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Edited by Nama Wanasiunea
 

Ghat
ika Coomaraswamy
ab Samarca
TuМMollapatra
ja Gopal Jaya
a Wijesinha
:as as

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Protection of Minority Rights and Diversity

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Protection of Minority Rights and Diversity
Edited by Nanda P. Wanasundera
The International Centre for Ethnic Studies, Colombo

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Published By: ICES
The Minority Rights Project The International Centre for Ethnic Studies (ICES) No.2, Kynsey Terrace,
Colombo 8,
Sri Lanka
Telephone: 94-11-2691324/ 2685085/2679745 Fax : 94-11-2698048
E-mail : adminOicescolombo.org
Website: www.icescolombo.org
First Published 2004
All Rights reserved. This material is copyright but maybe reproduced by any method for teaching purposes but not for resale. For copying in other circumstances or for re-use in other publication or for translation, prior written permission must be
obtained from the copyright owner.
ISBN: 955-580-092-8
Printed and bound in Sri Lanka by Unie Arts (Pvt.) Ltd 48B, Bloemendhal Road, Colombo 13, Sri Lanka.
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Contents
Acknowledgement Editor's Note Introduction
The Relationship between the State and Minorities
Yash Ghai -
Identity Within - Cultural Relativism, Minority Rights and the Empowerment of Women Radhika Coomaraswamy
The Juridical Political Claims of Minority Protection in India
Ranabir Samaddar
The National Commission for Scheduled Castes
and Scheduled Tribes (NCSCST) Bishnu N Mohapatra and Niraja Gopal Jayal
Diagnostic Study of Ministry of Local Development
(MLD) and the National Human Rights
Commission of Nepal (NHRC)
Nepal South Asia Centre
Education in Sri Lanka: The failure of good intentions and little learning
Rajiva Wijesinha
The Role of the Attorney General in cases of torture, illegal arrest and arbitrary detention
Priyadharshini Dias
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Acknowledgement
This publication is a result of a compilation of studies under the project Diversity and Pluralism in South Asia, Funded by the FORD Foundation - Delhi. We take this opportunity to express our gratitude to the Foundation for their continued support of our work.
The ICES wishes to express their gratitude to Anil Bhattara, Bishnu N. Mohapatra, Niraja Gopal Jayal, Priyadharshani Dias, Radhika Coomaraswamy, Rajiva Wijesinha, Ranabir Samaddar, Yash Ghai, for their contributions.
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Contributers
Yash Ghai is a Professor of Public Law in University of Hong Kong. He has also been a constitutional and legal advisor to several governments, political parties, international organizations and nongovernmental organizations.
Radhika Coomaraswamy is the Director of International Centre for Ethnic Studies and is a lawyer by training. She is also currently the Chair of the Human Rights Commission in Sri Lanka.
Ranabir Samaddar is the Director of Peace Studies Programme in South Asia Forum for Human Rights.
Bishnu N. Mohapatra D. Phil. (Oxford): After completing his education at University of Delhi, Jawaharlal Nehru University and University of Oxford, he has been teaching since 1994 at the Centre for Political Studies of Jawaharlal Nehru University. Currently he is in leave of absence from the University and heading the Governance Program at the New Delhi office of the Ford Foundation.
Niraja Gopal Jayal is Professor at the Center for the Study of Law and Governance, Jawaharlal Nehru University. She is the author of Democracy and the State: Welfare, Secularism and Development in Contemporary India (Oxford University Press, 1999); co-author of Drought, Policy and Politics in India (Sage, 1993); and editor of Democracy in India (Oxford University Press, 2001). She is co-editing two forthcoming volumes, both under publication by the Oxford University Press: The Oxford Companion to Politics in India, and Local Governance in India: Decentralisation and Beyond.
The Nepal South Asia Centre is a Research Institute in Tripureshwar, Kathmandu, Nepal. The institution is focusing on development
strategy, democracy and good governance.
Rajiv Wijesinha is currently Professor of Languages at Sabaragamuwa University as well as Coordinating Manager of the
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English and Foreign Languages Unit of the Ministry of Education. He Lectured previously at the Universities of Peradeniya and Sri Jayawardenapura and was also Cultural Affairs Officer of the British Council, Colombo.
Priyadharshini Dias is an Attorney at Law. She was a former member of the Prisons Advisory Committee, Ministry of Interior and a Senior Consultsant in the Human Rights Commission, Law Review Project. Presently she is a Postgraduate Student, at Kings College London.
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Editor's Note
This publication is consequent to the South Asian Conference on Diversity held in Colombo at the Hotel Lanka Oberoi from 16th November 2000 to 18th November 2000. The papers presented at the Seminar are published so they are retained between two covers. The primary aim of publishing the papers, needless to say, is so they reach a wider reading public.
The publication is in two distinct sections: background papers on diversity as evidenced globally and in countries of South Asia; and studies of Sri Lankan educational, language, and resettlement issues and of the Attorney General's Department.
In the first section the articles are arranged in a geographical sense: the first article being on diversity per se and the second on diversity as regards women in particular. Both treat the issue on a wider scale; global rather than being confined to one country or the sub-region. These are followed by papers on diversity in the countries of South Asia, the contributions being arranged alphabetically by country: India, Nepal, Pakistan. Almost all the articles are followed by one or more diagnostic studies on institutions in the countries that are written about.
Each of the studies on diversity is prefaced with an abstract. These indicative summaries are either by the editor or extracted portions of an article, moved to the beginning of it to indicate the contents of the article.
In The Relationship between the State and Minorities, Yash Ghaideals with the issue of diversity generally and globally without confining his study to the South Asian region or any particular country in the sub-region. He starts his paper with preliminaries which state there is no single model which defines the relationship of the State to its minorities; norms and rules defining this relationship are influx; the difficulty of categorising the State in terms of its relationship with its minorities. He goes
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on to define and describe the 'typology of States' proceeding from the liberal state through the nationalist state to the multinational state. He deals next with the international regime of minority rights, followed by a regional system for the protection of minorities. The article ends with the observation that the challenge in South Asia is coming to terms with the diverse ethnicity that every country has, and building on the positive elements of this diversity.
Radhika Coomaraswamy, in her article: Identity Within - cultural relativism, minority rights and the empowerment of women takes a global view of the three aspects of diversity she deals with. She traces the legacy of colonialism; "Championing the cause of third world women" "They sought to regain the moral high ground by standing for women's equality and by combating practices that were harmful to women". The international framework of human rights, she says, "attempts to deal with concepts of culture and cultural relativism through the prism of the rights of minorities' Citing cases of female genital mutilation, honour crimes, the practice of sati, and injustice with regard to land rights of women, she points out that much discrimination still exists in spite of Conventions and Covenants (UDHR, CEDAW, ICESCR, CRC). The situation of women and the girl child is far from satisfactory and they need protection like other minorities. She ends her article with indicating a way to resolving the global problem by national governments identifying a core of provisions that are common to all legal systems, and enforcing these to protect the child and the basic autonomy of WOle.
Ranabir Samaddar in his contribution titled: The Juridical Political Claims of Minority Protection in India examines the subject in terms of constitutional and institutional practices of protection. He examines to what extent diversity is politically and socially welcome. The article is in six sections and examines claims for protection; the extent of protection given; the legalpolitical background; steps taken by Constituent Assembly deliberations in protecting minorities; the powerlessness of

minorities; and the protection given them by people's tribunals, local agents, and government initiatives. Exclusion versus inclusion of minorities in the political sphere and in society is also examined.
An in-depth report on The National Commission for Scheduled Castes and Scheduled Tribes (NCSCST) is the submission of Bishnu N Mohapatra and Niraja Gopal Jayal. Mentioning the fact that it is an exploratory study of an institution designed to protect and promote the welfare of certain historically disadvantaged sections of Indian Society, it evaluates the NCSCST from an internalist and then an externalist perspective. Following a socio-economic profile of the scheduled castes and scheduled tribes, with tables of statistics, the history of the NCSCST is traced. The functioning of the institution is documented as four main activities: investigation and inquiry, advisory and monitoring activities and non-formal action. Perceptions, anxieties, concerns, failures and successes are included. The study ends with certain observations, which are stated as recommendations.
Diagnostic Study of Ministry of Local Development (MLD) and the National Human Rights Commission (NHRC) by the Nepal South Asia Centre outlines the history of these two institutions; their functioning; successes and failures; and includes recommendations. The major question the study attempts to address is "whether the MLD and the NHRC are conducive mechanisms for the promotion of diversity in Nepal, albeit in their different roles." The history of the much older MLD is traced through the Pre-Panchayat Era (1950 — 1960), the Panchayat era (1960 -1990) and Post 1990 - the Open Democratic Political Space. MLD is not an autonomous body, being part of the government and concerned more with development projects. The NHRC is, on the other hand, an autonomous body set up in May 2000 as a five member commission to provide feedback to the government in its handling of human rights issues in the country.
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Rajiva Wijesinha makes s detailed survey of Education in Sri Lanka, tracing government educational policies from the decade just prior to independence to the present. Failures are listed, specially with regard to the teaching and learning of English in all schools in the Island. He concludes the study with the suggestion to implement ten recommendations he lists, which would not only provide a better education to the Sri Lankan child but would also help with the national building process.
Two appendices are included on the structures for administration and training in English at provincial levels and recruitment of educators and administrative personnel for the teaching of English and implementation of newer policies.
A book-sized treatise on the Attorney General's Department by Attorney-at-Law Priyadharshini Dias completes the collection. All aspects of the AG's department are dealt with, including its history, AG's powers, application of international treaties and fundamental rights provision in Sri Lanka. A detailed section on torture and arrest and detention follows, with mention of extra judicial abuses and killings by State officers, the police in particular. Recommendations to reduce such abuses and offences, sensitizing officials and the need for an independent investigative body, among other concerns, are clearly stated.
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Introduction
South Asia is home to one fifth of the world's population. It is intensely diverse in its people: country to country and within each country. Diversity is due to race, ethnicity and language, religion and religious rites and beliefs, culture and cultural Customs.
Causes of Diversity
South Asia's racial diversity originated as it attracted people of different races from different parts of the world - north, west and east; absorbed them in the various parts of the sub-region; and then had them either retaining their distinct identity as regards language, culture, rites and way of life or being absorbed to a majority race. The Aryans and Dravidians were the principal races that moved to South Asia.
Asia is the place of birth of leaders of all major religions of the world. South Asia is the country of origin of Hinduism and Jainism. Siddhartha Gotama, born in Nepal but moving to India, spread his Dhamma which is now acknowledged as Buddhism. Thus, in South Asian countries live Buddhists, Christians, Hindus, Muslims in large proportion with other religions too being professed by smaller groups of people, particularly in countries such as India, Nepal and Sri Lanka.
Greater diversity exists in the languages spoken in the different countries and within each country. India, for example, has afforded constitutional recognition to fifteen major languages. It is said that local dialects change every ten miles in the country.
Diversity is also consequent to indigenous peoples retaining their identity, often fiercely. Indigenous people include native tribes who are culturally distinct and distanced in significant ways, and usually prefer to live their lives in age old ways avoiding, or being made to avoid integration with majority races.
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Thus the existence of minority races in most countries of the world and in all South Asian countries except the Republic of the Maldives. In democratic societies, minorities are those groups that are determined on a numerical ratio of the population of the country; and recognizable as particular groups of people who differ from the dominant group within a State. To this category of minority groups can be added two recently recognised "minority groups' - women and migrants, due to the distinct disadvantages they are made to suffer.
Effects of Diversity
Diversity in the sub-region, while enriching South Asia, has also caused strife and catastrophic upheaval. Racial diversity, adds to the uniqueness of the countries, but has been the cause of civil wars. Sri Lanka is a case in point. The country suffered the wages of war as the Liberation Tigers of Tamil Eelam were locked in battle with the government armed forces for close on twenty years, until a negotiated peace in February 2002, saw a cessation of open combat.
Religious diversity brings with it greater understanding and tolerance if the religions are followed sincerely with the eastern concept of ahimsa adhered to. But religious diversity has been a scourge in India with riots erupting all over the subcontinent between Hindu and Muslim communities. Horrendous bloodshed has continued in India on account of religion. The assassination of Mahatma Gandhi, accepted by most as the greatest human of the 20th century, could be traced to religious strife and flaming race rivalry.
Diversity resultant from spoken and written languages could add much to the culture of a country and enrich its peoples. However, with the usual predisposition of peoples to Supremacy and violence, language too has often been a bone of contention among regions and ethnic groups; and between the people and the State. The extreme case of language being a barrier to unity was witnessed when East Pakistan broke away
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from West Pakistan, giving birth to Bangladesh in 1971. The breakaway was a direct result of the imposition of Urdu as the State language of East Pakistan, notwithstanding the fact that only 10 percent East Pakistanis spoke the language, the majority using Bengali or Bangla, as the language is now named.
India, the largest country in the sub-region, exhibits the greatest diversity in its people, with indigenous minorities like the Assamese and caste minorities like the Dalits being separated as scheduled tribes and scheduled castes.
Caste in many South Asian nations is a demarcating factor. It exists in most countries of the sub-region but, to varying decrees of importance and being seen and noticed, unlike in India where caste division is another contributory factor to its diversity.
Challenges to Diversity
The internal challenge that South Asia faces is coming to terms with its social pluralism; directly related to national, ethnocultural, religious and other minority characteristics and concerns. The multinational State or multi-ethnic State explicitly recognises the fact. that the State consists of diverse cultural communities and that all have the right to recognition of their diversity. The multinational State differs from the 'nationalist' State in that recognition of ethnic groups is not a subordination of Some peoples, but that all are accorded equal status and respect.
The countries of South Asia are politically democratic, to varying degrees, it must be admitted. Diversity strengthens democracy rather than weakens it. Diversity is the rule in the globalized world of today, not the exception. Diversity per se is not conflict generating. But petty communal forces, all over South Asia, in order to protect their interests, have consistently weakened the culture of diversity. Thus the most vital step that needs to be taken by all States of the sub-region is nondiscrimination and its permeation to all spheres of a nation:
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social, political, economic and equality before the law. Effective participation of religious and ethnic minorities and the 'minority of women' in the business of State would not only satisfy the aspirations of them and other minority groups but would also inculcate a culture of tolerance and peace.
There is, however, no simple model of normality in law or practicality which defines the relationship of a State to its minorities. The Constitution of a country sometimes states few norms which compel States to specifically recognise minorities. If, on the other hand, recognition and safeguards are stated in the Constitution of countries, they may not be enforced.
Protection of Diversity
Thus the fact that the greatest challenge facing most countries of South Asia in the last two or three decades has been managing large scale, violent and disruptive attacks on members of minority communities by members of majority communities, or vice versa, when a minority race makes unreasonable demands and wages war against the legitimate government of the country. The devastating effect of these conflicts place democracy at risk. Thus the questions posed by one of the authors of this collection:
What safeguards should be in place for the benefit of minorities? What is the role and relevance of institutional and/or legal mechanisms to protect minority rights?
The juridical basis of minority rights, as another author in the collection points out, rests on three principal sources: minority rights, indigenous peoples' rights and self-determination.
In international law, certain "rudimentary norms have been developed on a fragmentary and ad hoc basis' and thus the struggle to define the status of minorities. Article 27 of the International Covenant on Civil and Political Rights (ICCPR) reads thus: In those States in which ethnic, religious and linguistic
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minorities exist, persons belonging to such minorities shall not be denied the right in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion or to use their own language.
As is mentioned, certain persons interpret this as a grudging acknowledgement that minorities may exist. The Human Rights Commission has interpreted the article in a more positive way, using it to develop collective rights of minorities, including a measure of autonomy and some positive obligation on the State. Despite the negative language of the Article, it implies a positive obligation on the State to ensure the protection of minorities and their rights against the denial or violation of rights by the State or of its legislative, judicial or administrative authorities or by persons
A broader approach is.reflected in the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities adopted by the General Assembly in 1992. It recognises only rights of individuals, but unlike the ICCPR, it places positive obligations on the State to protect the identity of minorities and encourages conditions for the promotion of that identity. It places special emphasis upon the right of minorities' participation. Also the right to establish and maintain their own associations. The right to maintain free and peaceful contact with members of other minorities and the right to full participation in economic programmes and development, is assured by the UN Declaration.
The ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries (no 169), adopted in 1991 recognised the aspiration of these peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions within the framework of the States in which they live. Systems of land ownership and rules for the transmission of land rights are to be protected.
The draft UN Declaration on the Rights of Indigenous Peoples, prepared within the UN System and presented to the UN Commission on Human Rights (August 1994) proclaims
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the right to self determination and recognises the collective right of indigenous minorities to maintain and strengthen their distinct social, political, economic and cultural characteristics. The broadest source of minority entitlement is self determination.
The fact that has to be faced in South Asia and given due attention is coming to terms with the diversity that every country possesses. The positives of this diversity have to be developed and built upon. That is a challenge that faces peoples and nations of South Asia in the 21st century.
Namda P Wanasundera Editor
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The Relationship between the State and Minorities
Yash Ghai
I Introduction: Preliminaries and Caveats
I have been asked to speak on the relationship between the state and its minorities, particularly as that relationship is delineated or regulated by international law. As a particular concern of this conference is regional initiatives for the protection of minorities, I shall also say something about the European scheries for the protection of minorities as Europe is the only region which has taken concrete steps towards this end.
I start with a few preliminaries. The first is there is no single model, normatively, in law, or practically, which defines the relationship of the state to its minorities. The general theury of constitutional law contains few norms which compel the state towards a specific regime for minorities. Within political theory it is possible to detect a dominant orientation, that of liberalism, but it is by means uncontested. As with liberalism, the theory of the marxist state did not accommodate minorities as a separate and distinct constitutional category, but Lenin's pragmatic solution to the problem, expressed in his theory of the 'national question", subsequently followed by China in a diluted form, did provide for various forms of autonomy for titular' ethnic groups dominant in particular localities-a transitional device. In international law certain rudimentary norms, developed on an ad hoc and fragmentary basis, struggle to define the status of minorities, but these frequently lend themselves to different and opposing interpretations. But the international regime provides no universal scheme of minority, protection-some minorities are clearly

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privileged, particularly indigenous peoples or 'national minorities", whatever the practical difficulties they face in everyday life. Not much progress has been made at the regional level, where notions of state sovereignty still serve to exclude norms which might govern domestic state arrangements, except in Europe but even there is much tentativeness, and the fear to tread upon state sovereignty. In the realm of real politik, various paradigms compete, rooted in nationalism, religious or ethnic fundamentalism, secularism, fascism, nation-building, etc.
The second preliminary point is that the norms and rules defining the relationship of the state with its minorities are in flux. In recent decades many moral and legal claims have been made by or on behalf of minorities, which emphasis their identity in contradiction to or supplementing national or state identity, and build a compendium of entitlements on the basis of that identity. Among the entitlements are forms of self-government and compensatory justice. The denial of these entitlements is said to ground claims to secession, which to a large extent takes the question of the relationship out of the realm of domestic law and politics. The development of human rights norms, and, to a limited extent, practice, have qualified the concept of state Sovereignty, which had made state-minority relations an internal matter to be determined by the state. Ideas of group identity, human dignity and public participation (frequently based on the concept of group or collective rights), are altering the framework for the relationship, although the directions, if any, in which these ideas will compel the re-organisation of the state remain unclear.
The third preliminary point is an assumption, implicit perhaps also in the title given to me for my talk, is that the state is legally and practically able to define the status and role of minorities. Using to some extent this assumption, David Brown tried to explain the phenomenon and regulation of ethnicity in Southeast Asia by reference to the nature and characteristics of the state (Brown 1989). He uses three models

of the state: the plural model, where one group dominates other groups, the clientelist model based on the role of individuals as leaders of clientelist networks, based to a large extent on ethnic groups, and the corporatist state model in which absolute loyalty to the state is purchased and sustained through a key role for corporate groups which articulate and pursue specific interests. From these models he draws different regimes of state-ethnicity relations. While such an approach does yield useful insights, its utility is limited, for its exaggerates the ability of state to manipulate and manage ethnic relations. The qualifications on state sovereignty show that the legal competence of the state to regulate the rights and status of minorities is diminishing, and beginning, at least in extreme cases, to be restricted by external norms and supervision. But in practical terms also the dominance that the state has hitherto exercised over minorities is hard to sustain today. The greater consciousness of rights of minorities, rooted not only in legal norms but also theories of justice, and the ability to mount national and international campaigns on the basis of these ideas, have, although not universally, greatly increased the bargaining power of minorities. The easy availability of arms and the capacity to create social and political turmoil and disorder have limited state options, and even the capacity for coercion, the ultimate resort of the state, is no longer decisive, any more than it is now the defining characteristic of the state a la Max Weber. No where is this truth more forcefully demonstrated than in Sri Lanka where we are meeting today. The dominant trend instead is a struggle over the design of the state in which ethnic groups wield considerable clout. It is therefore necessary to pay attention to the norms and other resources which minorities and other ethnic groups are able to deploy, and thus shift the focus to inter-ethnic or inter-group relations as a key to the nature of the state.
Fourthly, it is difficult, so far as individual countries are concerned, to categorise the state in terms of the relationship to minorities, since the defining character of the state is not

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necessarily stable. Nor does it always help to focus on the legal instruments which purport to define that relationship, for the way in politics work and policies are applied may not bear much resemblance to the legal norms. India provides a good illustration-the Constitution prescribes in detail and with considerable intellectual coherence the place of minorities in the state system, the principal components of which are secularism in which no religion is privileged over others, citizenship as defining rights and obligations on a basis of equality, and the grant of economic and cultural entitlements to minorities which are of special significance to them for economic survival or cultural identity. However, the organisation and conduct of politics have, at least in recent years, a strong underpinning of Hindu domination and the redefinition of identity of the state which has tended to reject secularism and equal citizenship in favour of nationalism based on Hindu fundamentalism'.
Another problem is keeping a clear focus on minorities in their relationship to the state. The concept of minorities is being subsumed under other categories: peoples, nations, ethnic groups. In order to assess these developments, the context and the assumptions of this new pre-occupation with the rights of minorities must be examined. Underlying the context is a shift from minority to ethnic communities; the former tended to look to protection of groups, the latter to relations among them. As will be obvious from this paper, the literature on ethnicity has been influential in the approaches to minority protection. Since political minority rights inevitably deals with the relations of a minority to other segments of the population, it is hard to avoid "inter-group' relations approach. But it is necessary to caution that specific minority problems and rights may become obscured in an "inter-group relations' approach, and the fate of small, noninfluential minorities may suffer further.
Despite these difficulties, there is value in establishing broad categories of the state through which to explore its relationship to minorities. This exercise is in the nature of

Weberian ideal types', by which is meant that the characteristics which are used to describe the state may not necessarily exist in a pure form, but they help to elucidate the underlying nature or its essence. For reasons given above, this is a sensible approach. It is also defensible approach, for as we shall see, although most states have a mixture of systems, usually there is an underlying philosophy or logic, despite the mixture, to the organisation of the politics of intergroup relations which pervades the state. The categories of states I employ are empirical rather than normative, although for each of these categories one can find ideological justifications. Nor is it always easy to separate the two, for each type of state seeks to justify itself by reference to normative principles. So in this paper, the empirical and the normative interact. I employ three broad categories of the state for analysing the relationship to minorities. These are (a) the liberal state, (b) the nationalist-state and (c) the multinational state.
II Typology of states
The liberal state
Of the three categories, the liberal state is the best known. Much has been written about it, principally in its defence, but also some critically. The liberal state is marked by its concern for the individual. The rights of the individual are more central to it than even democracy. The justification of the state is to enable individuals to pursue their interests and the good life as they see it, not as others would define these for them. The identity, autonomy and self-fulfilment of the individual are the primary objects of the organisation of the State. In this conception, the individual is somewhat abstracted from the community in which she lives, atomised and self-centred. The state is therefore neutral as to public and private values, rhoices about which must be made by
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individuals. It is also neutral as between different communities and religions, not privileging one over others. Nor does it seek to regulate relations between different communities. For the most part, communities are not recognised as corporate groups; each community is merely a collection of individuals who may associate among themselves for private or even public purposes. The bearer of rights are individuals, known in the political sphere as citizens. Each individual is valued equally, so that the legal equality of all citizens is the fundamental organising principle of liberal society. The role of the state is limited to essential tasks to maintain law and order, external defence and a protective framework in which individuals may pursue their economic, Social, religious and political activities.
In this model, there are no rights or special recognition of minorities, the emphasis is on constitutional symmetries. The neutrality and the limited role of the state counsels against even official intervention to remedy injustices of the past, such as affirmative action. This description of the liberal state might give the picture of a polity which is hostile to minorities. This picture is far from the truth-or at least from the aspirations of the liberal Society. Although, politically the state operates on the majoritarian principle, by insisting on the neutrality of the state as among communities and religions, liberalism seeks to protect minorities from the values or preferences of, and ultimately oppression, by the majority. The liberal vision of a multi-ethnic Society is that of a tolerant and pluralistic Society, in which all cultures may flourish and members of minorities may freely pursue their goals. An extensive bill of rights, concentrating on civil and political rights, is central to this protective framework, guaranteeing various rights, such as the right to association, the freedom of expression, the use of languages, the freedom of conscience, protections of due process, freedom from discrimination and torture, etc. The liberal state achieves these goals by relegating a large sector of life and Society to the private domain, the scope of which itself is expansively defined, in part by the
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protections of rights and the definition of the polity (and its ultimate goal of individual freedom). In the civil or private domain, communities may organise their own social, religious, educational and economic life. They may converse with others in their own language, and may cultivate cultural and social links with members of their own ethnic or kin communities in other lands, such as through vernacular newspapers, visits and other exchanges. At the same time they are protected from the imposition of the norms, culture, institutions, and symbols of the majority communities. Thus a sharp distinction between the public and private, which underlies the liberal state, is essential to the protection of minorities.
However, it has been argued that the modern liberal state, with its lineage of the market oriented and homogenising regime, built on the principle of individualism and equal citizenship, is inherently incapable of dealing with ethnic and Social diversity that characterises most countries. Constitutionalism associated with the modern state was concerned at first with limits on power and the rule of law, to which were later added democracy and human rights. Noting different communities or groups who are seeking constitutional recognition of their cultural or social specificity-immigrants, women, indigenous peoples, religious or linguistic minorities-James Tully concludes that what they seek is participation in existing institutions of the dominant society, but in ways that recognise and affirm, rather than exclude, assimilate, and denigrate, their culturally diverse ways of thinking, speaking, and acting. He says that what they share is a longing for self-rule: to rule themselves in accordance with their customs and ways (Tully 1995: 4). The modern constitution is based on the assumption of a homogenous culture, but in practice it was designed to exclude or assimilate other cultures and thus deny diversity (Tully 1995:58). One might add that the distinctions between the public and the private are difficult to maintain, especially in multi-ethnic societies, where consciously or unconsciously
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there is the desire for the political recognition of the fundamental values or symbols of the community, as well as dominance of even the private domain by the politically and economically powerful.
Tully argues that a constitutional order, which should seek to provide a framework for the resolution of issues that touch on the concerns of the state and its various communities, cannot be just if it thwarts diverse cultural aspirations for self-government (Tully 1995: 6). Symmetries of power, institutions, and laws which define the modern state are inconsistent with the diversity of forms of selfgovernment that Tully considers necessary for a just order in multi-ethnic states. The necessity of a constitution which is based on mutual recognition of diversity is reinforced by the consideration that there is no escape from multi-ethnic states as the alternative of over 1,500 'nation states' is not feasible. Such a constitution should be a form of accommodation of cultural diversity, of inter-cultural dialogue in which the culturally diverse sovereign citizens of contemporary societies negotiate agreements on their forms of association over time (Tully 1995: 30).
A similarly critical approach is taken by Bikhu Parekh, who argues that the theory of the modern liberal state presupposes a culturally homogenous society and becomes a Source of disorder, injustice, and violence when applied to culturally heterogeneous societies. He identifies various institutional and structural features of the modern state that impose uniformity and ignore diversity. The organizing principle is state sovereignty, which justifies the centralization of power and displaces local and group sites of power. This sovereignty operates on a territorial basis, with hard boundaries. Rules for the exercise of this sovereignty are biased towards majoritarianism, stifling the voices of minorities. Much of his criticism is encapsulated in his view of sovereignty as "a rationalised system of authority, is unitary and impersonal in nature, is the source of all legal authority exercised within the state, is not legally bound by the

traditions, customs and principles of morality, and is not subject to a higher internal or external authority' (Parekh 1997: 183). People relate to the state through the concept of citizenship, based rigidly on equal rights and obligations of all persons, premised on loyalty to the state, and acknowledging no distinctions of culture or tradition. Citizens have rights but these are rights of individuals, based on an abstract and uniform view of the human person. The state operates through the medium of the law, but it is the law created by the state, rather than pre-existing bodies of customs or local law. The state favours the uniformity of structures and seeks to achieve the homogenization of culture and ideology, propagating them as universal values. The domain of the state is the public space, with an ever-shrinking area of private space, which alone allows some expression of cultural diversity.
The specificity of this system, despite its claims of universality, is demonstrated by both Tully and Parekh by contrast with pre-modern polities. These polities cherished cultural diversity. It was no function of the state to impose moral or religious order, much less to impose conformity. The public sphere was narrow and the private extensive, allowing ample space for diverse cultural and religious traditions. Nor did the centre aim towards a tight or detailed regulation of society, but was content with a large measure of decentralization, frequently based on cultural communities. It accepted pre-existing bodies of customs and laws. There were multiple layers of authority and borders were porous, adding to the flexibility of the polity. Similar accounts of the diversity and flexibility of pre-modern or pre-colonial polities have been presented by other authors (for example, Kaviraj 1997; Tambiah 1992).
It is not my purpose to engage directly with this thesisexcept to remark that it exaggerates the uniformity in the modern liberal state and the flexibility and diversity in the pre-modern. Pre-modern China's experience, where the centralisation of authority and the confucianisation of the

