post-independent governments appears to have endeavoured to negate such practices by addressing the issue in a genuine and constructive manner.

We hope the current endeavour to develop a new constitution, or reform it - and also to reform the electoral system would be able, to contribute to reducing social and ethnic tensions that exist to date. It is in that context, we intend to discuss the need for enacting and enforcing anti-discriminatory legislation as part and parcel of the constitutional development process, and the need for a fair and equitable electoral system that will contribute to the practice of democracy and good governance in Sri Lanka.

What Anti-Discrimination Legislation is For?

Discrimination is considered to occur when a person is treated less favourably than another person in a similar situation because of their race, colour, descent, national or ethnic origin or immigrant status.[i] Any anti-discriminatory legislation needs to make it illegal to carry out any act that is likely to offend, insult, humiliate or intimidate an individual or a group of people in public based on their race, colour, national or ethnic origin of a person or group of people.

For example, in Australia, matters covered under racial hatred, or racial vilification may “include:

·      racially offensive material on the internet, including e-forums, blogs, social networking sites and video sharing sites

·      racially offensive comments or images in a newspaper, magazine or other publication such as a leaflet or flyer

·      racially offensive speeches at a public rally

·      racially abusive comments in a public place, such as a shop, workplace, park, on public transport or at school

·      racially abusive comments at sporting events by players, spectators, coaches or officials.”

However, at the same time, any anti-discrimination legislation needs to assure a balance between the freedom of speech and the freedom of living being not subjected to hatred or vilification.

In Australia, the following are not considered discriminatory or illegal even if they are done in public - if they are “done reasonably and in good faith” “in:

·      an artistic work or performance – for example, a play in which racially offensive attitudes are expressed by a character.

·      a statement, publication, discussion or debate made for genuine academic or scientific purposes – for example, discussing and debating public policy such as immigration, multiculturalism or special measures for particular groups.

·      making a fair and accurate report on a matter of public interest – for example, a fair report in a newspaper about racially offensive conduct.

·      making a fair comment, if the comment is an expression of a person’s genuine belief.”

The Constitution of Sri Lanka under Right to Equality in Clause 12 of Chapter III – Fundamental Rights, provides for equal treatment of all persons before the law. They are entitled to the equal protection of the law. Its sub-clause (2) unambiguously prescribes that “No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds”. In many countries such omnibus clauses are reinforced by making special provision by law, subordinate legislation or executive action. However, in Sri Lanka, this has not materialise so far.

Australian Examples

For example, in Australia, such omnibus constitutional provisions are strengthened by several pieces of legislation, to help protect people from discrimination and harassment, both at federal level, and at state and territory level. Let me cite the federal laws and briefly explain their role.

1.       Australian Human Rights Commission Act 1986

This Act deals with discrimination based on, or the imputation of “race, colour, sex, religion, political opinion, national extraction, social origin, age, medical record, criminal record, marital or relationship status, impairment, mental, intellectual or psychiatric disability, physical disability, nationality, sexual orientation, and trade union activity.”

2.      Fair Work Act 2009

This Act deals with discrimination based on race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer responsibilities, pregnancy, religion, political opinion, national extraction, and social origin. This also covers “discrimination, via adverse action, in employment including dismissing an employee, not giving an employee legal entitlements such as pay or leave, changing an employee’s job to their disadvantage, treating an employee differently than others, not hiring someone, or offering a potential employee different (and unfair) terms and conditions for the job compared to other employees.”

3.      Age Discrimination Act 2004

This Act deals with discrimination based on age, thus protecting both younger and older people. This also covers discrimination based on age-specific characteristics or characteristics that are generally imputed to a person of a particular age. Such situations may apply to “discrimination in employment, education, access to premises, provision of goods, services and facilities, accommodation, disposal of land, administration of Commonwealth laws and programs, and requests for information.”

4.     Disability Discrimination Act 1992

This Act deals with discrimination based on “physical, intellectual, psychiatric, sensory, neurological or learning disability, physical disfigurement, disorder, illness or disease that affects thought processes, perception of reality, emotions or judgement, or results in disturbed behaviour, and presence in body of organisms causing or capable of causing disease or illness (eg, HIV virus).” Such situations may apply to discrimination involving harassment in employment, education, access to premises, provision of goods, services and facilities, accommodation, disposal of land, activities of clubs, sport, and administration of Commonwealth laws and programs.

5.      Racial Discrimination Act 1975

This Act deals with discrimination based on “colour, descent or national or ethnic origin and in some circumstances, immigrant status.” Racial hatred is defined as public acts “likely to offend, insult, humiliate or intimidate on the basis of race”. Such acts are prohibited under this Act unless exempted. Such situations may apply to discrimination involving “all areas of public life including employment, provision of goods and services, right to join trade unions, access to places and facilities, land, housing and other accommodation, and advertisements.”

