17 March 2023

Gajalakshmi Paramasivam

 

 

ETHNIC CONFLICT IN SRI LANKAN LAW

 

My attention was drawn to Asanga Welikala’s Twitter posing as follows:

‘Good, balanced, reporting. Both the CLE and the MCC have strong arguments. English brings economic and huge long term public goods advantages. But social fairness and non-discrimination are equally important. So a transitional approach would be best. Incrementalism always good.’

 

CLE = Council of Legal Education MCC =  Ministerial Consultative Committee.

The above posting is a good medium through which the issue could be analysed. Which of the two groups would identify with the above posting by Welikala? – the CLE or MCC? If it is CLE, then MCC would be the Opposition and v.v.

 

Welikala highlights also:

‘But social fairness and non-discrimination are equally important. So a transitional approach would be best.’

 

Is it the role of the judiciary to uphold social fairness and non-unjust discrimination in society?

Discrimination on the basis of law is essential in the court system. When the law is the basis, there is no room for any other basis.

When law is learnt in one’s own cultural language – it is highly likely that the mind of the guru  also is connected placed in the mind of the student. Hence Burghers are likely to be more comfortable where English is the language of learning. But they would also be the weakest in using their ability to use Discriminative thinking.

Tamils & Muslims living in Sinhala majority areas,  absorbing  the discrimination pain, developed exceptional skills particular to their respective communities. This was education for living for Tamils and Business for Muslims. My analysis on this is presented in my the chapter headed as follows Refer Appendix):  

‘UNTOUCHABILITY

Untouchability happens through Autocracy without ownership. Its lateral form is Indifference due to neglect.’

 

As per my analysis Tamils who absorbed discrimination pain developed deeper interest in that which was the motive of ‘Sinhala only’ language policy.  In turn the caste system based on ‘intellectuals foremost’ led to junior castes who absorbed unjust discrimination pain, to develop exceptional skill in their own traditional skills. Many freedom fighters in Sinhalese JVP and Tamil LTTE , including its leader Prabhakaran belong in this group.

This conflict between traditional customary laws and common codes of conduct often cause internal conflicts in families and communities. If one is committed to the Common law and its process one gets separated from the group driven by outcomes. The former unites and the latter separates. The clever without discipline needed by leadership contribute to separatism.

 

Welikala concludes ‘ So a transitional approach would be best. Incrementalism always good’

 

The conflict between Colonial Tradition and Tamil tradition, resulted in me writing to Mallakam District Court Registrar as follows with the motive of preventing miscarriage of Justice and weakening family heritage:

 

‘My husband and I, as 5^th & 6^th Respondents,  submit that it is our belief that this substitution, if granted, would be in breach of the Civil Appellate Court Ruling of 19 March 2018. On page 18, the honourable judges state as follows:

‘Section 30 of Matrimonial Rights and Inheritance Ordinance No.15 of 1876 as amended states, that

‘Except when otherwise expressly provided, if all those who succeed to the inheritance are equally near in degree to the intestate, they take per capita, and not per stirpes.’

 

 

NOTE:Per stirpes is a Latin term you can include in your last will and testament to explain who will inherit your assets if one of your beneficiaries passes away before you do. With a per stirpes distribution, if one of your beneficiaries dies before you, their share of your estate will pass to their descendants. Using per stirpes is a quick way to name contingent beneficiaries for your property.

 

In Latin, per capita translates to “by head.” Under the standard per capita distribution, all beneficiaries in the same generation or class receive the same portion of the total assets. There are several different ways to write a per capita distribution into your will, but two of the most common are “to my children, per capita” and “to my descendants, per capita.”

 

If you’re one of two or more beneficiaries designated in a will, per capita means that you may inherit more than your equal share of the estate. This would only occur if one of your fellow beneficiaries passes away before the estate is distributed. Their share of the estate would be split evenly amongst the surviving beneficiaries, and not to that individual’s heirs. If you were only one of two beneficiaries, you would inherit the estate in full.

Mr Registrar, the above confirms that we have firm grounds to oppose the ‘substitution’ of children as if the distribution is on Per stirpes basis. If allowed, it would be in breach of the Appellate Court judgment which upholds per capita distribution.