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emperor's subjects were vigorously pursued, seems inconsistent with the picture sketched by Tully and Parekh. Several modern liberal states have different categories of residents, there are differential spatial distributions of power, and religious and cultural affiliations are recognized for many public purposes. Nor is recognition of diversity always a virtue. The colonial state was par excellence a state of diversity and discrimination, deeply acknowledged, indeed entrenched, in constitutional and legal systems. The organization of the apartheid regime in South Africa which "gloried' in racial and cultural diversity used these distinctions to build its edifice of oppression. Jewish control over Israel is maintained through various legal institutions and distinctions which discriminate against Arabs or fragment the political community.
Nevertheless the kinds of critiques advanced by Tully, Parekh and Kymlicka and the increasing assertion of claims of self-government by minorities themselves, have led to the reformulation of the liberal state, which also raise the question of the ability of liberal orders to accommodate these aspirations without losing the essential principles of liberalism. We may take Canada as an example of a liberal state which has come under great pressure to accommodate ethnic and social diversity. Canada started its existence as a liberal only by making some concessions to liberalism. First, it was able to accommodate the francophone community within the bi-communal reality of settler Canada by the use of the federal device, which gave Quebec considerable autonomy, and the guarantees of the preservation of French language, law and culture. The federal device was traditionally seen as a compromise with liberal principles, for all those within provinces/regions/states (henceforth "regions) are bound by the same rules of the region, and in their relations to the federal authorities, they are treated equally with residents or citizens of other regions. Regions themselves have not traditionally been repositories of ethnic communities, with Canada something of an exception. The
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US did not countenance Hawaii as a state of the federation for considerable time, and has still not fully faced up to the admission of Puerto Rico, because of the feeling that these territories would upset the uniformity and symmetry of the other states, and thus compromise its liberalism. Canada, following in the traditions of Switzerland, was more flexible, without conceding that it had compromise liberal principles. Many federations or other forms of autonomy today are ethnically based, and the emphasis on culture and language and the indigenous people of the region ("sons of the soil') does seem to compromise the liberal principle. As we shall see, Canada today finds itself in that situation due to the ethnicised view of the Canadian federation advanced by the francophones Quebecois.
The second way in which Canada was able to maintain a liberal state despite its cultural pluralism was by a massive compromise with liberal principles-just as the US, Australia and New Zealand were able to. This was done through a large scale exclusion of the indigenous peoples or first nations as they prefer to be called today, from the regime of national laws (and more broadly, the political system), in the form of reservations to which the first nations were confined and where different rules about land, community, and rights and obligations applied.
For a long time Quebec's autonomy was able to accommodate the aspirations of the francophones, and ensure political stability for Canada. However it came under stress a few decades ago. Several factors seem to have contributed to this stress: the increasing role of the state which generated controversy on social policies; a rising francophone professional class in Quebec resentful of economic domination by English speakers; immigration of other national groups-from Europe, but more notably from Asia, more attuned to the English language—which diluted the proportion of the francophones and challenged the notion of two founding nations and, although this in itself was the result of francophone militancy, the politicisation of the first
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nations advancing their economic and cultural claims. The discontent of the francophones was aggravated by the federal government's attempts in the early 1980s to 'repatriate the constitution, with the Charter of Rights and Freedoms as the assurance to provinces of the limits on federal competence. A substantial section of the francophones consider that their claims and interests can only be safeguarded by the recognition of their status as "a distinct Society', either through further autonomy which would be confined to the province of Quebec, which will increase Quebec's asymmetry in the Canadian federation, or secession. The rest of the Canadians do not seem ready for either solution, and have rejected them in referenda (encouraged by a strong attack led by Trudeau on the claims of francophone and the first nations). The failure to find a compromise has led to a stalemate in Canada's politics.
The compromise with liberal principles is even more evident in the way the claims of the first nations have been dealt with. The compromise is particularly striking because it was highlighted by the very act of affirming Canadian's commitment to liberalism when Trudeau proposed the adoption of the Charter of Rights and Freedoms, not only to emphasis liberal rights but also the equal protection of the rights of all Canadians (Ghai 2000). Since on the whole the rights of Canadians had been well protected, the purpose of the Charter was not so much to secure them as to 'strengthen national unity by providing constitutional support to a new definition of Canadians as a right-bearing citizenry regardless of location' (Cairns 1992:49). Even more alarmed by this than the francophones were the first nations. They saw the Charter as a threat to their special status, and even more to their future aspirations. There were anxieties that the Charter would frustrate the recognition of aboriginal sovereignty and the preservation of their social and cultural traditions and practices, both claims being premised on group or collective rights which would be antagonised to individual rights. The effect of the Charter had already been foreshadowed in a
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non-constitutional bill of rights, when the courts held that a law which contained a special provisions for native Indians was void (R v Drybones (1970) SCR 282), and in the decision of the United Nations Committee on Human Rights that a law which extinguished the rights of a native Indian woman to membership in the community who married an outsider, but not that of a man who married a non-Indian (Sandra Lovelace). The first nations felt even more threatened by the Charter than the francophones, because unlike the values of the francophones, the traditions and practices of the first nations were regarded in fundamental respects alien to Charter values.
As with the francophones, a solution satisfactory to all sides remains to be reached. A concession which was made to first nations is contained in section 25 of the Charter which provides in part that: "The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal treaty or other freedoms that pertain to the aboriginal peoples of Canada.’ This proviso was intended to protect native Indians against the equalitarian provisions of the Charter. The second concession appears in section 35 of the Constitution, which affirmed the 'existing aboriginal and treaty rights of the aboriginal peoples of Canada, and has been judicially acknowledged as 'the culmination of a long and difficult struggle in both the political forum and the courts for the constitutional recognition of aboriginal rights' (R. v. Sparrow 1990) SCR 1075, 1105). In another case the Supreme Court held that the section protected not only the land rights of Indians, but also the prior social organisation and distinct cultures of aboriginal people on that land' (Delgamuukw v. British Columbia [1997) SCR 1010, 1015).
The nationalist' state
The 'nationalist' state is based on the theory of nationalismthat each nation/people is entitled to its own state. I use the
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expression 'nationalist' rather than the more usual "national' state to convey the impression of an ethnically based leadership actively engaged in establishing a state on the principle of the supremacy of one ethnic group over others. The essence of the 'nationalist' state is well captured by the preamble of the 1990 Constitution of Croatia after the collapse of the Yugoslav Federation:
The Republic of Croatia is established as a national state of the Croat nation and a state of members of other nations and minorities, who are its citizens: Serbs, Muslims, Slovaks, Italians, Hungarians, Jews and others.
The preamble also has a brief history of Croats from the seventh century. As Pajic says, "This historical saga reads as an argument in favour of continuous Croat statehood, irrespective of long periods of consociation with others in wider, pluralistic entities' (Pajic 1995:160-1).
The 1991 Constitution of the Republic of Slovenia describes the state of Slovenia as an entity stemming from The basic and permanent right of the Slovene nation to selfdetermination and from the fact that the Slovenes have formed, over many centuries of struggle for national liberation, their own national identity and established their own statehood.
Although these sentiments echo the theory of nationalism-that each nation is entitled to its own stateconcessions to contemporary context in which both that most states are multiethnic and the international community expects a minimum of protection of minorities (the recognition by the EU of states which previously formed the Yugoslav Federation was conditional on the protection of minorities), led to some acknowledgement of the existence of minorities, however grudging. This is obvious from the closing words of the Croatian preamble and in the case of Slovenia from Article 3 of the Constitution:
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Slovenia is a state of all citizens, based on the permanent and inviolable right of the Slovene nation to self-determination.
Pajic is thus able to say of these and other constitutions in Eastern Europe that "the tendency towards an ethnically "pure" state is easily noticeable. The common starting point is most of these constitutions is the idea that the raison d'etre of the state is to serve the nation and not the citizens. "... If an individual belongs to a small group that cannot qualify as a 'national minority', there is very little possibility to claim rights on the basis of citizenship alone" (1995:161).
There is no single mould in which all nationalist states fall. But certain common characteristics may be identified. The most important point is the dominance of one ethnic group. Thus the Jews dominate in Israel, the Malays in Malaysia, the whites in apartheid South Africa, and indigenous Fijians in Fiji (as a few illustrations). The symbols or language or religion of the dominant group are frequently also the symbols of the nation, or dominate the public discourse. These symbols are very important because they seek to signify the character and orientation of the state and acknowledge the superior claims of the dominant group. More concretely, the law acknowledges or provides for a privileged position for the dominant group-in electoral arrangements, some times through over-representation (e.g., Fiji's 1990 Constitution which is the most explicit of all its constitutions about indigenous Fijian Supremacy), special land rights (Israel, Fiji and Malaysia), the political recognition of its institutions, etc. In this way rights are tied to a considerable extent to membership of communities. Many rights are groups rights, either in the sense that they belong to members of a particular community or that may be exercised by or through communal institutions. The situation is not always as extreme as Pajic has described for some East European states when he says
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that their constitutions leave little room for individual rights. An individual is treated as a member of a group, and rights and freedoms are granted and guaranteed only on the basis of such membership. If an individual belongs to a small group that cannot qualify as a 'national minority', there is very little possibility to claim rights on the sole basis of citizenship...Not belonging to a recognised group, the individual does not belong anywhere, because the state, as the above mentioned constitutional provisions suggest, is owned in the first place by the "host' ethnic group and in the second place can serve as a home for the people who can qualify as members of a recognised minority ethnic group, and who are treated as "historical guests' (Pajic 1995: 161-2).
The imagery of the guest is powerful in putting minorities in their place, indicating that any rights' they have are contingent, really a matter of grace and favour. Indigenous Fijians want Indo-Fijians and other communities to acknowledge that they are 'guests, and then, as good hosts, indigenous Fijians would accord them the status and 'rights' that guests deserve. By a stroke of the pen, the South African apartheid regime turned the indigenous South Africans into 'guests' in their own ancestral lands, by declaring them citizens instead of “Bantustans“. The rights of Arabs Israeli citizens are limited by the necessity to acknowledge the supremacy of the Jews (Peled 1992). Much is made of the Malay as bhumiputras, a sons-of-the-soil concept carrying greater weight than citizenship.
It is obvious that in such a state, public authorities cannot stand aside from matters cultural or ethnic. The state has to define the criteria by which people are to be classified into ethnic categories. It has to undertake the task of promoting the different cultures. So curiously, at least in Some instances when the state advances the pre-eminent claims of one community, there is also the political recognition of a culture of other communities, and an interest in maintaining these cultures--because it is precisely the distinctiveness of cultures which justifies the cultural foundation of the state. The
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apartheid government manifested great, indeed scrupulous interest in the culture of indigenous people and ultimately granted each major tribe' its 'state'. Indigenous Fijians have been very scrupulous about maintaining Indian culture because it was the very presence of a very different culture within Fiji that advanced the claims of ethnic Fijians. Israel recognises 14 religious groups, each with its own system of religions or personal law, and its own judicial institutions to administer these laws. It is another matter that a culture which is so managed loses its authenticity, or more likely, is reconstructed to suit the interests of the rulers. What matters is that it sustains the ideological basis of the state.
There is a strong belief in such a system that the state can indeed define the relationship between ethnic groups. The modes of domination can vary. There does not have to be total exclusion of the dominated. That is frequently counterproductive (as the apartheid regime discovered). Frequently minorities are junior partners in the system and are accused of being the Stooges of the ruling group, not having an independent political base. What has so often been interpreted as consociationalism in Fiji and Malaysia has been criticised by others as forms of hegemony of the majority, a device for co-optation. In some states the rights of citizenship of minorities are indeed wide-and some times they are secured through the acceptance of their role as junior partners in enterprises of the state.
The multinational state
The third state is what I call the multi-national, multi-ethnic state, of which we have a number of examples. The multinational state is for my purposes one in which there is an explicit recognition that the state consists of diverse cultural communities and that they all have right to the recognition of their diversity. The political system is based on the recognition of ethnic or cultural groups as political groups. Sometimes scholars look at pre-colonial polities in Asia as
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examples of this type state, when they argue that before the arrival of Europeans polities in Sri Lanka and India were loose constellations of political communities. The ruler did not try to impose 'national values or ideologies, the values, religion and culture of particular communities were the concern of those communities. The system of administration was decentralised, borders were porous and there was no strong sense of sovereignty. The Ottoman empire, which lasted into the 20th century, is referred to as an example of a multi-national state where the rulers of the empire acknowledged the existence of many communities, did not try to change their way of life or their religion, the communities operating with a large degree of autonomy, including personal laws.
But empires cannot be true examples of multinational state since by definition they signify hierarchy and control. Nor in the modern world can one operate with such a loose organisation of sovereignty, or admit porous borders. In theory the essence of multinational states is that different ethnic groups or 'nations' have agreed to live as one polity where there is the recognition of their distinctive character and corporate status. A multinational state differs from the 'nationalist' state in that the purpose of the recognition of ethnic groups is not the subordination of some, but to accord to all an equal standing and respect. Political rights may still be attached to the membership of a group, but all persons are entitled to equal rights. There is a particular emphasis on power sharing. This frequently takes the form of territorial autonomy, if the groups are concentrated in different localities, and where this is not possible, some aspects of public life can be handled through cultural or national councils.
The Soviet Union claimed to be a multinational state. Lenin promised the non-Russian peoples self-determination if they stayed within the Union. The Union was divided into 15 constituent union republics, and within them, a number of smaller autonomous republics, regions and national districts providing for various forms of self-rule. The principle
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for the formation of the republics (and other autonomous units) was the provision of homelands' for the major national groups (after which the republic was called, hence 'titular nation'), and generally, but not inevitably, a republic or some other lesser unit for other groups (called 'nationalities') within them. The Yugoslav federation was similarly based on national groups-the borders of the constituent republics were drawn to secure homelands' for each of its major ethnic groups, Serbia for Serrbs, Slovenia for Slovenes, Croatia for Croats, and Macedonia for Macedonians. The more ethnically mixed heartland, Bosnia-Herzegovina, could not so easily be assigned to one ethnic group. There were inevitably tensions between central and regional authorities-but these were for the most part resolved in favour of the central authorities, through the agency of the communist party. The fact is that the multinational character of these states was opportunistic, to co-opt minority communities, not principled. In Yugoslavia, as the control of the communist party weakened, attempts to keep the federation together took the form of increasing the powers of the regions. These efforts were ultimately unsuccessful, and led to the emergence of republics as 'nationalist states, except for Bosnia-Herzegovina, where the nationalist option was not feasible due to its mixed population. In these versions of multiethnic states, communities have strong rights but their members as individuals do not, as they are subject to traditional authorities and norms. It was this ethnic orientation of Yugsolav's republic which made it hard for people committed to national unity and human rights to fight the emergence of nationalist states.
Bosnia-Herzegovina, condemned to a multiethnic state by history and international diplomacy, is now a distinctive example of such a state, as in Ethiopia under its recent constitution. Crafted in Dayton, the Bosnian constitution establishes a federation of three communities, the Serbs, Croats, and the Bosnian Muslims (Bosniacs). The constitution says that the federation is composed of the sovereignty of
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three peoples. The Federation of Bosnia-Herzegovina is composed of Two Entities, Bosnia and Srpska. Most powers are vested in the Entities, the Federation being left largely with those powers which are necessary to constitute and exercise external aspects of state sovereignty. The Constitution is built around the concept of ethnic communities as separate corporate bodies. Arrangements for representation and power sharing take the communities as building blocks, carrying forward the proposition stated in the Preamble that Bosniacs, Croats and Serbs are 'constitutent peoples' of Bosnia and Herzegovina ("Others' and 'citizens' being mentioned only in passing).
The Parliamentary Assembly consists of five Croats and five Bosniacs from Bosnia and 5 Serbs from Srpska; they are elected by voters of their own communities (art. IV). Nine of them constitute the quorum, so long as there are at least three from each community. The House of Representatives is constituted on the same principle and in similar proportions. The result of these arrangements is that politics are entirely communal, and almost per force all political parties are ethnically based. Parties get together in Parliament or government only after the elections. The system creates incentives for parties and their leaders to intensify appeals to narrow ethnic interests, linked to their kinsfolk in other states, which does little for the unity of the country. In the 1996 elections, the most extreme ethnic party in each community won the elections, leaving their leaders the impossible task to find common purpose. Executive power is vested in the Presidency. The Presidency consists of three persons, one from each of the communities, elected directly by them. They have to reach a consensus before a decision can be taken, thus giving each community a veto. Similar proportions apply to appointments to other public bodies, including the Constitutional Court and the Board of the Central Bank.
The Chair of each legislative chamber rotates among the three communities. Voting rules ensure that each community
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is involved in all decisions. Any community can declare a proposed decision as affecting its vital interests, which then calls for special procedures for mediation and reconciliation of differences. If the political process fails to resolve differences, the matter is referred for resolution to the Constitutional Court, which has to decide, inter alia, if the initial objection is valid.
Given this complex process of decision making, it is not surprising that numerous deadlocks have taken place and there is no capacity in the government to make policy, leave aside take decisive action. Presumably anticipating this, the constitution provides for a key role for foreigners. Three judges of the Constitutional Court are foreigners, as are 8 out of 14 members of the Human Rights Chambers. The Governor of the Central Bank is also as foreigner. Key policy and executive powers are vested in the office of the High Representative, appointed by NATO. It is his function to break deadlocks. Due to differences among the Presidency and the unwillingness of each of them to take a decision that might be resented by his/her community, most matters end up on the table of the High Representative.
Multinational or multiethnic states do not need to take this absurd form. In its origin, Canada was perceived to be a bi-national state, of the English and French speaking peoples, but it did not require such a complex and ethnicity-driven constitution. India today can be seen as a multi-lingual state, but the concessions to linguistic group are structured to avoid the downgrading of individual and citizenship rights. In these instances multi-nationalism is to be woven into the state structures to hold the people together, not divide and separate them. The same can be said of Spain, where its historic and other communities enjoy considerable autonomy but not in any marked spirit of hostility to the central authorities. It is therefore possible to have a multinational state in which individual rights are well protected and where many of the attributes of liberalism exist.
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III. The International Regime of Minority
Rights
The juridical basis of minority rights rests on three principal sources, apart from the general norms of human rights: minority rights, indigenous peoples' rights, and more controversially, the right to self-determination. The nature of entitlements under them has been changing over time, although the trends are not always very clear. Nor is there always consistency within each source, nor between different sources. So it is possible to find provisions within these sources which support the different versions of the state and its relationship with minorities sketched out above.
Minority Rights
When the UN began work on an international regime of rights, it emphasised individual rights and carefully avoided giving rights, particularly political rights, to groups. The original UN efforts at human rights and minority rights were heavily influenced by the theory of the liberal state, with the primacy on the individual, and a limited role for the state, as exemplified in the downgrading of economic, social and cultural rights. There are trends now, however, towards a greater recognition of cultural and ethnic bases of autonomy. Article 27 of the International Covenant of Civil and Political Rights, un til recently the principal UN provision on minorities, was drafted in narrow terms. It reads
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. There is a grudging acknowledgement that minorities may exist; the language may suggest that it is up to the state to determine whether it has minorities (and some states have
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indeed taken this position), although UN Human Rights Committee (which supervises the implementation of the Covenant) has stated that the question is a factual one to be decided through objective tests. The rights belong not to minorities as groups, but to individual members, denying minorities a legal or corporate status. However, even if rights belongs to individuals, they can be exercised in association with other members of the community, thus giving them a 'collective dimension. Rights given to members of minorities are negative, prohibiting the state from suppressing their culture or language, but imposing no positive obligations on it to promote minority culture, religions or languages. But it could be argued that this negative prohibition may take a positive form, for in some cases the only way to avoid the denial of the right is to through facilitative state action. Thus despite the parsimonious language of the article, it has the potential to develop into the framework for a broader entitlement-as the Human Rights Committee has tried to do in recent years.
The Human Rights Committee has interpreted the article in a more positive way, using it to develop collective rights of minorities including a measure of autonomy, and some positive obligations on the states (Akerman 1997). In a series of decisions, the Committee has interpreted the article as a basis for collective minority rights (Kitok v Sweden (1988)), as a basis for the preservation of the culture and way of life of a minority group (Lubicon Lake Band v Canada (1990)), and as a basis for protecting and developing the traditional way of life of minorities (Linsman v Finland (1995)). The Committee summarised its view of the purpose and reach of article 27 in a General Comment (1994). The Committee distinguished art. 27 rights from the right to self-determination, the latter being a group right, so that complaints of its violation are not admissible under the Optional Protocol (which allows individuals to lodge complaints with the Committee). On a more positive note, the Committee accepted that in some situations, art. 27 rights may be associated with a territory,
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as when cultural rights consist in a way of life which is closely associated with territory and use of its resources. The Committee stated that protections of art. 27 are available to non-citizens resident in the state. Whether a group is a minority depends upon objective criteria, and not upon a decision of the state. The Committee has given a broad meaning to 'culture', noting that 'culture manifests itself in many forms, including a particular way of life associated with the use of land resources, specially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law."
The Committee has also interpreted the right to have elements of group rights. Although the rights protected under art. 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly positive steps may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practice their religion, in community with the other members of the group" (para 6.2). The Committee regards art. 27 rights directed at the survival and continued development of the cultural, religious and social identity of minorities. From this analysis, it draws the conclusion that despite the negative language of the article, it implies a positive obligation on the state to ensure the protection of the right against their denial or violation by the state through its legislative, judicial or administrative authorities, or by other persons. From the same analysis, particularly the nexus between culture and territory, the Committee also draws the right of minorities to participation, observing that the enjoyment of cultural and other rights imply the 'effective participation of members of minority communities in decisions which affect them" (para 7).
This broader approach is reflected in a UN Declaration on the Rights of Minorities adopted by the General Assembly in 1992. Although it also recognises only rights of individuals,
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unlike the ICCPR, it places positive obligations on the state to protect the identity of minorities and encourage 'conditions for the promotion of that identity' (art. 1). The Declaration places particular emphasis upon the right of minorities to participation. It states that persons belonging to minorities have the right to participate effectively in cultural, religious, social economic and public life' (art. 2.2) They have the 'right to participate effectively in decisions on the national and where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation' (art. 2.3), presumably such legislation may not deny them the right to participation (art. 4.1). Three further specific participation rights are guaranteed-the right to establish and maintain their own associations (art. 2.4), the right to maintain free and peaceful contacts with members of other minorities, as well as, across frontiers, with citizens of other states to whom they are related by national or ethnic, religious or linguistic ties (art. 2.5), and the right to participate fully in economic progress and development (art. 4.5).
Even in the expanded version of minority rights envisaged in the Declaration, the concept is still of a liberal state, although it can be authority for some separate institutions. Its aim is to provide real, effective equality for minorities, but it does not seek to limit the authority of the central or national government.
Indigenous peoples
The ILO Convention on Indigenous Peoples (No. 169) adopted in 1991 and representing a reversal of paternalistic and assimilationist approach followed in the 1957 Convention, recognised the 'aspirations of these peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live'. Their cultural and religious values,
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institutions and forms of traditional social control are to be preserved (art. 4). The system of land ownership and the rules for the transmission of land rights are to be protected (arts. 14 and 17). As Nettheim has remarked, the Convention is more concerned with state obligations than rights of indigenous peoples (Nettheim 1992:23). However, it does require that states, in applying the Convention, 'consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly' and the consultation shall be in 'good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures' (art. 6). A more broad ranging provision (art. 7) provides that:
The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition they shall participate in the formulation, implementation and evaluation of plans and programs for national and regional development which may affect them directly.
Although an advance on the 1957 Convention, it has been criticised for being paternalistic' (Net theim: 25), and its negotiations involved a limited participation by indigenous peoples. These deficiencies were meant to be addressed in another exercise in standard setting, the Draft UN Declaration on the Rights of Indigenous Peoples (submitted by the UN Sub-Commission on Minorities, August 1994). It proclaims their right to self-determination, under which they may freely determine their political status and freely pursue
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their economic, social and cultural development' (art. 3). The principle of self-determination gives them the 'right to autonomy or self-government in matters relating to their internal and local affairs', which include social, cultural and economic activities, and the right to control the entry of nonmembers (art. 31). It recognises their 'collective rights' (art. 7) and the right to maintain and strengthen their distinct political, economic, social and cultural characteristics (art. 4). These ideas have already formed the basis of negotiations between indigenous peoples and the states in which they live, giving recognition not only to their land rights (as in Australia and New Zealand) but also to forms of autonomy (as in Canada), although Asian and African governments deny the existence of indigenous peoples in their states and the instruments have had little impact there ( Brolmann and Zieck 1993, Stavenhagen 1998, Alfredson 1998, and Kingsbury 1998 and 1999).
Indigenous people, particularly in North America and New Zealand, also base their claims on other legal bases: (a) their 'inherent sovereignty' which predates colonisation and (b) treaties with incoming powers (for what has been called treaty federalism' see Henderson 1994). The former is more important in the US and Canada than in Australia or New Zealand. The US Supreme Court has recognised the 'sovereignty of Indian tribes, and more narrowly, the rights of Alaskan tribes. With this 'sovereignty' come various rights of participation, particularly of Self-government in many areas. However, this 'sovereignty' is limited and precarious, for its existence depends on self-restraint of the US Congress which can, under the US Constitution, derogate from it. Canada is only now coming to terms with aboriginal sovereignty, granting autonomy and land rights to First Nations, and with its significant participation in boards, committees and other parts of the administrative machinery. Here too the federal legislature can derogate from the 'sovereignty', although aboriginal and treaty rights have been entrenched in the Constitution and the Charter of Rights and
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Freedoms. In New Zealand progress has been achieved through resuscitation of the Waitangi Treaty, signed in 1840 between Maori Chiefs and representatives of the British Crown, and which for long periods was regarded as little more than a piece of parchment; indeed it was judicially pronounced 'a simple nullity' in 1877. In recent years courts have re-affirmed the validity of the Treaty, and drawn various implications from its general provisions for the partnership between the Maori and the government. The two parties should behave reasonably and in good faith to each other. There should be consultations between them and negotiations to solve disputes that arise out of treaty provisions (Lord Cooke in Court of Appeal decision).
A similar principle of good faith negotiations has been enunciated by the Canadian courts, which consider that too many disputes between aboriginal peoples and governments are now taken to courts (Lawrence and Macklen 2000). In Delgamu ukw v British Columbia [1997) 3 SCR 1010, the Canadian Supreme Court held that Aboriginal title is protected as a matter of constitutional right (s. 35(1) of the Constitution) and affirmed the duty upon the government to consult with a First Nation before undertaking action that might interfere with its title. Chief Justice Latimer said that 'ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgements of this Court, that we will achieve ... the basic purpose of s. 35(1)- 'the reconciliation of the pre-existence of aboriginal Societies with the sovereignty of the Crown' (at p. 1123-4). The court has also affirmed, in an earlier case, that aboriginal constitutional rights include practices that form an 'integral part' of an aboriginal community's 'distinctive culture', in that case the right to fish for salmon (R v Sparrow (1990) 15CR 1075). Both in New Zealand and Canada this approach has given indigenous peoples significant participation in law, regulations and contracts over natural resources and the development of traditional lands. It has probably been more successful in New Zealand than Canada,
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perhaps because of the helpful role of the Waitangi Tribunal in the negotiating process. Another basis for participation of indigenous peoples has been their increasing control over their traditional lands, and the resources that have been transferred to them in settlement of previous acquisitions of land. Even in Australia there has been some moves towards self-government, the most obvious example being the Aboriginal and Torres Straits Islands Commission.
The model of the state envisaged in these developments and proposals is restricted to its relations with the indigenous people, and does not seek to provide a general framework. Within that restriction, it sees the state as in some form of partnership between the state and the indigenous peoples, with a considerable amount of autonomy and selfgovernment for the latter, but also very considerable cultural and spatial separation between the indigenous peoples and the rest of the population. It has relatively little scope for inter-group relations, most of which are mediated through the state. The role of the state is more clearly specified in this scheme, and may include elements of compensatory justice. Clearly there will be elements of derogations from liberal principles, but the derogations will be more principled than in the nationalist state.
Self-determination
The broadest source of minority entitlement is selfdetermination, in itself a difficult and controversial concept, but which is increasingly being analysed in terms of the internal, democratic organisation of a state rather than in terms of secession or independence. The marked bias of the international community of states against the use of selfdetermination, other than for classical colonies, is well known (Franck 1993). The UN General Assembly resolved many years ago that autonomy is a manifestation of selfdetermination. The greater involvement of the UN or consortia of states in the settlement of internal conflicts has also helped
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to develop the concept of self-determination as implying autonomy in appropriate circumstances, such as in Bosnia, Eastern Europe and Kosovo (Rosas 1993; Franck 1993; Higgins 1993). However, the birth of new states following the collapse of the communist order in the Soviet Union, Eastern Europe and the Balkans, has removed some taboo against Secession, and the international community seems to be inching towards some consensus that extreme oppression of a group may justify secession. This position has served to strengthen the internal aspect of self-determination, for a state can defeat the claim of separation if it can demonstrate that it respects political and cultural rights of minorities. A further, and far reaching, gloss has been placed on this doctrine by the Canadian Supreme Court which decided in 1999 that Quebec has no right under either the Canadian Constitution or international law to unilateral secession, but that if Quebec were to decide on secession through a referendum, Ottawa and provinces would have to negotiate with Quebec on future constitutional arrangements. However, these rules or understandings are not accepted everywhere and may not persuade leaders in Africa or Asia.
Self-determination is compatible with secession, and therefore ultimately with a nationalist state. It is also compatible with a multinational state in which the minority enjoys considerable self-government. If a minority is inclined towards integration, it is consistent with a liberal state. It is unlikely to be consistent with a nationalist state. Much depends on the kind of minority in question, for selfgovernment can unlock doors for it only if it can bring itself within the type of minority entitled to self-government, that is a 'national group, a "people'. Once that can be successfully done, self-determination can be a powerful basis for negotiations with the majority by the minority on its relationship with the majority and the state. It also acts as a restraint on the excesses of the majority, for such excesses can trigger off and justify the secessionist dimensions of selfdetermination.
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IV A Regional System for the Protection of
Minorities
The best example of a regional system is Europe. In is present expanded form, it was developed in the wake of the collapse of the Soviet Union and the former Yugoslavia. The earlier European response was thorough-going liberal, as personified by the European Convention of Human Rights adopted in the 1950's. It is very liberal oriented and the Europe Court of Human Rights has rejected claims of group rights. But with the collapse of the Soviet Union and with the rise of ethnic claims consciousness in eastern Europe, Europe began to worry about the instability that could arise from this and began to develop new norms through the Council of Europe, the Organisation of Security and Co-operation in Europe (OSCE), and European Union, in its policies of recognition (or non-recognition) of new entities. Attempts have been made to develop new standards of giving recognition to new minorities, but also general norms for minorities and the institutions to give effect to them.
Several initiatives have been taken to promote the concept of participation and autonomy, although its impact so far is restricted to Europe. This is manifested both in formal declarations and interventions to solve ethnic conflicts in Europe (such as in the Dayton Accord over BosniaHerzogivina or the Rambouett proposals for Kosovo). In article 35 of the Copenhagen Declaration on Human Dimension of CSCE (1990) member states have undertaken to respect the rights of members of national minorities to effective participation in public affairs, including participation in the affairs relating to the protection and promotion of the identity of such minorities'. The Declaration takes particular note of provisions for certain minorities by establishing ... appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of such minorities. This
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commitment is reinforced in the CSCE Helsinki Document, The Challenges of Change (1992). Members agreed to intensify their efforts for the "free exercise by persons belonging to national minorities, individually or in conformity with others, of their human rights and fundamental freedoms, including the right to participate fully, in accordance with the democratic decision-making procedures of each State, in the political, economic, social and cultural life of their countries including through democratic participation in decisionmaking and consultative bodies at the national, regional and local level, inter alia, through political parties and associations ’ (art. 24).
The principal instrument of the Council of Europe is the Framework Convention for the Protection of National Minorities (1994) which protects various rights of minorities, obliges the state to facilitate the enjoyment of these rights, and recognises many rights of 'identity'. It obliges state parties to create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them' (art. 15). There is no proclamation of a right to autonomy, but the exercise of some of these rights imply a measure of autonomy, and the prohibition against altering the proportion of a minority in areas inhabited by them (art. 16) will have the effect of enhancing prospects of local autonomy. The Copenhagen Declaration and statements of principle by the Council of Europe, although not strictly binding, have been used by the OSCE High Commissioner for Minorities and other mediating bodies as a basis for compromise between contending forces, and have thus influenced practice, in which participation rights, including autonomy, have been a key constituent (Bloed 1995; Packer 1998: Thornberry 1998, see various Recommendations by the office of the OSCE High Commissioner for Minorities, particularly the Lund Recommendations on the Effective Participation of National Minorities in Public Life, 1999, issued by the OSCE High Commissioner; there is a brief discussion below).
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The European Community has also used conformity with the Copenhagen Declaration as a pre-condition for the recognition of new states in Europe. The ability of existing states (which is relatively unregulated by international law) to confer recognition on entities, especially breakaway states, can be a powerful weapon to influence their constitutional structure. When various republics within the Federations of Yugoslavia and the Soviet Union were breaking away, the European Community issued a Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union' (16 December 1991), although it was not applied in all cases. Among the conditions a candidate had to Satisfy before it would be recognised was that its constitution contained guarantees for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the ECSE'. Entities requesting recognition were asked to submit evidence that their constitutions conformed to the Guidelines; recognition was granted only if. the evidence satisfied an EC constitutional tribunal set up for this purpose (Rich 1993; Weller 1991; Rady 1996). Similar principles have been used for admission to the Council of Europe and the EU. In addition to the norms, Europeans have established institutions for the resolution of ethnic conflicts, principally the High Commissioner for Minorities, who role is mediation (as discussed briefly below).
South Asia could look at the experience of the European regional system in designing a regional system. There are of course differences between Europe and South Asia, perhaps most importantly in the extent of ethnic conflict-despite examples of terrible ethnic conflict in Europe, by and large I would say that ethnic conflicts are not a major issue in Europe while they clearly are a major issue in South Asia, where almost everything revolves in some way around ethnicity. There are several reasons why a regional system would be important for South Asia. One is the difficulty of achieving uniform norms which can apply universally, as that requires
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a high degree of consensus which is hard to achieve except on a lowest common denominator. This has been the problem of international attempts to create norms because so many states are involved which have no interest at all in protecting their minorities. Also there are different conceptions of how to organise a multi-ethnic Society as I have tried to demonstrate above. There is no general consensus on that fundamental question. But there may be better prospects consensus at a regional level. Now in Europe certainly it seems to me that there is a consensus of a kind on how to deal with and protect minorities. And that has provided a strong case for a regional system. Looking at South Asia perhaps one can say there is no such a consensus South Asian states are organised on quite different principles one from the other. So may be you will start with a very low consensus on how to organise multi-national states. Insofar as there is a consensus, it lies in acknowledging the dominant community as the national community and building around that. And that is something that is going to challenge diversity in your region.
Secondly, I think regional arrangements are important because nearly every state in the region has an interest in stability. And the major cause of instability in South Asia has been ethnic differences. So the interest of every state is served by the proper protection of minorities in each of the states in the region, since unrest in one affects stability in others. This is especially the case since many minorities have ancestoral or religious links to neighbouring states, and the ability of each to interfere positively or negatively in the affairs of the others is considerable. It also seems to me that all the major ethnic conflicts in South Asia are connected to what is known as the phenomenon of the kin state. Minorities draw their cultural or other inspirations from a neighbouring State. The neighbouring state has some influence over minorities that are connected to its culture. So the question of minority conflict and settlement are so much more connected to interstate relations than in Europe. (Though in Eastern
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Europe interstate relations are important in minority issues). But they are fundamental in Asia. The capacity of states to help their neighbours or to aggravate their problems is so obvious that it makes sense to have some kind of regional system.
The third reason seems to me to be that the international community looks to regional institutions and regional states to deal with minority problems in the region, in the first instance at least. Often it is guided by the assessments made by regional states and institutions. If there is regional system or it is not functioning well, states in that region not sufficiently linked to the international system. In the absence of a regional consensus, the international community finds it hard to assist.
The question then is what kind of a system South Asia might have; which lessons it might learn from the European system. Very briefly I would say that what the regional system should do is establish standards and norms. They do not necessarily have to be in binding treaties if these treaties are hard to secure, as undoubtedly they will be. But it is possible to establish certain understandings and values which everybody feels bound by-the so called "soft" laws. These could also regulate inter-state relations.
The regional system must have institutions. The question is what kind. In Europe there are really no institutions whose decisions have a binding force. There is some discussion of expanding the European Convention on Human Rights which has a good mechanism of binding decisions to include a chapter on minorities. But so far that has not been done and all the instruments for minorities which have been developed in the last 15 years really provide only for good offices, and do not provide for easy binding mechanisms. But Europe has achieved a certain purpose without having formally binding norms or institutions. So there may be some argument for considering that kind of more flexible system. And central to the European system has now become the role of the High Commissioner for Minorities. He has played
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a very important role in mediating between the state which hosts the minority and the state to which the minority is related or between the state and the minority, using the OSCE mechanisms as sanctions, pressure, rewards and persuasion. But what is clear from his experience is that he is not able to deal with fundamental conflicts nor does he try. He has himself acknowledged that he cannot make a real impact in such conflicts. He can make an impact in low intensity conflicts through preventive interaction, which is an important part of his obligations. He tries to make each party see the virtues of the other to suggest bases around which they can make a settlement and so on. So South Asia could begin with a loose form of mediation, pressure, norms - not binding but with some consensus behind them, using elder statesmen who enjoy respect in the concerned states. In developing these norms a very important role can be played by activists, scholars, and like-minded people, coming from different countries in the region, such as frequently mobilised by the International Centre for Ethnic Studies. The prospects of governments - in some cases of warring states - getting together and developing these standards. much less institutions are not promising. So the burden on NGO's and scholars is particularly heavy, much heavier than in Europe, in developing these norms and then developing a consensus around these norms, but I have little doubt that they have both the commitment and the skills to discharge it
I won't say more about that, because I see in the programme you are actually going to have a session on regional mechanisms. So I would conclude by saying first that the challenge in South Asia is coming to terms with the diverse ethnicity that every country has. It seems to me that we have to build on the positive elements of this diversity. There is a dark and rich side to diversity and we find mechanisms to build on the rich side of diversity so that everyone's culture is the responsibility of everyone else as well. So a culture is seen not as a minority culture but as a national culture. The South African constitution is quite good on that
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approach and you want to look at that. And work hard to minimise the dark side of diversity and develop the rich side that comes with different cultures and values. How do we harness them in a way to promote stability and enrich our lives? I suppose that explains the title - "Diversity in South Asia.' I wish you to look at developing norms and capture the richness of diversity of cultures of South Asia so that everyone is enriched by everyone else's culture. And we sometimes are able to do this amid the terrible dark side of ethnicity.
References
Brown, David 1989 The state of ethnicity and the ethnicity of the state: ethnic politics in Southeast Asia' 12:1 Ethnic and Racial Studies Austin, Granville 1972 The Indian Constitution: Cornerstone of a Nation
(Bombay: Oxford University Press) Cairns, Alan C 1992 Charter versus Federalism: The Dilemma of
Constitutional Reform (Toronto: University of Toronto) Cholewinski, Ryszard 1997 Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment (Oxford: Clarendon Press) Cooper, W. E 1996 Culture Vultures and the Re-Enchantment of Citizenship' in Raikka, Juha Do ve Need Minority Rights? Conceptual Issues (The Hague: Kluwer Law) de Smith, Stanley 1964. The New Commonwealth and Its Constitutions
(London: Stevens) Galanter, Marc 1984 Competing Equalities (Delhi: Oxford
University Press) Ghai, Yash 1997 The recommendations on the electoral system: the contribution of the Fiji Constitution Review' in Lal, Brij and Larmour, Peter (eds) Electoral Systems in Divided Societies: the Fiji Constitution Review (Canberra: Research School of Pacific and Asian Studies, ANU) Ghai, Yash 2000a 'Chinese Minorities: Autonomy with Chinese Characteristics' in Ghai, Y (ed.), Autonomy and Ethnicity:
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Negotiating Claims in Multi-Ethnic States (Cambridge: Cambridge University Press) Ghai, Yash 2000b Universality and Relativism: Human Rights as a Framework for Negotiating Inter-Ethnic Claims in 21:1 Cardozo Lauv Revietu 101-143 Horowitz, Donald 1997 Encouraging electoral accommodation in divided societies' in Lal, Brij and Larmour, Peter (eds), Electoral Systems in Divided Societies: the Fiji Constitution Review (Canberra: Research School of Pacific and Asian Studies, ANU) Klug, Heinz 2000 Diversity in South Africa: The Centre holds' in Ghai, Y(ed.), Autonomy and Ethnicity: Negotiating Claims in MultiEthnic States (Cambridge: Cambridge University Press) Kymlicka, Will 1989 Liberalism, Community and Culture (Oxford:
Clarendon Press) Lal, Brij and Larmour, Peter (eds) 1997 Electoral Systems in Divided Societies: the Fiji Constitution Review (Canberra: Research School of Pacific and Asian Studies, ANU) Lawrence, Sonia and Macklen, Patrick 2000 From Consultation to Reconciliation: Aboriginal Rights and the Crown's Duty to Consult 79 The Canadian Bar Review pp. 252-291 Mathur, Raj 1997 Party cooperation and the electoral system in Mauritius' in Lal, Brij and Larmour, Peter 1997 Electoral Systems in Divided Societies: the Fiji Constitution Review (Canberra: Research School of Pacific and Asian Studies, ANU) McBeath, Gerald 1992 The Impact of Political Structure on Native Self-Government in Australia, Canada and the United States' in Reynolds, Hand Nile, R (eds), Indigenous Rights in the Pacific and North America: Race and Nation in the Late Twentieth Century (London: University of London and Sir Robert Menzies Centre for Australian Studies) Mendlesohn, O and Vicziany, M 1994 The Untouchables' in Mendlesohn, Oand Baxi, U (eds), The Rights of Subordinated Peoples (Delhi: Oxford University Press) Net theim, Garth 1992 International Law and Indigenous Political Rights' in Reynolds, Hand Nile, R (eds), Indigenous Rights in the Pacific and North America: Race and Nation in the Late Twentieth Century (London: University of London and Sir Robert Menzies Centre for Australian Studies)
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Pajic, Zoran 1995 Bosnia-Herzegovina: Fom Multiethnic Co-existence to "Apartheid"...and Back" in Akhavan, Payam (ed.), Yugoslavia-the Former and Future: Reflections by Scholars from the Region (Geneva: UNRISD) Pajic, Zoran 1999 A Critical Appraisal of the Dayton Accord Constitution of Bosnia and Herzegovina in Bendek, Wolfgand (ed.), Human Rigths in Bosnia and Herzegovina after Dayton : From Theory to Practice (The Hague: Kluwer Law International) Reilly, Ben and Reynolds, Andrew 1999 Electoral Systems and Conflict
in Divided Societies (Washington, DC: National Academy Press) Sisk, Timothy D 1996 Power Sharing and International Mediation in Ethnic
Conflicts (Washington, DC: US Institute of Peace) Stavenhagen, Rudopho 1996 'Indigenous Peoples and Other Ethnic Groups' in Eide, A and Hagtvet, B (eds) In Conditions for Civilized Politics: Political Regimes and Compliance with Human Rights (Oslo: Scandinavian University Press) Taylor, Charles 1994 The Politics of Recognition' in Gutman, Amy (ed.), Multiculturalism (Princeton: Princeton University Press) Tulley, James 1995 Strange Multiplicity: Constitutionalism in an Age of
Diversity (Cambridge: Cambridge University Press) Turpel, Mary Ellen Rights' 1992 "Rights of Political Participation and Self-Determination in Canada' in Reynolds, H and Nile, R (eds), Indigenous Rights in the Pacific and North America: Race and Nation in the Late Twentieth Century (London: University of London and Sir Robert Menzies Centre for Australian Studies) Waldron, Jeremy 1992 Minority Cultures and the Cosmopolitan Alternative’ 25 University of Michigan Journal of Law Reform 751-93 Ghai, Yash 2000 Universalism and Relativism: Human Rights as a Framework for Negotiating Interethnic Claims' 21:4 Cardozo Law Reviev 1095-1140.
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Identity Within: Cultural Relativism, Minority Rights and the Empowerment of Women
Radhika Coomaraswamy
Abstract (Editor’s)
Identity politics have conditioned many a modern debate on rights and justice. Identity is often composite and reconstitutes itself. The sense of identity of women is conditioned by their experiences in male dominated groups. They may have to submit to discriminatory practices; be governed by discriminatory laws; and engage in rituals, customs and habits that delineate their subordinate status within the hierarchy of their religious, ethnic and tribal ideologies. Contending with group prejudice while struggling for empowerment is the core of the modern dilemma between universalism of human rights and the particularity of cultural experience.
The Third World woman's fight for her rights has been used by the North, and Western society, to more or less justify their superiority. This however has had its benefits too. Colonial powers were catalysts in the promotion of equality between the sexes. British social reform in India, for example, focusing on the Indian female, banned female infanticide, child marriage, and sati. The international community has come up strong, particularly, against female genital mutilation, honour killings, and women's rights violations that resemble torture. Among other issues that violate women's human rights and cause tension between international rights and cultural practices; and thus engage international attention, relate to polygamy, inheritance rights, maintenance, and consent to marriage. International human rights declarations have helped to promote equality between the sexes and reduce violation of women's rights. The creation of the Human Rights
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Commission and the Working Group on Minorities has further strengthened the status and situation of women and minorities.
Introduction
For the last three decades, the concept of "identity" has taken centre place in political, social and cultural debates. Charles Taylor has conceptualized identity as the search for the authentic self.' Anthony Appiah has argued that identity involves the playing out of narrative scripts that we have learnt from childhood. Whether we root out identity within the human personality or in the constructions of social life, there is no doubt that identity politics have conditioned many of the modern debates about rights, politics and justice. However, identity is not an essential, immutable permanent status. It has many constituent elements, and future experiences will transform the nature and direction of personal identity. This leads to a sense that identity is often composite, made up of multiple selves, often contesting, contradicting and transforming the other. Identity is therefore constantly reconstituting itself, reacting to and negotiating ideology and lived experience.
The subjective identities that philosophers explore must come to terms with the objective reality of identity as it plays out in the real world. In all societies, as the Census and Statistics departments will attest, people are categorized and identified by a social identity especially as it is expressed in religious, ethnic or tribal terms. These group-based identities often help determine our position in the social and political hierarchy of a society and also condition people's attitude and perceptions toward us as we go about our daily business.
See for example C. Taylor, The Ethics of Authenticity, Cambridge, Harvard University Press, 1991
See for example K.A. Appiah et al ed. Identities, Chicago, University of Chicago Press, 1995
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These stereotypes and homogenous characterizations create obstacles for the realization of equality and the living of the good life. They are the substance of discrimination and often the basis for power and privilege. Our subjective sense of identity is greatly determined by this objective experience as it interacts with our everyday life and conditions the way we think about ourselves. Our group-based identity often goes to the core of our sense of self and our desire for dignity.
For many women, their sense of identity is filtered through their experience as women, living within group collectivities primarily governed by men. Though their sense of self and dignity comes from how their group is treated in the wider society, they often have to face discrimination within collectivities. They may have to submit to discriminatory practices, be governed by discriminatory laws and engage in rituals, customs and habits that re-inscribe the subordinate status of women within the hierarchy of their religious, ethnic or tribal identity. Many women acquiesce since their group identity is seen as the most important aspect of their lives. Others resist, only to be branded as traitors or "bad women' who bring the group into disrepute.
For outsiders, especially women's activists who are interested in pursuing gender equality, discrimination within minority groups and third world Societies poses a profound set of challenges. On the one hand, the feminist movement has always seen itself as an ally of third world Societies and minority groups in their fight for equality and their struggle against discrimination and prejudice. On the other hand, as a movement for the recognition of personal choice, it has sought to maximize individual freedom and creativity even at the expense of the group. Fighting group prejudice while struggling for women's empowerment goes to the heart of the modern dilemma between the universalism of human rights and the particularity of cultural experience. In a world where western imperialism has historically been the champion of the third world female whether in Asia or Africa, the struggle for women's rights acquires another
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dimension. How does one fight for women's rights without being complicit in the racism and prejudice that characterizes Northern attitudes toward the South or the majority-minority dynamics within particular Societies?
The Legacy of Colonialism
The historical legacy of colonialism points to the third world female as being an important part of the encounter between the west and third world Societies. It is often said that the colonial powers were catalysts in the emergence of a new relationship between the sexes. By foregrounding the position of women in colonial Societies to denigrate the third world 'other', the colonial powers served to focus attention on certain cultural practices that discriminated against women. As a result, according to Kumari Jayawardena, the early nationalist movements in many societies sought to improve the position of women in their societies by trying to eliminate the practices that they saw as inimical to their standing. They sought to regain the moral high ground by standing for women's equality and by combating practices that were harmful to women.
Nowhere is this legacy more visible than in India where British social reform of the nineteenth century was entirely focused on the Indian female, especially the Indian girl-child and the Indian widow. The British Colonial regime enacted the Special Act of 1870 which eradicated the practice of female infanticide in the north west provinces. Census data gathered from the 1840s clearly indicated that the practice was widespread showing startling imbalances in the sex ratios. The British government took draconian measures to curtail the practice including criminalization of the practice, by surveillance, by registering births, by monitoring pregnancies and by putting parents in jail. By 1906 they withdrew the law because it had been so effective in the provinces under
3 see J. Nair, Women and Law in Colonial India, New Delhi, Kali, 1996
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consideration- Rajasthan, The Punjab and The North West Frontier. The British made it clear that it was the British colonial regime that had the monopoly on violence and that it alone could determine issues of life and death.
Another practice which earned the ire of the British was child marriage. Among Brahmins of India during this period it was the custom for a girl-child to be married between the ages of 5-10. Cases of young brides dying because of sexual intercourse with much older men resulted in the 1872 Native Marriage Act where 14 was seen as the age of consent. The case of Rakhmabhai was the celebrated case that received international attention during this period. Rakhmabhai was a brilliant student who lived with her educated parents. She was, however, also a child bride of an uneducated, unemployed relative. On her matriculation, her husband brought a suit for the restitution of conjugal rights to have Rakhmabhai come and live with him or to be sent to prison. She responded by engaging in a debate on child marriage in the papers and in public fora. The Hindu orthodox institutions reacted strongly to her intervention and even a British Court upheld her husband's right with a technical interpretation of the law. An out of court settlement saved her from what would have been for her a fate worse than death. She went on to become India's first woman doctor. However, her case was not in vain. The early Indian nationalists were greatly moved by her agitation. Reformers such as Vidyasagar, Ranade, and Roy took up the cause of preventing child marriage. Indian women of Gandhi's Congress in 1929 managed to get Indian nationalists to push for The Child Marriage Restraint Act without much opposition. Because of women like her, the Indian nationalist
“ M. Kosambi, “Gender Reform and Competing State Controls over Women-The Rakhmabai case” in P. Uberoi ed. Social Reform, Sexuality and The State, Sage, New delhi, 1996.
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movement had a social reform component that stressed elimination of practices that were discriminatory to women.
Another cause for the social reform movement of the nineteenth century in India was that of widows. The British took drastic measures to prevent Sati - widow immolation - and received support from Hindu reformers. However, where the issue did not involve violence but only remarriage, the British sided with the traditional elites. In Hindu societies widows were not allowed to remarry. They often remained at the mercy of their sons and other men of the family. Rich widows in the Punjab who had a British education began agitating for widow remarriage. Fearing the extensive partition and alienation of land and family property, the British endorsed the practice of Karewa-levirate marriage of the widow to one of the men of her dead husband's family. This was the other reality of colonialism. The Colonial powers championed the third world female when it involved issues of violence, as this challenged their monopoly and authority over life and death issues. Other questions of equality that involved the stability of the local order and the terms of collaboration with the feudal elites were ignored. The Colonial power would insist that they were only respecting local customs and practices.
The colonial legacy of western powers championing the cause of third world women conditions the debate on women's equality in many parts of the world. This was also rendered possible by what Partha Chatterjee7 calls the resolution of the woman question within the nationalist
see for example P. Chatterjee, "The Nationalist Resolution of the Women's Question' in K. Sangari et al. ed. Recasting Women:-Essays in Colonia History, Kali, New Delhi, 1991
P. Chowdhry, “Contesting Claims and Counter Claims:- Questions of Inheritance and Sexuality of Widows in a Colonial State' in P. Uberoi op cit.
7 Partha Chatterjee op cit.
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movement of India and probably in many other societies affected by colonialism. Later nationalists moved away from the early focus on social reform to emphasising the preservation of the Indian identity and tradition. Seizing on the public private distinction that was the basis of the colonial common law, these conservative groupings took control of nationalist movements. The private was seen as the space for women who would keep the family insulated from the pressures of the public colonial world. Women then became the custodians of the culture of ethnic, religious and tribal groups. While men began to don suits and move into the public modern space, women were expected to carry the cultural markers and make the home the traditional space where ethnicity and symbols of identity were nurtured and passed onto future generations. While the British brought women into the public discourse in the nineteenth century, the late nationalists returned women to the home and made them the caretakers of the very culture that often discriminates against them.
Any movement for women's international human rights has to recognize this historical colonial legacy. Because of this legacy, any struggle for women's equality and dignity in third world and minority cultures is seen as the cat's paw of western imperialism. Strategies aimed at bettering women's rights have to take this inevitable fact into consideration. Secondly, the Chatterjee resolution points to the fact that women have been socialized to believe that they are the custodians of the very laws, rituals and practices that discriminate against them. In addition, women in many Societies perceive that their dignity is intricately linked to the identity of the group. Any attack on that identity is seen as an assault on their own dignity. Though there are exceptional women who have moved away from strong cultural ties to the community of their birth, the vast majority feel a deep connection to group identity. Any attempt to fight for women's rights must keep this symbiosis in mind.
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The International Framework
The international human rights framework attempts to deal with concepts of culture and cultural relativism through the prism of the rights of minorities. Since World War II, the international community has been attempting to come to terms with the issue of minority rights. When the Human Rights Commission was created, the issue of human rights was a central part of its mandate and the Sub Commission on Minorities was created with independent experts as a means of ensuring its impartiality and objectivity. However, there have been only a few actual legal developments with regard to minorities since its inception. There has been the Convention on the Elimination of Racial Discrimination in the 1960s and in the 1990s, the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. In addition, in the late nineties, The Human Rights Commission in Geneva was created. The Working Group on Minorities was to allow for more focused attention on the rights of minorities. The World Conference on Racism to be held in South Africa will be another watershed event, but few are optimistic about the prospects for agreement and enforcement.
The essence of minority rights as recognized by the international community is contained in Article 27 of the International Covenant on Civil and Political Rights. It gives minorities the right to enjoy their own culture, to profess and practice their own religion, and to use their language. The Declaration on the Rights of Minorities gives minorities the right of survival and the right to promote their identity.” The Declaration also gives them the right to enjoy their own
H. Steiner amd P. Alston, International Human Rights in Context Oxford University Press, Oxford, 200 p. 597-694
Article 1 of the Declaration on The Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, GA re 47/135 (1992)
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culture, religion and language and to effective participation' in political decision-making. The State has an affirmative obligation to grant minorities equality and to create conditions for them to develop their culture, language and religion'
For women from minority groups the situation is more complex. The provisions on the rights of minorities have to be read together with the existing body of international law that guarantees the human rights of women. The provisions have to be read together with Article 3 of the International Covenant on Civil and Political Rights which requires States to undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights. A similar provision exists with regard to The International Covenant on Economic, Social and Cultural Rights. In addition, the Convention on the Elimination of All Forms of Discrimination Against Women obligates states to remove all forms of discrimination against women by "any person, organization or enterprise'-presumably this includes minority group organizations. Article 5 of CEDAW requires State parties to take all appropriate measures "to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the series or on stereotyped roles for men and women."
10 Article 2 of the Declaration
11 Article 2 of the Declaration
12 Article 4 of the Declaration
Article 3 The International Covenant on Civil and Political Rights, United Nations, 1966
* Article 3 The International Covenant on Economic, Social and Cultural
Rights, United Nations, 1966
Article 2 Convention on The Elimination of Discrimination Against Women, United Nations 1979 (CEDAW)
16 CEDAW Article 5,
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Manifestations of the Tension Between Women's Rights, Cultural Relativism and Minority Rights
The tension between the rights of groups to practice their culture, and the rights of women under international human rights norms, is played out in the everyday life of women across the globe. One example of this tension is the controversy surrounding female genital mutilation. In 1990 Fuambai Ahmadu, an African scholar from Sierra Leone spoke these emotional words before The American Anthropological Association: "It is difficult for me - considering the number of ceremonies I have observed, including my own - to accept that what appears to be expressions of joy and ecstatic celebrations of womanhood, in actuality, disguise hidden experiences of coercion and subjugation. Indeed, I offer that the bulk of Kono women who uphold these rituals do so because they want to... they embrace the legitimacy of female authority, and particularly, the authority of their mothers and grandmothers."7 This statement contrasts with the courageous work of African feminists such as Asma El Dareer, a doctor who brought the plight of female genital mutilation before a world audience. Focusing on the health hazards, they painted a horrendous picture of women's genitalia being mutilated by broken glass and crude implements, of lifelong health problems, painful sexual relations and sometimes death.' Joined by western feminists such as Alice Walker and human rights crusaders such as Fran Hosken and Equality, they have managed to garner worldwide revulsion against this cultural practice.
Female genital mutilation comes in various forms. The first, pharonic infibulation is the most drastic involving the removal of the clitoris, labia minora and the labia majora.
7 Richard A Shweder, “What About Female Genital Mutilation? And Why Understanding Culture Matters in the First Place, in Daedalus, Volume 129, Number 4, New York, Fall 2000, p. 210
* see Asma El Dareer, Woman Why Do You Weep, Zed, London, 1983
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The second, an intermediate form involves the removal of the clitoris and the labia minora. The third contains the removal of only the clitoris. There is a fourth type of practice that is only symbolic, involving sometimes the placing of a knife on the genitalia and no cutting.
There is very little to debate about the nature and hazards of female genital mutilation. The health hazards are particularly appalling forcing the World Health Organization to make a concerted intervention against FGM. However, when Egypt decided to allow FGM to be performed only in hospitals, the more difficult question relating to female sexuality had to be raised. Even if the operation was performed without health hazards, the net result is that women would not feel sexual pleasure after the operation. Sexual relations for women who have undergone the operation will always be uncomfortable and sometimes painful. The Beijing Platform and the Cairo Declaration do recognize the right of individuals to a safe and satisfying Sex life even though the right to sexuality has not been recognized as an international human right.'
For some anthropologists, the emphasis on rights and sexuality are misplaced and are part of a legacy of neocolonialism. Some argue that FGM is about "being human the African way"; that it is about the notion of a rite of passage to adulthood, integrally linked to concepts of symbolic birth and African ideas about women and womanhood. FGM is seen as a great moment in the life of women, a celebration, a wedding - women's space. While earlier feminists and nationalists accepted the western critique and tried to move
' Article 94 Beijing Declaration and Platform of Action, Fourth World Conference, United Nations, 1994 and also Chapter vii, para 7.2 of the programme of Action, International Conference on Population and Development, United Nations, 1994
S. Wynter, "Genital Mutilation or Symbolic Birth:- Female Circumsicion, Lost Origins and Acculturalism of Feminist/wwestern Thought' 4.5 Case Western:Law review 501, 1997, p.501-552
50

