Saturday 12 January 2019

Gajalakshmi Paramasivam

12 January 2019

President Placed at Risk of Racial Discrimination

As a person who has actually practiced racial equality I knew intuitively that the Governor / Administrator of  Northern Province of Sri Lanka, was dictating to Northerners instead of ‘sharing’ with them, when I read the report below. A Governor shares naturally. Even if we take the position name to be misleading – and take Dr Suren Ragavan as an Administrator with the powers of the President delegated by the President – the question arises as to whether Northern Administrators are being asked to do something that other Sri Lankans are not required to do.
Ada Derana reports as follows:

[Newly appointed Governor for the Northern Province Suren Ragawan says that where there is no law, there is no democracy. Sinhalese and Tamils, everyone should work together, he said.
Name boards of all government institutions in the Northern Province should be printed in both Sinhala and Tamil languages, stated the Governor. He says that this is important as it is of convenience to both Sinhalese people who arrive from the South and the Tamil people who live in the North.]

First of all the theory that ‘where there is no law there is no democracy ’ is false. There can be and there is democracy without law .  Secondly,  where there is law that renders hierarchical structure – such as ‘Buddhism foremost’ law in Article 9 of the Constitution – it is autocratic and not democratic.

This kind of reference to false values confirms autocratic structure where the Administrator tells as per her/his own personal interpretation to someone of lower status. In Democracy, until known otherwise through merit based measure, the other side is Equal and not junior. Hence every instruction needs to be passed through a law and one has the authority to share only at the level at which s/he has practiced that law. That is when Democracy is upheld.

Article 12 (2) of the Sri Lankan Constitution states:
[ No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds : Provided that it shall be lawful to require a person to acquire within a reasonable time sufficient knowledge of any language as a qualification for any employment or office in the Public, Judicial or Local Government Service or in the service of any Public Corporation, where such knowledge is reasonably necessary for the discharge of the duties of such employment or office : Provided further that it shall be lawful to require a person to have a sufficient knowledge of any language as a qualification for any such employment or office where no function of that employment or office can be discharged otherwise than with a knowledge of that language.]

If the Governor considered it necessary for Tamil Administrators in majority Tamil area to ensure that boards are in both languages, then the question arises as to whether Dr Ragavan, as a resident of say Colombo – ever reported to the Governor of Western Province or their common boss  - the President – to have all name Public  boards in Colombo in both languages? They are not at the moment.

Article 12(1) of the Constitution states:
[All persons are equal before the law and are entitled to the equal protection of the law.]
Where a person is senior in Administration – her/his word becomes the law at that place, at that time. But if such word is not law or truth – the risk of injustice is high. This automatically sows the seeds of militancy.

The Governor as the delegated officer of the President does not have the jurisdiction to require of the people more than the President’s entitlement. In true democracy, the governor does not have the authority to require a citizen to do more than s/he did as a citizen in that regard.
As per Article 12(1) – the citizen in the Governor is the highest limit at which the theory of law could be implemented.

Unless Dr Ragavan has demonstrated taking Administrative and/or legal actions in regards to such language related Administrative measures he does not have the moral authority to require the Administrators of Northern Province to directly follow the Constitution, in this regard. He needs to become the first citizen of Northern Province first and learn as part of the People – the real needs of Northern Province.

As some observers state about Northern Province, the Discrimination problem in North is Caste and not Race. Only someone who has felt caste based discrimination pain in either direction – top down or bottom up – would identify with this and also own the solution. Dr Ragavan needs to seek and find such leaders.

Racial Discrimination is Colombo problem through which Northern Tamils participated – in elimination of Racial Discrimination, until the armed forces came to North and made it Northern problem also. Dr Ragavan is showing that he is also carrying  such a mandate from the President – possibly subconsciously.

Below is the Australian law that confirms that this demand by Dr Ragavan has the effect of racial discrimination which is in breach of Article 12(2) of the Constitution of Sri Lanka.

Australian Racial Discrimination Act 1975

 (1A)  Where:
                     (a)  a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
                     (b)  the other person does not or cannot comply with the term, condition or requirement; and
                     (c)  the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.

In effect, the above states that to require Jaffna Tamil to comply with something that is not required of say Hill country Tamil or Colombo Tamil, amounts to Racial Discrimination.

The Ada Derana report includes the following:

Stating that not checking on the need of the public and strengthening the hub is also considered taking away the rights of the innocent, the new Governor requested all to give their support for the upcoming developmental activities in the North.’

The need of the Northern Public is to move towards Democratic practices. In terms of developmental work – this requires ‘Customer is Right’ policy. In other words the Customer is taken as right until proven otherwise on objective basis. The parallel of this for government is to take the citizen as right until proven otherwise on merit basis. Hence the supplier should be trained ‘not to tell’ first but to ‘listen’ first.

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