| by Gaja Lakshmi Paramasivam
(October 28, Melbourne, Sri Lanka Guardian) This morning, I was directed to the article ‘War crimes in Australia’s too-hard basket?’ by Dr Gideon Boas, Associate Professor, Monash University Law School.
Certainly, as per my experience in Australia, even Racism is in Australia’s ‘too-hard basket’. War crimes would seem far more serious than racial discrimination and hence are more likely to be in Australia’s ‘Act-of- God basket’ and rightly so.
Our current government however, has recognized the work done by Australians of Lankan origin – especially that of Jegan who has directly accessed the legal system. As with other issues, there are social, legal and moral responsibilities with the war crimes as well as racial discrimination issues. To my mind, the two victims who had the direct experience based on which the charges have been filed – Meena through International Commission of Jurists and Jegan directly through the legal path, are still more Sri Lankan Tamils than Australians. Hence their experiences would be more difficult for the Common Australian to follow, than if they had happened here in Australia. It is for this reason that we need common laws that would help make the translation for us.
Given that their experiences happened in Sri Lanka and not in Australia, their social and legal values are far more significant to Sri Lankans than to Australians. They would go directly to the moral and social values of Sri Lanka. In my case, my racial discrimination experiences were here in Australia, as an Australian and therefore carry far deeper values to fellow Australians. They would directly go towards Australian moral and social justice. All those who genuinely believe – influence our moral justice system. When they share that belief through social and legal paths, all those who identify with their experiences without needing proof, influence the social justice system of that society. Where the moral justice system of the custodians of power is weak, the social/political and legal systems would fall short of upholding the Truth. Truth empowers Naturally. Excessive Regulation distracts us from Truth and ‘shows’ better outcomes than we have actually worked for.
Dr. Boas says in his analysis ‘Of course, the prosecution sought by Jegan Waren against the Sri Lankan president was never going to get off the ground. I doubt that was genuinely the aim. It should, however, serve to highlight how inadequate the response internationally and in our own country has been to the clear evidence of massive human rights atrocities and war crimes by the Sri Lankan authorities against the Tamils during the bitter civil war in that country. This allegedly included atrocities perpetrated by people holding Australian citizenship and possibly by people now living here.’
As I said to an Australian Sinhalese who sounded upset by the Australian actions against the President of Sri Lanka, these actions were payback for the LTTE’s Terrorism labels which naturally affected all Tamils including myself. Whether we like/d the LTTE or not; whether to us they were right or wrong – majority Tamils did/do feel and think that their earned rights were violated in Sri Lanka due to Sinhalese custodians of Power using their own likes and dislikes, instead of merit basis, in multicultural areas. This was made most obvious through the ‘Sinhala Only’ policy and the ‘Quota system’ for University entrance. The Government of Sri Lanka kept glorifying that they defeated the LTTE and those who believe in the ability of Tamils to Govern themselves at least to the extent of Sinhalese without higher portfolios, would naturally feel that such remarks feed the emotions of war victims at all levels.
It is not uncommon in Sinhalese areas also to blame the Government and the Government only for the pain caused by armed forces. But when pain is experienced by Tamils through the actions of Sinhalese, there are greater legal values for it at Global level, due to Anti Racism laws and practices. This is due to weaker belief in the victim by a perpetrator of different culture.
It is my belief, that to the extent Tamils have invested through legal avenues, to Eliminate unjust Discrimination – especially racial discrimination – that investment would naturally give anyone in their community greater confidence to take the legal path than members of a community that is yet to invest in the elimination of unjust discrimination – especially racial discrimination. When the Government of Sri Lanka includes such Tamils one way or the other – it is benefiting from that investment.
Sinhalese used the official path and status to list the LTTE as terrorists. Socially no Tamil would believe that the LTTE are / were Terrorists. If they did, they are not Tamils of Sri Lanka. If socially, the Sinhalese had believed that the LTTE were Terrorists, that belief alone would have eliminated the LTTE. It is because majority Sinhalese did not have that belief that the Government needed Laws to defeat the LTTE. The UN helped them, the way some white Australian Professionals are helping LTTE supporters. If the latter is wrong, so was the former. Australia, in both instances did not fully implement the legal path of discrimination (as per the UN) to identify with the sentiments of the Sri Lankan Government in this regard and classify all LTTE supporters as Terrorists. This would continue unless mainstream are seen by custodians of powers, to be adversely affected by Tamil actions.
I believe however, that Australian Tamils need to contribute more strongly to our legal system, through their experiences as Australians. As per my knowledge, I am the only one who applied direct to the Human Rights Commission, when I felt upset about remarks made by Dr. Palitha Kohona. Neither Jegan, nor Meena took this avenue. Theirs is more social and political than legal. We need to therefore do the appropriate ‘translation’ for it to benefit Australia. Given that Sri Lankan culture and Australian culture are very different, one needs to first raise the standard of the matter / issue to the higher global level through Common Principles applicable to both countries.
Sri Lanka is a Sovereign Country for legal purposes. Article 14 (1) (f) of the Constitution of Sri Lanka states ‘Every citizen is entitled to the freedom by himself or in association with others to enjoy and promote his own culture and to use his own language’
This is Sri Lanka’s version of Anti Discrimination principles and laws. Every victim of war in Sri Lanka, has the right to sue the Government if s/he felt that her/his pain and loss were due to actions in breach of the above. For example, the armed forces did go into Hindu temples and Christian churches during the war. Section 14 (2)(a) (ii) of the Prevention Of Terrorism (Temporary Provisions) Act (No. 48 of 1979) states ‘No person shall, without the approval in writing of a competent authority, print or publish in any newspaper any matter relating to- incitement to violence, or which is likely to cause religious, racial or communal disharmony or feelings of ill-will or hostility between different communities or racial or religious groups’
Sri Lankan war victims do have the legal powers through the above to take legal action against any Sri Lankan leader who has failed to follow Due Processes as per the above. This could even be a Sinhalese or Muslim. These avenues need to be used first to strengthen the Sri Lankan legal system – especially by migrants who are not yet fully Australians. That would confirm the confidence we feel about our Sovereign rights as a nation and/or community. Once we develop it and we have already earned the rights against another person/s it is our duty to ‘show’ the status to protect our Community. Premature expression by minorities often results in wastage. True belief would lead us to bring action at the right time against the person we have earned the right to prosecute.