By Basil Fernando –

Basil Fernando

In spite of several years of discussions and talks the work towards reconciliation in Sri Lanka has not made much progress. In this paper we will try to look into the problem areas relating to reconciliation in the light of multiple discriminations that are entrenched in Sri Lanka. This is against the usual approach of treating the issue of reconciliation only from a racial point of view that is as a conflict defined by racial relationships between Sinhalese and the Tamils communities. This paper tries to present the larger picture which affects the conflicts in the post independent Sri Lanka and at the moment is causing enormous hardships to all sectors of the population.

Description of multiple discriminations; By multiple discriminations, we mean discriminations arising from caste, gender and race. Considering of race issue separated from the two other major issues that are the caste based cultures of Sri Lanka and the deeply entrenched culture of discrimination on the basis of gender often fails to develop a comprehensive understanding of the problems affecting the Sri Lankan people as a whole. It is also fails to bring out a comprehensive understanding of the historical circumstances giving rise to many of the conflicts faced by the people in the contemporary circumstances of Sri Lanka.

Caste as a predominant factor in the conflicts; Both Sinhalese as well as the Tamils have a long historical record of being communities which are separated from the point of view of caste that exists within each of the communities. While the Sinhalese are classified into large number of castes, so are also the Tamils. The predominant classification is named as Kulina – meaning those who have caste, also referred to as upper caste and Kulahina – meaning those who are thin in caste or popular referred to as low castes.

The most remarkable feature of caste is that people of one caste though they may be living very close to other castes would not in any way mix together. Each caste considers them as separate and their identity is deeply defined by this separateness’. Living in close vicinity but having no intimate relationship of any sort is a prescription for much divided units within the same community. For example the Wellala caste or the so called upper castes in the Tamil communities consider themselves superior to all the others and have their existence very separated from all others on all aspects of social life. Thus caste is an identity of its own. Perhaps the most primary and the most deeply affecting identity of any person in Sri Lanka is the caste. That was so for centuries although to some extent on some external aspects this may have changed to in some respects. Now there may be a little more mixing among some castes some time in relation to marriage and things of that sort. However, what are important from the point of view of identity are the more lasting psychological traits that have been created due to long years of separate living. The separate living which is also associated with the ideas of some people being considered superior and some people being considered inferior. These superior and inferior attitudes have got so deeply entrenched and internalised and these have an impact which sometimes even the bearers of such attitudes may not be fully aware of.

The caste separation within a community means exclusion. Caste is a comprehensive form of exclusion of all others who do not belong to a particular caste from almost everything. That exclusion is justified on the basis of inferiorities. Each caste group is considered to be unequal to others. Idea of equality and idea of caste are incompatible. Unequal treatment is therefore in the very nature of the caste system. Unequal treatment is what we today call as discrimination. To treat all others except those who belong to the upper caste as inferior justify various forms of discriminatory actions against those who are considered lower and inferior.

This unequal treatment was also based in the case of caste with a further consideration of disproportionate punishment. That those who belong to castes that are known as inferior should be punished severely for any violations against those who are considered superior was one of the primary rules of a caste system. The punishment meted out to a person who is considered inferior did not only confine to the person who may have done the translation but also to his family members but also the people of his clan and the people who lived in his village. A man’s transgressions may lead to for example the punishment for the entire family like for example forcing the family to leave a particular village and go to some other place. It may extend to burning of their house and also the houses of other relatives. For even small transgressions death sentences may be meted out to those of inferior castes. The contrary principle applies to those who are considered as belonging to the upper castes. Such persons even if they do a serious crime like a murder of a person considered of lower status or a rape of a woman from such a status may escape without any punishment or only with what is called a religious punishment that is having to go through rituals of purification of themselves for having contacts with impure elements of the lower caste. This manner of the use of disproportionate punishment when repeated over again for many years and then for decades and many centuries and even over thousand years creates mental attitudes of very deep forms of fear. A person who is born now may be carrying the fears created some many generations ago when a whole village was destroyed or many people were killed and otherwise brutally punished. Such stories told over and over again creates deep mental among the people. And this is transmitted from generation to generation. Thus what may be called trans-generation fear or trauma is very much a part of the caste based societies. Someone in the present generation may not even be aware that he is in fact carrying such fears and attitudes and he would only become aware of it when he finds himself to be acting in unexpectedly irrational way with a irrational sense of fear due to some occurrence that happens now. The actual explanation is that the fears that are inside you have been triggered by a recent incident and it is fears generated some long time ago that relives within him and every moment of his or her life.

In a caste based society people are in fact born in abnormal psychological conditions from the very start. They begin life with fears which are being transmitted over a long period due to change of events that happens over a prolonged periods, They are victims of chains of reactions of many forms of intimidation, fear and docile-ness which is not a result of any of their individual behaviour but a part of a collective behaviours inherited from the past.

