Living on the Margins. Minorities in South Asia - EURAC

ii
Clause 12 (2) of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978. The
Constitution further elaborates discrimination as follows: “No person shall, on the grounds of race, religion,
language, caste, sex or any such grounds, be subject to any disability, liability, restriction or condition with
regard to access to shops, public restaurants, hotels, places of public entertainment and places of public
worship of his own religion.”- Clause 12 (30) of the 1978 Constitution. It is important to mention here that
this particular provision is meant to protect the rights of social minorities (the marginal caste communities)
from the discrimination practiced by hegemonic castes within the Tamil ethnic community. It does not
refer to the protection of Tamil rights as an ethnic minority. In other words, it seeks to prevent internal
discrimination within Tamil society.
iii
Clauses 18 and 19 respectively.
iv
The inaction of the Sri Lankan state to properly implement even the existing legislation on minority
language rights is quite disturbing. The Official Languages Commission as well as human rights
organizations have repeatedly pointed out to successive governments that strengthening institutional
capacity, supported by a clear public commitment of the government, is crucial to the proper
implementation of constitutionally guaranteed language rights of the minorities. All successive
governments have not done much beyond providing lip service to the language rights issue.
v
No government since has thought it necessary to hold fresh provincial council elections for this Province,
although elections have been held for other provincial councils many times.
vi
This point is elaborated in Uyangoda, Jayadeva, 2007, “Power-Sharing and Autonomy Rights of
‘Minority’ Communities in Sri Lanka,” in Amal Jayawardane (ed.), Perspectives on National Integration in
Sri Lanka, Colombo: National Integration Programme Unit.
vii
This tension between the liberal and nationalist approaches to human rights developed into a minor
controversy in 2003 during the peace negotiations between the Sri Lankan government and the LTTE. The
Sri Lankan government, backed by the international community and local human rights groups, brought the
issue of human rights to the negotiation agenda, with the intention of persuading the LTTE to commit itself
to a regime of civil and political rights in the areas under its administration. Ian Martin, the former head of
the Amnesty International was invited to prepare a ‘road map’ to human rights. Although the LTTE
accepted this move, they were not enthusiastic about what they called the ‘individual rights’ approach. As
the LTTE leaders pointed out in personal conversations as well as their propaganda literature, the ‘selfdetermination
rights’ of the Tamil people should take precedence over individual rights.
viii
It is necessary to make a distinction between ‘collective’ rights and ‘group’ rights in this discussion.
Collective rights are cultural, language and religious etc. rights that individual members of any ethnic
community should enjoy by way constitutional or legal guarantees. They are individually enjoyed rights of
a community. The concept of group rights refers to specific political rights of community enjoyed on the
recognition that that community is the agency and the holder of those rights. Collective rights are usually
‘granted’ by the state whereas group rights are ‘earned’ through political struggle.
ix
Section 29 (2) of the Soulbury Constitution stipulated that no law passed by parliament shall (i) prohibit
or restrict the free exercise of any religion, (ii) subject persons of any community or religion liable to
special disabilities or restrictions, (iii) confer on persons of any community or religion special privileges or
advantages.
x
For the ‘deficiency thesis’, see James W. Nickel, 1997, “Group Agency and Group Rights,” in Ian
Shapiro and Will Kymlicka, (Eds.), Ethnicity and Group Rights, NOMOS XXXIX, New York and London:
New York University Press, pp.235-256.
xi
Rajan Hoole records and comments on these aspects in his, 2001, Sri Lanka, The Arrogance of Power:
Myths, Decadence and Murder, Colombo: University Teachers for Human Rights (Jaffna), particularly,
Chapter 20, pp. 308-348.
xii
For background details of the emergence of the SLMC see, Shari Knoerzer, 1998, “Transformation of
Muslim Political Identity [in Sri Lanka], in Mithran Tiruchelvam and Dattathreya, C. S. (Eds.), Culture and
Politics of Identity in Sri Lanka, Colombo: International Centre for Ethnic Studies.
xiii
Clauses 1.4 and 2.2 respectively of the India-Sri Lanka Accord of July 1987.
xiv
For an extensive account of this debate, see Loganathan, K. 1996, Sri Lanka, Lost Opportunities: Past
Attempts at Resolving Ethnic Conflict, Colombo: University of Colombo, pp. 168-183.
xv
R. Sahadevan, 1995, India and Overseas Indians: The Case of Sri Lanka, Delhi: Kalinga Publishers, p.
144.
xvi
Cited in Sahadevan, 1995, p. 189.
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