forward, many of the young African anthropologists question the critique itself. Concepts of right and wrong, good and bad are thrown up for grabs in a world where there is no moral anchor and where human rights is seen as the last outreach of the Enlightenment Project.
The debate on FGM therefore becomes a conversation about colonialism and imposed western values. More importantly African anthropologists react to the way the struggle against FGM is being fought by western feminists with so much emphasis on morality and self righteousness. The United States has banned the practice in the United States under Federal Law'' and has made loans to African states conditional on measures taken to fight FGM. African scholars bristle at this type of intervention. They believe that FGM has become the vehicle for "the arrogant gaze' through which the west looks at and passes judgement on other cultures. Therefore, the legal imperative of rights discourse sometimes gets lost in the larger politics of the post colonial ea.
And yet, as much as these scholars disturb the complacency of the western worldview, individual African women disturb their romanticization of FGM as a celebrated practice of being a woman the African way. The case of Fauzia Kasinga highlights the injustice involved in turning a blind eye to FGM. Fauzia was from Togo and her parents initially spared her the experience of FGM. However after the father died she came under the authority of the Patriarch of the family who asked her to marry a forty year old man and made arrangements to have her circumsized. Fauzia, with
18 U.S.C.A. section 116 (1997)
' US representatives in international financial institutions are required to oppose loans to countries that do not take measures to eradicate FGM ibid., section 116
F. Kassindja, Do They Hear You When You Cry", Delacorte, New York, 1998
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the help of her mother and sister, fled the country and came to the US to seek asylum. There, after terrible experiences in US asylum centers, and after a long struggle, she received her vindication. She was given asylum and the imminent threat of FGM was recognized in the United States as a ground for gender based persecution. Since her case, Togo has banned FGM and her own Patriarch has become a convert in the struggle against FGM.
While African anthropologists react to disorder in their symbolic universe, many women activists in Kenya, Senegal, Egypt have begun door to door campaigns to fight FGM at the grassroot level. Isabelle Gunning perhaps captures the majority viewpoint in her article on the best strategy to fight FGM. In it she warns against the arrogant gaze of imperialism and finds that the best way to fight FGM is through education and health programmes supported by the international community. Recognizing that FGM is a violation of a woman's rights and dignity, she suggests the policy of teaching the community as the better strategy.
However, for many others such as the feminist pioneers Nawal el Sadaawi, the banning of the practice by law with criminal sanctions is an essential element in fighting these practices. A ban imposed by law is also State recognition that such practices that violate women's human rights will not be tolerated. In addition one of the reasons why women perpetuate the practice is that they feel that their daughters will become unmarriageable unless they are circumcised. Unless the practice is banned, parents have no excuse to not give their daughters up to the practice. Many campaigners argue that mothers are relieved when the practice is banned because they then have an excuse not to comply with cruel cultural practices.
In deciding which cultural practices deserve international attention and agitation, FGM appears to be a practice that
see Equality Now FGM Newsletter
52

requires concerted campaigning. Given the irreversibility of FGM, its intrinsically violent nature rooted in the sexual subjugation of women, and given the fact that it involves a girl child who cannot exercise choice, many human rights activists around the world are convinced that there should be a two-pronged attack in fighting the practice of FGM.- a banning of the practice to serve a summons on society that such practices are unacceptable as well as education and health programmes involving African women which will try and engage the community in a discussion about why this practice is harmful to their women. However, Gunning's caution that all this should be done without the arrogant gaze of the outsider is essential if rights discourse is to win the ideological battle. The full participation and consultation of women and men living in these Societies must, in the end, be the ultimate goal.
FGM is therefore the genre of violations against women that appears to deserve international attention framed in terms of the rights discourse. It is violent, it causes severe pain and suffering, it is irreversible and it shocks the conscience of everyone who does not perpetrate the practice. The shock, the conscience test of all outsiders (not only the west), is not always negative. It may actually be a reflection of international consensus in the making. Such practices deserve international agitation, international legal sanctions and international programmes and policies to combat the practices so that the girl-child is spared this violence of the most intimate sort that prevents her from being human in the most wholesome way.
Other cultural practices that fall into this type of genre are for example Sati in India or honour crimes practiced in many Arab and Mediterranean societies. The question of Sati in India raised many of the same debates as FGM but this time between the central government of India and the government of the region where the practice was taking place. The issue came to a head in India when in the late
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1980s Roop Kanwar committed Sati on her husband's pyre.” The Central government and the Rajasthani government acted swiftly to further outlaw the practice and to bring in strong measures against those who aid, abet or watch such a spectacle. Nevertheless over 25,000 Rajasthanis gathered to protest these measures as violating the traditional customs of the Rajputs.
Among scholarly circles the debates were often acrimonious. Some scholars argued that the ideology of Sati, a story of heroic death, should not be challenged, even if modern day practices were going to be banned. Sati was an aspect of religious mythology, a story of sacrifice and resurrection. It was strongly argued that the beliefs of the community should not be brought into question.’ Women who really wanted to commit Sati should be allowed to do so and what should be prevented are forced Satis. However the picture is more nuanced once there is access to economic and social data. A political-economic analysis of Sati, devoid of mythological significance, showed that Sati was actually a means of dealing with the unwanted widow. Allowing Sati would result in great pressure being put on women to commit Sati, pressures they may not be able to resist.” If “true” Sati was allowed, the ideological pressure on a young woman would compel her to give into family demands to commit Sati. Her bargaining power in such a context, surrounded by her husband's family would be meaningless. To prevent this social pressure that may lead to many deaths, most writers felt that Sati should be banned both at the Centre and the
Radhika Coomaraswamy, “To Bellow Like a Cow: Women, Ethnicity and The Discourse of Rights' in R. Cook ed. Human Rights of Women, University of Pennsylvania Press, 1994
* Ashis Nandy, “Sati in Kali Yuga:- Public Debate on Roop Kanwar's Death' in The Savage Freud, Oxford University press, New Delhi, 1995
'' K. Sangari, "Institutions, Beliefs, Ideologies: Widow Immolation in Contemporary Rajasthan' in N. Menon ed. Gender and Politics in India, OUP, 1999
54

periphery. A widow who truly loved her husband could find other means through which to express her grief.
As with FGM, there was little disagreement that the practice should be discouraged. What was called into question was the arrogance of the central government and feminists in passing judgment on the beliefs and practices of a community. The vernacular press in India demonized the feminist groups that led the attack on the practice. Sati as a practice thrived in the same part of the country as female infanticide during the time of the British. Though the mythology of Sati depicts a poignant story, the actual fact is that it is practiced in the area of the country where a female life is greatly undervalued and where violence against women and the girl child is widespread. The practice is a reflection of this misogyny and not an isolated religious belief. Feminist militancy in this regard may therefore be justified. Since this strong action was taken with regard to Sati after Roop Kanwar's case, few further cases of Sati have been recorded in Rajasthan.
Another cultural practice that is within this "severe pain and suffering" genre of women's human rights violation is the practice of honour killings, practiced in Arab countries, Turkey, Northern Pakistan, and countries with a . Mediterranean heritage. In addition, immigrant communities in western countries may also engage in this kind of behaviour, especially when women or girls refuse to marry men of their parents choosing. In honour killings, family members kill women or girls for destroying the honour of the family. The type of behaviour that can bring on this type of gruesome death could be adultery, in some parts of the world it could be falling in love, wanting a divorce, asking to choose one's own marriage partner or mere allegations of illicit sexual conduct. The manner of death is often horrendous, involving
Working Group on Forced Marriages, A Choice by Right, Home Office Communications Deirectorate, June 2000
* Amnesty International, Pakistan: Violence Against Women in The
Name of Honour", London September 1999.
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stoning or being ritually stabbed and killed in public. Despite its gruesome nature, there is general community support for honour killings in the societies where it is practiced. Mothers interviewed after the death of their daughters often shed no tears saying that their daughters deserved the death.
The case of Samia Sarwar in Pakistan brought international attention to the practice of honour killings. Samia was a married woman from a powerful landowning family in Peshawar, Pakistan. She wanted a divorce from her abusive husband who was also a relative and there were hints of her being in love with someone else. Finally after months of disagreement when Samia had to be hidden in a shelter by women's groups, her family agreed to the divorce. Her mother, uncle and an unidentified man came to the office of Samia's lawyers to work out the details of her divorce. Before the discussions could proceed the man who accompanied her family suddenly pulled out a gun and shot Samia dead. The aftermath of the shooting was equally disturbing. The State was very reluctant to prosecute members of Samia's family though there were many witnesses. Attempts to bring legislation against honour killings failed because many of the legislators did not want to take a stand against honour killings.
The concept of honour is integrally linked to notions of public esteem and private shame. Sri Lankan anthropologist Gananath Obeyesekere speaks of lajjabhaya-fear and shame' as the primary means of control in feudal societies. When a daughter or a wife acts in a manner that would bring the family into disrepute, then many societies sanction violence against the woman concerned. In some ways all Societies allow men the right to kill their wives if their honour is at Stake. Feminists analyzing the doctrine of provocation in
30 ibid.,
3 ibid
' G. Obeyesekere, Medusa's Hair:- Essays on Personal Symbols and
religious Experience, University of Chicago, Chicago, 1981
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western criminal law have argued that provocation is often the honour defense. A man who catches his wife committing adultery is allowed a greater license to commit violence than the average citizen committing an ordinary crime. The reverse is not necessarily true. Provocation is rarely used to defend women who kill their husbands. The notion that men can commit violence against women who shame them in any way is a doctrine present in most legal systems.
Honour in the family, like FGM, is closely linked to the control of female sexuality and movement. Honour is a code that ensures that women behave in a manner that preserves their chastity and their obedience. If they dare to cross the boundaries, violence will be their fate. In Brazil, honour was seen as a matter of self defense. To shame a man was to attack his person and property. In addition, masculinity and machismo as they are played out in some societies, have an undercurrent of violence, and honour is the excuse for its manifestation.
Torture Like Practices
FGM, Sati and Honour Killings are the type of women's human rights violations that most resemble torture. As jurists agree, the prohibition against torture is jus cogens, a norm of international law that cannot be derogated from by nation States. It is well recognized that the prohibition against torture is now an important principle of international law. State practice in the international arena reflects a consensus that all States recognize that torture is a violation of international law. Though many human rights laws and regulations are contested, Torture and Genocide are the genre of human rights violations that have acquired jus cogens
Human rights Watch, Criminal Justice Violence Against Women in Brazil, Newyork 1991
34 bid
3.5 bid
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status. All commentators and jurists are agreed on this. Torture is the "mother of all human rights violations". The Convention on Torture requires the following elements - severe pain and suffering, intent to inflict severe pain and suffering, for a specified purpose which includes punishment and discrimination and it must be done with the consent or acquiescence of a public official.
The practices outlined above in the area of violence against women are exceptional human rights practices because they most resemble torture. They involve "severe pain and suffering" and this aspect put them in a separate category from other human rights abuses. One of the prohibited purposes of torture is discrimination and it may easily be argued that the above practices constitute an attempt to discriminate. It could also be argued that state inaction and complicity in these cases involving violence against women meets the public official and acquiescence requirement of the Torture Convention. Because these cultural practices resemble torture - the mother of all human rights violations - universal human rights must be seen to easily trump cultural relativist arguments that foster these particular practices. Minorities or majorities that engage in such practices must be seen to be violating some of the most fundamental principles of international law and international human rights law.
In deciding which cultural practices existing in the world require international action and agitation, those practices that most resemble torture must surely be given the greatest consideration. FGM, Sati and honour killings are of the genre of violations against which States have taken firm action. Footbinding in China is another similar example. Michel Foucalut and others have argued that modern law finds physical violence against the integrity of the body totally unacceptable.” The public spectacle killings of ancient
Convention Against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment, United Nations, 1984 Michel Foucault Discipline and Punish, Vintage, New York, 1979
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societies that was so gruesome as to strike terror in the hearts of the public are no longer tolerated. Other forms of violence, however, do not receive as much consideration. Whatever the criticism, Foucault's argument that violence against the integrity of the body that causes "severe pain and suffering" is the type of human rights abuse that immediately receives censure, must be seen as a reflection of an international consensus. Cultural practices that challenge this norm must therefore receive the maximum degree of international scrutiny.
In arguing for maximum international scrutiny for "severe pain and suffering' violations of human rights, it is not necessary that such scrutiny adopt the posture of "the arrogant gaze". There are many groups in the countries in question that are campaigning against these forms of violence. It is important to enter into partnership with these organizations and to assist them in their attempts to fight these practices. In the end they have to win the ideological battle in their own societies or the practices will never be eliminated.
Short of inflicting violence and severe pain and suffering, there are many other customary and religious laws and practices that violate women's human rights. These usually deal with family law and the relationship between men and women within the family. In this area, a different approach may be necessary. Cultural practices relating to polygamy, inheritance rights, maintenance, consent at the time of marriage, child custody, child marriage etc... are among the issues that women's advocates raise in their fight for equality within the family. CEDAW Article 16 is very clear about the nature and structure of marriage. There must be free and full consent of the spouses at the time of marriage and full equality between the partners during the marriage and at its dissolution. This recognition of freedom and equality as the principles on which the marriage must be based are
38 CEDAW article 16- the most reserved article in CEDAW
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contested by many customary and religious systems around the world.
Sandra Lovelace was a Canadian Indian who was born in New Brunswick on the Tobique Indian reserve. She married a non Indian, went out of the reserve and had a son. The marriage broke up and she came back to the reserve. The elders informed her that once she marries a non-Indian she loses all rights and returns as a stranger to the reserve. As a result, she was denied housing and other benefits allowed on the reserve. Men who marry outsiders, however, retain their status within the reserve.'
In many ways this form of discrimination violates the spirit of Article 9 of CEDAW. The Article states clearly that "State Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife..." This type of provision is not peculiar to the Tobique Indians. Though many laws have been changed recently, most systems in the world link the domicile of the wife to the domicile of the husband and the nationality of the wife and children to the nationality of the husband and father. Family integrity was the argument usually put forward by these systems that also recognize the father's bloodline as the only legitimate bloodline, Sandra Lovelace took her case to the Canadian courts and then to the Human Rights Committee in Geneva. The Canadian government defended itself relying on section 4 of the Indian Act which placed these matters squarely within the jurisdiction of Indian Councils that ran the reservations. They argued that this
'' A. Bayefsky, "The Human Rights Committee and The Case of Sandra Lovelace', Canadian Yearbook of International Law, 1982, Vol 120 p. 244-266 40 Article 9 of CEDAW * Human rights Weth, Botswana Second Class Citizens. Discrimination Against Women under Botswana Citizenship Act, September 1994
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related to Article 27 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights which states clearly, "In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language."
When the case came up before the Human Rights Committee, commentators were eager to see how the Committee balanced the right to equality guaranteed to women in Article 3 of the ICCPR with the right to enjoy one's culture, a central dilemma for those who are fighting for women's rights internationally. They were sorely disappointed. The Committee disregarded the equality argument and claimed that Article 27 gave Sandra Lovelace the right to enjoy her identity as a Tobique Indian and the present practice prevented her from enjoying that right. They held for her but without dealing with the issue of discrimination or women's equality.
The reluctance of the Committee to delve into issues that would require the right to culture to be trumped by the right to equality on the part of women is an indication of the complexity raised by this question. For indigenous people, there is a serious question of survival. Free marriage across boundaries may result in their assimilation and disappearance. Tribes have tried to control this possibility by limiting the marriage options of their women. Outsider men are seen as far more threatening to the tribe than outsider women who would probably not claim resources and benefits from the tribal leaders. The limited nature of land and resources on the Indian reservation is therefore another reason why the tribal leaders are determined to limit the numbers and the possibilities.
In this context the rights of indigenous women to equality has been a question of great debate in Canada. Indigenous women often frame their rights within the discourse of the rights of the Indian people. Their dignity as women requires
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that their status as Indians be recognized and respected.' However it is their belief that according women equality within that framework would not disrupt tribal realities. Many of them feel that the best strategy is to work with tribal leaders to get them to change their minds and change their laws. Others like Lovelace feel that the Canadian government should intervene and ensure women's rights even at the expense of going against the wishes of the tribal leaders.
A similar dilemma emerges when one deals with the Shah Bano case in India. Shah Bano was a seventy year old woman who was unilaterally divorced by her husband who refused to pay her maintenance. Both unilateral divorce and nonpayment of maintenance are sanctioned by the Muslim personal law in India. Shah Bano sued her husband under the general criminal law under a provision that allowed destitute wives to sue their husbands for maintenance. The Indian Supreme Court held with her but her case led to a great deal of Muslim unrest in India and the political leaders decided to change the law so that in the future women such as her would not have criminal law recourse.
The Muslims are a minority in India that lives with a great deal of hostility because of India's relationship with its neighbour Pakistan, and because the Hindu Nationalist parties have roused a great deal of feelings against the Muslim presence in India. The destruction of the mosque in Ayodhya is one example of this discrimination. Any change in the status of the personal law is seen as an assault on the Muslim community and therefore Shah Bano's actions raised a hornet's nest. She herself was somewhat disturbed by the intensity of feelings and the politicization of her case. She was supported by Hindu extremists as well as feminists. This confrontation made many feel that the only way forward
' M.A.J. Guerrero, "Civil Rights vs. Sovereignty:-Native American Women in Life and Land Struggles in MJ.J. Alexander et al. Feminist Geneologies, Colonial Legacies, Democratic Futures, Routeledge, New York 1997
62

was reform from within the community, and not imposed by the Indian Supreme Court or any other outside force.
At the international level, the Shah Bano case raises questions of a woman's right to equality but it also raises the dilemma of article 18 of the Universal Declaration of Human Rights and the ICCPR. Article 18 states that "everyone shall have the right to freedom of thought, conscience and religion. The right shall include freedom to have or adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief of his choice.' It is argued that this provision gives protection to religious law on personal matters and if people do not agree with the laws, they should be free to change their religion.
Others such as Courtney Howland have argued strongly against this position. Howland's central argument is that systematic sex discrimination is a violation of the United Nations Charter. Using the judgment of the International Court of Justice on apartheid, she argues that systematic sex discrimination should receive the same treatment and that countries that engage in such discrimination should be given the same treatment as apartheid dominated South Africa." She points out that countries joining the United Nations are governed by the Charter and that the Charter in Article 55 states clearly that one of the purposes of the United Nations is "universal respect for and observance of Human Rights and Fundamental Freedoms for all without distinction as to race, sex, language or religion." In addition she notes that Article 56 requires all States to pledge themselves to the purposes of the United Nations including those set out in Article 56. She goes on to point out that The International Court of Justice has
43 Article 18 of the ICPR
* C.W. Howland, “The Challenge of Religious Fundamentalism to the Liberty and Equality Rights of women:- An Analysis under The United Nations Charter, 35 Columbia Journal of Transnational Law, 2, 1997 p. 271-377
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held that Article 56 imposes a legal obligation on States. Howland's main argument rests on the premise that when States join the United Nations and sign onto the Charter they are legally obligated to respect the observance of Human Rights and Fundamental Freedoms without distinction as to SEX.
In making this argument, Howland does note that human rights advocates have to deal with a countervailing Article, Article 18 of the Universal Declaration of Human Rights and The International Covenant on Civil and Political Rights. Article 18 states that "Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or adopt a religion or belief of his choice, and freedom either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching." Many countries have argued that this article trumps the sex discrimination argument. However, as Courtney Howland points out, Article 29 is clear that all rights contained in the ICPR can be limited for the purpose of securing due recognition and respect for the rights and freedoms of others. She points out how the International Court of Justice in the Namibia case made it clear that freedom of religion does not trump the right to be free from race discrimination and she argues that the same should hold true for sex discrimination.'
In addition, it may be interesting to ascertain as to what exactly is meant by the Freedom of Religion in terms of actual State practice. The United Nations General Assembly passed a Declaration on the Elimination of Religious Intolerance and Discrimination. The Declaration made it clear that the manifestations of religious belief that were protected under international law were those related to worship, maintaining places of worship, charitable institutions, articles for rites and customs, publication of materials, teaching the religion, Soliciting funds, religious holidays and communicating with
45 ibid
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others. Religious laws that discriminate against women are definitely not included as a protected aspect of religious worship.
Regardless of the international legal status, the practical reality on the ground for Shah Bano was very different. The Highest Court in the land held for her but ethnic riots and political bargaining got in the way of her remedy. In this political context, the search for other solutions besides topdown legal impositions by courts of law that may be insensitive to minority sentiments, may have to evolve, for women to truly receive the actual benefits of international rights and remedies set out in the international human rights instruments.
Another area where the dilemma between international rights and local realities manifest itself is in the area of customary law and inheritance practices in Africa. Land is the most valuable economic resource in the third world but due to inheritance laws in these societies there is a great disparity between male and female access to land. Under customary legal regimes in Sub Saharan Africa, women do not inherit any land and they only enjoy the land through their husbands and sons. Unmarried women and young widows without sons have little access to family resources, while old widows with sons and young widows with young sons have to live at the mercy of their sons or under the guardianship of the husband's brothers. Though there are a few tribes that are matrilineal, the vast majority of tribes in Africa greatly restrict the inheritance and use rights of women.'7
Due to these practices women are devalued within the family since they have no material assets. They have little bargaining power and the position of widow is often unenviable. In India, the lack of widow's inheritance is one
“ see Gita Gopal, Gender related Legal reform and Access to Economic
Resources in Eastern Africa, World Bank 1999 7 see ibid.