 

6.     Sex Discrimination Act 1984.

This Act deals with discrimination based on “sex, marital or relationship status, pregnancy or potential pregnancy, breastfeeding, family responsibilities, sexual orientation, gender identity, and intersex status.” Sexual harassment is prohibited under this Act. Such situations may apply to discrimination involving “employment, including discrimination against commission agents and contract workers, partnerships, qualifying bodies, registered organisations, employment agencies, education, provision of goods, services and facilities, accommodation, disposal of land, clubs, administration of Commonwealth laws and programs, and superannuation.”

Despite the existence of a plethora of anti-discrimination legislation, Australia is not free of discrimination. All over the world human nature has been and continues to be to discriminate. What the legislation has provided for is the access to recourse to fairness and justice in case a person or a community is subjected to overt or covert discrimination. There have been many examples, even within the Sri Lankan Diaspora in Australia, where justice had been made to prevail when discrimination has occurred and could be substantiated. Similarly, there have been many unsuccessful cases.

As many politicians have done in Sri Lanka starting from the days of its independence, several politicians in Australia, representing fundamentalist, extreme conservative and right wing views have tried to arouse discrimination against new migrants. Some of them have attempted to dilute anti-discrimination legislation, for example, by removing Section 18C from the Racial Discrimination Act 1975. However, due to the political commitment of many political leaders, the separation of powers and the balance of political power within the two Houses of the Australian Parliament, i.e., the House of Representatives and the Senate, such pressures for dilution have not succeeded. Yet, all indications are that Australia has commenced its descent along the path to social disintegration as Sri Lanka did several decades ago.

Basis for Anti-Discrimination Legislation

Anti-Discrimination legislation is based on the “International Convention on the Elimination of All Forms of Racial Discrimination” that came into force on 2 January 1969. Any Act for this purpose should not only prohibit racial discrimination, but also certain other forms of discrimination, thus providing for giving effect to the Convention.

In Sri Lanka, discrimination is said to be and also appears to be applied in every sphere of life. In villages, many complain of being discriminated against, for example, based on their caste. In comparison to what existed in the south of Sri Lanka in the early part of the nineties, discrimination based on caste appears to have diminished today, particularly in the cities. Movement of people from many rural areas to the cities have been fused together with the ongoing capitalistic development. However, whether the villages that exist far away from the cities have undergone a similar transformation is debatable.

In the north and the east, discrimination based on caste system was more acute than in the south. Thanks to the radical measures adopted by the left movement, particularly by those of the Communist Party of Ceylon (Peking Wing), a certain avoidance or diminishing of such discrimination could be noted. According to some reports, during the period of armed conflict in the north and east, discrimination based on caste in the areas the Liberation Tigers of Tamil Eelam controlled, had been prohibited.

Leaving the caste factor aside, discrimination based on many other factors had been on the rise. Among those are ethnicity, language, religion and the use of one’s mother tongue. It is reported that many young people even though highly qualified, are not being selected for employment due to discrimination based on these factors. Yes, we need to consider that most of these educated youth lack skills in communicating in English. Such situations encompass circumstances going beyond discrimination, such as the factor of merit, for example, the ability of an applicant to perform duties satisfying the requirements of a modern capitalist market. With globalisation of almost everything, the skill levels required to perform have become much more advanced. Many schools in Sri Lanka and its education system do not appear to provide opportunities for developing such skills.

Use of Anti-Discrimination in Social Reconciliation

Every citizen of Sri Lanka will have a role to play in ensuring that people from diverse backgrounds have the same opportunities as other citizens so that they can participate fully in the political, economic and social life of the country. Anti-discrimination legislation will provide the opportunities to build awareness about the rights and responsibilities that individuals and communities will have under the law. It will help tackle racism and chauvinism by creating and promoting a greater understanding between diverse peoples and communities.

Anti-Discrimination legislation can be used to ensure each individual and community gets fair treatment in public life. It will need to ensure that it is against the law of the island to treat a person unfairly because of that person’s ethnicity, language, religion, age, race, gender, colour, descent, or immigrant status. Racial hatred and inflammatory communication arousing racism need to be treated as such. Anti-discriminatory legislation can be used to find proper recourse to fair treatment in many areas such as employment, education, accommodation, receiving or using the services, and accessing public places.

Provision of employment opportunities in Sri Lanka is mostly not merit-based. Still, the chit a Member of Parliament provides would allow access to many employment opportunities. Not only this is unfair, but has generated a whole culture of inefficiency, lack of productivity, rent-seeking, corruption and impunity. As such, anti-discrimination legislation would help to at least attenuate such negativities in public life. Such legislation will provide fairness in getting a job and related terms and conditions. On gaining employment:  to receiving equal access to training, promotions and transfers, and in not being subjected to harassment and/or dismissal.

