| by Gaja Lakshmi Paramasivam
(November 23, Colombo, Sri Lanka Guardian) There are opinions and analyses from various angles regarding the Report of the LLRC – Lessons Learnt and Reconciliation Commission.
As per the name of the Group – we need to Learn Lessons and we need to Reconcile. As per the news, the Commission has handed over the Report to the President of Sri Lanka and the President has promised to submit it to the Public through the Parliament. What happens then?
Mr. Subramaniam Masilamany says in his article ‘Reconciliation with Tamils in Sri Lanka’, published in Sri Lanka Guardian ‘Coming back to reconciliation and the role of the government, the parliament enacts the laws, and the executive branch administers the law and the judiciary as the moderator. Is there any problem with it? The people who are talking about reconciliation without constitutional amendments are either pulling wool over our eyes or sending us on wild goose chase. This idea of reconciliation is an eye wash and hogwash; it is to divide, confound, confuse, conquer, disorient and destroy a community of people called Tamils’
I disagree. To me, Reconciliation between what happened and what we expected to happen is very important in deciding which laws to follow. Most of us do not follow particular legislations and/or the Constitution of Sri Lanka. Most who do we get paid for doing so. To most citizens, the laws become important when there are Conflicts. Most citizens tend to address conflicts at their local levels – through customary laws. Majority in LTTE were from this local level.
Laws help us follow a regulated path to our goals. The work and investment of others following those laws also empower us and help us feel that we are part of a Community. If majority Tamils had therefore regulated themselves through the laws of Sri Lanka, they would have prevented the birth of LTTE. By accepting LTTE as part of us, we the Tamil Community, have accepted our lack of adherence to the Laws of Sri Lanka. Hence Constitutional amendments are secondary to actually uniting as a community. Towards this we need to reconcile where ‘we’ went wrong. If the outcome is wrong for us – then we need to know why? As a minority group, it is best to start on the basis that we were the cause of our own fate.
The LLRC report is helpful in knowing what happened. But why it happened would be different for different groups. It is in recognition of this that Democracy requires us to be transparent.
In his article ‘False Arrest and Imprisonment’, Dr. Ruwantissa Abeyratne discusses the case of Mr. Kulanthaivelu Veeradas, who was refused travel by Airlanka, at the Colombo airport. This is a very important case for most Tamils in Sri Lanka seeking to go overseas. Dr. Abeyratne says in this regard:
‘In 1985, Kulanthivelu Veeradas was taken into custody in northern Sri Lanka on 22 December 1985 by the Sri Lanka Police, during a “cordon and search” operation. He was thereafter subjected to a detention order dated 30 December 1985 and detained at various detention camps. He was released from detention on 9 August 1987.
Two years later in November 1988, when Veeradas was about to board an Airlanka flight to London from the Colombo International Airport, he was questioned by two persons in the sterile lounge of the airport and taken to a security officer of Airlanka for further questioning. Upon questioning Veeradas as to why he was leaving Sri Lanka, and after examining his travel documents, the Airlanka official had requested immigration officials to cancel the endorsement on Veeradas’ passport that allowed him to leave the country, and handed him over to the police. Three weeks later, after having been in remand prison, produced before a magistrate and released, Veeradas left for London on an Airlanka flight, to complete his aborted mission to address the Islington and Hackney Group of Amnesty International which had been instrumental in securing Veeradas’ release from the detention camp in 1987.
Veeradas applied to the Supreme Court of Sri Lanka inter alia for a declaration that his fundamental rights guaranteed by the Constitution of Sri Lanka had been violated by the obstruction caused to his travel by Airlanka, its officials and Sri Lanka Government officials in the following manner: a) he suffered degrading treatment at the hands of officials of the government of Sri Lanka and Airlanka; b) he was deprived of the freedom of movement by the above officials in derogation of Article 14(1)(h) of the Constitution; c) he was precluded from travelling to London; and, c) he was subjected to arbitrary arrest, detention and deprivation of personal liberty in violation of Article 13 (1) and (2).
Airlanka claimed that the duty manager had noticed (on examining Veeradas’ passport) a discolouration in the space reserved for the signature of the passport-holder. There had also been documents relating to Veeradas’ detention in his baggage. Also, the name of the passenger, as appearing in his passport had differed from the name given in his identity card, giving rise to the suspicion that the passenger’s passport could have been a forgery.’