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of the reasons for the practice of Sati. Widows, divorcees, and neglected first wives are often in a situation of poverty. They have to either labour on the field of their brothers-inlaw or migrate to societies where the young women often are victims of trafficking."
Women's lack of inheritance is central to the practices of patriarchy and the belief that the family is father to son and the women are only a means by which this line is continued. Such beliefs often underpin customary law and even immigration laws are thus, where women are automatically given domicile residence and nationality of their husbands. In addition, the belief that male labour is breadwinning while female labour in the home is only supportive, justifies many of these inheritance laws as fruits of the labour of male members of the household. Practically speaking Societies also encourage these inheritance practices to prevent fragmentation of the land into too many parts.'
Increasingly development Support groups are arguing that it is essential to question these inheritance laws and to give women greater access to land. Such practices are in flagrant violation of CEDAW, especially Article 13 which states clearly: "State Parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular a. The right to family benefits..." In addition it is argued that women's equality will only come about with women's economic independence and therefore access to land rights is imperative with regard to other areas of women's rights. For example, women will not continue being victims of domestic violence if they have their own plot of land and their own economic resources. Women's access to land will also give access to credit, information and technology to work the land and it is
B. Agarwal, A Field of One's own: Gender and Land Rights in South Asia" Cambridge University Press, Cambridge, 1994 “o see Bina Agarwal
66

security against poverty in old age. Women's status and bargaining power will increase dramatically if they are given access to land.
Recently, NGOs and aid agencies have also found that the welfare of the family is often greatly enhanced if women gain control of the family finances. In studies it has been shown that husbands often keep up to 90 percent of their earnings for their own consumption while a wife and mother is ready to spend the majority of her earnings on the children. The success of the Grameen Bank in Bangladesh and women's credit schemes in other parts of the developing world has led many organizations to rethink the concept of head of household which once automatically implied the male/husband and to invest more money in women's potential.
Rethinking inheritance rights in Sub Saharan Africa implies restructuring customary law to ensure greater equality for women. This has become a heated issue, especially in South Africa. Many scholars have resisted any attempt to reform customary law as an attempt to westernize and destroy the African family. In 1998 South Africa promulgated a new law called The Recognition of Customary Law Act which kept provisions of the family law but took away some of the provisions that accentuated inequality between the sexes.
In South Africa there are a large number of traditional groups headed by kings and chiefs and all of them have their own customary law. Despite the minor differences, however, they were all premised on certain common practices. The first is the practice of "lobolo" where the husband's family negotiates with the parents of the bride-to-be and they agree to some form of payment by the bride's family to the groom's family. This could be in the form of cattle, money, or in the
o see Bina Agarwal
see discussion in M. Mamdani Citizen and Subject, Oxford university Press, New Delhi, 1997
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urban areas, other forms of amenities. In all systems the wife goes and lives with the husband's family; she has no right to inheritance, no right to custody of the children, and her husband can practice polygamy. Widows are at the mercy of the male member of the husband's family and sometimes have to marry another male member in a levirate marriage. These customary laws are enforced by the chiefs and kings of the traditional groups in native courts.
The South African Constitution guarantees full equality for women and says that: "the state nor any person may unfairly discriminate ... against anyone on the grounds of... gender, sex, pregnancy, marital status etc...'. This strong article for equality covering public and private actors is probably the most progressive Bill of Rights in constitutional history. At the same time The Constitution guarantees the rights of tribal and cultural groups. The Constitution directs courts "to apply customary law when that law is clear and applicable.' However it makes it clear that "no one exercising these rights may do so in a manner inconsistent with any provision of The Bill of Rights."55
David Chambers in a recent article describes the South African process in dealing with this contradiction. The feminists in South Africa were pushing for some form of uniform civil law that would incorporate the provisions of CEDAW as the only family law in the country. The tribal Chiefs wanted the Courts to recognize customary law as is and has been practiced through the years. They were ready to agree to allow couples to choose the law that would govern their marriage but all customary marriages past and future should be seen as valid.
' Article 9 of the South African Constitution.
Article 30 ibid.,
* Article 21 1 ibid
Article 211 ibid
David Chambers, “Civilising The Natives Marriage in Post-Apartheid South Africa”, Daedalus, Fall 2000, p. 101
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The South African Law Commission engaged in an open process to discover the best method to reconcile these opposing viewpoints. It received communication from all manner of sources. It also received advice from individuals and experts from around the world. Finally, The Commission decided that the Recognition of Customary Marriages Act would provide a minimum core of provisions that have to be complied with. They required that all marriages be freely chosen and that marriage must be with the consent of the partners. Unless there was a prenuptial contract, all property acquired during marriage was to be seen as community property thus striking at the heart of the inheritance regime that discriminated against women. Married women were given powers to acquire and dispose of assets and enter into contracts. Marriages had to be registered and divorce was only permitted when it was given by a civil, family court judge. In this context, the judge would use the general law to divide the property, award alimony and the custody of children.”
In many ways this law gives women the right to economic independence and provides for equality in marriage. However, certain practices were allowed to continue. The "lobolo' practice is not prohibited if the daughter consents. In addition, polygamy is seen as valid if the first wife consents and there is a written contract with the first wife dividing the property accrued to that point. Levirate marriages are also permitted if the wife consents to marrying the brother of her deceased husband. The South African Law Commission focused on the principle of freedom of choice for partners but also took steps to protect the economic and material interests of the woman in marriage. Recognizing that women's economic independence is central to women's equality, The Commission ensured that customary law did not take away her economic rights.
Not everyone was pleased with the passage of the Act but it gained general acceptance and was passed by
57 Chambers 113
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Parliament. The Colonial Powers and the Apartheid Regime always gave communities maximum space and control over family lives. The independent South African government dismantled this regime keeping in mind the Bill of Rights and the equality of women. They were successful because of the consultative process they engaged in as well as by the fact that Socioeconomic realities of urban South Africa required a new assessment of marriage practices.
Toward a Resolution
While the legal paradigm of torture helps us sort out those cultural practices that deserve international attention, the South African experience may assist us in determining those aspects of customary and religious law that have to be amended so that the ideal of the universality of human rights retains some significance for women in their every day life. In determining those aspects of cultural practice that do not withstand human rights scrutiny, general principles underlying international human rights law may prove to be useful.
The rights of children is one area of international human rights that has near universal recognition and approval. The Convention on the Rights of the Child is the most widely ratified Convention in history and only two countries have not signed the Convention to date. In some sense the argument put forward by Courtney Howland that countries, by signing international documents, are bound by their consent to these standards and principles, has special significance in this area. Unlike in the case of The Universal Declaration of Human Rights, State parties had all achieved
see Chambers
' The countries are Somalia and The United States of America see Cynthis P. Cohen, 'The United States and Somalia Bar Universal Ratification of The U.N. Convention on The Rights of the Child' ACLU International Civil Liberties Report, Los Angeles, 1998, p.46
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independence and took affirmative decisions to be bound by the Convention on the Rights of the Child. This worldwide consensus without many reservations on substantive articles must reflect the fact that countries are ready to accept international scrutiny with regard to the rights of the child. The Convention on the Rights of the Child would therefore preclude those aspects of customary and religious law and practice that violate the rights of the child. This would include provisions relating to child marriage as well as any practice that prevents the education of the girl child. In addition, those practices that result in health hazards for the girl child would also open a country to international scrutiny. In all these areas customary and religious law and practice must give way to international standards. Countries or minority groups with their own customary laws would be compelled to bring these laws and practices in conformity with international norms and principles reflected in The Convention on The Rights of the Child.
In practical terms, asserting the rights of the child often comes into conflict with the important concept of parental authority and decision making. There are scholars such as Martha Minow who have argued that the problems of children should be looked at through the concept of relationships and not through the prism of rights. In this perspective, maximum discretion would be given to the parents and any changes would be attempted through discussion and dialogue with the parents. In terms of outlining effective strategies this may be the better approach. In fact it is only in a climate of nurture and care that children can be loved, not in the crossfire of rights and freedoms. However, the popularity of The Convention on the Rights of the Child recognizes the fact that the welfare of children is
' The Convention stipulates 18 as the age when a child becomes an
adult.
Martha Minow, "About Women, About Culture, About Them. Abou Us”, in Daedalus, Fall 2000 p. 125
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of national and international concern and reflects an international consensus. The space for the justification of cultural relativism is therefore somewhat limited. The strategies used to implement this concern may, however, differ.
In addition to the rights of the child, other principles that may assist us in determining how issues relating to cultural relativism in family law should be resolved relate to The Convention on Economic, Social and Cultural Rights. Unlike The Covenant on Civil and Political Rights, The Covenant on Economic, Social and Cultural Rights defines its provisions in terms of the progressive realization of rights within available resources. This type of framework allows us to see rights in a more fluid sense without immediate resolution. General Comment 3 of The Covenant on Economic, Social and Cultural Rights Committee argues that though these rights are not necessarily immediately realizable, there are a minimum core of rights that should be immediately granted. Rights such as the right to primary education, or the right to safe childbirth etc... are seen as the rights that should be granted immediately.
In the case of women's rights within a given cultural context, this framework of progressive realization over a period of time may be the best approach in the long term. Though torture like practices require immediate action, provisions relating to family law may be more effective if they are modeled on the ICESCR approach. Progressive realization of equality propelled by women's groups working on the ground may actually result in more lasting and effective solutions. Committees such as CEDAW can also push governments to comply with their international obligations. However, as suggested in General Comment No. 3 of The ICESCR Committee, in the short term governments should
62 ICESCR Article 2
ICESCR Committee General Comment, No 3.
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be urged to ensure that women are guaranteed a minimum of core rights with regard to their rights within the family and the community.
In attempting to identify which aspects of customary and religious law and practice should be the subject of this minimum core approach, a guiding principle in determining the provisions may be the principle of autonomy. Pursuing the principle of autonomy would imply removing those aspects of customary and religious law and practice that prevent women from being in a position to make decisions about their lives. In some way the concept is related to choice but the principle of autonomy recognizes social, economic and political constraints and attempts to maximize women's power within those realities. In addition, the term autonomy recognizes that it is not only choice in an abstract political sense but choice in terms of economic and social reality that matters. For this reason, the concept of autonomy is also concerned with economic and social rights of women as a way of ensuring meaningful choice in every day life. In some ways, The South African Commission that inquired into customary law, accepted this principle of autonomy as its guiding principle. It required that freedom of choice of individual women when it comes to marrying and accepting polygamy be recognized and that women's economic independence be assured through the removal of provisions that prevented them from enjoying the economic resources of the family.
The principle of autonomy is integrally linked to concepts of freedom and choice that underpin what is loosely called a western epistemology. The project of the Enlightenment enshrined these concepts in law and in practice. Individual men were made the centerpiece of the universe, not God. Many of the struggles of the twentieth century have been to expand the beneficiaries of the Enlightenment project to include woman and non-western males. However writers such as Michel Foucault have deconstructed this ideal in its many manifestations and have proven to the world that this
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framework with its facade of respectability masks a cruel and ruthless system of power.' Writers such as Edward Said and other young post colonial Scholars have shown how this model was taken to the colonies and how it operated to subjugate and victimize people of colour. Their studies are convincing portrayals of the Enlightenment project as an arrogant, western system of belief that destroyed everything in its path.
However, at some point there must be a leap of faith. In a globalized world where economies and cultures meet, interact and transform each other, it is imperative that we develop a set of standards that have international recognition and durability. It would be naive to assume that these interactions and transformations are taking place at random. There is an imposition of will by international media and business conglomerates who manipulate our tastes and our assumptions. Globalization is not an equitable process. However, globalization has also led to something else - the growth of international civil Society. Groups and organizations have gathered around the concept of human rights as a mobilizing force against social injustice and inequity. It is true that only a few of these voices are heard globally but there is no doubt that there is "globalization from below' and that third world groups are active members of this community. These groups dialogue with one another - often at world conferences, and there is an informal consensus to their approach. Central to their consensus is the importance and primacy of the concept of democracy -
'' Michel Foucault, The Archaeology of Knowledge, pantheon, New
york, 1972 Edward Said, Culture and Imperialism, Random House, New York, 1994 Gananath Obeyesekere, The Apotheosis of Captain Cook, Princeton, New Jersey 1992 For a feminist discussion see Signs Vol 26, No. 4 issue on Globalisation and Gender 2001 × NGO Declarations Fourth World Conference on Women 1995
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not democracy in the narrow sense of western representative government but democracy in a more inchoate sense of the need to include people of all groups and communities in a process of participation and decision- making.
If one were to read the many declarations and resolutions of the United Nations, democracy and participation by individuals and groups at all levels is a central animating tenet. Except for the documents dealing with peace and security or the economy, the political and civil documents of the United Nations make democracy and participation their central political concept. It may therefore be said that democracy as a general principle, even if not in its specific western manifestation, is part of an international consensus and is the underlying principle of organizations like The United Nations. Though it has not been recognized as jus cogens, the development of international norms since the end of the second world war does point to democracy in a general Sense as an emerging norm.
For democracy to be meaningful in the lives of individual women, these women must have the opportunity to make choices and decisions. As a result, those aspects of customary religious law and practice that completely preclude them from making important decisions about their lives should be brought under scrutiny by national and international regimes. Provisions that deny them the right to give their consent to marriage or to leave an abusive relationship must surely be contested. In addition, provisions that deny women economic independence such as those relating to her right to own property, enter into contracts or receive inheritance, should also be subject to intensive scrutiny.
An approach to cultural practice that takes autonomy as a central guiding principle would require national governments to engage in a process much like the proceedings of the South African Commission. National governments would be urged to sift through their family laws and personal laws and identify a minimum core of provisions that must be common to all legal systems. This minimum core would
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protect the rights of the child and the basic autonomy of the woman so that she would be capable of making decisions about her life. Some countries may want to go further and give women optionality. Couples on their wedding day may be allowed to choose which system of law should govern their marriage - legal provisions drafted in accordance with CEDAW or legal provisions relating to their own customary or religious law.
Learning From Below
In pushing for these changes as the basic minimum in the obligations of States to international standards relating to women's rights, it is important that sensitive strategies are pursued to ensure their success. Increasingly in the South and within certain minority groups there is a civil society that is responsive to these international concerns. None of the Societies or groups under consideration are monoliths with a singular purpose of oppressing women. As many anthropologists have depicted, all these societies have ways and means of expressing women's liberation and emancipation. Within each tradition there are always reformists who are trying to improve the situation of women."
Increasingly there are women's groups that are active and involved. Where such groups exist, leadership on these issues at the national and international level should come from them.” Any strategy should be formulated after full consultation and discussion with these groups that are aware of the ground realities and the cultural and economic sensitivities. It is only where such groups do not exist, and where there is a situation of terror such as in Taliban ruled Afghanistan, that direct international action should be
° Abdullahi Ahmed An-Na'im, “State Responsibility Under International Human rights Law to Change Religious and Customary Law' in R. Cook ed. Human Rights of women, p 167
70 see An Aim.
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considered. Action such as denying aid to governments, or imposing penalties on Third World States or communities for violation of women's rights, should only be considered if the space does not exist for internal change and transformation and if local groups call for such intervention.
The spectre of the Enlightenment gone wrong in the colonies still exists. The legacy of a colonial paternalism that posits the Third World female as victim still triggers a great deal of resentment even among those who are generally favourable to women's rights. Insensitive strategies coupled with the arrogant gaze will only do greater harm and delegitimize the very groups fighting for these causes in countries and among minority groups. However, at the same time it must be recognized, in defiance of post modernist tendencies, that there are internationally accepted standards and norms. Being sensitive to cultural relativism cannot imply putting hard won battles on human rights up for grabs. There is a shared history and a collective memory at the international level. What must be seen as negotiable are the strategies of enforcement and implementation and not the bottom line concept of a woman, free and equal.
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The Juridical Political Claims of Minority Protection in India
Ranabir Samaddar
Abstract (Author's introduction to the article)
Our task in this essay is two-fold. We have to examine the juridical-political claims on minority protection in India in terms of the institutional practices of protection, and the constitutional discourse that has given birth to these practices. Second, we shall have to see through such an examination, whether the goal of achieving a tolerant society where diversity is politically welcome, minority communities become full members of a political society, and the State is obliged to ensure conditions of such full participation, makes it a prime imperative that extend our considerations on the mechanisms of protection of minorities to a critique of the nature of democracy that our polity has adopted.
These two examinations are simultaneously pursued in this essay, which is organized in six sections. The first section presents in brief the nature of the claims for protection. The second section describes the institutional discourse of protection of minorities in the country in the context of violence and the everyday forms of domination of minorities, which lie beneath the institutional discourse and practices. The third section deals with the legal-political climate, mainly shaped by the deliberations in the Constituent Assembly, that laid the ground for a philosophy of protection, and within which the institutions of protection today function. The fourth section examines the nature of the legal-political provisions of autonomy, one of the Salient features of minority protection in India in the backdrop of the constitutional-legal discussions. The fifth section turns
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to the question, if minorities are a question of powerlessness, how does the civil-political society react to this powerlessness? What is the nature of defence organized by such civil-political efforts such as people's tribunals and local organizations? The sixth and the final section argues that the two politics - that of exclusion by which the rule over minorities continues, and that of defending the minorities on the basis of a demand for their inclusion into the political society combine to make what our democracy is today, and, this situation suggests the need for a critical democratic theory and politics to get out of the bind.
To diehards who have developed a kind of fanaticism against minority protection I vould like to Say tuvo things. One is that minorities are an explosive force, which, if it erupts, can blow up the whole fabric of the state. The history of Europe bears ample and appalling testimony to this fact.
The other is that the minorities in India have agreed to place their existence in the hands of the majority. In the history of negotiations for preventing the partition of the Ireland, Redmond said to Carson, "Ask for any safeguard you like for the Protestant minority but let us have a United Ireland'. Carson's reply was "Damn your safeguards, we don't want to be ruled by you."
No minority in India has taken this stand. They have loyally accepted the rule of the majority, which is basically a communal majority. It is for the majority to realize its duty not to discriminate against minorities. Whether the minorities will continue or will vanish must depend upon this habit of the majority. The moment the majority loses the habit of discriminating against the minority, the minorities can have no ground to exist. They will vanish.
B. R. Ambedkar in the Constituent Assembly, 1949

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I. The nature of the claims for recognition
The experiences of India with probably the most developed juridical system in the region are instructive. The plurality is also enormous. Hindus (including scheduled castes) form 76 percent, Muslims 11 percent, Christians 2 percent, Sikhs also 2 percent, Buddhists 0.7 percent, Jains 0.5 percent, Jews 0.1 percent and the Zoroastrians or Parsees 0.1 percent. There are eight major language groups - Hindi-speaking population is over 183 million, Bengali-speaking 45 million, ASSamesespeaking 9 million, Kannada-speaking 22 million, Marathispeaking 42 million, Tamil-speaking 38 million, Teleguspeaking 49 million, and Urdu-speaking 29 million. The indigenous population forms about 7 percent of the country's population. There are over 60 Socio-cultural sub-regions and 12 states in the country, which are bigger in population and Some in territory than a majority of states on earth. In such a milieu the Indian Constitution is torn between the conflicting pulls of what Asbjorn Eide terms as "common domain" and 'separate domain'. The common domain ensures equality including subjection to common regulatory authorities, the separate domain ensures acceptance of diversity in the separate domain that is reserved to the minority or to its members in order to protect the group to maintain its identity as a group.'
The preamble speaks of justice to all, dignity of the individual, and unity and integrity of the nation. Justice to all may need special protection to some groups. Dignity of the individual in this context may not be enough. An exclusionary principle of individual dignity may in fact harm other principles of dignity. And a re-interpretative justice may seem to threaten unity and integrity of the nation and may therefore be censured. Article 51A upholds "harmony and the spirit of common brotherhood... transcending religion, linguistic
— Asbjorn Eide, New Approaches to Minority Protection (London: Minority
Right Group, 1991), p. 12.
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and regional or sectional diversity", and "rich heritage of composite culture". The contentious history of democracy in India has shown that majoritarianism appears not by contravening these principles, but on their basis as a majoritarian power structure can wield this to its advantage. Article 14 speaks of equality. Article 15 prohibits discrimination. Article 16 guarantees equality of opportunity in public employment. Article 19 declares equally enjoyable basic freedoms. Article 21 protects life and liberty. Article 25 deals with freedom of conscience, profession, practice and propagation of religion. Article 26 ensures freedom to manage religious affairs. Article 28 ensures freedom to attend religious instruction in certain educational institutions. Article 29 ensures the right of a group to maintain its distinct language, script and culture and by implication ensures a minority educational institution to receive state aid while having its distinct identity. Article 30 makes explicit the right of the minorities, "whether based on religion or language" to establish and administer educational institutions of their choice, protects the property of such institution against arbitrary acquisition, and forbids the state to discriminate in any way against such institution. Other provisions relate to the rights of scheduled tribes who may be minorities in the country or a constituent state, but majorities or substantive in a part of a state.
Apart from provisions in the Constitution, there is an elaborate institutional arrangement also for protection of minorities. Besides the ideal of fundamental rights as enshrined in the Constitution, the growing discourse on human rights and pluralism has helped in the setting up of several institutions, such as the National Human Rights Commission, National Commission for Minorities, National Commission for Women, National Commission for Scheduled Castes and Tribes, and similar bodies in a few cases at state level also. Besides, there has been talk about reforming the police force, which has proved repeatedly unable and incompetent to protect the minorities. The National
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Commission for Minorities Act, 1992 lends a statutory status to the National Minorities Commission. In all these provisions for institutional protection, to be discussed later in detail, the conflicting pulls of protection/equal claims, rights/justice, majority claims/minority rights, a lonely strategy of positive discrimination/wider notion of participation, and finally the administrative strategy of secularism/the politics of toleration, are apparent. Though as may be claimed that the Indian constitution goes further than many other basic human rights laws such as the Universal Declaration of Human Rights (UDHR) in ensuring minority rights, the tension proves too much.
First, the common domain of Articles 14, 19, and 21 sometimes militates against the domain of minority rights and minority protection.
Second, in the same way Article 30 goes against the other basic rights in the Constitution as the record of abuses in many minority institutions has shown.
Third, by not clubbing various group rights in a section, the Constitution fails to provide group rights adequate focus, and leaves scope for conflicts.
Fourth, by not combining the principle of toleration with that of secularism the Constitution enables the state to use the administrative strategy of secularism to govern all the communities in a cynic manner without providing adequate protection for the minorities and encouraging tolerance.
Fifth, the right to religious freedom threatens the minorities more than it protects their freedom.
Sixth, fundamental rights with citizenship as the fulcrum of these rights, tilt towards the individual and thereby the majority in matters of political rule.
Seventh, the concern today about securing a better deal for the 'worst off class/group' through positive discrimination is weakened by the absence of a wider theory
James Massey makes a comparison in Minorities in a Democracy - The Indian Experience (Delhi: Manohar, 1999), pp. 77-83.
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of justice that admits in its fold a notion of public goods and overlapping consensus in the public sphere on procedures of dialogue and accommodation.
Finally the institutions set up for the protection of the minorities lack any magisterial power.
The Indian experience shows the need for deep examination of a nominally rights based discourse based on a strategy of state protection of minorities that if not accompanied with the attending democratic requisites may not be able to take the cause further. Ironically, therefore, the same constitution that speaks of protecting diversity, cultural rights, and autonomy, may also produce majoritarianism, which will take some minorities on the warpath, others into sullen submission, ruining immensely the project of a humanitarian, dialogic and a tolerant civic culture. We have to see all these in the context of the quality of federalism in the country also. Article 371. A to Article 371-1 contain special provisions, Article 370 is also a special provision relating to Jammu and Kashmir. Besides the operation of the sixth schedule in Assam, Meghalaya, Mizoram, and Tripura, Manipur and West Bengal have such councils outside the schedule. Yet, this seems to have proved inadequate to a wide-ranging number of people of the country. Therefore, apart from the well-known recommendations of the Sarkaria Commission, there have been demands for statehood from many groups that are essentially minority groups. Such movements have marked Jharkhand area, Karbi and Cachar Hills, Plain Tribal areas in Assam, Bodo areas, Naga areas in Manipur, Jammu and Ladhakh in Jammu and Kashmir. Afraid as is natural for a political class, it is scared by a possible "domino effect" that these demands of various minority groups may have. People speak of restructuring of the country with political units corresponding to "ethnic boundaries", thus they speak of at least 50 (fifty) states instead of 31 (thirty one) states, and more autonomous areas, but the future remains uncertain. For, this will not be allowed in all probability in the near
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future. Moreover, "ethnic boundaries' get reproduced in various ways, various forms. The federal question gets entangled in the nationality question - the container of the minority question - and in the cobweb of rights. The issue that Michael Walzer had raised in his argument on democracy that this was clearly one of the "political way(s) of allocating power' goes down the drain. In discussing the juridical-political nature of the claims for minority protection in the country, we should therefore return again and again to the more fundamental question relating to the protectionbased discourse that struts as rights based discourse.
For that we have to restate the problem. Rights are necessary, but singularly insufficient to make democracy work, and bring about a democratic resolution of the minority problematic. An individualism-oriented human rights theory of politics can ensure certain rights, but cannot prevent majoritarianism. Equally, a group-oriented theory of rights in politics can ensure certain group rights, but evades totally the question of dominance in the structure of rule that negates the meaning of democracy. The protective theory of rights in politics thinks that rights offer protection to citizen, by implication his/her group also, against the state. It holds that rights succeed in creating a vibrant civil society that checks the state and makes sovereignty disappear. But so do disappear participatory practices along with the sovereignty. It is as if rights would ensure protection of minorities; and the citizen could now ignore the reality of a structure of power that subsumed within it all asymmetries, also the existence of an intolerant republican tradition - the opposite of plurality. The evidences from the Indian juridical-political scene militate against Such hope.
In discussing in this essay the juridical political claims of minority protection in India my purpose is therefore to show how the political nature of the institutional practices of minority protection in India makes constitutionalism
Michael Walzer, Spheres of Justice ((New York: Basic Books, 1983).
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inadequate in facilitating resolutions of conflicts arising out of the negotiation of claims by minorities for recognition by a state that builds up its political power on the basis of producing majorities and minorities. Thus, in sketching here a narrative history of protection mechanisms, the constitutional deliberations and the evolving legal framework within which these mechanisms have functioned, and the political climate surrounding all these, the Indian example is significant, because constitutionalism in this region finds its most developed form here, and therefore may be the mirror in which other countries in the region will find the future of their constitutional journey.
The Indian situation of claims regarding minority protection is characterized by two developments. First, the ideology of nationalism brings into existence a nationalizing state that thrives on fictive ethnicity, builds up a fictive ethnic core, makes majoritarianism the culture of the state, and encourages the belief in the minds of the members of the political class that strengthening republican nationhood is the way for the survival of communities through their integration with the nation. Since the search for non-national state form, that is to say non-national form of political living, is seen as deviant political behaviour, minority rights are therefore not seen as belonging to the category of the rights of self-determination, which would form the core of group rights. They are not "rights", but they are treated as claims to "protection" by the State. Second, community rights are seen not as rights that redefine citizenship, but as factors that will enhance the republican spirit of the nation by reinforcing it with group participation. Since minority rights have emerged in this country only in the wake of the spread of the ideas of nationalism and republican democracy, minority rights have never appeared as an isolated item in a nationalist agenda. Identity politics is seen in terms of extra-territorial linkages, ethnicity (which by definition cannot be co-terminus with national territoriality), and the breakdown and
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formation of new states. In short minority rights are considered to be challenging the state and the states-system. Against such a background, for critical democratic theory the task of examining the juridical-political claims of the State regarding protection of minorities is important but complex. This is more so in a context where the task of a democratic State to accord primary importance to individual rights is seen as not enough, simply because recognition of the individual is not enough today, and groups and communities have to be granted rights in order to make democracy tolerant towards diversity. The strength of the discourse of minority rights has been that it is capable of drawing attention to the weaknesses of modern constitutionalism which acknowledges only individuals, legally guaranteed institutions and sometimes federal units (for example, states in India) as political actors. Communities are not accepted as legitimate actors. The defence of communities in India in the arena of juridical-political rights emanates from the imperatives to defend the communities and indigenous people from marginality in the wake of policies ushered in by the state in a climate of globalisation and economic restructuring.
Yet we must understand that even a reworking of the minority question on the basis of a politics of cultural identity may not be enough, as from being an agenda in democracy, the politics of cultural identity may become, as indeed it has become in many places, linked to neo-nationalist and racist community based organizations in the newly discovered space of civil Society. It appears, groups do not encourage tolerance; they produce hatred. Equality of rights is equality in hate acts. Multiculturalism as a philosophy of diversity, and as a policy response in form of encouraging accommodation of the immigrant minority communities in the national community on the basis of accommodation of differences, to a nationalizing state determined to pursue overwhelmingly a politics of repression, assimilation, denial,
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exclusion, and marginality, becomes a weak answer. We shall have to return therefore in the last section of this essay to the question of political democracy itself.
II. The institutional universe of protection
In order to get an adequate idea of the institutional nature of the protection of minorities in the country, it is important to keep in mind the pervasive atmosphere of violence to which minorities are subjected, because not only that these institutions function in such an atmosphere, but that these institutions are expected to protect the minorities from precisely such an atmosphere of pervasive violence. Not too often we forget the fact of the climate of violence in which minorities have to live their lives and which place serious political restrictions on them in making use of the relevant institutions in ensuring the safety of their own lives. At a time when this report is being written, we have witnessed one of the worst such cases of acute violence, in Gujarat, where even the defence minister has not been allowed to visit the riot-torn area, human rights organizations have not been allowed to work, a rabid communal organization has openly flouted Supreme Court order, and a Chief Minister has blatantly supported burning of bodies and houses of minority community. One may reasonably ask in such context - where are the commissions, the arrangements? But at the same time it is important to note that it is not only the events of acute violence that makes apparent the banality of rights, the
* On the debate on cultural identity, see the excellent summary by Sarah Joseph, 'Liberals, Communitarians and the Protection of Cultural Diversity', chapter 5, in her Interrogating Culture - Critical perspectives on Contemporary Social Theory (New Delhi: Sage, 1998). My only criticism on that excellent essay is that she does not question the politics of rights in her presentation of the rival arguments.
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banality is to be understood in the context of a majority-centric power structure that creates and re-creates fictive ethnicity as its foundation through what can be called as the "everyday forms of suppression and discrimination of minorities".
A prominent Indian newspaper, The Times of India, reported (23 April 1994) that the Parliament had been informed in 1994 that in 1991-93 there had been more than 52,534 cases of atrocity against scheduled castes. Similar violations were committed against linguistic minorities. During 1961-1986 the number of districts affected by communal violence rose from 61 to 250. The anti-Sikh riots organized in the aftermath of Mrs. Indira Gandhi's assassination in 1984 led to deaths of several hundreds, with the Justice Ranga Nath Misra Committee inquiring into the anti-Sikh riots concluding that more than 3000 Sikhs had lost their lives in the riots. The Vohra Committee appointed by the Indian Government in July 1993 noted the organized presence of the underworld in these atrocities against the minorities. Major forms of political violence have been directed in states such as Assam in the decade of eighties in the past century against minority groups (Nellie and Mongoldoi massacres), who have been also rightly or wrongly identified as illegal immigrants. Members of the minority community were subjected to state repression in the form of detention under The Terrorist and Disruptive Activities (Prevention) Act, commonly known as TADA and passed in 1985, which was used extensively against rebellious members of the minority community. According to a report of the Union Home Minister, in 1994 more than 52,000 persons were detained under TADA - of this figure 14,557 in Punjab, 14,094 in Gujarat, and 10,779 in Assam. Significant proportion of minority members among TADA detainees became a focal point in public outcry. And the former Union Minister for Internal Security late Rajesh Pilot admitted that the Courts had rejected 95 per cent of the cases registered under TADA. Apart from detentions under TADA, large-scale illegal detentions, custodial violence and killings, and illegal disposal
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of bodies including illegal cremations have also gone on, prompting Justice A.S. Bains to term this phenomenon as 'state terrorism'.
Political violence against minorities has reached an acute state in states such as Jammu and Kashmir where in 1998 the number of complaints reaching the State Human Rights Commission was 200; in 1999-2000 the number reached 309, subsequently reaching the figure of 509. Security forces occupied houses of members of minority groups, and disappearances, murders, harassments, rapes, and illegal detention were the most cited subjects of complaints. The Commission extensively quoted local newspaper reports also in this connection. If one looks into the working of the state human rights commissions, one finds little awareness of the significance that rights of the minorities occupy in the agenda of the human rights mechanisms.
Thus while the National Human Rights Commissions and wherever the State Human Rights Commissions have been formed as in West Bengal under the Protection of Human Rights Act of 1993, the Act constituting the Commissions does not show any awareness of the significance of group rights, with the result that whereas there is a National commission for Minorities constituted under Section 3 of the National Commission for Minorities Act of 1982, a National Commission for the Scheduled Castes and Scheduled Tribes as referred to Article 338 of the Constitution, and a National Commission for Women formed by Section 3 of the National Commission for Women Act of 1990, the National Human
S.S. Tiwana, "National Human Rights Commission and Human Rights Violations in India' in M.P. Dube and Neeta Bora (eds.), Perspectives on Human Rights (Delhi: Anamika Publishers, 2000), pp. 80-118; on forced disappearances, illegal killings, and Secret cremations in Punjab, See, R.N. Kumar, A Complex Denial. SAFHR Paper 8, South Asia Forum for Humar Rights, Kathmandu, 2001.
6 Jammu and Kashmir State Human Rights Commission, Annual Report,
1999-2000, Srinagar, pp. 3-5.
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Rights Commission probably thinks that human rights are fundamentally individual rights with special mechanisms looking after particular group rights. This disjunction results in a deficit in the mandate in the human rights mechanism. Similarly the West Bengal Human Rights Commission (formed under the Human Rights Act of 1993) Regulations do not enjoin upon the Commission to evolve any particular mechanism or procedure to safeguard group rights, and confine themselves to normal administrative and magisterial inquiry, implementation and follow up procedure. Protection of group rights is "special", not "normal' - by implication an abnormal task. This explains the extra-ordinary coincidence of institutional protection of human rights and daily violations of rights of the minorities. Indeed as the example of the Annual Report of the West Bengal Human Rights Commission (1998-99) suggests, the violations of human rights of individuals are very much violations of rights of individuals belonging to weaker and minority communities - Muslims, scheduled castes, and women, and particularly women belonging to these two groups. Unfortunately the table (in the said Report) on cases admitted by the Commission speaks of 51 custodial deaths that year, 95 incidents of rape and other indignities to women, 409 complaints against the police for abuses of rights, and 79 complaints against jail administration, but it does not provide a break up of the victims according to their communityidentity, though we can get from the select narrations in the Report an idea of the nature of the persons whose rights are being violated, and the way in which these violations take place extending from deaths due to rodent bites, Sodomy, abuses in mental hospitals and jails, indiscretions by authorities including illegal arrests, demolitions by police, and firings, to non-implementation of recommendations and
7 West Bengal Human Rights Commission, Annual Report, 1998-99, Calcutta,
1999, p. 91-92.
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directives by appropriate authorities for redress. If one thinks that the Minorities' Commission looks into the abuses and ensures redress, we are in for disappointment here. The West Bengal Minorities' Commission constituted under the West Bengal Minorities Act of 1996 principally admits of religious minorities and does not refer to weaker communities such as the scheduled castes or indigenous communities, though it refers to "such other minority" as notified by the Central Government and "minority based on language within the purview of Article 29 of the Constitution" as the “State Government may by notification specify from time to time" (Article 2.C i & ii). With the Indian Constitution, as we have seen, defining the rights of the minorities in an extremely constrained manner, the institutions on minority protection are bound to be weak in their protective role. Thus though the relevant West Bengal Act of 1996 speaks of (Article 4) evaluating the "development of minorities" and review the implementation of the programmes of the West Bengal Government (4.1a), "monitoring the working of safeguards' (4.1b), "make recommendations" (4.1c), "looking into specific complaints of deprivation of social, economic, educational, cultural, and linguistic rights and Safeguards of the minorities' (4.1d), "recommend to the State Government to accord minority status to religious, linguistic and ethnic groups, provided such groups do not enjoy any constitutional or statutory benefits or status" (41.e), "conduct studies' appropriate and relevant to its functions and concerns (4.1f &g), and "make annual report to the State Government" (4.1h), and speaks of "its power of a civil court" (4.2a), "summoning and enforcing the attendance of any person and examining him on oath' (4.2b), and other similar powers of requisitioning records, etc, the Annual Reports give us a dismal picture of its effectiveness while claiming at the same time that the "Commission enjoys wide operational powers under Section 4.1 of the Act". Thus while the said Report
8 West Bengal Minorities' Commission, Annual Report, 1999-2000, Calcutta,
2001, Introduction, p. 1.
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speaks of its activities in protecting a mosque at Calcutta Airport (by referring the matter to the All India Muslim Personal Law Board), recommending a particular community for inclusion in the category of Muslim Backward Classes, ensuring Other Backward Classes certificates to members of the Momin-Ansari community, looking into the mismanagement of the Armenian Trust in Calcutta, issue of hostels for Muslim students, a church in Darjeeling district in the state, potable water for residents of a particular area in the district of Burdwan and belonging to a minority community, and an incident of torching a Buddhist Monastery in the district of Jalpaiguri, the same Report speaks of inadequate staff strength, lack of infrastructure, and then concludes with this enigmatic remark,
A good number of complaints and representations, which do not fall within the scope of the Commission's functions are being received by the Commission from the members of minority communities. Such complaints mainly relate to individuals, family quarrels, land disputes, communities inter-se, etc, and matters, which are sub judice.
It appears that the general public is not well informed about the scope of functions of the Commission, which lead to filling of such grievances. It is, therefore, considered necessary to acquaint the public about the scope and functioning of the Commission through the media to minimize such multiplicity of such complaints.'
It should not astonish us that the situation is so, considering that the members of the Commission are wholly nominated by the Government, and consists of bureaucrats also (Article 3.2 of the Act), and the Commission has stayed away from incidence of daily abuse, humiliation, and the sense of
Ibid. p. 19.
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disempowerment that members belonging to the minority communities, whose tip only we can imagine from the reports of the Human Rights Commission, face in their politicaljuridical-social existence. It is this disjunction (also because of the co-existence of the denial of political rights and the conceptualization of minority right as fundamentally a cultural question as framed by Article 29 (1) of the Constitution), this aporia that the rights discourse cannot address.
It becomes clearer when we peruse the reports of the National Human Rights Commission. Its report of 1993-94 mentions the infamous firing by the security forces in Bijbehara in Jammu and Kashmir on 1 November 1993 where according to press reports about 60 persons died as a result. The Ministry of Home Affairs sent a report to the Commission on the basis of the Magisterial Inquiry ordered by the State Government into the incident and the Staff Court of Inquiry held by the Border Security Forces Authorities. The Commission admitted that on examination of the Home Ministry report it felt that further examination of material and witnesses was necessary for the Commission. It recommended a thorough review of the circumstances and conditions of the deployment of units of Border Security Forces. Yet, with all the institutions of the State knowing that people of the minority community were involved in the
Indeed, the entire justice system that includes constitution, laws, statutes, courts, commissions, and the implementation machinery under the executive carries the mark of the disjuncture. In this context, one has to only look at the various pronouncements of the justices on the state of the implementation of human rights of the victims. See in this connection, the compilation of relevant acts, judgments, and statements, by Ashwini Kant Gautam, Human Rights and Justice System (Delhi: A.P.H. Publishing Corporation, 2001). V National Human Rights Commission, Annual Report, 1993-1994, New Delhi, p. 11.
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protests in Kashmir for democracy and self-rule, all that the report could state (Annexure 5) was that,
The Central Government has specially directed the DG, BSF, notwithstanding the extremely complex and difficult environment in which the BSF personnel were required to operate in the State, to take all necessary steps to ensure that no unit/formation of the BSF resorted to indiscriminate use of force...The DG, BSF has since communicated that as the terrorists are mostly operating from the urban/built up areas and are mixed with the civilians, the BSF, while tackling the civilians, cannot avoid involvement with the civilian population. In this context, the following steps have been/are being taken by the BSF to ensure proper Safety of the civilian population.'
The report then speaks of such steps as a training syllabus emphasizing respect for human rights and humanitarian laws, taking help of magistrates and lady police during cordon and searches, and motivating troops to develop respect for human rights, careful detailing of internal security duty battalions, strict instructions to ensure adherence to minimum use of force, and creating rapport with the public with a view to Securing support of the civil population. The year 1993 was a particularly bad year for the minorities. The same Annual Report speaks of custodial deaths in Punjab, alleged rapes by Punjab Police, and atrocities against women such as dalit women being paraded naked in the streets of a village in Allahabad District in Uttar Pradesh. In such context of daily violence, the steps initiated by the National Human Rights Commission for promotion of human rights literacy seem to be aiming at normalizing the situation, where the forces of law and order will know what the individual rights are, whereas violations against weaker communities will
'? Ibid. p. 48.
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continue, even more will continue the violence against rebellious communities - an abnormal situation generating endemic violence.' Thus the Commission soon thereafter had to admit its disappointment that certain states were not reporting custodial deaths, that some 350,000 residents of the Kashmir valley (300,000 Hindus and 50,000 Muslims) have been compelled to leave their homes, that India had not still acceded to the 1984 Convention against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment. It also spoke of its thinking on the details of police reforms through "effective insulation of the investigating wing of the police' and the constitution of a five member "police security and integrity commission" at the state level...' Yet, the Commission's has been like a halfhearted cry for protection of the rights of the weaker sections and minorities, for all protection strategies are based upon an assumption that the situation will remain "normal', that the communities will be docile, and all it requires to protect the victim is to tutor the security forces to respect human rights, because they need the "backing of all elements of civil society to fight and triumph over terrorism". The Commission thus kept on emphasizing the value of human rights education that would be built around "a victimoriented approach'.7 Thus the institutions of protection of human rights are blind to the organic connection between
Ibid. pp. 15-18, 25-27. National Human Rights Commission, Annual Report, 1995-1996, New Delhi, pp. 94-95. National Human Rights Commission, Annual Report, 1996-1997, New Delhi, pp. 123-124. National Human Rights Commission, Annual Report, 1997-1998, New Delhi, p. 8. 7 “Training for personnel of National Institutions”, Speech by the Director General (Investigation) of the National Human Rights Commission, Report of the Seminar on Human Rights Education, Delhi, 16-17 February 1996.
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'normal violence' and 'abnormal violence', violation of human rights in areas of terrorism, insurgency and counterinsurgency and the daily violence in other areas. Therefore the National Human Rights Commission was only deluding itself if it had thought that its pleadings before the apex court to review the Armed Forces (Special Powers) Act of 1958 would succeed and the inbuilt element of impunity of the officers of the State in dealing with civilian population would go away.' Its approach was in line of the legal-constitutional thinking that has recognized and acknowledged the existence of basic discriminations treating them as "normal", while coping with them in the formal sphere of political equality of citizens.' Thus, even the recommendations of the National
Ibid. pp. 21-22 o It is pertinent to note in this connection that, even in “social matters” thereby the expected trickle down effect does not occur. A study by Ishtiaq Ahmed (Delhi: Indian Social Institute, n.d.) on the "Education of Muslim Girl Child - A Human Rights Perspective' shows through a sample study how extreme poverty, communal riots, forced migration, the alienation of Muslim intellectuals from the common Muslims, apathy, and gender discrimination within the community have combined to create the "permanent backwardness' of Muslim women. The Gopal Singh Committee reported (p. 48) that the percentage of employment of Muslims in total government jobs was about 6 per cent, Christians and Sikhs were better represented as they were respectively 3 per cent and 4 per cent of the total employees in Class I and II categories. In IAS service, Muslims were 2 per cent and in IPS3 per cent.
Also it is pertinent to note that normalizing the violence against minority groups is not special to India. Cathy Lisa Schneider in "Racism, Drug Policy, and AIDS”, Political Science Quarterly, 113 (3), pp. 427-446, shows the relation between discrimination, disease, and drug policy, and basing herself on the arguments of Charles Tilly in Durable Inequality comments, "Until we eliminate racism in drug policy, sentencing, and law enforcement, AIDS will continue to be the number one killer of African American and Latino adults between the ages of 25 and 44. Unless current rates are reversed this will mean an epidemic of genocidal proportions.” (p. 446)
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Police Commission were of little use. And, as we all know, all these institutions set up for the protection of the minorities lack any magisterial power.*
In order to understand the very limited nature of the institutional protection offered to the minorities in this country - this disjuncture between the institutional language of protecting human rights, in particular minority rights, and the everyday domination of the minorities - it will be necessary to look deeper into the constitutional foundations of such an institutional order, only which can explain to us the strange coincidence of everyday discrimination and suppression of minorities and the constitutionally guaranteed arrangements for the protection of rights, in particular minority rights.
III. The constitutional universe of protection
Observers, familiar with India's constitutional history, know of the withdrawal of political safeguards for religious minorities during the final stages of the making of the Constitution, first set in stage by the famous reforms of 1909, and then followed by the colonial state in form of balanced representation of groups in public bodies. The issue of safeguards of minority rights had been referred in the Constituent Assembly to an Advisory Committee on Fundamental Rights, Minorities, Tribal and Excluded Areas whose creation had been mandated by the Cabinet Mission Plan in 1946. Under the republican and liberal slogans of universal adult franchise, equality as individuals and equality
20 On this see, Ajay K. Mehra, “Police Reforms - The Relevance of NPC",
The Mainstream, 40 (9), February 16, 2002.
* Article 9.4 of the National Commission for Minorities Act that empowers the commission speaks of only summoning person, retrieving document, requisitioning public record, and issuing commission for examining witness.
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as justice, non-discrimination, national integration, and cohesion, the Constituent Assembly decided to scrap the proposals of group representation because they were thought to be contradictory and harmful to territorial representation. Preferential provision was arranged for scheduled castes and scheduled tribes to help them overcome their historic social and economic disabilities, but the scheduled castes and tribes were not to be regarded as minorities. After all, we should not forget the fact that the Constituent Assembly had begun its proceedings in 1946 with the Muslim League boycotting its Sessions. The republicanism and the ideology of an organic unity of the republic pervading the Constituent Assembly almost did away with the "minority question" altogether, and the claims and expectations of the various groups represented there, the religious minorities, indigenous people then known as tribal groups, and the backward castes, all of whom had safeguards in different forms under the colonial rule and the princely states, were dealt with separately.*
This provoked differences within the minority groups, who now competed among themselves to prove why they were more eligible than others in getting protection either on the ground of numerical preponderance or cultural distinctness or political distinctness. The backward castes for example claimed that they were a part of the Hindu society, but they were "political minorities", and different from religious minorities. Some thought that, political safeguards were not necessary, but affirmative actions were needed to remove the historic disabilities. Secularism and republicanism were the sign of a territorial nationalism that thought of itself as the highest community that would not accept any other form of group identity expressed in territorial or non
' Out of the 296 members elected from the provinces of British India, 163 were Hindus, 80Muslims, 31 belonging to the Scheduled Castes, 6 belonging to Backward Classes, 3 Anglo-Indians, 6 Indian Christians, 4 Sikhs, and 3 belonged to the Parsi commnity. (Figures taken from Kamlesh Kumar Wadha, Minority Safeguards in India (Delhi: Thomson Press, 1975), p. 48.
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territorial or a mixture of territorial and non-territorial form. It was clear that the shadow of partition of the country loomed large over the proceedings, and the dialogic aspects of Indian nationalism had been harshly pushed aside in the aftermath of partition. Thus appeals by the backward communities for preferential treatment or those of the indigenous communities for protection of their land rights played into the hands of the spokespersons of a strategy of republican ideology, to whom minority representation had become anathema. While the term "minority" was popular among and therefore invoked in the Constituent Assembly by all groups claiming special provisions, the term "minorities" was removed altogether from the constitutional provisions dealing with group preference. A benevolent majority community cast in the mould of easy-going, responsible, protective, Self-sacrificing, and accommodative, was going to be the best guarantee of minority protection,' though theoretically in a constitutional democracy, minorities are to be the makers of their destiny, voicing their feelings, grievances, and opinions, and in the final judgment, protector of their own interests. The same model of protection was adopted to protect rights of a weaker section or an
One member in the Constituent Assembly remarked, "I only wish, Sir, that the phrase 'minorities' should be wiped out from the history. The ten years that have been given to them is a sufficiently long period and I hope that when we meet in the short period within ten years, these minorities will come and say 'we are happy, we do not want anything.” Speech of R.K. Wadha, 27 August 1947, Constituent Assembly Debates (hereafter CAD), Volume V, p. 209.
* Rochana Bajpai notes in details the process in which the minority issue was marginalized in the resolutions of the Constituent Assembly as a. result of the contradictory co-existence of two constitutional spirits - republicanism and the spirit of group interest. See Queen Elizabeth House Working Paper 30, "Minority Rights in the Indian Constituent Assembly Debates, 1946-1950", December 1999.
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individual within a group. The Shah Bano case of 1985 and the Muslim Women Act of 1986 both indicate this reproduction of the form. Similarly in states reorganization we find the repetition of the same form. The report of the States Reorganization Commission, which was formed in 1954 and whose report came out in 1956, also based itself on the same strategy, namely the quarantining the minority problem within a broad framework of equality and rights, and thus in this case while it went someway in recognizing political identity of linguistic groups, it territorially contained linguistic minorities. Thus while it is true that in constitutional thinking there were two parallel ideas of nationalism and democracy, the disjunction we are speaking of here cannot be solely or mainly traced to this, it has to be traced rather to the way in which nationalism and democracy in its republican and nationalist version combined to root out communitarian ideas, and along with this an effective programme of protection of minorities. .
It should not cause us surprise therefore that the National Minority Commission (and by the same token State Minority Commissions also wherever set up) has to suffer from double jeopardy. First, it is enjoined to enforce and implement all the safeguards for the minorities provided in the Constitution,
Kalpana Ram in an essay, "The State and the Women's Movement -
Instabilities in the Discourse of Rights in India' in Anne-Marie Hillsdon, Martha Macintyre, Vera Mackie and Maila Stivens (eds...), Human Rights and gender Politics - Asia-Pacific Perspectives (London: Routledge, 2000), pp. 60-82, discusses the case, and points out how state takes the role of the male custodian in defining the protection that the woman needs, and how this contributes to the identification of a religious community as a site of female identity.
Bishnu Mohapatra notes this in “Understanding the Discourse on Minority Rights in Contemporary India', unpublished paper presented at a seminar on Minority Rights in India, organized by the International Center for Ethnic Studies, Colombo, in New Delhi, 25-26 August 2001.
1 OO