Employers, including those in government and non-government sectors, have a legal responsibility to take all reasonable steps to prevent racial discrimination. They need to have policies and programs in place to prevent discrimination in the workplace. They need to be held responsible and accountable for providing anti-discrimination training within a period prescribed by law.

Similarly, in the field of education, discrimination is visible in the enrolment of students into educational institutions, in their studies, in their assessments etc. Despite the absence of reporting, discrimination in the field of accommodation can be thought to exist. Such incidents may occur when people of a certain caste, ethnic or racial background attempt to purchase or rent properties and, in the field of receipt and use of services. Other incidents of discrimination could occur when a person from a village visiting a government office, or department, when using public transport or communication services, when seeking the services of a lawyer, a doctor, or any other professional, or when using restaurant, supermarkets, or entertainment facilities, or even when accessing public parks, or botanical gardens. One can imagine the nature of discrimination that person would encounter.

Anti-Discrimination and Electoral Reform

The electoral system is considered the cornerstone of democracy, as itis closely linked to democracy, as it expresses its values. It constitutes an indicator of the democratic nature of society. As such, it will contribute to strengthening democracy.[ii] Electoral reform process needs to seriously represent the will of the people as a whole, since as the reforms will have significant consequences on the constitutional and political system. Looking at electoral reforms that would lead to and facilitate reconciliation in anti-discrimination terms, such reforms need to ensure equity and efficiency of the electoral process. Such reforms would also assure norms of good governance. In doing so, the principles of equal suffrage, equal opportunities of political parties, political pluralism and free expression of the popular will come into play.

Only an electoral system that respects these constitutional principles and takes into account the historical, political, economic and social realities, can be considered to work towards achieving electoral equity. Developing an equitable electoral system depends on a number of factors, such as the socio-political context, the degree of democratisation, the stability of political parties and the existence of national minorities. One of the factors also affecting Sri Lankan body politics is the discrimination applied in the formation of political parties and in education basing it on ethnicity and religion. Since independence, Sri Lanka has constantly worked to reinforce this compartmentalisation of ethnicities and religions.

Both proportional representation and majoritarian systems have their merits and deficiencies in terms of electoral equity. In Sri Lanka, where the population of voters is divided on the basis of deeply rooted ethnic and religious differences, proportional representation, despite its inclusive nature, may reinforce, instead of diminishing such differences. However, a majoritarian voting system may have an undesirable effect in that the government may alienate the electorate, by, diminishing the opportunities for public consultations or debates.

Having a mix of both systems would be better, rather than trying to trade one off against the other. A mixed system can combine majoritarian elements with proportional ones, aiming to build a fair and operative electoral system. However, one needs to be vigilant that though the design of a new electoral system could be satisfied with the mix, the voter could see otherwise. In addition, the experience shows that a mixed system could be too complex for voters to understand.

The existing system of proportional representation in Sri Lanka is based on the sum of votes a party receives in a particular district. Obviously, such a system can be skewed more advantageously towards the districts with lesser voter populations. Such a system could not be considered to reflect fairly and faithfully the opinions of the people, or to channel currents of thought for promoting a sufficiently clear and coherent political will. In these circumstances, the principle of equality of treatment of all citizens cannot be assured in the exercise of their right to vote and their right to stand for election.

In light of the above considerations, we propose that an electoral reform to effect the system of proportional representation be based on the total number of votes political parties receive on a national basis, rather than relying on the total number of votes political parties receive on a district basis.

Conclusion

The intention of this submission is to explain what anti-discrimination legislation stands for, and highlight the positive influence enactment and enforcement of such legislation would have, in facilitating the process of social reconciliation at this time of high need. Such legislation could assist in developing the basis for future reconciled social relations and better levels of community harmony. It is also our view that an electoral reform to effect the system of proportional representation be based on the total number of votes political parties receive on a national basis, will also contribute to strengthen democratic practices and good governance in Sri Lanka. As an Australian citizen, I need to say, despite the flaws in the legislation and criticism of some fundamentalist extreme elements in Australia, such legislative foundations[iii] Prime Minister Gough Whitlam introduced in 1975, has provided the basis for the current highly diverse, and simultaneously highly cohesive society and the attitudes of tolerance that is one of charactertics of the Australian society.

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[i] Australian Racial Discrimination Act 1975 as an Act relating to the Elimination of Racial and other Discrimination: See https://www.legislation.gov.au/Details/C2014C00014.

[ii] Masclet, J. 1992. Le droit des elections politiques, Paris, P.U.F. Page 6

[iii] For example, the Racial Discrimination Act was the first Australian national human rights law that assured Australians that each of them should be treated fairly, regardless of their background.