I compared the above, with my own experience here in Sydney, Australia. The parallel of Airlanka for me here was the University of New South Wales. But, I did not have support from any organization parallel to Amnesty International that helped Mr. Veeradas. The Australian Human Rights Commission kept dismissing my complaints as ‘lacking in substance’. When there is early detection of civil breaches, we would prevent criminal behavior and war. The Sri Lankan experience of war must become the basis of all our laws in – starting with customary laws and their practice.
Most Australians of majority race, fail to consciously start off on zero base – that we are equals until known otherwise through lawfully applied merit. Yet, most Australian Tamils accept that. Hence to them, the laws of Equal Opportunity are of little use. Dr. Abeyratne says in relation to the Judgment by the Supreme Court ‘Fernando J. concluded that when the arrest of the Petitioner was considered objectively it was apparent that both the Police and Airlanka did have reasonable grounds for suspicion, particularly with regard to the erasure mark on the Petitioner’s passport and the inconsistencies of the Petitioner’s name on his passport and Identity Card’
To assess objectively, one needs to start from zero base. The name of the person would have given the knowledge that he was Tamil. Given the problems in Sri Lanka, where Tamils are searched more than Sinhalese – the person being examined starts off with a disadvantage. Unless therefore, the examiner expressly demonstrates that s/he had negated all prior knowledge about the person – including the ethnic group s/he belongs to – the examiner is not entitled to claim objectivity. It is for this reason that we have Affirmative Action policies. According to this, where the person being examined is of a different race, one has to ‘wait’ until there is ‘objective evidence’ of an offence.
The Police here in Australia, did not even ask me why I was waiting to see the Vice Chancellor of the University. They just asked me to leave – without any evidence of wrong doing on my part. They merely used the name of Inclosed Lands Protection Act 1901 – according to which, as an Australian, I had every right to be where I was. The arresting Police did not know the provisions of the law. There was very littlen demonstration of intellectual understanding of the legislation being used. At the first arrest, I also did not know the provisions of the law. But like Mr. Veeradas above, I learnt the provisions after I was arrested. I started by praying to our Australian ancestors who wrote the law. I then discovered that the Police, by acting as they did – were confirming my complaint of Racial Discrimination. They listed me as Sri Lankan instead of Australian – and leading lawyers and judges did not see anything wrong with that. The Police action provided objective evidence that to them I was Sri Lankan and NOT Australian. Yet, the Federal Court of Australia and the NSW Supreme Court – dismissed my complaints of racial discrimination and unlawful arrest. To most Australian Tamils – British looking Australians are ‘Australians’ and to majority Australians we are Sri Lankans or Indians.
To majority Sinhalese, most Tamils are Tigers supporters. Hence, one has to conclude that a Sinhalese examining a Tamil would not be objective unless s/he starts off with zero base – for example by consciously demonstrating that s/he considers the person being examined to be a civilian and by reading out the rights of a civilian under such circumstances.
If Mr. Veeradas had sought to travel out of Sri Lanka from a Tamil area – say Palaly airport – manned by Tamils, it is highly unlikely that he would have been suspected of wrong-doing. This is due to the common belief which keeps informing us from within. This internal system protects us from wrong-doing – even if there was no law covering it.
As per my discovery, when our belief in each other is stronger than our observations about each other – we need to use – ‘Balance of Probabilities’ method. This seems to have been the method used by the Sri Lankan judges in the above case. It was used also by a Sinhalese Judge in Sri Lanka, who disregarded most of the objective evidence submitted by me but used most of the Defendant’s verbal evidence to judge. It was also used in relation to my case when the Police arrested me, here in Australia. In all three cases – there is an ethnic divide which disqualifies such usage. In all cases – objective evidence produced by each side without any undue influence at the time of production – ought to have been the basis for examining and/or judging. In both cases – that of Mr. Veeradas and myself – when we were arrested – good example of objective evidence – would have been unlawful conduct by the accused at that time and place.
This is why Sinhalese judges should dismiss themselves from hearing such cases if they are not able to bring their minds to zero level about the two sides.
Where Belief is stronger than Observation – one needs to use the family method of Balance of Probabilities. Where Observations are stronger than Belief – one needs to consciously use Objective Evidence – even if it were family. That way, as a community or nation, we would live in harmony – irrespective of whether or not we have laws that ‘show’ this to outsiders.