Gender based discrimination in Sri Lanka, takes very many forms. First of all there is the discrimination of women in society where the male domination is very much a part of the cultural heritage of all communities in Sri Lanka. Then there is specifically a violence relating to sex which is also for most part the victims are women. The children of both sexes are also victims of widespread forms of child sexual abuse. Besides this there is the whole issue of transgender related discrimination and violence. This is an issue which is being deeply hushed up and does not even form a significant part of the public debate so far. Suppression is so deep that even surfacing of the issue for discussion does not take place. The discrimination of gay communities is another deep factor and for mostly due to religious taboos the issue does not even get surfaced for public discussion except among a very small group of persons who make attempts from time to time to raise these issues.

The issue of the discrimination of women goes back into the cultural traditions of all communities in Sri Lanka. It is only in the later part of the 20th century that the recognition began to be dawned on the right of women to be educated in the same way as the males. It was within the family traditions particularly of the poor that the women do not need to get educated and also women who goes out of the house for purposes of education and like are in danger of becoming victims of sexual abuse and also possibly would become a victim of unwanted pregnancies. The fear of being manipulated into sexual relationships by the males played an enormous role in discouraging the women being sent alone for any purpose including for the purposes of education, particularly after they attain age.

The problem of sexual abuse is very much aggravated into the enormous problems that exist within the system of law enforcement and the system of administration of justice. Failures of how these systems have affected the right of protection of all persons have been dealt with separately, in this paper and dealt with at length. In an ultimate sense solutions to the protection of women lies particularly with the positivity of having a functional reliable system of law enforcement and the administration of justice.

The discrimination of women is also extended beyond the sphere of sexual violence into other areas relating to education , relating to job opportunities and other forms of advancement in various areas of life including in the areas of cultural life, The same is about the women’s right to participate in the public life of the community within the political sphere the space available for women played an active role in public life is extremely limited perhaps again the most paramount reason for this are the failures in the legal system to provide protection for women so that they could engage on free movement in the society with the assurance that their protection is guaranteed. Such a situation does not exist and being scared of all kinds of harassment and attacks is part of the psychological make of women living in Sri Lankan society. This is perhaps the most important factor which prevents the women’s participation in public life.

Also the attitude problems where particularly in the rural sector where the woman is still assigned to place in the private life and the domestic life still predominates and the expectation of the role to be played by women have been shaped by the more feudal attitudes and values.
All these matters and the absence of and escape route that is a route towards solving these problems due to the factor of extreme defects in the system of rule of law needs to be emphasized in any discussion relating to these matters.

Discrimination on the basis of race; Discrimination on the basis of race has been one of the topics that has been discussed very widely particularly during the last thirty years or so. There is much material available of detailing of the forms of discrimination on the basis of race. In Sri Lanka the issue of discrimination on the basis of race has been very much linked from about the mid-1950s with the discrimination on the issue of the use of language. The bringing of the law relating to the Sinhala only as the official language has become the major issue of contention that has led to great deal of repression of the Tamil protest in particular and also to acts which finally culminated into terrorism on the part of sections of the Tamil militants. Despite of promises to address these issues and perhaps some correct policy lines for solving that issue as stated particularly after the election 2015, the complaint of the Tamil leaders is that although correct things are being talked about, these things are not being implemented. The issues go from the problems of language to problems about greater autonomy into the areas where the minorities are living to administer their local problems in the manner most suited for that into other issues such as the issue of the lands which have been lost during the conflict between the LTTE and the military that has not been returned to the lawful owners, to the issues of people who have not been rehabilitated after being in the detention camps and therefore still live to a great extent in conditions of displacement , the issues relating to political prisoners who are in prisons without trial and has been kept for a very long time despite of promised to deal with that issue urgently as well as trials which takes as long as 10 years or more during which time people are in prisons and the unsatisfactory nature of the respect for the rights of the accused in these cases . The purpose of this essay is not to list all the problems of the minority issue of the Tamils and other minorities such as the Muslims and also minorities from the point of view of religion where also there are serious complaints of various kinds of violations.

The purpose of this paper is to demonstrate the link between all these three forms of discriminations, that is discrimination in terms of caste, on gender and also on the basis of race and to reflect on the manner of influence of each of these factors on each other. This interacting factors among the three major forms of discrimination that prevails in the country is essential when looking from the point of view of finding solutions to these problems and looking from the point of view of reconciliation.

Impact of the discriminations on caste, gender, and race on each other: Let us take the case of a Tamil woman who is of lower caste facing a problem of sexual harassment or rape. Now this woman will face discrimination three fronts. Within her own community she is low caste and therefore she will find very little support from within her own community. Being a woman she suffers the general discrimination that is faced by all women and being low caste also implies that she will belong to a lower income group. All women of all races who are of lower income groups receive the least amount of attention from the state as well as from the society. This woman being a Tamil now the third element for her to be treated with discrimination because of her race. She may have problems of communication even with the state authorities because of the language and in any case there will be racial prejudice affecting her in all her attempts to find redress for what she has suffered

Let us take the second case of a low caste woman from a Sinhalese community who is faced with a similar problems s her counterpart the Tamil lady. Now being low caste once again she faced discrimination from within her own community the Sinhalese and for her the group identity will be very much determined by her status as a low caste woman. As in the case of the Tamil woman, in her case also being low caste implies that she belongs to a lower income group for the most part. Thus the image of low caste and low income together with eh fact of being a woman will expose her to the kinds of discriminations in all these fronts in a n attempt to get redress for rape or sexual harassment from state authorities and also from society .