whereas we have seen that such safeguards are minor in the basic law itself (and the Commission does not have a constitutional status). Second, there has been a continuous campaign by political forces now forming the Union Government that the step of forming such a Commission has been divisiye, that the term "minority" is imprecise and therefore the government can use the Commission arbitrarily, and that therefore it should be replaced with a National Integration and Human Rights Commission, merging the Human Rights Commission with it.
Again one can go back to the Constituent Assembly proceedings to trace the roots of this quarantining strategy. Sardar Vallabhbhai Patel had expressed satisfaction that a 'general consensus of opinion between minorities themselves and the majority' has been found in the context of the division of opinions between minority groups themselves. He further added, "We have not tried to take advantage of these differences... we have tried to see that the minorities instead of being divided among themselves try to present a united front in order to safeguard their interests.' Patel further expressed satisfaction that "the Parsis have voluntarily abandoned any concession',' that "Muslim minorities had in many places tyrannized the majority", and one should not think of only Muslims, for "May I ask Sir what place has been given to the millions of Jats, millions of Ahirs, Gujars, Kurmis, Kunbis, the Adibasis and millions of others." This was in perfect harmony with what the leader of the indigenous communities was to remark in the Assembly,
' Tahir Mahmood calls it "minor role in major affairs", as he appropriately titles his book, Minorities Commission - Minor Role in Major Affairs (Delhi: Pharos, 2001).
2 CAD, Volume V, p. 198.
29 Ibid. p. 200.
30 Ibid. p. 201
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Our position has nothing whatever to do with whether we are less than the Hindus or Muslims or more than the Parsis. Our standpoint is that there is a tremendous disparity in our social, economic and educational Standards, and it is only by some statutory compulsion that we can come up to the general population level. I do not consider the Adibasis are a minority. I have always held that a group of people who are the original owners of this country, even if they are only a few, can never be considered a minority. They have prescriptive rights, which no one can deny. We are not however asking for these prescriptive rights. We want to be treated like anybody else. In the past, thanks to the major political parties, thanks to the British Government, and thanks to every enlightened Indian citizen, we have been isolated and kept, as it were in a zoo. This has been the attitude of all people in the past. Our point now is that you have got to mix with us. We are willing to mix with you, and it is for that reason, because we shall compel you to come near us, because we must get near you, that we have insisted on a reservation of seats as far as the Legislatures are concerned.
In this world of negotiations and games, constitutional provisions for minorities, in the language of one of the most prominent voices of the State, becomes thus a gift of the majority to the minorities, a language of bargaining between the dominant majority claiming to represent the state and the disparate minority groups who are not sure individually and collectively how to address their powerlessness in face of a strong majority-centric political class determined to maintain the power-structure transferred to it by the colonial rule. Patel thus missed no opportunity to drive home the point
Ibid. p. 209.
()2

