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 5th & 6th 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 4th 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.