Now let’s take the case of a man who is from low caste and also a Tamil. He will be facing discrimination due to the fact that he belongs to a low caste from within his own community. His identity will be from among those of similar low caste persons and the kinds of treatment from within the Tamil a community to him will also be on that basis. Being low caste also often implies being of low income and thus he will face treatments that are meted out to people of low income groups.

Let us take a person from a Sinhalese community who is low caste and then the situation will be the same as the low caste woman except for the fact that he will not suffer discrimination on the basis on gender. He will also be identified for most part as low income.

Dealing with grievances as persons facing various forms of discrimination.

The rule of law implies that there needs to be equality before the law. However in the context of Sri Lanka that would hardly happen when one belongs to one of these groups which are discriminated. Even for those who are of higher social status and the treatment before the law under the present circumstances has become extremely problematic the entire legal system has collapsed due to various problems which have been affecting the system over a long period of time. In a paper under the titled Criminal Justice systems in Sri Lanka these problems have been dealt with detail. In order to avoid repetition we relied on this paper to give descriptions of the problems that people face in trying to find any kind of redress within the present legal system.

What is important for us is to emphasize the problems of persons who are suffering forms of discrimination due to caste through gender, race and how these multiple forms of discriminations affects their capacity to get any kind of attention or redress within the legal system. In fact the legal system which is poorly designed of anybody worse affects these persons who belong to categories of discriminated persons.

The legal crisis and how it affects reconciliation initiatives; Over the last several decades, Sri Lanka has been suffering a profound crisis in its legal system, including its judicial system. This crisis is associated with certain political changes, for which the following aspects were the most important causes: the use of emergency and anti-terrorism laws to the extent of virtually undermining all the safeguards of the individual liberties of citizens; constitutional changes aimed at giving greater power to the executive at the cost of undermining the parliament and the independence of the judiciary, and thus creating an imbalance in the separation of powers system that had prevailed in the country in the early period after independence; unfortunate collaborations that developed between Executive Presidents and some Chief Justices, which virtually undermined the respect for legal procedures, substantive laws and even constitutional rights.

These are but a few of the major causes of the present crisis in the judicial institution; as this aspect is of profound importance, we have attached a very detailed paper relating to the judicial crisis, which is part and parcel of the whole theme that we are covering here.

The reason why these legal and judicial aspects are of primary importance in dealing with the multiple forms of discrimination prevailing in the country and in any reconciliation initiatives is because, in the final analysis, all initiatives to reconcile conflicting parties and provide safety and redress for the victims of these conflicts must resort to the legal system and judicial remedies that should be provided by the legal system. Without a system that can enforce laws, there are no black-and-white legal entitlements; without a functioning legal system, there are no actual and enforceable rights, only a façade. If the legal system has reached a point of crisis, as it has in Sri Lanka, where finding a legal solution to any problem has become very difficult, it creates major obstacles for the success of any reconciliation missions.

In the International Covenant on Civil and Political Rights, this problem has been recognised in Article 2. This Article requires that state parties must use legislative, judicial, administrative and other means to ensure that the rights guaranteed to their people are enforceable, and that there are accessible remedies for any breaches. Thus, laws guaranteeing judicial remedies for human rights problems and administrative measures ensuring a functional judicial system, providing the necessary financial support for legal institutions, are fundamental to achieving proper judicial involvement in the reconciliation attempts and processes.

It is in that very vital area that there are extremely serious problems in Sri Lanka. Therefore, any serious discussion on the reconciliation processes must deal with how the rule of law has been undermined in Sri Lanka, and the state of the judicial institutions within the country.

This means that there should be a component within all reconciliation initiatives that addresses the overall problems in the legal system, with due emphasis on the judiciary, and seeks improvements in this system so that it can play a positive role in promoting reconciliation mechanisms.

The absence of such a functional institutional framework means that the present legal system, including the judicial system, will continue to play an extremely negative role, undermining all efforts made by various parties, particularly community organisations, to find solutions to problem of discrimination, as well as the various measures adopted as part of the reconciliation process. Thus, in the initiative proposed in this paper, we also place due emphasis on the important work relating to the judiciary, as well as creating awareness among the public in all professions and communities about the need to get involved in improving the way the legal system functions. To hold a community together, it is essential that there is a legal framework that all persons living in that community consider important and rely on to resolve problems. When the legal system disintegrates, the community also disintegrates. They are also deprived of the means of bringing themselves back together.

Thus, one of the major strategies that this paper suggests is to work to bring communities to the realisation that understanding the problems in the legal system and finding real solutions is in their common interest and necessary for reconciliation.