by commenting before the Constitution was to be given final shape, and remarked on 26 May 1949,
It is not our intention to commit the minorities to a particular position in a hurry. If they really have come honestly to the conclusion that in the changed conditions of the country that it is in the interest of all to lay down real and genuine foundations of a secular state, then nothing is better for the minorities than to trust the good sense and sense of fairness of the majority, and to place confidence in them.'
And then he said,
What do the minorities desire? Do they want to have any share in the Government of the country and in its administration? I tell you, you cannot have a genuine seat in the Cabinet if you segregate your self from the rest of the community, for the cabinet can only act as
32
CAD, Volume VII, p. 272. Patel's remarks brushed aside the weak voices of the Muslim representatives who admitted that time had changed, that they had showed their integrity to the nation, and therefore separate electorate should be maintained. It is clear that the truth games about minority problematic were being played out in the shadow of partition, Kashmir war, and the memory of massacres, and continuing migration of thousands and thousands. Speech of Md. Ismail, Ibid, p. 277; also p. 283. This opinion however met with objections of some other Muslim members. For views identical to those of Patel, see the lecture by another Constituent Assembly member, B. Pocker Sahib Bahadur, who had exclaimed in
--exasperation, "The majority is a majority, and the minorities are minorities,”
and further, "...the idea of getting representation from religious groups is simply ridiculous... The minority must remain a minority. Now before a minority there is only one alternative: It is to be loyal to the majority, and cooperate and gain the confidence of the majority.”- CAD, Volume VII, p. 212&218.
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a team in a harmonious manner and unless every member of the Cabinet is answerable to a common electorate the Cabinet cannot function in a fruitful manner. Are you prepared to give up your right of representation in the Government...There cannot be any divided loyalty. All loyalties must be exclusively centered round the State. If in a democracy you create rival loyalties...then democracy is doomed.
The judiciary also reinforced the limited definition of minority rights, when the Delhi High Court declared in 1976 in the Arya Samaj Education Trust case,
The word "minority" used in the expression "Minorities" based on religion used in Article 30 (1) connotes only those religious minorities which have claimed political rights separate from those of the Hindus prior to the Constitution such as the Muslims and the Sikhs. Because of the political origin of the sense in which the word minority was used in India, it was never applied to a part or a section of the Hindus... In Article 30 (1) therefore, the word "minority" cannot apply to a class or section of Hindus. (Emphasis Court's)
3: Ibid. pp. 223-224.
Cited in M.K. Kazimi, "Judiciary and the Protection of the Rights of the Minorities in India' in Abdulrahim P. Vijapur and Kumar Suresh (eds.), Perspectives on Human Rights (Delhi: Manak Publications, 1999), p. 61. The judiciary was of course in this case echoing the sentiments of a large section of the Constituent Assembly, for example represented by persons like K.M. Munshi, who had said, “The word minorities so far as international treaties and international law is concerned, is only restricted to racial, linguistic and religious minorities. The Harijans, generally known as Scheduled Castes, are neither a racial minority nor a linguistic minority, nor certainly a religious minority.” CAD, Volume 3, p. 227.
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What is significant here for our purpose is not the fact, whether the Arya Samaj forms a minority group, but how the Court looks into the issue and the associated considerations, such as the religious nature of a legally definable minority, the supposed homogenous nature of the Hindu community, and the legitimacy of minority rights being drawn from the history of group rights in colonial India and not from the discourse of human rights. It is this politics of post-colonialism, basing itself on the colonial politics of group claims, the majority-centric definition of nationalism, the constitutional games of rights, and the conceptualization of minority rights as nothing more than some cultural rights that need protection, that has permanently injured the democratic discourse and practice in India. Laws came on the back of the Constitution, courts came on the back of laws, commissions came on the back of courts, special acts and institutions were set up on the back of all these, and all kinds of agencies multiplied – yet the everyday domination of the non-empowered sections of the population continued. The universality of citizenship was realized through a paradox - the formal equality of all and the everyday deficit in the realization of power of the weaker groups, individuals, and communities.
But the paradox we speak of here should not appear so, if we take note in some more detail of the way in which the dialogue in the Constituent Assembly went on about minority rights in dhe aftermath of Partition. Partition of the colonial space, which was in reality of a complex of majorities, minorities, castes, tribes, classes, territories, different categories of subjects and citizens, a dominating power structure and a variety of dominated entities trying to unify in a nation, had defined the way in which the conversation on minority rights would proceed in the Assembly. Jinnah was the evil whose ghost was to be exorcised in order to make the nation and purify the national space. Shibban lal Saksena, a member from the United Provinces objecting to treating the scheduled castes as a minority said,
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I would like to draw the attention of the Assembly to one important declaration. It is this. It will be remembered that Mr. Jinnah has often tried to include the Scheduled Castes in the minorities; and on June 26, 1946, in a letter from Maulana Abul Kalam Azad to Lord Wavell, and the latter's reply thereto, Lord Wavell is reported to have said, "...if any vacancy occurs among the seats allotted to the minorities, I shall naturally consult both the main parties before filling it. Mr. Jinnah has thus included the Scheduled Castes among the minorities. But so far as we are considered, we consider the Scheduled Castes as belonging to Hindus, they are not a minority; they have always formed part of us.
To make sure that scheduled castes and tribes did not form a part of the minorities, Patel was quick to point out,
There is a separate Committee going into the question of the aboriginals and other tribes and its report will come up. The question will be considered when we consider the reporto
So was also the matter about Sikhs, as Munshi said, 'In view of the special situation in Eastern Punjab the whole question will be considered later." But the fallacy of disaggregating minorities, and dismembering them was quickly pointed out when another member Rizwan Allah spoke,
Sir, I beg to raise a point of order on this amendment. This is a report of the Minorities Committee. Different provisions have been laid down in this report about various minorities. So far as the Sikhs are considered, no decision has been arrived at in the Minorities
Discussion on the Schedule, CAD, Volume 7, p. 234. 3 Ibid. p. 234.
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Committee Report about them. It is stated in this Report that the matter about Sikhs will be decided later on. Now an amendment ahs been tabled to replace a Province instead of Sikhs and thus in place of a minority an issue about territory is brought in. This is a report for the minorities and has nothing to do with any province...'
In this interplay of ethno-politics and geo-politics, which partition had brought about and of which partition had been the child, the strategy of the state was to define democracy by a strong majoritarian logic that would combine both reasoning of the ethnic and the territorial, and thereby relegate the issue of rights of the minority to the domain of "protection", and not make it integral to democratic nationhood. The massacre of a section of citizens had created the people - the source of sovereignty of the republic. And now this people, as distinct from the citizen, and defined through partition in no uncertain terms, were defining who were to be in it, under what terms, and who belonged outside. Thus, H. J. Khondekar, an Assembly member, referring to Ambedkar's politics of the preceding twenty years of demanding separate representation of the Scheduled castes and opposing the inclusion of the scheduled castes in the minorities, said,
The first name is that of Dr. Ambedkar, and you all know, that from the time of the second Round Table Conference till the Minority Sub-Committee of the Advisory Committee assembled, he relinquished the demand for joint electorates. On the question of this demand his message to all Harijans of his country,
37 Ibid. p. 240.
3 Max Jean Zins calls this the "citizen-massacres' in his essay" T he 1947 vivisection of India : the political usage of a carnage in the era of citizen-massacres.'
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who belonged to his party, went to the extent that they were not even Hindus; that they wished to have a colony separate from the Hindus, that they were not within the fold of the Hindu religion, and it was for this reason that they desired separate electorates. This thing has been going on the country for the last fifteen years with the result that a sort of discord has been created between caste Hindus and Harijans of Dr. Ambedkar's party...I feel happy to state that when this matter relating to joint and separate electorates came up before the Minority Sub-Committee, Dr. Ambedkar did not press the claim further but withdrew it on the ground that he had no argument in support of the principle...It was because of Lord Morley Minto that Muslims got separate electorates and the result was that our country was divided into two...If this is accepted either for Harijans or for our Muslim brothers, then it would mean fulfillment of what my friend Mr. Jinnah has always Said, "Muslims of India and Muslims of Pakistan" - which means the preparation for Pakistan within India. Much suffering has been caused already. India has been divided into two. Brother Muslims have got what they wanted and was for their benefit. Having got that, they should be good enough not to try to create Pakistan within India and should not bring an amendment of this sort in this House.'
If this was not enough to mark out in a disciplinary note that the minorities were to behave properly and not make political demands for protection of their rights, Sardar Patel was blunt. Warning all those who were speaking of the need for political protection of the minorities, separate electorates, and including the scheduled castes in minorities, for not reposing
CAD, Volume 7, p.266.
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faith in the nation as defined by the majority, Patel said in barely concealed language of venom,
...But now the separation of the country is complete and you Say let us introduce it again and have another separation...If the process that was adopted, which resulted in the separation of the country, is to be repeated, then I say: Those who want that kind of thing have a place in Pakistan, not here. Here, we are building a nation and we are laying the foundations of One Nation, and those who choose to divide again and sow the seeds of disruption will have no place, no quarter, and I must say that plainly enough... Why go on Saying, Oh Muslims were not heard; Muslim amendment was not carried...If that is going to pay you, you are much mistaken, and I know how it cost me to protect the Muslim minorities here under the present condition and in the present atmosphere...You have got a separate State and remember, you are the people who were responsible for it, and not those who remain in Pakistan...To the Scheduled Caste friends, I also appeal: Let us forget what Dr. Ambedkar or his group have done. Let us forget what you did. You have very nearly escaped the partition of the country again on your lines...'
It was in this way that the institutional process of protection of minorities was defined. Four elements were critical in this: First, the deliberations and the resultant provisions invoked the specter of territorial division of the country again and again, thereby making ethnic politics the core of nation building with the help of geopolitics.
Second, one weaker group was separated from another thus doing away with the general problematic of minorities in terms of constitutional framework.
Ibid. pp. 271-272.
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Third, protection strategy was accorded more importance in place of a justice and rights based strategy as the core of a democratic guarantee for the minorities in order to open up the political society.
Fourth, the constitution relied in the main on positive discrimination for some groups (not defined as minorities, but as weaker groups), a qualified protection of cultural rights of the minorities, and some autonomy provisions for certain areas/groups (again not defined as minorities), thereby distancing the issue of autonomy from the general framework of rights question, making it exceptional, and attaching it to the strategy of protecting "exotic" species.
We have to remember that the institutions of protection function within the confines of such a four-fold framework that seriously impinges on the issue of autonomy. It is therefore in order that we examine the wide variety of constitutional forms of autonomy in India in the context of their promise to become instruments of protection of minorities, thereby expanding the democratic process in the country, and the political society itself. At stake is the question of democratic deficit, which sits at the heart of the Indian minority question.
IV. The legal framework of autonomy
The Indian experience, again we must remember, is most instructive because of its diversity and range, the full extent of colonial innovations, multiple forms of autonomy, the complex path of constitutionalism, a wide variety of accords, and an innovative state determined to keep the destined nation intact in its unitary and republican mould. In a recent work, A Biography of the Indian Nation, 1947-97 I have described the political-constitutional way in which the minorities had been negotiated by the state - the legal forms
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and the forms of accords. The double narrative of autonomy and deficit is indeed significant from the point of studying institutional inadequacies.
The Constitution provides for special status for certain states such as Jammu and Kashmir, Nagaland, Sikkim, Assam, Manipur, Arunachal Pradesh in Articles 370 to 371 H. The Constitution also embodies the principle of nondiscrimination in Articles 14, 15, 16, 19 and 29. It assures freedom of conscience in Article 25 and freedom to manage religious affairs in Article 26. Article 30 ensures right of minorities to establish and administer their own educational institutions. Under the special protection clause in Article 371, tribal customary laws, procedures, and land rights are protected. Part XVI ensures special provisions for scheduled castes, scheduled tribes and other backward classes. There are arrangements for Zonal councils. The States Reorganization Commission ensured statehood for major linguistic groups. There is provision for autonomous district councils in scheduled tribe dominated districts. The 73 and 74 Amendments to the Constitution ensured devolution of powers at village and town level. Similarly the constitution arranged for financial autonomy of the states through constitutionally prescribed division of resources and the National Finance Commission. Apart from creating new states (some very recently created) and autonomy for some states in particular, a range of accords and unilateral measures on Darjeeling, Bodoland, Leh, North Cachar Hills, KarbiAnglong district, Khasi district, Jaintia Hills district, Tripura Tribal Areas district, Chakma, Mara and La districts in Mizoram, created autonomous areas and district councils under the fifth and sixth schedules.
The pattern of combining republican nationhood with exceptional autonomies is significant. Is autonomy part of the basic features of the constitution that the Parliament should not touch? There is no clear answer whether the
' A Biography of the Indian Nation, 1947-97 (Delhi: Sage Pub., 2001).
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provisions of autonomy are inviolable or not in the context of the erosion of Article 370 providing for autonomy of the state of Jammu and Kashmir. In any case, autonomy never captured the republican imagination of our lawmakers. Thus the Supreme Court never had autonomy in mind when commenting upon the in/violability of the basic features, that primarily meant fundamental rights.' The republican mood Sways the overwhelming part of rights. Thus provisions such as Articles 14-16, (again combining exceptional discrimination on positive grounds), Articles 22-23, Article 25 (combining exceptional right), Article 29, Articles 38-39 defining common welfare, securing common good and indeed laying down the constitutional basis of a welfare state, Articles 46-47, Articles under Part IX (the panchayats) - create a polity based on republicanism that, while allowing autonomies, will be the ethos of one nation, one people, and one land. Therefore provisions such as Article 244 (administration of scheduled areas - fifth and sixth schedules) cannot counter the wave of majoritariansim that arises out of the republican spirit.
There is more to this enigmatic and unequal co-existence of nationalism and autonomy. For example, there is no uniform civil law, on the contrary a variety of personal laws, and linguistic autonomy in some measure. Indian constitutional and political system has evolved through at least seventy years history of a range of forms of autonomy - administrative, cultural, religious, fiscal and legal-juridical. Yet, demands for right to self-determination ranging from
' The "basic features' of the constitution cannot be amended by exercising the power of amendment under Article 368. The Constitution 42nd Amendment Act, 1976 had inserted in Article 368 (5) a provision that there was no limitation on the constituent power of the Parliament to amend the constitution. Though the Supreme Court invalidated this, ambiguity still remains. See Keshavananda Bharati v. State of India (AIR 1973 SC 1461), Minerva Mills v. Union of India (AIR 1980 SC 1789), and Srinivasa v. State of Karnataka (AIR 1987 SC 1518).
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more autonomy to secession have arisen frequently, and if some have mellowed, others have persisted and have grown insistent notwithstanding massive state-suppression and loss of lives. It began with the Muslim demand for selfdetermination in the pre-independence time and continues in various forms and at various levels still today. The constituent states have said that their legislative, administrative and financial autonomy is inadequate or has diminished. Kashmir says its autonomy is fictive. Insurgents in the northeast have said that grant of statehood is a ploy to subsume them in Indian polity. Religious minorities say that they are under unprecedented attack of the fascist communal forces belonging to the majority community backed by the state. The scheduled castes and tribes say that their deprivation, poverty and disempowerment have only grown. As we have already seen, the legal-administrative measures for protection of autonomy such as the Minorities Commission, Human Rights Commission, Women's Commission, are severely limited in their powers, and their state counterparts even more limited in powers and functions in protecting minority languages and cultures, and the interests of scheduled castes and tribes. In short, we have in the Indian instance the most extra-ordinary juxtaposition of measures of autonomy and a relentless centralization - seen from another angle, the most relentless constitutionalism and the most insistent cry for the self to achieve recognition. It is also a narrative of how and when a group refuses to accept at some historical moment the identity of a minority and claims the status of a people, a nation.
This however should not cause us surprise. For along with the discourse of modernity and liberalism we received from the West, the category of the minority also, a gift from Europe wrestling with the mode of dismantling the AustroHungarian empire, and settling once for all the "eastern question". At a time when our people were learning how to build a popular policy of anti-colonialism, building our
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nationhood, we also learnt how to be majorities and minorities, and thus we produced not one nationalist discourse in the colonial world, but several nationalist discourses. In the midst of this double learning, we arrived at the historical moment of de-colonization. Not one report, but indeed we shall need several such to show how constitutionalism in the beginning held promises of accommodation, reconciliation and friendship, how the trust broke down quickly because the arrangements collapsed under the pressure of state-discourse, then the long defiance, state suppression, equally resistant and often brutalizing struggle, escalation of homeland demand, and a renewed attempt to contain all these within constitutional confines. The legal framework of protection and the institutions of protection have developed amidst such a situation, which is marked on the one hand by growing awareness of human rights, and on the other hand by the breakdown of the constitutional promise of dialogue and reconciliation.
The official discourse of the state of course does not look at this in such terms. To it, it is the republic's engagement with forces of separatism and the attempt of liberal democracy to innovate ways of nation building. And to the powerless communities, it turns out often a battle against this legal structure itself (as I show in the next section), for they have the feeling that this is a road that meets the "closed" notice sooner or later. Hence is their anguished appeal for justice, their mistrust on institutions of autonomy, their despair at the double-edged weapon of ethnicity so ruthlessly turned against them now by a superior adversary and their plea that the urge of the self to gain recognition be judged in the light of democracy,
In short, "the Indian paradox", to borrow a term from late Myron Weiner, has been most evident in the tortuous history of legal negotiation with the notion of autonomy on the basis of certain constitutional principles which have not been adequate for that purpose. Marc Galanter had commented thirty years ago,
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The modern legal system has transformed the way in which the interests and concerns of the component groups within Indian society are accommodated and find expression. In traditional India, many groups (castes, guilds, villages, sects) enjoyed a broad sphere of legal autonomy, and where disputes involving them came before public authorities, the latter were obliged to apply the rules of that group. That is, groups generated and carried their own law and enjoyed some assurance that it would be applied to them. In modern India we find a new dispensation - the component groups within society have lost their former autonomy and isolation. Now groups find expression by influence in the political sphere, by putting forth claims in terms of general rules applicable to the whole society. The legal system, then, provides a forum in which the aspirations of India's governing modernized westerneducated elite confront the ambitions and concerns of the component groups in Indian society. In this forum the law as a living tradition of normative learning encounters and monitors other traditions of prescriptive learning and normative practice.
Indian law permits different family laws on religious lines, even permits different public laws according to different religions on matters like religious trusts, permits compensatory discrimination in favour of disadvantaged groups, and is sometimes extremely solicitous of religious sensibilities. The broad regulative powers that the state has (“subject to public order, morality and health“ vide Article 25.1, and Article 25.2a) are rarely comprehensively enforced. The result is a paradox: we have on the one hand a publicly
' Marc Galanter, "Hinduism, Secularism, and the Indian Judiciary' Philosophy East and West, 21 (4), October 1971, reprinted in Marc Galanter, Law and Society in Modern India (Delhi: Oxford University Press, 1997), pp. 237-238.
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equal system with broad state powers to regulate practices of separate identity So that they do not go against equality, we have also differential provisions to help the disadvantaged, and then besides these two features we have a public system accessible to a group determined to impose its values in a large or total measure thereby almost equalizing the public and group interest. In such situation, as Galanter shows, the stress on the judiciary is excessive. The political failure is sought to be compensated by judicial activism to the extent where a judge is compelled to define "who is a Hindu", or the boundaries of faiths." Galanter goes further. In analyzing what he termed as "symbolic activism", he shows, how compensatory measures sit so unhappily with the broad doctrine of equality as a fundamental right. Should these measures be seen as defining equality, so that the court should now force compensatory measures, or should they be seen as guidelines to the state towards making un-equals equals?' The implication is that, if we take the first view, a view that bifurcates Indian society into two broad groups - the scheduled castes and tribes, and other dispossessed minorities on the one hand, and the rest on the other, we cannot have a republican constitution promoting public politics. If we take the second view, that is prescriptive policy to the state to provide succour to some disadvantaged groups, we herald an unending series of demands for classification on the basis of which discrimination will be made. Both possibilities show the dilemmas of a liberal constitution trying to grapple with the issue of inequality and autonomy. This
' Galanter examines in this context the history of a case (1966) that involved the Swaminarayana sect and went to the highest court of the land where eminent jurists such as Gajendragadkar, Wanchoo, Hidayatullah had to decide who was a Hindu and the various sects traditionally within the Hindu fold could opt out and claim rights of minorities. Ibid, pp. 237-256.
In the context of judicial activism, one can read, R. Dhavan, R. Sudarshan, and S. Khurshid (eds.), Judges and the Judicial Power-Essays in Honour of Justice Krishna Iyer (Bombay: Oxford University Press, 1985).
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engenders what I term here as "constitutionalism" that ironically produces even more inequality, dispossession, and clamour for autonomy. The politics of recognition has to be seen in this context.
But politics of recognition means, above all, resistance against discrimination, exclusion, forcible assimilation, and civil and political activism in defence of minority rights. Let us therefore see the nature of the resistance put up by the civil and political sphere in the country to the juridicalpolitical Strategy of a constitutionalist State that turns "minority-rights' into a business of "protection" of minorities, thereby making minorities ever dependent on the mercy of the majority community and the State.
V. The defence by the civil and political society
Left political parties and other parties preaching varieties of socialist politics and sympathetic to the cause of the minorities and dalits have defended secularism and have been quick to point out the "ethnic-communal' bias of the Indian State, whenever the government of the day has used the administrative strategy of playing one group against another or inciting communal frenzy. Minority newspapers have similarly played an important role. Intellectuals have been particularly active in this respect and have consistently helped the minorities and the human rights groups with their political researches and legal knowledge. Institutes and forums have sprung up which try to resist communal strategies of the State that has manifestly failed to solve basic problems of deprivation of the majority of the population and discrimination against lowest castes and tribes. The resultant political crisis has become deep with communal forces in power encouraging destruction of sites of worship belonging to a minority community, the most brutal of such destruction being that of the mosque at Ayodhya. Not just the strategy of protection, but democracy itself is at stake. The present
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environment marked by flagrant attacks on communities suspected of producing and harbouring terrorists has only aggravated the political crisis. NGOs, local community institutions, political groups, judges, organized political actions, journalists, creative persons in plastic medium, and even some religious personalities - the range of civil and political forces trying to resist the communalization of the polity is indeed as wide as scattered."
Human rights groups have tried to defend minorities in peril, and have been prompt in uncovering the truth of periodic massacres of minorities by which the polity has rebuilt itself from time to time. It will be instructive in this context to have a look into the strategy of holding public inquiry into atrocities on minorities organized by the civil and political sphere - I shall take up here one such inquiry, the most well-known, the inquiry into the riots after the destruction of the Babri mosque at Ayodhya in 1992. The Citizens' Tribunal on Ayodhya was directly inspired by the tradition of holding public enquiries organized by the human rights groups in many parts of the country, the most notable being the one conducted by the People's Union for Democratic Rights (PUDR) and People's Union for Civil Liberties (PUCL) into the anti-Sikh riots in Delhi in 1984.7 The PUDR had followed it up with another notable inquiry, titled, "Walled City Riots - A Report on the Police and Communal Violence in Delhi" (1987). In 1989 it brought out, "Forgotten Massacres - A Report on the Aftermath of Meerut, 1987-1989", and then the well-known "Bhagalpur Riots - A Report" (1990). The Andhra Pradesh Civil Liberty Committee (APCLC), the
“ For this see the database in form of the extraordinary dossier built up by Harsh Kapoor, Resources against Communalism and Religious Fundamentalism in India (Grabels: Women Living Under Muslim Laws, 1995).
' Who are the Guilty? Report of a Joint Inquiry into the Causes and Impact of the Riots in Delhi from 31 October to 10 December, PUDR and PUCL, New Delhi, 1984.
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Association for the Protection of Democratic Rights (APDR), People's Vigilance Committee on Human Rights, and several others had been active throughout the preceding decade and continue to be active in investigating into abuses of rights of the minorities, holding public enquiries and bringing out reports. Apart from these public platforms, important publications such as Communalism Combat, institutions such as Ekta (in Karnataka), Citizens for Democracy (Delhi), Artists against Communalism (Mumbai), Sampradayikata Birodhi Mancha (Calcutta), Centre for Education and Documentation, Institute for Islamic Studies (both in Mumbai), Sanskriti Manch (Bhopal), People's Campaign for Secularism (Lucknow), People's Movement for Secularism, Minorities Council, Inter-Community Peace Initiative (all in Delhi) - all have provided resources in the struggle for defence of minority rights in the country. Some of these have done commendable work, but could not sustain it; some have carried on with much labour and consistency. Besides these, other countrywide organizations have also contributed, such as, the All India Minorities Fundamental Rights Protection Committee, Lok Shakti Abhiyam, Society for Communal Harmony, Servants of the People Society and All India Christian Council,
The Citizens' Tribunal on Ayodhya was set up
immediately after the demolition of the mosque, followed by large Scaie riots in the country, and the massacre of Muslims. The decision to set up such a tribunal stemmed from the realization of the futility of expecting that the proceedings of the official enquiry body would unearth truth, identify the guilty, and suggest criminal prosecution. The official enquiry commission in fact still continues. And hardly anybody has been punished following the recommendations of the Shree Krishna Inquiry Commission that inquired into
' For details of such investigative publications by civil rights groups, See, Resources against Communalism and Religious Fundamentalism in India.
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the massacres of Muslims in Mumbai, one of the worst scenes of carnage following the destruction of the mosque. In setting up the Citizen's Tribunal, the organizers felt that "the government had betrayed an utter lack of policy and initiative right from (i) the tension ridden days preceding the demolition; (ii) the time of the heinous act of vandalism; and (iii) during the aftermath of violent communal riots', and therefore there was "the need for a parallel, non-official body of conscientious citizens to go into the causes of events'.' Retired Justices O. Chinappa Reddy, D. A. Desai, and D.S. Tewatia were the judges, eminent legal personalities K.G. Kannabiran, A.G. Noorani, and Lotika Sarkar were the amices curiae. The Justices said, "Though we have no legal authority, we do have moral authority. We do not derive our authority from the State, but we derive our authority from all those people who have abiding faith in democracy, human rights, and Secularism.' A Commission of Inquiry was instituted. It visited Ayodhya and Faizabad in February 1993, examined witnesses, met and discussed matters with professionals, government officials, religious leaders. Following its report, the Justices examined more witnesses and received more submission in Delhi. Thirteen (13) organizations that included political mass forums, NGOs, civil liberty groups, and anti-communal platforms sponsored the Tribunal. In all, there were 63 submissions and depositions before the Tribunal. It examined 28 official and semi-official documents, court petitions, reports, articles, and court orders, 4 videocassettes, 6 audio- cassettes, and 8 booklets most of which had propagated communal hatred without any prohibition by the government. Noticeably, it did not confine itself to happenings at Ayodhya, it went into reports of riots in Bhopal, Calcutta, Delhi, Mumbai, Ahmedabad, Surat, and Dharwar, prepared by various civil liberty organizations in these places.
' Report of the Citizen's Tribunal on Ayodhya (Delhi: Secreatariat of the
Citizen's Tribunal, 1994), preface (hereafter The Report). ' For details, see Chapter 4 and appendices of The Report.
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How effective was the public mechanism of uncovering truth? Its effect was political and not legal. The Tribunal in its judgement said, commenting on the non-cooperation from the government, "The tribunal has been reviled as a selfconstituted tribunal with no authority to hold any enquiry" (Para 2, p. 2). And then it went on to lament, "The efforts of the Commission to obtain relevant information from the Central Government and State Government did not meet with much success. There were several other persons who could give evidence, but refrained from doing so on account of fear, loyalty etc" (Para 5, p. 4). Persons like L.K. Advani, Ashok Singhal, Sadhvi Rithambhara either "did not bother to reply", or as few said, "they did not recognize self-constituted tribunals like us, and indicated that some Leftists organizations were behind us' (italics mine, Para 8, p. 6). The judgement admitted that it could find only a "bland and barren secularism...and this brand of secularism has a negative character (which) would lead to the adoption of a patronizing attitude by the majority community towards the minority communities causing resentment among the minority communities who want parity, and not charity' " (Para 10, p. 7). It went on to add bluntly these words,
Finally, we have the authoritarian and hegemonic secularism of those who accord primacy to the religion of the majority and equate nationhood with such religion. They would be tolerant of religious minorities only if they accepted the primacy of the religion of the majority and the congruence of nationhood with such religion (Para 10, p. 9)
Here was thus a public struggle for the defence of the minority rights around an issue left over by centuries of history that demanded reconciliation between communities, mutual recognition of claims, adjudication by the broader democratic masses, and not assault on minorities, demolition of their places of worship, and large-scale massacres. After all what
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could the language of rights do on something that had began in 1528 when Mir Baqi, the Governor of Avadh, was said to have constructed the Babri Masjid on the orders of Babur, the Mughal emperor, and according to some on the ruins of a temple destroyed by him? In 1855 the mosque had witnessed severe clashes between Hindus and Muslims over possession of the structure, and a worship place had been built within the courtyard of the mosque. In 1885, a Mahant had sought legal permission to build a temple on that place. In 1934, there was an incident of cow slaughter leading to communal clash in the course of which the mosque was damaged. A punitive fine was imposed, and the structure was repaired. In 1949, a Ram idol was surreptitiously installed into the mosque. Locks were thereafter put on the building and the State became the receiver of the property. Numerous suits had followed on the basis of demands by men of both communities, and in 1989, the High Court had ordered that status quo shall be maintained. From 1989 itself the Hindu right wing campaign to destroy the mosque and construct a temple in its place started, the campaign was marked by Severe communal outrages, and finally on 6 December 1992, the 400 year old mosque was demolished, followed by widespread riots, the most gruesome killings of Muslims, particularly in Mumbai, all in the name of avenging the insult to Hindu nationhood, and then what was not anticipated at that time, that this was not going to be the end of bloodshed - another 500 were killed in Gujarat exactly ten years later.
Let us see one more instance of how civil-political activism in defence of weaker groups is shaping up in the country in the absence of appropriate protective mechanisms of the State. I am referring to a report of public inquiry in recent times in Uttar Pradesh, organized by the The Indian People's Tribunal (IPT) on Environment and Human Rights: Uttar Pradesh, in spite of being one of the states where attacks on minorities and dalits have been highest, does not have a human rights commission. The report says,
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The Indian People's Tribunal (IPT) on Environment and Human Rights concluded two days of site visits and public hearings on the alleged human rights violations in the Chandauli and Varanasi districts of Uttar Pradesh, with a public meeting and public hearing at the Gandhi Vidyapeet on the 17th of February 2002. During the site visits and public hearings in Narketi, Belwa, Badepur and Babatpur, over a thousand people deposed before the IPT.
Justice K. Sukumaran (Retired Judge of the Kerala and Mumbai High Courts) headed the IPT panel, which included Dr. Kusum Singh, an expert on dalit issues. The IPT was requested by the Peoples Vigilance Ccommittee on Human Rights (PVCHR) to conduct an inquiry into violations of human rights in respect of police atrocities as in the cases of police firing at Narketi, at Babatpur airport, the discrimination and atrocities committed against dalits in Belwa, the torture of Vijay Kumar Jaiswal at the Adampur Police Station and various caste based violence in the area. The Tribunal found prima facie evidence of gross human rights violations and police excesses against dalits and other lower caste communities. The first site visit on February 16, 2002 to Narketi village of Naugarh block brought the tribunal face to face with the dalit people whose human rights had been grossly violated. The tribunal noted through first hand accounts how besides being fired upon, they were mercilessly and barbarically beaten. People were pulled out from houses and beaten with lathis. In addition some houses were destroyed as well as their belongings and livestock. Women and children were not spared the brunt of the attack and even a pregnant woman was beaten.
Subsequent visits to Belwa and Babatpur revealed similar atrocities committed against the dalits and lower caste communities. In the Badepur area of Belwa
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district where the lower caste community and dalits resided, blatant misuse of power was revealed to the Tribunal. The Pradhan of the village had occupied the position for 20 years and when it became necessary for a woman to occupy the position due to reservation he made his wife the Pradhan. She was a Pradhan in name only. In reality her husband continued to run things as before. She had over the period of five years not once stepped into Badepur area. Here the people were deprived of the right to education by being pressurized to send their children to the private school run by the Pradhan. Stories of booth capturing were narrated to the Tribunal and an incident of attack on a woman and her husband by goons of the Pradhan's husband were narrated. In the narration of the instant case the police too appeared to be under the control of the former Pradhan as he had great political сотпесtions.
At Babatpur the Tribunal was exposed to the brutality of the police. Due to an airport extension project several people lost their lands, some had been rendered completely landless. Though compensation amounts were fixed, these were yet to be given to the people. People, including a large number of women who had gathered to protest against ongoing construction work on a boundary wall of the airport extension project, were dealt with by police firing at no provocation from the people resulting in the death of one person and bullet injuries caused to six people. Mukundilal, an elderly man who deposed before the Tribunal during the public hearing on the 17th of February at the Gandhi Vidhyapeet tearfully narrated how he had lost two of his sons in fake police encounters. He said that the police were killing innocents in the guise of claiming them to be naxalaties. He stated how his son was forcibly taken by the police just outside the Court at around 1 p.m.
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on the 7th of September and then declared dead in an encounter at 4:30 p.m. of the same day. Out of fear he now lives in a distant village and has to look after the wives and two children each of his dead sons. Lalman from Piyari village explained while deposing before the Tribunal how the police in the presence of the local feudal lord attempted to pull down the statue of Babasaheb Ambedkar. When the dalits surrounded the police and would not allow them to leave with the statue, the police began beating the dalits. They entered their houses and beat up the women and elders. Several of them were also arrested. Vijay Kumar Jaiswal an autorickshaw driver narrated how he was tortured by the station officer of Adampur Police station officer, who was in an inebriated state in the middle of the night. His clothes were removed and he was beaten with a hockey stick. He even showed the photograph taken of the ghastly wounds caused to his legs as a result of the beating.
During the Public Hearing no one from the government or the police deposed before the Tribunal in spite of formal invitations being handed over to them. The tribunal learnt towards the end of the hearing that some documents had been brought to the premises by the Circle Officer of Chetganj on behalf of the SSP of Varanasi. The Ttribunal will peruse these documents in time before coming up with the final report. The Tribunal's feeling was that whatever the crimes of the people, there was no justification whatsoever in the police brutalities. Even in war-like situations the soldiers are governed by rules of human rights.
The Tribunal observed that the community is given collective punishment, in cases, where only individuals need to be examined and, if needed, punished. The panel noted that in the villages there was not even
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one person who was literate and able to make a written presentation of their grief. It was shocking to note that despite gross human rights violations in the state, the State Government has not yet a 'State Human Rights Commission in place'.
The Indian People's Tribunal shall submit an interim report within the week and a detailed report in about a month's time after studying various documents handed over to the tribunal and relating to these issues.
The lessons of the entire history of the communal outrage around the dispute over a mosque at Ayodhya, and the civilpolitical activism in defence of the minorities in the wake of the outrage, are significant from the point of a critical inquiry into the juridical-political claims of minority protection in India.
First, the constitutional language of rights, claims and counter-claims has been insufficient in terms of state protection of minorities. Indeed, the State has never been eager to solve such dispute, nor has it been able to protect the imperilled minorities, though it never suffered from any shortage of punitive and prohibitive powers.' The unwillingness of the State to solve such disputes has been evident in its failure to clamp down on the communal
Press Release of the Indian People's Tribunal inquiry into violations of Human Rights, People's Vigilance Committee on Human Rights (PVCHR), Varanasi, Email: pvchrGorediffmail.com
' The Tribunal itself admitted that when it cited Section 153 (A) of the Indian Penal Code, Article 257, Articles 355, 356, and Article 365 of the Indian Constitution in its "Judgement and Recommendations” (pp. 65-71), and commented, "Communalism cannot be fought merely by making laws and rules...Secularism is the weapon which the Constitution makers have bequeathed to us to fight communalism' (p. 76). See, Citizens Tribunal on Ayodhya - Judgement and Recommendations (New Delhi: Secretariat of the Tribunal, 1993).
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campaign against the right of an individual to conversion (for instance Meenakshipuram conversions) to another religion.
Second, the outrage was allowed under juridical eyes, which have remained insensitive to the principles of restorative justice and reconciliation.
Third, even though the defence of the minorities by civil Society has been conducted in the language of rights, its essence has been the principle of justice.
Fourth, and this is most significant in the context of the present discussion, the constitution and the juridical system have never embraced such significant public initiatives at uncovering truth, because they are not legally sanctioned; indeed it shows that the constitutional system has no place for such private, that is truly public, initiatives towards truth - truth about suppression of minorities only, which can lead to greater awareness about the need for protecting them, about the denial of justice and dignity to them. In short, the Constitution has not been dialogic.
And, fifth, the truth uncovered has remained a political truth, and not been enabled to become the juridical truth. The question therefore is, how can the juridical claims be made congruent with political truths, and thereby become a democratic testament?
All these mean that protective mechanisms swing into action only after violence has been perpetrated on weaker communities, because in a situation where the dominant legal-political-cultural structure weighs down heavily on the minorities, these mechanisms can seldom stop brutal violence, nor it can stop the everyday discrimination and repression. Indeed, in the wake of the Gujarat massacre, the Minorities Council in a letter has recently observed,
In view of the fact that the current carnage in Gujarat,
like earlier massacres in 1984 Delhi, 1987 Meerut, 1989 Bhagalpur & demolition of Babri Masjid and
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widespread riots in its wake, and the killing of Graham Steins owe themselves to the grossly partisan role of the State's law-enforcement machinery, and to the climate of impunity generated by non-delivery of justice, there is a need to subject these institutions to critical scrutiny so that attainable goals for basic reform of the system are set and pursued in the light of the studies and reports by official bodies, Commissions and NGOs. (Emphasis in the original)
The same phenomenon has been observed by the Citizens' Initiative for Justice & Peace in recent riots in Gujarat. The report of the Initiative brings out the main question succinctly, namely if the government itself becomes communal and aids pogroms and massacres of minorities, what can protective mechanisms do? What can the Courts do, if the cry of appeal for survival does not reach its gates? The report spoke of callousness of the government, the discrimination in protection and rehabilitation, unspeakable conditions in the makeshift camps where Muslim victims were staying, and a staggering number of 50,000 displaced victims. Many others have opposed the institution of the official inquiry commission on the ground that the minorities have no faith in a commission set up by the government that had "aided the genocide".
Public letter from Minorities Council on 8 March 2002; e-mail iqbalansari2001 Ghotmail.com * For example, one newspaper reported, "Soldiers held back to allow Hindu revenge'. The Telegraph, London, 4 March 2002; and another report asked, “Where has the soldiers gone?" The Telegraph, Calcutta, 2 March 2002. ' "Carnage in Gujarat', A Report by the Citizens' Initiative for Justice & Peace, Ahmedabad, Update, March 5, 2002; see also the annexure in the report giving details of relief camps. ' South Asia Citizens Wire in its dispatch of 10 March 2002 reported that the “appointment of K.G. Shah Commission had been opposed by many”
- http://www.mnet.fr/aindex
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The problem of the weakening of the moral basis of a constitutional state has been made acute by certain political trends in the present epoch of globalization. They have weakened the nation state in most parts of the world. Trade, commerce, new technology, and international politics permeate all corners. Indeed an uneasy compromise between democracy and nationalism enables the nation state to survive. But with republican accountability fast becoming irrelevant to the functioning of the state, democracy is seriously handicapped in facing inequalities compounded by globalization and an essentialist politics of identity. They are compounded by the fact that there is no "international democracy' (the international civil society is a poor substitute to the republican legacy), no obligatory monitoring of international standards of non-discrimination, and no international associative empathy in place of "national democracy' to fill in the gap. With the identity of the nationstate weakening, and all kinds of "primary" identities asserting their presence, the minority question has transformed itself to a question of identity. In this competitive mosaic of ethnicity, the anxieties in the wake of current global economics and politics envelop everyone. Shrinking physical space, proximity, virtual communication, and breakdown of older hegemonies encourage identities. But the foe is unseen, unanswerable, and unaccountable. Mobilize and fight for your space. Violently, if you need, expel other identities if you will. What we have witnessed in Bosnia, Somalia, Sri Lanka, Rwanda, and a host of other places shows that minorities no longer want to be treated in a rights-based framework. The highpoint of the discourse of minority rights that came in 1992 now appears to be the beginning of its journey to nadir also. That is why the democratic theorist Claude Ake called the current interface of globalization and
democracy as one of "dangerous liaisons'.”
Claude Ake, "Dangerous Liaisons: The Interface of Globalization and Democracy' in Axel Hadenius (ed.), Democracy's Victory and Crisis (Cambridge: Cambridge University Press, 1997), pp. 282-296.
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The implication of viewing the Indian experience in the context of all these is that, a singular strategy of rights neglects the contingency of history. As the Indian experience of many ethnic killings and government-inspired and tolerated riots and mass murders shows, such a singular strategy depends on a foundational approach that says rights are basic to coexistence, toleration, devolution, decentralization, and autonomy. But such strategy does not inquire if tolerance flows from rights only, or assurance of minimal justice also in the absence of which rights produce intolerance. Again as the Indian experience shows, rights structure citizenship in such an unalterable way that various minorities can have no substantive rights except certain cultural means. The institutions of protection prove to have very limited efficacy in such a background. The political structure keeps on producing new minorities, so that rights never become enough. As the recent Kashmir experience, and earlier the Punjab experience, in terms of percentage of votes cast in elections shows, this political structure does not allow even a community the right to say that it will not be accountable for its political dissent. For we have to remember, the absence of such right implies for a group only a continuous obligation of explaining to the majority, in particular to the newly constructed majorities, each and every account of its political behaviour.” The truth is that rights are not a pre-condition for political action; they can be only the end product. When they come as the companion of mutual obligation, they are