 

We learnt also that the son (Mr Sritharan Mahathevan) of the Petitioner Mrs Sakthidevi Mahathevan has been substituted as Petitioner. It is submitted that due to the ruling of the Civil Appellate court, this  substitution is invalid. As per the Petition filed by Mrs Sakthidevi Mahathevan – the petition was under section 526 (b) of the Civil Procedure Code which states as follows:

526. When any person shall die without leaving a will or where the will cannot be found, and such person shall have left property in Sri Lanka

(a) any person interested in having the estate of the deceased administered may apply for the grant to himself of letters of administration; or

(b) any heir of the deceased may apply for the issue of certificates of heir-ship to each of the heirs entitled to succeed to the estate of the deceased.

 

I submit that only an heir who is a beneficiary has the right to be petitioner under section 526 (b).

As per, the Petition, the Petitioner did not have Administrative rights. The authority to issue Certificates of Heirship was issued on 23 June 2018. Hence the distribution ought to have

happened soon  after. We came many times to collect the monies which were in the custody of the Mallakam District Court. But your predecessor stated that he was awaiting the report of the Petitioner regarding distribution of funds in the UK. We are also awaiting the report in this regard – from Mrs. Saraswathy Sabanathan – the 4^th Respondent. We did not consent to her acting on behalf of us. Our letter dated 28 October 2022, in this regard, is appended.’

 

It was obvious to me that the former Registrar did not have the necessary knowledge to interpret the law. He became dependent on the clever lawyer from Colombo who did demonstrate outstanding English language skills which the primary court judge fell for. That conflict of interest led to miscarriage of justice.

Needed desperately in Sri Lanka is the facility for lay-litigants to present their cases. It is the parallel of ‘Customer is right’ principle in business and ‘Student -centred teaching and learning’ in Universities.

 

Appendix

 

In Sri Lanka, junior castes in both major ethnic groups rebelled due to this caste based unjust discrimination. When Sinhalese governments led by  Senior castes distracted their attention through Sinhala language -only & Buddhism foremost policies, junior caste Tamils restructured themselves to exercise their fighting skills.  That was how LTTE became the leading political force in Northern Sri Lanka after the 1972 quota system to enter Universities. Wikipedia presents the following on this system:

‘In 1972 government added district quota as a parameter within each language. 30% of university places were allocated on the basis of island-wide merit; half the places were allocated on the basis of comparative scores within districts and an additional 15% reserved for students from under privileged districts.

A lower university entrance qualifying mark for Sinhalese-medium students was also introduced in 1971 for science faculties, as shown by the table below:

 

 

 

Course of study	Medium	Minimum marks, 1971
Engineering	Sinhalese Tamils	227 250
Medicine and Dentistry	Sinhalese Tamils	229 250
Bio-science	Sinhalese Tamils	175 181
Physical Sciences	Sinhalese Tamils	183 204

The hardest hit population group were the Sri Lankan Tamils, rather than the affluent Sinhalese of the rural and urban areas. Sinhalese historian C.R. de Silva stated that "ethnically there is little doubt that the major blow fell on Ceylon Tamils. "

In 1969, the Northern Province, which was largely populated by Tamils and comprised 7%  of the population of the country, provided 27.5 percent of the entrants to science-based courses in Sri Lankan universities. By 1974, this was reduced to 7%. However, Tamils were underrepresented in university as a whole in 1970, constituting 21.6% of the population, but holding only 16% of the places.

The Indian Tamils had not gained from standardisation, despite having "the poorest schooling facilities on the island"

 

To the extent both ethnic groups discriminated unjustly on caste basis – they both contributed to unregulated armed war by junior castes. This is the philosophy of rebirth. Accordingly, unjust discrimination mutates as lower level opposition such as armed war.

Then they fought against each other. Tamil rebels were funded by Tamils, and Indians. That was how job-opportunities were restructured at reality levels.  Those who were suppressed but continued to be independent, became exceptionally gifted performers in the new structure. There were many of them in the LTTE.