The stark description of the massacre in Nellie in Assam in 1983 in Sanjoy Hazarika, Rites of Passage - Border Crossings, Imagined Homelands, India's East and Bangladesh (Delhi: Penguin, 2000), pp. 25-74, is a pointer to the barbarity that this transformation of the problematic of minority to one of ethnicity causes.
' One has to note only how sections of population, often minorities, are Sometimes forced at gunpoint to take part in the electoral process against their wishes. They have no right to "opt out'; their right to “exit' harms the legitimacy of rule.
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secure as the fruits of mutual recognition, obligation. In the absence of a philosophy of tolerance, obligation, decentralization, and autonomy, the aim of protecting minorities is only quarter accomplished. It in this perspective that we witness in India episodic activism on the part of civil Society in defence of minorities, particularly in uncovering the truth about persecution, physical violence, and discrimination.
It has to be understood that the resurgence of such activism cannot be consistent, for too often it is de-linked from political defence, on the other hand too often the political defence in conducted in terms of arguing for more laws, more measures, and more institutions, as if the paucity of these is the problem. In such a context, it is around events of killings and massacres that we witness such resurgence. The term civil society now reflects the hope and the desire for a sphere that will encourage moral behaviour, toleration, and will function as the site of interaction of public voices and forums and organizations and institutions against majority-centric politics; and the resurgence of the term by itself is clearly a sign of the times marked, more than anything else, by a crisis in legitimacy of the state and the legitimizing process. Civil society is expected to combine the principles of liberty and justice, allow play of ethical forces and rational principles, also facilitating interaction among individuals engaged in the "primary goods". Yet the point remains, what exactly can civil society do in times of ethnicity? Willit observe procedural neutrality? Will it encourage autonomy in place of pluralism - both individual and group autonomy? If we can define justice as fairness on the basis of a difference principle, can civil society encourage procedures that aid in the formation and promotion of autonomy? In all the answers, it is important, as Nalini Rajan reminds us, to "go beyond the distributive paradigm and address the structure of domination itself'.
" Nalini Rajan, Secularism, Democracy and Justice, p. 190.
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This is the sign of the legitimacy crisis, the retreat of the public from public sphere into "civil and familial-vocational privatism", by which the philosopher Jurgen Habermas meant "an interest in the steering and maintenance of administrative system but little participation in the legitimizing process'. As the sporadic nature of the defence of the subjected communities by civil society shows, the consequences of such "privatism" have been grave for (civil) . society in this region too. Such "privatism", as Habermas notes, offers no support in face of basic needs of existence, do not make possible human relations with a fundamentally objectified nature, permit no intuitive access to relations of solidarity within groups and between individuals, and allows no real ethic in political and social life.' The crisis shows further the declining belief in legitimacy of the institutional order of rights and protection that a secular system had created. Thus minorities are dissatisfied with existing provisions, majority dissatisfied with the "inadequacy' of the old provisions of domination. In this situation of legitimacy crisis, compounded by economic crisis, rationality crisis and motivational crisis in post-colonial polities, the new right is the only assured political animal. He does not need society as a moral entity, he does not need any justification for power; he, however, has still need for democracy, but in a redefined form, that will hold out the promise of prosperity without freedom. In such a milieu, we have little chance of a neat solution of the minority problem while keeping the republican space intact. We shall have continuing physical elimination of minorities through killing or silencing, an endless series of attempts at self-determination through bloodshed, and sporadic defence of minority rights - a milieu, where society can wake up only to the "gray mornings of tolerance", and the ever receding prospect of autonomy in political life.
Jurgen Habermas, The Legitimation Crisis, trans. Thomas McCarthy (Cambridge: Polity Press, 1976), p. 75. ' Legitimation Crisis, p. 78.
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VI. Politics of Identity or Politics of Democracy?
We can now understand why the Indian juridical-political system while espousing the cause of secularism failed to be just, for in its post-colonial quest for republican unity through the national path, it forgot the political principles of autonomy. Since self-rule was to be limited to the top, it neglected a wide variety of forms of autonomy - territorial, fiscal, cultural, administrative, political, economic, and instead concentrated on what one observer has called the "window dressing" of a chamber that had very little substances of autonomy to show. Thus, the constitution did not undertake the rigorous task of examining the notion of minority, did not define what Myron Weiner was to ask many years later, "Who are India's minorities, what do they want?" and left the impression that it held only religious minorities as minorities. By one stroke thus it excluded all other minorities from the principles of autonomy. In its grandest principles, it could only go to the extent of declaring nondiscrimination (Article 15) and religious liberty (Article 25), and could only half-enthusiastically declare the nonestablishment of state religion (Article 28.3). Even in admitting "religious practices' in the freedom of religion (Article 25), it dealt a blow to the principle of toleration. For even during the debates in the Constituent Assembly the members could foresee that "religious practices" would go against toleration, and enable the state to resort to all sorts of arbitrariness. On the other hand, the final version of the Constitution has not left a clear directive that the state would not recognize any religion as state religion. In today's political
Ajit Bhattacharjea, “Window-dressing the Constitution" in Ajit Bhattacharjea (ed.), Social Justice and the Constitution (Shimla: Indian Institute of Advanced Study, 1997), pp. 22-30.
' This has been noted by Gurpreet Mahajan, Identities and Rights - Aspects of Liberal Democracy in India (Delhi: Oxford University Press, 1998), pp. 46-47, 63-65.
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atmosphere one can understand how with this omission a large section of the masses has been left perennially to the whims and inclinations of the rulers. A rich diverse life, intensely public, had been straightened out by the Constitution into majorities and minorities, that too only in one respect and never for once defining them. No wonder, Such a system opened the floodgates for exploiting religious Sentiments for political ends, turned the citizens once again into religious subjects, and made the task of administering communities by that supreme community called the nation, the kingpin of governing. The travesty of Section 123 of the Representation of People's Act is not an exception, but an outcome of such a rule.
To understand the strategic nature of such rule - the rule of the Supreme community, the nation over all other communities, the majorities and minorities - we must remember in this context what happened to the dalits in the country. The advisory committee in Indian constituent assembly had identified Muslims, Sikhs, Parsis, Anglo-Indians and Indian Christians as minorities. Later on the court recognized many others. But dalits were never considered as minorities, for minority status to the dalits would touch the very power structure on which rule rested. Long ago, Ambedkar had declared that the depressed classes were a minority - a status concealed by their inclusion in the Hindu society. This was during the time of depositions before the Simon Commission. On the political demand of separate electorate for scheduled castes, the nationalist leadership had vehemently disagreed. The Poona Pact of 1932 between Ambedkar and Gandhi temporarily resolved the issue with the help of the principle of reservation. But bitterness remained, as remained other economic and political demands of autonomy. The Constitution was a contract against the background of the rise of majorities and minorities. A new deal for the religious minorities was ensured through the provisions that recognized religious minorities. And who can forget the Lucknow Pact of 1916 whose ghost still loomed
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large over the political elders who sat for three years to draw up the basic law? Similarly there was a new deal for the dalits. But they were not to be recognized as minorities much though Ambedkar had wanted. There were to be reserved seats, affirmative actions (Articles 332-338), but no autonomy. In short, in place of minority representation there was to be positive discrimination as a form of affirmative action. If this was inclusion in the political Society, clearly those for whom all these were devised were not satisfied or were to be dissatisfied soon. Inclusion through affirmative action has left the entire question of excluding the minorities from political society un-addressed.
Yet the question "Who are these minorities and what do they want?" is not a complicated question. K.M. Munshi had tried to pose the question more concretely before the subcommittee on minorities set up by the advisory committee on fundamental rights in the following terms: What should be the nature and scope of safeguards? What should be the political safeguards at the union level and at the states? What should be economic safeguards? What should be the religious, educational and cultural safeguards? What should be the machinery to ensure that the safeguards are effective? Finally, what will be the time span of those safeguards?' Munshi was no great radical, yet even these inquiries and tasks were sidestepped in the Constitution. The Constitution indeed omitted the entire section on "Special Provisions Relating to Minorities' in Part XIV in the draft meant to consolidate the democratic arrangements. Nehru defended the omission by saying that in democracy such safeguards led to 'isolation of the minorities", that unlike in colonial rule, in republican rule (Nehru termed as "full-blooded democracy") minorities did not need special provisions, and that these might lead to "forfeiting that inner sympathy and fellow feeling with the
Cited in A.S. Narang, "Justice for Minorities' in Social Justice and the Constitution, p. 121.
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majority". Exasperated with the exclusionary paradigm (that allowed for some inclusive rights) ruling over the universe of constitution-making Ambedkar was to say in a speech in the Constituent Assembly in an ominous vein,
To diehards who have developed a kind of fanaticism against minority protection I would like to say two things. One is that minorities are an explosive force, which, if it erupts, can blow up the whole fabric of the state. The history of Europe bears ample and appalling testimony to this fact.
The other is that the minorities in India have agreed to place their existence in the hands of the majority. In the history of negotiations for preventing the partition of Ireland, Redmond said to Carson, "Ask for any safeguard you like for the Protestant minority but let us have a United Ireland". Carson's reply was "Damn your safeguards, we don't want to be ruled by you."
No minority in India has taken this stand. They have loyally accepted the rule of the majority, which is basically a communal majority. It is for the majority to realize its duty not to discriminate against minorities. Whether the minorities will continue or will vanish must depend upon this habit of the
"Cited in "Justice for Minorities", p. 123. Again, one should relate this with the centralizing trend that Nehru along with others represented in the Constituent Assembly deliberations. Nehru wrote to the president of the Constituent Assembly on 5 July 1947 these words, "Now that the partition is a settled fact, we are unanimously of the view that it would be injurious to the interests of the country to provide for a weak Central authority which would be incapable of ensuring peace, of coordinating vital matters of common concern and of speaking effectively for the whole country in the international system.” - cited by A.S. Narang, "Regionalism, Alienation and Federalism' in Rasheduddin Khan (ed.), Rethinking Indian Federalism (Shimla: Indian Institute of Advanced Study, 1997), p. 203.
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majority. The moment the majority loses the habit of discriminating against the minority, the minorities can have no ground to exist. They will vanish.7
The implication of all these issues that have dominated the juridical-political thinking in India with regard to minorities, turning them from citizens into religious subjects to be protected (that caused Ambedkar's outburst), is immense from the point of a critical politics of democracy as distinct from a politics of identity.
First, minorities arise as a function of democracy. Second, as the problem becomes acute, the received politics of democracy tries to grapple it with notions of multiculturalism, constitutionalism, toleration, civility and republicanism - alternatively or concurrently.
Third, resisting all such solutions, the minority problematic transforms into a question of ethnicity, and this transformation indicates the interface of globalization, ethnicity, and the nation-state where democracy is also losing out.
Fourth, in the context of this transformation the protective mechanisms become more and more ineffective.
Fifth, and the final implication of all these is that the resolution of the minority problem calls for a reworking of the democratic theory and politics that goes beyond rights, and calls for an enrichment of notions of autonomy, selfdetermination and representation that lie at the heart of a politics of justice.
In the politics of identity without a politics of democracy, the ruled become the subject, the subject becomes the citizen, the citizen becomes the individual from a minority group, and the individual from the minority group becomes the representative of an ethnic stock. The histories of the minorities in India and in this region as a whole are part of the history of government, history of the procedures of rule that bases itself on such transformation of identity.
Cited by Narang, "Justice for Minorities'
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The National Commission for Scheduled Castes and Scheduled Tribes: A Report
Bishnu N Mohapatra* and Niraja Gopal Jayal
This is essentially an exploratory study of an institution designed to protect and promote the welfare of certain historically disadvantaged sections of Indian society. It is important to remember that the National Commission for Scheduled Castes and Scheduled Tribes (hereafter the Commission or NCSCST) is only one component of a complex web of institutions, policies, and laws designed for this purpose. As such, the responsibility of promoting the welfare of the scheduled castes and tribes, or of protecting them against a variety of injustices, has not been vested exclusively in this institution. Despite the fact that it enjoys constitutional status, moreover, the recommendations of the Commission are more advisory than mandatory. It is important to note these caveats before essaying any evaluation of the Commission's work.
In methodological terms, it is possible to evaluate an institution in two quite different ways. The first is an internalist perspective, which evaluates the institution from within, in terms of its own interpretation of its mandate, and in a selfreferential manner. The second is an externalist perspective which is built on the opinions/judgements of the community whose interests the institution is engaged with, as well as of citizens and civil Society organizations at large. In the present instance, this exercise is largely of the first kind, although we have tried to introduce elements of the second. Within this limited exercise, an attempt has been made to see the link between the institutional mandate and its concrete
* Opinions expressed in this are my personal opinion, should not attribute to
the Ford Foundation.
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operation over a period of time. The institution does not have any formal mechanism by which it evaluates itself on a continuing basis. Hence, in some sense, the present evaluation is also of an externalist nature.
In societal terms, too, institutions can be perceived in two ways. The first is a functionalist point of view which evaluates the institution in terms of what it actually does. This is underwritten by the assumption that, like most organizations, the institution is an embodiment of institutional rationality which it operationalises (or tries to) in its day-to-day activities. The second is a more normative view which sees institutions as not merely achieving goals, but also as the creator of rules and processes which inform visions of a better society. In this paper, we propose to look at the institution in both senses, and to evaluate it accordingly.
The Scheduled Castes and Scheduled Tribes: A SocioEconomic Profile
The terms Scheduled Castes (SC) and Scheduled tribes (ST) have their origins in the colonial constitutional and administrative language. That these two categories almost invariably find themselves together has more to do with the governmental rationality that binds them (through, according to them, special treatment by the State, albeit on divergent grounds), rather than on the basis of any homology between the social status of the groups of people referred to by this nomenclature. The following appraisal of the status of the SCs and STs is sensitive to this fact. It recognizes, to begin with, that the existence of one commission for SCs and STs has its origin in the exclusion of religious minorities, following the partition of India, from the category of those who could be eligible for affirmative action. As such, it is a creation of residuality rather than a deliberate act of bundling together dissimilar groups, and indeed official discourse recognizes that the rationale for affirmative action in the two cases was not identical: in the view of the constitution-makers, the scheduled castes deserved reservations because of the
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historical oppression that marked their condition, while the condition of the scheduled tribes was discussed, rather more territorially, in terms of "excluded areas". Very recently, it has been decided to institute two separate commissions for these groups. This administrative decision is likely to find favour with those members of the scheduled tribes who believe that their distinctive problems are neglected by having a single commission. Despite this distinctiveness, there is arguably a certain commonality in that members of both the scheduled castes and the scheduled tribes have been largely outside the mainstream of Indian society, dominated by caste Hindus.
The phrase scheduled castes came into being by the enactment of the Government of India Act, 1935 whereby a certain conglomerate of castes, communities and groups - whose defining feature is the disability ensuing from the practice of untouchability in Indian society - were identified and placed together in a 'schedule' in order to render them eligible for certain safeguards and benefits. On the attainment of independence and the commencement of the present Constitution, the President of India once again notified the names of the castes which would be covered under this category, under the provisions of Article 341 of the constitution. They are specified separately in relation to each of the states and union territories.
The Scheduled Tribes have likewise been identified in Article 342 and notified by the President of India. There is a long history of colonial administrative engagement with this category too, and Successive census commissions of the colonial government attempted to identify the groups to be included in the category of tribes. The two principal markers used to identify tribal groups in the colonial discourse were (a) their religious practices, which are distinct from those of canonical Hinduism ("distinctive culture' is the euphuism that came to be adopted in independent India for the same); and (b) the fact that they are geographically isolated, residing largely in hilly areas thickly covered with forest. Unlike SCs, the reasons for their backwardness are perceived to be their
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geographical isolation, the absence of settled agriculture, and dearth of proper infrastructure. Further, normative value is attached to preserving their distinctive culture and egalitarian community practices such as collective control over community resources. The distinctiveness of the approach towards the problems of the STs can be gleaned from the so called "Tribal Panchsheel' laid out by Jawaharlal Nehru, and eventually endorsed by a series of committees that looked into various aspects of the devolvement of the Scheduled Tribes
These five principles are:
1. The tribal people should develop along the lines of their own genius and we should avoid imposing anything on them but rather try to encourage in every way their own traditional arts and culture. Tribal rights in lands and forests should be respected. We should try to train and build up a team of their own people to do administration and development 4. We should not overadminister these areas or overwhelm them with multiplicity of schemes; we should rather work through and not in rivalry to their own social and cultural institutions. 5. We should judge the results not by statistics or the amount of money spent but by the quality of human character it evolved.
3.
Before attempting to draw a profile of the conditions of SCs and STs in contemporary India, we may once again note that though the Constitution of India provides a number of safeguards for these sections, they are not defined anywhere in the Constitution in a substantial way. They are to be identified and notified by the President of India with respect to particular states or union territories, in consultation with the Governor thereof, through a public notification.
The total population of SCs according to the 1991 census was 13.82 crores which is 16.33% of total population. (see Table.1) Seventy-five percent of it resides in eight big states:
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Table 1: Statement of total population, SC and ST population with percentages in total population
S.No. State Union Total SCs % STs % Territory Population
1. Andhra Pradesh 6,6508,008 1,0592006 15.93 41,99,481 6.31 2. Arunachal Pradesh 8,64,558 4052 0.47 5,50,351 63.66 3. Assam 224,14332 1659,412 7.40 28,74,441 12.82 4. Bihar 8,63,74465 125,71,700 14.55 66,16,914 7.66 5. Goa 1169,793 24,364 2.08 376 0.03 6. Gujarat 4,1309,582. 3060,358 7.41 61,61,775 14.92 7. Haryana 1,64,63,648 32,50933 19.75 - - 8. Himachal Pradesh 51,70,877 13,10,296 25.34 2,18,349 4.22 9. Jammu & Kashmir 77,18,700 641,200 8.31 N.A. N.A 10. Karnataka 44977,201 7369,279 16.38 19,15,691 426 11. Karala 2.90.98,518 28,86522 9.92 3,20,967 11.10 12. Madhya Pradesh 6,61,81,170 96,26,679 1455 1,53,99,034 23.27 13. Maharashtra 789,37,187 8757,842 11.09 73,18,281 9.27 14. Manipur 1837,149 37,105 2.02 632,173 3441 15. Meghalaya 174,778 9,072 0.51 15,71927 85.53 16. Mizoram 6,89,756 691. 0.10 6,53,565 94.75 17. Nagaland 1209,546 - - 10,60,822 87.70 18. Orissa 3,1659,736 5129,314 16.20 70,32,124 22.21 19. Punjab 202,81969 57,42,528 28.31 - 20. Rajasthan 440,05990 76,07,820 17.29 54,74,881 12.44 21. Sikkim 406,457 24,084 5.93 90,901 22.36 22. Tamil Nadu –55858,946-1,07,12,266 19.18 5,74,194 1.03 23. Tripura 2757,205 4.51,116 16.36 8,53,345 30.95 24. Uttar Pradesh 13,19,12,287 29276455 21.05 2,87,901 0.21 25. West Bengal 6,80,77965 160,80,611 23.62 38,08,760 5.59 Union Territories 1. Andaman &
Nicobar Islands 80,661 - 26,770 9.54 2. Chandigarh 642,015 105,977 16.51 3. Dadra &
Nagar Haveli 138.447 2,730 1.97 109,380 78.99 4. Daman & Diu, 101,586 389 3.83 11724 11.54 5. Delhi 94,2064Ꮞ 17,94,836 19.05 -- 6. Lakshadweep 51707 , a 48,163 93.15 7. Pondicherry 8,07,785 131,278 16.25 India 8463,02,688 13,8223,277 16.33 6,77,58,380 8.08
Source: Census of India 1991.
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Uttar Pradesh, West Bengal, Bihar, Tamil Nadu, Andhra Pradesh, Madhya Pradesh, Rajasthan, and Karnataka. SCs constitute one-fifth or more of the total population in six states: Haryana, Himachal Pradesh, Punjab, Tamil Nadu, Uttar Pradesh and West Bengal. They have a marginal or no presence in the North-Eastern states except Assam where they constitute 7.40% of the total population.
There are 6.78 crore STs in India according to the 1991 census. They constitute 8.08% of the total population. The six states that account for the 75% of this population are Bihar, Gujarat, Madhya Pradesh, Maharashtra, Orissa and Rajasthan. Some of the states and union territories are almost exclusively tribal domains: Nagaland, Mizoram, Meghalaya, or Lakshdweep are cases in point. In eleven sates and union territories they constitute more than twenty percent of the population. These are: Arunachal Pradesh, Madhya Pradesh, Manipur, Meghalaya, Mizoram, Nagaland Orissa, Dadra and Nagar Haveli and Lakshdweep.
The proportion of SCs in the total population has, since independence, increased only marginally by 1.71%, from 14.61% to 16.33%. The corresponding figures for the STs are an increase of 2.78%, from 5.35 in 1951 to 8.08% in 1991.
The scheduled population in India is predominantly rural. 81.28% and 92.61% of the SC and ST population respectively is rural in character compared to the national average of 74.29%. (See Table 2)
Table. 2 Rural and Urban Components of the overall population and SC and ST populations.
S.No Category Total Rural %. Urban %
Population
Population
Population
1. India 2. Scheduled Castes
3. Scheduled Tribes
8463,02,688 1382,23,277 6,77,58,380
6286,91,676 1123,43,797 6,2751,026
74.29 81.28 92.61
21,76,11,012 2,58,79,480 50,07,354
25.71 18.73 7.39
Source: abstracted from 1991 census.
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The primary occupations of the SCs and STs are in the farm sector. They form a major part of the work force of Indian agriculture, and their proportion in the workforce has been increasing over the years. (See Table 3) This is the inverse of the trend observed for the overall population. The figures below indicate that the dependency of the general population on agriculture is on the wane. However, the population of SCs and STs is more dependent on it than at any previous time, and more absolutely so. There is a drastic decrease in cultivators and artisans (household industry) from among these sections between 1961 and 1991, paralleling a massive increase in the category of agricultural labourers.
Table 3: Occupational classification of the main workers 19611991 (all numbers are in percentages)
Items Total SC ST
1961 1971 1981 1991. 1961 1971 1981. 1991 1961 1971 1981 1991 Cultivators 5278 4338 4153 3974 3776 2787 28.17 2544 688 5756 5443 5450 Agricultural Labores 1671 2332 2516 196 3448 574 482 496 1971 3304 3267 3269 Household V Industry 638 35 399 256 656 333 331 241 247 1B 142 104 Other Workers 24.13 2,675 2932 3804 220 706 2003 2308 964 837 1184. 1176
Source: Fourth Report of the NCSCST (1998)
These tendencies can be better understood and their ramifications better appreciated when one realizes that land distribution in rural India is closely related to the social hierarchy. Here, large landowners are invariably from the upper castes, the cultivators belong to the middle castes and the agricultural labourers are mostly from the scheduled
See Ninth five-year plan Draft 1997-2002, Planning Commission, Government of India, New Delhi, Vol II, p. 347
2 Agricultural Census (1990-91) abstracted in the Third Report of the
National Commission for SCs and STs (1996)
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castes and scheduled tribes. The above statistics only indicate the sharpening of the social cleavages in rural India and the reinforcement of the basis of domination of privileged groups over the marginalized. According to recent estimates of the Planning Commission of India, 77% of the SCs and 87% of the STs are near landless, devoid of any productive assets and any sustainable employment opportunities. Of the few who own land from these communities, an overwhelming majority of 87% of SCs and 65% of STs, belong to the category of small and marginal farmers. That there is no significant change in this condition is evident from the comparative estimates for the years 1981 and 1991 reproduced below. (See Table 4)
Table 4: Percentage of landless and near landless households among Scheduled Castes (in% to total rural households)
1981 1991 Land Less 0.5-1 upto Land Land less 0.5-1 upto Land less than Acre 1 less less than Acre 1 less 0.5 upto 0.5 3CTe &ε
1 acre upto (1+2+3+4) 1 Acre
(6+7+8+9)
1 2 3 4 5 6 7 8 9 10 India 12.62 47.97 9.53 57.50 70.12 13.34 47.50 8.89 56.39 69.73
Source: National Sample Survey, 1982 and 1992.
In light of the above facts, it is hardly surprising that the vast majority of SCs and STs live in abject poverty, and that the levels of poverty among them are much higher than those prevalent among the general population. Further, though the rates of the betterment of SCs and STs are somewhat comparable to those of the general population, the gap between the general population and them is in fact increasing. Thus, between 1977-1988, the gap in the poverty
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levels, between the general population and SC population increased from 8% to 11.6%, and in the case of the ST population, it remained stationary at 20%. (See Table 5)
Table 5: Percentage of people bellow poverty line 1977-1994 *These statistics are based on different methodology.
Year All Population SC ST
1977-78 48.30 56.30 68.10 1983-84 37.40 50.10 57.20 1987-88 29.90 41.50 49.90 1993-94 Urban 39.09 49.48 41.14 Rural 38.20 48.11 51.94
Source: Fourth Report of NCSCST (1998)
An analogous tendency may also be observed in the literacy rates among the SCs and STs in comparison with the general population over a period. (See Table 6) Though the growth rate of literacy among the SCs and STs is remarkably higher compared to the general population - at 43%, 46%and 75% for SCs and 32%, 45%and 81% for STs compared to 23%, 23% and 44% for general population during the decades 196171, 1971-81 and 1981-91 - the gap between the general population and the SCs and STs remains the same and in fact shows an increase in the case of STs.
Table 8: Crimes against SCs and STs by the non-SC and ST members (1981-1991)
S.No Year No of cases
SC ST
1. 1981 14318 34.32 2. 1984 15987 4290
3. 1985 15373 4055
4. 1986 15416 3945
5. 1991 17646 4778
Source: NCSCST Fourth Report (1998)
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Table 6: Comparative tables of the literacy rates incorporating the gender gap and gap between the general population and SCs and
STs. (1961-91)
Year Total Population Male Female Total
Scheduled castes
Male Female Total Gap
Scheduled Tribes
Male Female Total Gap
1961 34.44 12.95 24.02 1971 39.45 18.72 29.46 1981 65.50 29.85 43.67 1991 64.1339.29 52.21
16.96 3.29 10.27 13.75 22.36 6.44 14.68 14.79 31.12 10.93 21.38 22.29 49.91 23.76 37.41 14.80
13.83 3.16 8.54 5.48 17.63 4.85 11.39 18.08 24.52 8.05 6.35 27.32 40.65 18.19 29.60 22.60
Source: NCSCST, Fourth Report (1998) Further, the dropout rate among these sections continues to be very high and tends to be progressively higher as the level of education increases. (See Table 7)
Table 7: Comparative drop-out rates for 1981&1991 for SCs and STs
Scheduled tribes Drop-out rates
Scheduled castes Drop-out rates in
Level of education
1981 1991 1981 1991 Primary 59.21 49.35 7400 62.52 Middle 74.76 67.77 84.99 78.57 Secondary 85.72 77.65 91.65 85.01
Source: Fourth Annual Report of the NCSCST
Before proceeding any further, it is imperative to note that the disabilities suffered by the SCs and STs are far greater than those suggested by the statistical representation of their plight in the preceding pages. The SCs in particular continue to suffer from various degrees of the denial of their basic human rights and dignity due to the practice of untouchability. They are often victims of criminal violence and atrocities perpetrated by the upper castes, as well as of custodial violence by the police. (See Tables 8,9,10&11) These violations of basic human rights continue unabated even in face of the
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constitutional proscription of the practice of untouchability, and the promulgation of strict laws to deal with the denial of civil rights and perpetuation of violence against these sections.
Table 9: Statement of cases registered with police pertaining to the criminal offences on the members of SCs and STs between the years 1995-97. This statement is based on data from national crime records.
S.No Nature Scheduled Castes Scheduled Tribes Total
of Crime
1995 1996 1997 Total 1996 1996 1997 Total
1995-97 1995-97
1. Murder 571 543 503 1,617 75 94 N.A. 169 1,786 2. Hurt 4,544 4,585 3,462 12,591 688 694 N.A 1,382 3,973 3. Rape 873 949 1,002 2,824 369 314 N.A 683 3,507 4. Kidnapping
& abduction 276 281 242 799 74 50 N. A 124 923
5. Dacoity 70 90 57 217 18 32 N.A 50 267 6. Robbery 218 213 157 588 27 21 N.A 48 636 7. Arson 500 464 348 1,348 40 51 N.A 91 1,439 8. PCR act,
1955* 1,528 1,417 1,157 4,102 71 72 143 4,2 45 9. SC and ST
(POA) act,
1989* 13,925 9,620 7,831 31,376 1,480 754 N.A 2,234 33,610 10. Other
offences 10,492 13,278 11,693 35,463 2,656 2,891 N.A. 5,547 41,010 Total 32,997 31A40 26,488 90.925 5.498 4973 N.A 10471 101,396
* Protection of civil rights act (1955) * Prevention of atrocities act (1989)
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Table10: Cases registered under Protection of civil rights act (1955) (1992-1999)
S.No year No. of cases registered
1 1992 3148 2 1993 2681 3 1994 1794 4 1995 1599 5 1996 1489 6 1997 1304 7 1998 788 8 1999 365 (Provisonal)
Source: Annual Report, Ministry of Social Justice and Empowerment (1999-2000)
Table 11: Cases registered under Prevention of atrocities act (1989)
S.NO Year No of cases registered
1. 1997 8713 2 1998 8190 3 1999 4205
Source: Annual Report, Ministry of Social Justice and Empowerment (1999-2000)
Many of the atrocities perpetrated on the scheduled castes are related to the issue of agricultural wages. Mr. B.N. Srivastava, a former deputy commissioner for the scheduled castes and scheduled tribes, Southern Zone (Madras), observes that most often the tussles are not even about the payment of statutory minimum wages but rather about
3 Srivastava, B.N. "Working of the Constitutional Safeguards and Protective Measures for the Scheduled Castes and Scheduled Tribes' in Journal of Rural Development, Vol. 19(4), 2000, p.580.
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securing a parity between the wages paid to the SC agricultural laborers and non-SC workers. The violence however can be quite gruesome. He cites an instance of 42 SC agricultural labourers being bolted in a 6x4 feet room and roasted alive in Tanjavur district in 1968 as an example of the form these atrocities may take. Such examples may be multiplied manifold and be cited from all parts of India, even from the recent past. Women belonging to the SCs and STs are the worst victims of these atrocities. One may observe from the rape figures in Table 9, that this is the most common tactic of asserting domination over these sections.
It was in recognition of the completely subordinated status of these sections that the Constitution makers envisaged a comprehensive set of safeguards for them as also a set of ameliorative measure for the betterment of their conditions. On the Social plane, untouchability was declared a statutory crime, and discrimination was legislated against it. The Constitution also envisages a comprehensive package of affirmative action and preferential treatment for these sections in the matters of education, appointments to public services and planned expenditure by the state. Further, in view of the subjugated status of these sections, they were given political safeguards in the form of reservation of seats in the lower house in Parliament as well as in the state legislative assemblies. Also, taking into consideration the special status historically enjoyed by the STs, as also the distinctiveness of their culture and the special requirements of this, the Constitution made arrangements to give them autonomy in administering their territories, and to route adequate funds to the normally remote areas where they reside. Finally, the Constitution also provided for a watchdog institution, originally called the Special Officer for the Scheduled Castes and Scheduled Tribes to oversee the implementation of these safeguards. Today, after an attempted improvisation of the functioning of this institution through a constitutional amendment, it is called the National Commission for the Scheduled Castes and Scheduled Tribes.
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Table 12 summarizes the various constitutional safeguards that have been provided. Perhaps the most debated and controversial component of this affirmative action package has been the provisions relating to the reservation of seats in educational institutions and public employment.
Table 12: Constitutional Safeguards for SCs and STs
ISocial
And Economic
III
IVOther
safeguards
S.No Category Measures/safeguards
Social problems like abolition of untouchability; prohibition of discrimination on grounds of caste, race, sex; access to public places, wells, tanks, hotels, restaurants etc.; prohibition of forced labor, and throwing open Hindu religious institutions etc.
II Educational Reservation for the admission in
educational institutions; reservation in public employment; claims in appointments to the services; promotion of educational and economic interests and protection from social injustice and all forms of exploitation
Political Reservation of seats in Lok Sabha and state assemblies and periods of reservation; minister in charge of tribal welfare in the states of Bihar, Madhya Pradesh and Orissa
Administration of the scheduled areas and tribal areas; grants-in-aid out of consolidated fund of India to states for scheduled areas and promoting the welfare of Scheduled Tribes; national commission for scheduled castes and
scheduled tribes; executive power of union in giving direction to state for scheduled
tribes; appointment of backward classes
commission; specification of the scheduled castes and scheduled tribes, definitions; special provisions with respect to the state of Nagaland, Assam, Manipur, Mizoram and Arunachal Pradesh.,
fifth and sixth schedules.
Articles of the Constitution
14,15(1), 15(11) 17, 23, and 25
15(4),16(1), 16(4), 16(4)A,
29, 46 and 335
164(11), 330,
332, and 334
244, 275,338, 339, 340,341, 342, 366, 371. Fifth and sixth schedules.
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The available statistics show that the implementation of the package for the last fifty-five years has had mixed results. For instance, one may see from Table13 that there has been a phenomenal increase in the enrolment of SC students at the graduate level and above, though the figures for STs are not still encouraging. However, the disturbing feature here is that the percentage figures for higher education (postgraduation and above) for the academic year 1995-96 are 9% and 3% respectively for SCs and STs. This clearly shows
Table 14: Competitive tables of employment profile of SCs and STs in central government
Group Total Scheduled 96 to total Scheduled 9% to total
Castes tribes 1965 1995 1965 1995 1965 1995. 1965 1995 1965 1995
Class.I 19379 65408 || 318 6.637 64 10.1252 1891 027 289 Class II 30,612 108,857 || 864 13,797 282 1267 103 2913 O34 268 Class III 10,82278 2341,863|| 96,114 378,172 888 1615 || 12390 133,179 1.14 569 Class IV 11.32517 10, 14,082|| 101,073 221.380 1775 216 || 38444 67453 339 648 Total 2264,795 35,57210298,369 619986 13.17 174350989 205436 225 578 Sweepes - 1,77527 - 78,719 - { - 12269 - 691 Grand Total 2264,795 37.34,737.298,369 698,705 13.17 18.1750989 2,17,705 225 583
Source: Fourth Report NCSCST (1998)
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that there is a kind of glass ceiling in graduate education for the candidates of these sections.
Table 13: All India Enrolment figures for SCs and STs at undergraduate, postgraduate, technical and professional education courses. 1977-78 &1995-96
Year Total students Scheduled Castes Scheduled Tribes
Number % Number %
1978-79 25,43,449 180,058 7.08 41,082 1.62 1995-96 79,55,811 10,58,514 23.31 357,477 4.49
Source: Fourth Report of the NCSCST (1998)
This lack of opportunities for higher education could partly explain the under-representation of these sections - despite reservations - in the higher echelons of the public service, and a huge backlog in the filling up of reserved posts. (See table14)
As the above tables clearly demonstrate, significant gains have been made over the years in terms of giving adequate representation to SCs and STs in public services. In fact, at the level of Class III and Class IV posts, the SCs have exceeded the targeted 15% which is reserved for them. However, there is a stark shortfall of 5% and 2.5% at the Class II and I level positions. This, coupled with the fact that an overwhelming 44.34% of the sweepers in government service are still from among the SCS, indicates a certain reproduction of the structures of social domination in the corridors of powers. Further, our attention is also drawn to the fact that, in the case of STs, the quota is not filled in any of the categories of posts. However, really striking is the picture that emerges when we compare the employment pattern in government service, public sector undertakings, and public sector banks (see Tables 15 & 16), with services where there is no provision for reservations, such as the higher judiciary, or where
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enough attention has not so far been paid, such as teaching positions in higher education.
Table 15: Representation of SCs and STs in public sector enterprises (1/1/96)
Group Total SCS ዓ6 STS %
Employees
A 198,625 16,710 8.41 4,505 2.27
B 1,64,402 15,921 9.68 5,788 3.52
C 1132,860 2,16,801 19.1498,816 8.72
D 4,77,254 106,934 22.4150,958 10.68
Total 19,73,141 3,56,366| 18.06 | 1,60,067 | 8.11
Sweepers 24,623 21,506 87.34 800 3.25
Grand
Total 19,97,764 3,77,872, 18.191,60,867 8.05
Source: Fourth Report of the NCSCST (1998)
Table 16: Representation of SCs and STs in public sector Banks (1/1/96)
Cadre || Total SCS % STS %
Employees
Officer 2,52898 28,102 11.1 9,235 3.65 Clerks 4,73,133 69,493 14.69 22,269 4.71 Sub staff 2,18,980 62,400 28.49 12,794 5.84 Total 9,45,011 159,995 16.93 44,298 I 4.69
Source: Fourth Report of the NCSCST (1998)
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Table 17: Composition of the teaching staff of 11 central universities (1/1/96). Excluding Banaras Hindu University
Position Total SCS STS
Number % Number %
Professor 1,067 4 O37 11 130 Reader 1,280 9 O. 70 27 2.10 Lecturer 1,336 44 3.30 59 4.42 Total 3,683 57 155 97 2.63
Source: Fourth Report NCSCST (1998)
As the comparison between, on the one hand, Table 17 and, on the other, Tables 14, 15 and 16 demonstrates, the representation levels in higher education for SCs and STs are far below what should have been achieved with the reservation policy in place. Much the same, if not a worse situation is encountered in the higher judiciary. According to the Second Report of the Parliamentary Committee on the Welfare of SCs and STs (1999-2000), as on 1/5/1998 of the total 481 judges at various high courts there were only 15 (3.1%) people from SCs and 5 (1.4%) people from the STs.
In concluding this section, we may note that we are living through a period of great social churning among the SCs and STs. There is a new political awakening in these sections. Their representation in the services has reached a critical takeoff stage. There are relentless demands for a stricter adherence to the quotas prescribed at all levels and in all sectors. Demands are even being raised to extend the affirmative action package to the fast expanding private sector
Cf. Broken People: Caste Violence against India's "untouchables", a Human Rights Watch Report (1999) pp.42-124 for a detailed report on the state repression in Bihar and Tamil Nadu.
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employment market. More and more acts of discrimination and oppression are being recognized as such, are being reported under the relevant statutory provisions directed against them, and are being resisted in overtly political ways. The Indian state is responding to these developments in ways that that do not always bespeak a cogent action plan. At one level, it tries to grapple with the problem with more sops - as evidenced in the sudden spurt in the financial package given out to these sections as a part of planned expenditure. (See Table 18) At another level, it responds by brutally repressive measures, as evidenced in the growing complicity of the police in the perpetuation of various atrocities, and the repressive tactics adopted by the State apparatus to quell any dissenting voices emanating from these sections. In these turbulent times, an institution like the National Commission for the Scheduled Castes and Scheduled Tribes could play a crucial role, given its statutorily ordained role to act as a watchdog over the implementation of safeguards. It could act as a grievance redressal body that addresses complaints emanating from individuals as well as institutions, and act as an interface between these levels.
Table 18: Plan expenditure with the SC and ST components
lan Period Plan Outlay (RS. in crores)
Total SC % ST %
First Plan 1960 6.13 0.35 1993 1.00
Second Plan 4,672 28.56 0.61 42.92 0.90 Third Plan 8,577 40.82 0.48 50.53 0.60 Four Plan 15,779 7219 0.46 79.85 0.50 Five Plan 39,426 204.90 0.52 1,157.67 3.00 Sixth Plan 109,292 3,722.97 3.41 3,640.25 3.33 Seventh Plan 1,80,000 7,233.32 4.02 6,744.85 3.75 Eighth Plan 1,81,735 22,380.80 12.3214,873.438.19
Source: Fourth Report NCSCST (1998)
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The Pre-history of the National Commission
Although the National Commission as a constitutional body, in its present form, came into being in the early 1990s, its creation has to be understood as a part of a larger historical process. This process can be traced back to the colonial period and should be discussed at several levels. It is arguable that the rise of institutions to protect the interests of the socially disadvantaged groups cannot be explained merely by looking at the social and ascriptive structure of Indian society. That is, the institution of caste and the specificity of tribal Society alone cannot explain the rise of such institutions. It is by focusing on the connection between the social structure and the state, between social/political mobilization and ideological contestation, that we can explain the rise of such institutions. Historically speaking, one can say that the rise of a new institution is a product of the interaction between the interests of specific groups and the logic of governance. In this particular case, much of this negotiation actually began in the colonial period itself.
During the late nineteenth century, leaders belonging to the low caste and untouchable groups highlighted the need for reforms, and drew the colonial state's attention towards the practices of discrimination and inhumanity in Indian caste society. The appeal for social reform gradually got linked to the demand for special provisions and special rights for collective representation. There is a consensus among historians that the colonial state also contributed to the formation and crystallization of community/caste identities. During the colonial period, in the absence of popular democratic institutions, the state was the only institution to which disadvantaged groups could appeal for redress. Indian nationalism, particularly in its Gandhian form, tried to address the question of caste indignities and tribal inequalities through a strategy of accommodation. Gandhi believed that it was through the discourse of love and mutual understanding - rather than that of rights and entitlements
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- that the gulf between the upper castes and the untouchable castes could be bridged. On the contrary, dalit leaders like Ambedkar argued for constitutional guarantees and rights to resolve the contradictions of caste society in India. The disagreement between Gandhi and Ambedkar on the issue of separate electorates for dalits, though ostensibly resolved in the Poona Pact of 1930, exemplified the persisting conflict of perspectives on the issue.
By the time of independence, special representation for the Scheduled Castes and Tribes - through joint electorates - was in place. The Constituent Assembly of India was convened as a result of the Cabinet Mission Statement of May 16, 1946. Though based on limited franchise, it was meant to represent various interests and communities. Of a total of 296 members to be elected from the Provinces of British India, there were 31 members of the Scheduled Castes and 6 members of the so-called Backward Tribes. In the Constituent Assembly (1946-49), the debate on these groups originated in the context of the larger discussion on minority rights. Four days after the Assembly began its session, Jawaharlal Nehru moved a resolution outlining the philosophy that the Constitution should reflect. The Constitution, he said, must Secure justice for all, equality of status and opportunity, and equality before the law, for every citizen. In the new Constitution, "safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes'.
In his letter to the President of the Constituent Assembly, Vallabhbhai Patel mentioned four aspects of the desirable political safeguards for minorities. These were: representation in legislatures; reservation in the Cabinet and in the public services; and, finally, an administrative machinery to ensure the protection of minority rights. In the wake of the partition of India, the term minority - which had hitherto referred to religious minorities as well as scheduled castes and tribes - was redefined. Special provisions for minorities now came to be confined only to the latter two categories, while religious
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minorities were given only cultural and educational rights. As far as the administrative machinery was concerned, the earlier idea of instituting a 'special Minority Officer' - whose duties would be to "enquire into cases in which it is alleged that rights and safeguards have been infringed and to submit a report to the appropriate legislature' - was abandoned. In its place was instituted a Special Officer for the Scheduled Castes and Scheduled Tribes, whose concerns excluded other minorities, including religious ones. This provision, contained in Article 338 of the Indian Constitution, is the root provision to which the ancestry of the National Commission can be traced.
In the course of the debates in the Constituent Assembly, members also argued for having administrative machinery, both at the Centre and in the States, for a more effective protection of constitutional safeguards. Though this was not eventually adopted, some resonance of this argument is encountered even today, when the excessive centralizationembodied in the National Commission - is criticized.
Organizational and Legal Genealogy of the Commission
In its present incarnation, the National Commission for Scheduled Castes and Scheduled Tribes emerged through a complex and multithreaded institutional and legal evolutionary process. As we shall see, its organizational and legal genealogies are distinct from each other.
The idea of having a monitoring authority to oversee the functioning of the safeguards provided for scheduled castes and scheduled tribes in the constitution is one of the cardinal features of the constitutional provision for these groups. Article 338 (1) of the Constitution provided for the appointment of a special officer for scheduled castes and scheduled tribes. In compliance with this article an office of Commissioner for Scheduled Castes and Scheduled Tribes (hereafter Commissioner) was created and the first appointment to that office was made on 18 November 1950.
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This institution has grown administratively and by 1965 it had 17 regional offices spread across the country. This field organization was reorganized in 1967. The 17 regional offices were collapsed together to form 5 zonal offices and were affiliated to the newly created office of the Directorate General of Backward Classes Welfare (DGBCW) in the Department of Social Welfare of the Government of India. This move deprived the Commissioner's office of access to field organization through which it could collect information on the working of the safeguards and what was detrimental to the interests of SCs and STs.
As a consequence, and in the context of increasing dalit assertions in Indian society, a demand was made to revitalize this mechanism, and the arrangement was sought to be revised in 1978. During that year, an attempt was made to set up a broad based multimember body' as a constitutional authority to look into the issues concerning scheduled castes and scheduled tribes by effecting an amendment to Article 338 of the Constitution, which proposed to merge the extant commissioner's office with the new body. As a precursor to this move, in July 1978 the Government of India created a Commission for Scheduled Castes and Scheduled Tribes (hereafter Commission) through a resolution of the Ministry of Home Affairs. This consisted of a chairperson and four members including the special officer appointed under Article 338. The first Commission under this dispensation was set up in August 1978 with Mr. Bhola Paswan Shastri as the Chairperson and four other members. The field offices of the CSCST, which had been transferred to the DGBCW in 1967, were brought under this Commission, constituted through an administrative decision. In August that year the Government of India introduced the Constitution (Forty Sixth Amendment) Bill, 1978 in the Lok Sabha. This bill was debated in May 1979 but it could not get enacted for lack of the requisite majority. The Government of India, however, did not nullify the 1978 home ministry resolution and the two organizations- the one brought into being by the
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Constitution and other through the resolution- existed side by side till 1992.
The functions of these two organizations overlapped considerably, and so in July 1987 the Government of India tried to demarcate their operational domains. As part of this move the office of the Commission was reinvented as the National Commission for Scheduled Castes and Scheduled Tribes (NCSCST-87) through a resolution of the Ministry of Social Welfare. In this new version, the Commission's office became more of a policy think tank with a welfare orientation, while the Commissioner's office has exclusive purview over its original domain, namely, the monitoring of the working of the safeguards provided for SCs and STs in the Constitution.
However, in 1990, this arrangement was once again revised paving the way for the creation of the National Commission for Scheduled Castes and Scheduled Tribes in its present incarnation. It was constituted to give effect to the Constitution (Sixty Fifth Amendment) Act, 1990 which received the assent of the President on 7 June 1990. Thus, the National Commission in the present form came into being only on 12 March 1992, in the process merging the old Commissioner's office and the old National Commission's office. A recent announcement suggests that there will now be two separate Commission's for the Scheduled Castes and Scheduled Tribes.
In the post-1992 form, there have been three commissions so far. The tenure of the present Commission ended in December 2001, and at present the Commission has only two members, with the appointment of a fresh commission being awaited.
Table 19, below gives the details of the chairpersons, deputy chairpersons and members who have manned the Commission over the years.
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Table 19: Membership of the Commission
First Commission (1992)
Mr. Ram Dhan (Chairman) Mr. Bandi Oraon (Vice chairman) Mr. B. Sammaish (member) Dr. Sarojini Mahishi (member) Mr. Chaudhary Hari Singh (member) Mr. N. Brahma (member) Mr. Bhai Darjee (member)
Second Commission (1995)
Mr. H. Hanumanthappa (Chairman) Ms. Omem. Moyong Deori (Vice Chairperson) Mr. N. C. Chaturvedi (Member) Mr. Anand Mohan Biswas (Member) Mr. Lama Lobzang (Member) Mr. Nar Singh Baitha (Member) Mr. B. Yadaiah (Member)
Third Commission (1998)
Mr. Dileep Singh Bhuria (chairman) Mr. Kameshwar Paswan (vice- chairman) Mr. Harinder Singh Khalsa (Member). Mr. Lama Lobzang (Member) MR. Chortray Majhi (Member) Ms. Veena Nayyar (Member)
Organizationally speaking, there are two principal components of the Commission. Its headquarters are located in New Delhi, and its field organization is spread across the country. At present there are, across India, sixteen offices
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called State Offices. Table 20 details the designation of the officer who is in charge of these offices, their headquarters and their territorial jurisdiction.
Table 20: Field Organization of the Commission
S.No Headquarters Jurisdiction Designation of the officer
1. Agartala Tripura Assistant Director 2. Ahmedabad Gujarat
Dadra & Nagar
Haveli Research Officer 3. Bangalore Karnataka Director 4. Bhubaneswar Orissa Director 5. Jaipur Rajasthan Director 6. Lucknow Utter Pradesh Deputy Director 7. Channai Tamil Nadu
Pondicherry Assistant Director 8. Patna Bihar Assistant Director 9. Pune Maharashtra
Goa
Daman Director 10. Shillong Meghalaya
Mizoram Research Officer 11. Thiruvananthapuram Karala
Lakshdweep Assistant Director 12. Bhopal Madhya Pradesh Director 13. Calcutta West Bengal
Sikkim
Nikobar Islands Assistant Director 14. Chandigarh Haryana
Punjab
Himachal Pradesh
Jammu Kashmir
Chandigarh(UT) Director 15. Guwahati Assam
Arunachal Pradesh
Nagaland
Manipur Director
16. Hyderabad Andhra Pradesh Research Officer
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At its headquarters, the Commission is organized into four departments each working under a director, each of whom is responsible to a joint secretary and the secretary to the Commission. The four departments are (a) personnel and administration, (b) atrocities and protection of civil rights wing, (c) service safeguards wing, (d) economic and social development wing. Each of these departments has assistant directors, deputy directors and research officers associated with them. The largest contingent of the staff at headquarters is engaged in the personnel and administration wing followed by the services safeguards wing, economic and social development wing and finally the atrocities and protection of civil rights wing. The organization of the Commission at headquarters is largely a continuation of the predecessor institution to the present Commission. Its underlying principles closely follow the thrust of the constitutional safeguards regarding the issues confronting SCs and STs. (see Table 12)
In each of the areas of its focus, the Commission reviews the ways in which the safeguards are being implemented and makes suggestions to implement them better. A distinctive feature of the Commission in its present form is that it can inquire into specific complaints with respect to the violation of the safeguards. More often than not, complaints of this nature come under the category of service related grievances, followed by atrocities and education related complaints. As we shall presently see, there is an underlying tension within the working of the commission as an institution: between its constitutional obligation of monitoring the working of safeguards, on the one hand, and its functioning as a body that redresses complaints of violations of safeguards, on the other. This tension at least partly stems from the enormity of the latter task, the huge resources that it requires, and above all the fact that this is popularly perceived as its primary role. The tension is also manifested in the discrepancy between the yardstick adopted by the Commission to carry out its work, and that which activists adopt to evaluate its working.
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The NCSCST: Legal and Institutional Framework
The provisions of the Constitution, as amended through the 65th Amendment Act, provide what we may call the primary legal framework for the functioning of the commission. This is the foundational law on which the very existence of the Commission is premised. It wills the Commission into existence, defines its character, assigns it definite functions and bestows certain powers to carry out these functions and duties effectively.
The Sixty-Fifth Constitutional Amendment also specifies the duties of the Commission in pursuance of which the activities described above are undertaken. These duties have been spelt out in Article 338(5)(a)-(f), and give the Commission both the responsibility and mandate to act on specific issues. According to these provisions, it is the responsibility of the Commission to "investigate and monitor all matters relating the safeguards' provided for the SCs and STs in the constitution and any other law in force at the moment, and evaluate the working of such safeguards. Besides this overall monitoring, the Commission shall also inquire into specific complaints pertaining to the deprivation of rights and safeguards to these sections. The commission shall participate and advise in the planning process and evaluate the progress of development of these communities. Finally, the Commission should be submitting reports "annually and at such times as the commission may deem fit" to the President on the working of safeguards, with appropriate and specific recommendations addressed to the various state governments and the Union government. (emphasis added throughout) Clearly, this listing of the Commission's duties is very specific about what it is expected to look into, even as it gives the Commission a fair degree of autonomy of action, as well as space for interpreting the field of action. It reveals the proactive role envisaged for the commission in the amendment. It tries to combine the investigative, monitoring, evaluative, advisory and
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remedial roles of the Commission in matters relating to the SCs and STs.
Also based on this primary frame of reference, the Commission has, over the years, identified a fairly stable set of constitutional provisions that have a bearing on SCS and STs either directly or indirectly, and a series of legislations enacted to realize these constitutional goals whose operation and effectiveness it monitors.
According to Article 338(2) & (3), the Commission shall consist of a Chairperson, Vice-Chairperson, and five other members. They are appointed by the President of India, and their tenure and service conditions are governed in accordance with rules issued by the President. By virtue of Article 338(4), the Commission has the power to regulate its own procedures.
The rules given by the President, and those given by the Commission for regulating its own procedures, may be called the secondary legal framework for the functioning of the Commission. The President of India issued the rules through a notification on 3 November 1990. To begin with, these rules prescribe qualifications for appointments to the Commission. The individuals appointed should be persons of "ability, integrity and standing who have a record of selfless service to the cause of justice" for the SCs and STs. However, the positions of chairperson, vice-chairperson and three members are reserved for people belonging to the SC and ST communities. The Chairperson should be an eminent socio-political worker who can inspire the confidence amongst SCs and STs by his/ her personality and record of service. Finally, one among the seven members of the Commission at any given time, has to be a woman, and there could also be part-time members. Further, the rules specify that in each block of three terms of the Commission, SCs get to hold the chairperson's office twice and STs once. On any occasion, persons belonging to the same community should not hold the office of chairperson and vicechairperson simultaneously. The tenure of the members is three years. The rules also allow for the appointment of
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retired persons from the judiciary and civil service to all positions in the commission. The removal of the Chairperson, Vice-chairperson and the members is sequentially easier. In the normal course, the Chairperson can be removed if the Supreme Court decides so, on a reference made to it by the President, and on grounds of misbehavior. The President may suspend the Chairperson pending the decision of the Supreme Court on the presidential reference. For the removal of the Vice-chairperson or any other members, a judicial reference is not required.
As already noted, the Commission has the power to regulate its own procedures. In pursuance of this power, the Commission published its rules of procedure on 7 March 1999. These rules cover a wide terrain of the functioning of the Commission, and appear to have been aimed at rationalizing the work of the organization in general, and its members in particular. In other words, the rules of procedure define how the Commission and its various constituent subgroups and individuals conduct themselves in the process of carrying out the business of the Commission.
The rules of procedure clearly define the division of responsibilities and the allocation of work within the organization. According to the rules of procedure, the Chairperson allots the work among the rest of the members and he or she has all the residuary powers. The Vicechairperson presides over the meetings of the Commission in the absence of the Chairperson and performs such duties as are entrusted to him or her by the Chairperson. Members have a 'collective responsibility' to participate in the meetings and sittings of the Commission. They may place any item on the agenda of the Commission's meeting after receiving the 'consent of the Chairperson'. Members are given overall responsibility of certain subjects and/or regions. They play an advisory role to the State governments under their purview. The Commission's regional office in a particular region is responsible to that particular member, and they may hold sittings to hear cases and collect evidence in that region.
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Finally, the Commission's administration is headed by a Secretary who is responsible for the preparation of the agenda papers of the meetings and circulation of the minutes. The Secretary also assists in the preparation of the reports of the COISSO.
The rules of procedure also define the status and duties of the field offices. Even a cursory look at the functions assigned reveals that these units play a vital role. They are termed the 'eyes and ears of the Commission. They disseminate information regarding the policies and programs of the Union Government pertaining to SCs and STs, and obtain similar information from state governments, NGOs and media in their jurisdiction. They also conduct studies, seminars, conferences and surveys on their own, or as directed by the headquarters. Their principal task is to maintain interaction with the administration of the State governments and union territories on behalf of the Commission, and also to serve on State level advisory councils on its behalf. They also 'monitor and assist the work of the NGOs and institutions receiving grants-in-aid from the Ministry of Social Justice and Empowerment. Most importantly, they conduct on-the-spot enquires into cases of atrocities and interact with the administrative and police officials having jurisdiction over the area in which the act was committed and report to headquarters. They also deal with the complaints and representations from individuals and welfare associations. In short, most of the actual work of the Commission is done at the regional level but the Commission's office in Delhi comprehensively monitors all this work.
Beyond the division of labor as outlined above, the rules of procedure also delineate the specific activities of the Commission and the procedures for carrying them out. The first of these activities is the meetings of the Commission. As per the rules, the Commission has to meet at least once in two months, though an emergency meeting can be called at the behest of any member or of the Secretary. The Chairperson or Vice-Chairperson, along with at least two
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other members, constitute the quorum for holding the meeting of the Commission. In the normal course, the Commission's meeting considers a wide range of subjects. To begin with, the rules of procedure can be amended in this meeting only. It decides on matters to be investigated by the Commission directly, and considers all reports that are to be considered by the Commission. It also discusses important issues pertaining to the development and welfare of the SCs and STs. As already noted, any other matter may be introduced in the meeting either by the Chairperson or by any other member with the consent of the Chairperson.
Besides these meetings, the Commission also holds sittings. The Commission can hold sittings or meetings anywhere in the country. The Commission holds sittings when a specific matter has to be investigated. For sittings, the presence of all members is not required. Sittings of the commission may be held as and when they are necessary, and may be held simultaneously in different parts of the country. Significantly, the Commission pays travel allowance and daily allowance to the people who are summoned to its presence to depose, if the information cannot be obtained from any other source and it is required by procedure.
The rules of procedure identify four kinds of activities engaged in by the Commission, apart from the meetings and sittings that enable it to carry out its mandate and lay down the procedure for doing so. These are:
(a) Investigation and inquiry (b) Advisory activities (c) Monitoring activities (d) Non-formal action.
The specifics of the issues regarding which the Commission may make interventions on the above will be discussed when we pay attention to the duties that are assigned to the Commission and its powers. In the following paragraphs, therefore, our focus is merely on the form of these activities,
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as they have been specified in the rules of procedure of the Commission.
(a) Investigation and Inquiry
The Commission may carry out an investigation or inquiry (I/I) either directly or by deputing an investigative team from headquarters or through its state offices. The investigation or inquiry could be into matters relating to safeguards, protection, welfare and development of SCs and STs as well as specific complaints. When the Commission decides to conduct an I/I directly, the rules of procedure ordain that due notices and publicity be given to the proceedings among the affected parties and the public at large. Any person may be summoned to the presence of the Commission to give evidence with a mandatory fifteen-day notice. The Commission may depute a team of officials to conduct an I/ I when the matter to be attended is one of some urgency. The rules of procedure recognize that there is here considerable scope for turf-battles between the central team and concerned field office as well as local administration. Thus it explicitly states that these teams have to inform the concerned local authorities beforehand regarding their visit, and they may enlist the logistic and administrative support of the concerned field office. However, the responsibility of preparing and submitting the report rests with the team members only. Finally, the Chairperson, Vice-Chairperson, or any of the members who have jurisdiction over an area or subject matter may order an I/I by a State office. The headquarters closely monitors these investigations.
The State offices have to follow the instructions issued by the headquarters regarding the various aspects of I/I from time to time. Further, the State offices are not delegated the powers of the Commission to compel any institution to produce documents, or individuals to give testimony, before the Commission. Thus each time they need to invoke these powers of the Commission, they need to write to the central
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secretariat of the Commission, detailing the full facts that necessitated such an invocation of powers. However, any member of the Commission may decide on such an application regarding the invocation of powers, and does not need to obtain the Commission's approval through a meeting, or to get the approval of the chairperson. Though this appears to curtail the autonomy and efficacy of the state offices in transacting the assigned business, these procedures appear to be in pursuance of the established legal procedures of the Commission. According to these procedures, all summons have to bear the seal of the Commission. Upon the completion of I/I, a report is submitted by the head of the state office to the Secretary of the Commission suggesting a course of action. Reports of the I/I may be kept confidential through a directive of the Commission.
(b) Advisory Activities
A second type of activity undertaken by the Commission is in its advisory capacity. In performing this role, it interacts with the various state governments and with the Planning Commission. The Commission interacts with the state governments through its members, secretariat and state offices. With the Planning Commission, the interaction is more multifarious and takes place through various committees and working groups. The Commission also undertakes various research activities and studies to evaluate the impact of the implementation of the constitutional provisions aimed at the betterment of the status of the SCs and STs. For this purpose, it may constitute special teams at the headquarters or at the state offices, or collaborate with the state or union governments or with universities and other research bodies. It may also commission studies or give grants for studies to any person or body it deems competent to carry out a study on the themes it deems appropriate. Such studies are either incorporated in the annual report or published separately.
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(c) Monitoring Activities
Thirdly, the Commission carries out monitoring activities, and may determine the specific subjects to be monitored from time to time. As a part of this activity, the Commission may prescribe to any public authority that it submit a periodic report to the Commission on matters over which the latter has authority and control, and to the extent that its activities have a bearing on SC and ST welfare. Further, as a part of its monitoring activity, the Commission may ask its state offices to collect data on specific subjects from governments, corporate and local bodies, and evaluate the data thus collected to arrive at conclusions regarding the deficiencies in the implementation of safeguards. These conclusions are communicated to the concerned authorities along with Suggestions for corrective action and a demand for a reply on action taken in this regard.
(d) Non-formal Action
Finally, the Commission may resort to non-formal action in special cases and matters, which are not strictly covered by law. This is carried out in its capacity as the protector of the interests' of SC and ST communities
The NCSCST: From Genealogy to Morphology
The animating spirit of the Commission is contained in the Preamble to the Constitution that says that the Republic shall Secure to all its citizens, social, economic and political justice and equality of status and opportunity. The Commission reads this in conjunction with Article 46 of the Directive Principles of State Policy which provides that the "state shall promote with special care the educational and economic interests of the weaker section of the people, and in particular of the scheduled castes and scheduled tribes, and shall protect them from
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social injustice and all forms of exploitation". Clearly, the Commission has a strong normative and proactive orientation. It is not just another neutral and impersonal check-and-balance institution for democratic governance and this consciousness is part of the spirit of this institution.
Over the years, the Commission has arrived at a classification of the constitutional safeguards it seeks to monitor and evaluate in terms of five broad categories. These are (a) Social safeguards (b) economic safeguards (c) educational and cultural safeguards (d) political safeguards (e) service safeguards. It is pertinent to note here that this five-fold classification is fairly conventional, and to that extent clearly suggests the discursive underpinnings of the Commission in its actual operation. Further, it is pertinent to note here that the general and normative issues delineated by these constitutional provisions are often clubbed with the procedural and particular issues that have been raised by the legislations that have been enacted in pursuance of these constitutional provisions, as well as the rules that are notified in pursuance of those legislations. Together, they form an organic whole that commands the Commission's attention, and defines the field and modes of its action.
Under social safeguards the Commission has identified four constitutional provisions. These are: Article 17 that abolishes untouchability, and makes the enforcement of disability arising out of untouchability, a punishable offence; Article 23 that prohibits traffic in human beings; Article 24, pertaining to child labor; and Article 25(2)(b) that throws open all Hindu religious institutions of a public character to all classes and sections of Hindus. It is pertinent to note here that neither Article 23 nor article 24 contain any reference to SCs and STs. However, the Commission may deem it fit to bring them within its ambit, on the grounds that the content of these articles is of relevance to the welfare and well-being of those sections of society whose responsibility has been entrusted to it. The Commission argues that the operation of these provisions comes under its scanner as the large majority
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of victims of the traditional practices of forced labor are from these sections of society, and a substantial number of child labourers are also from these sections. Thus, there is a measure of autonomy that the Constitution grants to the institution in its operation, and in interpreting the meaning of Article 338(4) that grants the Commission powers to determine it own procedure. A.
The key legislations that the Commission has identified under these safeguards are: the Protection of Civil Rights Act, 1955 and the Scheduled Castes and Scheduled Tribes (prevention of atrocities) Act, 1989, under Article 17; and the Bonded Labor System (Abolition) Act, 1976, under Article 23. The first two are of central importance to the activities of the Commission, given the magnitude of the atrocities against the SCs and STs and the widespread practice of untouchability in the country. The Protection of Civil Rights Act was originally enacted in 1955, as the Untouchability (Offences) Act, 1955. It was amended to its present form and renamed in 1976. The Act specifies the offences under the constitutional proscription of untouchability, and the modes in which the State and Union Governments are to act in the face of the occurrence of such acts. Further, the Union Government formulated rules in continuation of this Act in September 1977, called the Protection of Civil Rights Rules, 1977. These rules prescribe that State Governments shall appoint an officer of a rank not lower than sub-divisional magistrate for purposes of making an enquiry into any alleged offence under this Act. They also specify the procedures to be followed by the officer, and the timeframe for finishing and submitting the inquiring officer's report. Similarly, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 defines the atrocities and provides for the special courts for the trial of such offences. Once again there is a whole range of rules that have been devised to carry through its intent. These rules include diverse specifications, ranging from definitive preventive measures to be undertaken to the prescription that all State Governments send an annual
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report to the Central Government regarding the measures taken by it in the previous year to implement the provisions of the act. To claim that the Commission has a monitoring function is to say that it is the responsibility of the Commission, and within its powers, to ensure that all the norms invoked in these laws and rules are adhered to, and no procedures are violated in the process of addressing the grievances of the victims of offences, and to point out wherever a lapse has occurred. The Commission can, moreover, initiate an inquiry of is own accord if it wishes to find out if such a violation has indeed taken place, and can fix responsibility and recommend action. However, it is worth noting here that the recommendations of the Commission are not binding.
Under economic safeguards the Commission identifies Articles 23, 24 and 46 (as discussed above) to constitute the general economic safeguards for the SCs as well as STs. Beyond these provisions, it also identifies some specific constitutional safeguards provided for ensuring the economic well being of the STs. The constitutional provisions it identifies relate primarily to the creation and administration of the Scheduled Areas identified in the Fifth and Sixth schedules. Article 244(1) and (2) ordain that the provisions of the Fifth and Sixth Schedules shall be applied to the Scheduled Tribes and Areas in the States identified in the respective schedules, and that they be governed according to the provisions contained therein. The Fifth Schedule is applicable in the States of Andhra Pradesh, Bihar, Gujarat, Himachal Pradesh, Madhya Pradesh, Maharashtra, Orissa, and Rajasthan. The Governors of these States are endowed with special powers and responsibilities to protect the interests of the STs of these States. These powers are geared to prevent the alienation of land belonging to the tribals, as also the encroachment of tribal land by outsiders, and the protection of tribal people from moneylenders. Further, these States have statutory tribes advisory councils to advise the state governments on policy matters related to tribal issues. The Scheduled Areas in the Sixth Schedule States have more
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extensive provisions that aim at providing autonomy to the administration of these areas through the autonomous district councils. These councils have the powers to make laws pertaining to land, forests, shifting cultivation, inheritance of property, marriage, divorce and other social customs. The Commission has also identified Article 275(1) which provides for Parliament to give grants-in-aid to the above listed States from the Consolidated Fund of India to meet the costs of the schemes they undertake for the welfare of Scheduled Tribes and Scheduled Areas in those States as an economic safeguard. •
The Commission has identified Articles 15(4), 29(1), and 350 (A) as educational and cultural safeguards. The most significant of these is Article 15(4) that was added as the First Amendment in 1951. This article empowers the State to make provision for the social and educational advancement of backward classes. This enables the State to provide reservations in educational institutions including technical, professional and specialized courses. The phrase backward classes' used here is a generic term that includes SCS, STs, other backward classes, denotified tribes, nomadic and seminomadic communities. However, the other two provisions that the Commission has identified as safeguards do not specifically mention either SCs or STs, or backward classes generically. These are primarily in the nature of cultural safeguards. For instance, Article 29(1) pertains to the right of people to conserve their distinct language, script or culture, while Article 350 A pertains to instruction in the mother tongue at the primary stage. The Commission identifies both these articles as of special relevance to the Scheduled Tribes and their aspirations to conserve their own culture.
The key political safeguards are contained in Articles 330 and 332, which provide for the reservations of seats for SCs and STs in the Lok Sabha (the directly elected Lower House of Parliament), and the state legislative assemblies respectively. These provisions are to be read along with article 334, which stipulates the time-frame for the reservations, and
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has been periodically amended to extend the period from the initial ten years. Further, political safeguards are provided for STs in Article 164(1) whereby the states of Bihar, Madhya Pradesh and Orissa will have a minister for tribal welfare who may have the additional responsibility of the welfare of SCs and other backward classes. In addition, there are provisions of a political character for STs of north eastern India in the form of special provisions in the Articles 371 A, B, C, D and F that are applicable to the states of Nagaland, Assam, Manipur and Sikkim.
Finally there are the all-important service safeguards, contained in Articles 16 (4), 16(4A), 335 and 320 (4). Article 16 (4) lays down that the State may make reservations for the backward classes in appointments to the services under the state, while Article 16(4A) - which was inserted through the Seventy-Seventh Amendment Act, 1995 - provides for the application of reservations in matters of promotion. Further, a more specific mention of SCs and STs in respect of the reservations in service is made in Article 335 which lays down that their claims have to be taken into consideration when making appointments to services and posts in the union or state governments. Appointments in this respect need not be routed through the Union Public Service Commission or the State Public Service Commissions vide Article 320(4).
A significant component of the Commission's mandate is, as we saw in the previous section of this report, to investigate, monitor and evaluate these safeguards. The Commission's interpretation of these three key terms is also an important aspect of the framework within which it functions. To begin with, the Commission has unlimited power to investigate any matter relating to the safeguards listed above. In the words of the Commission itself, this is a "broad enabling provision". The specifics of the matters to be investigated are decided by the Commission from time to time. Secondly, the monitoring of the working of the safeguards implies keeping a tab on whether all the provisions listed above are being followed everywhere and at all times.
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This responsibility is specific to the Commission in its present incarnation, and was not a part of its earlier forms in either 1978 or 1987. Thus, the Commission has to keep a watch on, and point to discrepancies and deficiencies in, the application of safeguards so that "midcourse correction can be applied immediately". This capacity of the Commission assumes great significance in the event where it has to intervene in cases of atrocities. Here, as a part of its monitoring activity, the Commission immediately contacts the law enforcement and administrative machinery of the relevant state to ensure that the provisions of the Prevention of Atrocities Act, 1989 are adhered to. Its monitoring activity is expected to be carried out Scrupulously, starting from the mandatory visit of the district magistrate to the scene of crime, through the appointment of special public prosecutors, to the last detail of the handling the case by the administration. It further monitors whether adequate medical assistance, protection and mandatory compensation is provided to the victims. It is clear from these observations that, in the understanding of the Commission, monitoring does not mean merely the collection of statistics or figures but is an integral part of the process of intervention and evaluation. However, the evaluative function of the Commission is much broader in scope than as a component of the monitoring process. All programs conceived under the provisions of constitutional safeguards are studied to assess their successes and deficiencies, for the further refinement of programme formulation and implementation. -
Further, as already noted while discussing the rules of procedure of the Commission as well as its duties, the Commission has the mandate to inquire into specific complaints pertaining to the deprivation of rights, and safeguards for, SCs and STs. The Commission has by rule determined that any member of the SC and ST community might lodge a complaint with the Commission, either by addressing it directly to the Chairperson or Vice-Chairperson or Secretary at the headquarters in Delhi, or to the heads of
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with the role assigned to it, and its interpretation of its mandate. At the headquarters, the Commission's office is organized into four wings: the Administration and Coordination Wing (ACW), the Service Safeguards Wing (SSW), the Atrocities and Protection of Civil Rights Wing (APCRW) and the Economic and Social Development wing (ESDW). The ACW takes care of the internal administration of the Commission and coordinates the various activities performed by it, including the setting up of meetings with the administrations of the States and union territories to review the implementation of the safeguards. The SSW engages with all the details pertaining to service safeguards in the several ways discussed above, and also takes care of cases related to false certificates and exclusion/inclusion of castes from the lists of these communities. The APCRW deals with matters pertaining to atrocities, civil rights, bonded labor, and implementing the Minimum Wages Act. It also acts suo moto based on newspaper reports. The ESDW primarily monitors the plan schemes of the Central and State Governments, including the special component plan for SCs, and the tribal sub-plan for STs, land reforms, educational schemes, and so forth.
To conclude this section, stated here is a recapitulation of the main features of the legal and institutional setup of the Commission. The Commission's existence is in accordance with the constitutional provisions that provide for a monitoring agency to look into the working of safeguards provided for the SCs and STs. The rules that give effect to these provisions determine the parameters regarding the appointment, terms of office and removal of the members of the Commission. The Commission is also assigned certain duties and given certain powers by the Constitution. However, these prescriptions are not very rigid, but broad and generic outlines only. This gives the Commission significant autonomy in defining its own field of action and determining its mode of intervention in general terms, as well as on a case-by-case basis. Exercising this autonomy, the
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Commission has identified a wide range of constitutional provisions and subsidiary laws, with which it concerns itself, and has defined the patterns and procedures through which it engages with these concerns. Thus, the Commission has a significant role in both constituting and executing its mandate through its interpretation of the relevant constitutional provisions. Over the years, it also shaped its own institutional structure to suit these specific requirements. Its recommendations and observations, whether in the specific cases it investigates, or in the more general matters of policy formulation or implementation, are not binding. However, the Government is responsible to Parliament regarding its actions of omission and commission in response to the recommendations of the commission. It is from this source that the Commission draws its sanction.
The Functioning of the NCSCST: Core Concerns and Cases
The four published reports for the years 1991-98 reveal that education, economic development, service safeguards and atrocities are considered as the core areas of its concerns by the Commission itself. Two other issues that have engaged the Commission's interest have been the question of land (on which the Commission incorporated chapters in the 2" as well as 4th reports) and false certificates (to which the 3rd and 4th reports devote a chapter each). In considering the land question, the Commission perhaps overreached itself. While there is little doubt that the land question is crucial for the SCs and STs, and that the Commission is well within its mandate to enquire into patterns of land holding and the progress of land reform with specific reference to the benefits incurred by SCs and STs in the process, its recommendation for the regularization and rationalization of land records, streamlining land revenue administration, enforcement of ceiling legislations, and tenancy reforms are made frequently,
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but without being translated into policy. The Commission's efforts appear more meaningful when it addresses itself-as in its Fourth Report - to the more specific issues of the alienation of the tribal land in general and that of the rehabilitation package for the tribes displaced in Madhya Pradesh and Maharashtra due to the construction of large irrigation projects.
Further, there have been occasions when people have approached the Commission with a complaint specifically related to land. A narration of such one such case reported in the Fourth Report may be used to illustrate the way the Commission works with government agencies to ensure that the interests of the SCs and STs are safeguarded.
SC residents of a village in the NCT (national capital territory of Delhi) were allotted a certain amount of land under the 20-point programme of Mrs. Indira Gandhi in 197576. When the Government of NCT Delhi decided to develop that land for commercial purposes in 1995, it sought to reacquire that land. All the while, the allotted had not been given ownership of the land, thus rendering them incapable of claiming compensation for the land now being acquired from them. The victims approached the Commission to look in to the matter and to secure their ownership rights. The Commission, which saw some merit in the matter, took it up with the Government of the National Capital Territory of Delhi. The Commission had two meetings with the officials of the Dehlhi Government, the first on 18th December 1996, and the second on 24th February 1998. On the first occasion, the Development Commissioner Delhi and Sub-Divisional Magistrate (Najafgarh) appeared before the Commission; on the second occasion, deputy commissioner (South-West Delhi), Joint Secretary Revenue (Najafgarh) and SubDivisional Magistrate (Najafgarh) appeared before the Commission. At the end of these two sittings, the government was willing to give the landholders certificates of possession (Bhumidhari rights). However, the petitioners insisted on ownership rights. There was a legal deadlock between the
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government's view, which was premised on a clause of law that guided the distribution of land under the 20-point programme (which proscribed the conferment of ownership rights) and the Commission's view that such rights should be conferred as per the provisions of the Delhi Land Reform Act, 1954. Upon taking this final view, the Commission wrote a letter to the chief minister of Delhi to issue the necessary order and duly incorporated that recommendation in its annual report. Further, it used this occasion to recommend to the Government of NCT Delhi to look into the possibility of amending the relevant portions of the Delhi Land Reforms Act 1954.
This case schematically illustrates the advantages and disadvantages of approaching a civil issue involving the agency of government through the Commission. It is faster compared to courts, and the NCSCST apparently commands enough respect and has sufficient powers to summon high government officials to its presence to present the case to them. However, if a disagreement arises, there is little that the Commission can do to make its decision binding even in a civil matter. It has to make a recommendation to the highest executive authority for the implementation of its decision and leave it at that. If the petitioner(s) choose to pursue the matter further, they have to resort to the regular courts in which the proceedings of the Commission do not have any value. In fact, a lawyer engaged in issues relating to SCS and STs tells us, off the record, that the attitude of the judiciary to any mention of the proceedings of the Commission during the arguments of a case is invariably less than cordial.
The other issue dwelt with at length by the Commission has been that of false community certificates. Over the years, the Commission has received a steady flow of complaints regarding false community certificates. Between 1991 and 1997, it received some 588 complaints of this nature at headquarters, and 1489 of them at various state offices. Most of these were from Andhra Pradesh and Tamil Nadu. To address a problem that has obviously attained menacing
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proportions, the Commission adopted a multi-pronged strategy. Firstly, it put together the relevant constitutional and legislative provisions at a single place in its report. It prepared a checklist to be followed before issuing a certificate. It streamlined the judicial pronouncements on the issue, and recommended the laying down of uniform procedures for issuing certificates across the country. Finally, it used its state offices at Shillong, Hyderabad, Bangalore and Madras to conduct on-the-spot assessments of the credentials of various persons claiming SC and ST status at various offices located within their jurisdiction. These institutions included the offices of the Chief Commissioner of Income Tax, Hindustan Aeronautics Limited, the Vishakapatnam Port Trust, United Commercial Bank, the Life Insurance Corporation of India etc.
Of all the routine sectors of the Commission's concerns, perhaps the area of economic development is the least contentious. On this count, the Commission keeps chronicling the tribal sub-plan of the five-year plans as well as the special component plan for the SCs, and monitoring the implementation of various poverty alleviation programmes administered by the central and state governments.
In the matter of education, the Commission acts as an agent monitoring the development of education among these sections. It also acts as a guarantor of the safeguards provided by the Constitution. In the former role, it regularly monitors levels of literacy, the working of various scholarship schemes, hostels, book banks, etc. In its latter capacity, it acts on and investigates the complaints regarding the violation of constitutional safeguards pertaining to education. However, the complaints received by the commission pertaining to the educational field are not routinely recorded in its Reports, as in the case of service related cases. Only in the second report are they classified and recorded.(see Table 21) As this table indicates, education related complaints are not very large in number.
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Table 21: Complaints received by the National Commission for SC and ST regarding the violation of educational safeguards (1993-94)
S.No Subject Matter No. of cases
1. Denial of admission to schools and colleges
of general education 17 2. Denial of admission to professional colleges 24 3. Nonpayment of stipends/scholarships 6 4. Request for financial assistances/opening of
schools etc 11 5. Harassment of SC/ST students/teachers by
the upper castes 15 6. Discrimination in awarding of marks in
examination/deliberate failing etc. 2 7. Request for the covering of eligibility
criteria for admission in to professional colleges 2 8. Reduction of reservation '%for admission
to the Goa medical college 1. 9. Cases which did not merit commission's
intervention 102 10. Others 22 Total 110
Source: Second Report of the NCSCST (1994)
There is little doubt that by far the most active area of the Commission's interventions is related to service safeguards. In the first year (1992-93) itself, a total of 8,858 petitions were received by the Commission. The procedure followed by the Commission in processing these complaints is: (a) identify the actionable petitions (b) call for the facts from the concerned authorities and organizations(c) check for the violation of a safeguard or serious inconvenience or harassment through a violation of a law or government of
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India orders or instructions (d) ask whether it was brought to the notice of the concerned authorities for correction (e) the cases would be followed up within the limitations of the Commission's manpower. Subsequently, the Commission came up with clear guidelines pertaining to petitioning it. The petition has to be addressed to the chairperson at the national level or the heads of the state offices. The complainant has to reveal her/his identity and address, and the complaint must be supported by the necessary documentation. Most importantly, neither a matter that is sub judice, or on which a verdict has already been passed by a court, would be entertained by the Commission. The complaints received frequently relate to promotions, discrimination and harassment on various counts, institution of disciplinary proceedings on flimsy grounds, the conduct of departmental enquires in an unfair manner, adverse entry in the annual confidential reports, transfer to far off places or insignificant positions, delay in payment of retirement benefits, delay in the completion of departmental inquires etc. (see Table 22)
Table 22: Division of the service related petitions processed by the NCSCSTs (1994-97)
S.No Nature of compliant 1994-96 1996-97
1. Appointments 1375 723 2. Promotion 1480 873 3. Transfer 485 292 4. Harassment and discrimination 940 606 5. Others (disciplinary cases, confi
dential report cases, pay,
appointment on compassionate grounds etc. ) 940 894 Total 5220 3388
Source: Fourth Report of the NCSCST (1998)
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As in all other aspects of its functioning, so also in matters related to the protection of service safeguards, the Commission tries to balance the individual and the institutional imperatives. Thus, at an institutional level, it routinely inspects the upkeep of the rosters of appointments and promotions in major government departments and public sector undertakings, and passes strictures wherever it finds lacunae. It routinely convenes meetings of the liaison officers from various ministries, public sector undertakings, banks etc, to take stock of the situation of SC and ST employees in that sector. At the same time, it also acts on the individual cases that bring to its notice some violation, and tries to draw some institutional moral from it. For instance, an SC candidate working as a graduate teacher in a government-aided secondary school applied for a postgraduate teacher's post lying vacant in November 1994. Despite his eligibility, the school did not consider his case. When he approached the Commission, it took up the matter with the school management and the chairperson of the management committee was summoned to the Commission. It came to be revealed that though a vacancy was indeed projected, another person was recruited just five days before the SC candidate was due to get his postgraduate degree. The Commission held that the action of the management amounted to showing discrimination to a person belonging to a scheduled caste and directed the school management to promote him at the earliest. It also told the Delhi Government to ensure that the interests of the SCs and STs employees are properly taken care of in stateaided Schools.
Finally, a key concern of the Commission has been to monitor the atrocities being perpetrated on the scheduled population. The Commission engages in this task on several counts. It monitors the statistics of crimes against the scheduled population. When an atrocity comes to its notice, either through a petition or through a media report, it acts in the way that it deems fit. It might ask the state office in a particular region to look into it, or a member or members of
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the Commission may hold an on-the-spot inquiry in to the incident, and camp in the place where the atrocity was committed to pressurize the district administration to act promptly.
The NCSCST: Perceptions and Anxieties
The responses of various people who have been or are engaged with the Commission in different capacities at various points in time present an interesting picture. From our detailed interview with Mr. B.S. Parsheera, Joint Secretary to the Commission, we learnt from his insight that in spite of the constant demand for 'giving the Commission more teeth.’ (meaning that its decisions be made binding on the party against which the Commission decides), such a move would put into jeopardy the entire logic of the institution, as the Commission would then be inundated with litigation. Thus, it could be argued that the Commission works best with the moral authority that it presently commands, arising out of its constitutional status. All in all, the institution in its present form is as good as the members and the chairperson and deputy chairperson are.
However, this institutional logic does not appeal to Mr. Waman Meshram, National President of the All India Backward (SC, ST, OBC) and Minority Communities Employees Federation (BAMCEF), an influential organization that champions the cause of Dalit Bahujans'. BAMCEF is an organization of government and semi-government educated employees. It describes itself as a non-political and non-agitational organization. It organizes the educated class of these sections to act as agents of change in society. The most important fact about this organization is that the present day Bahujan Samaj Party (BSP) was an outgrowth of it. Mr. Meshram rejects the institution of the National Commission in its present form in toto. He argues that in its present form it has become a rehabilitation centre for politicians. In his opinion, the earlier commissioner's office, manned by an IAS
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officer, was much more efficient. This was despite the fact that it had a limited mandate, being primarily a body systematically collecting enormous amounts of data and regularly presenting these in Parliament. To illustrate his point, he identified two instances of the working of the safeguards that the Commission, in his view, deliberately misrecognizes. The first of these pertains to the working of the political safeguards. In the last ten years of its existence, the Commission has never even mentioned the existing system of political safeguards for the SCs and STs, let alone attempting an evaluation of their efficacy. He simply does not believe in this institution, and claims never to have approached it.
Mr. Ram Raj, National President of the All India Confederation of SC/ST Organizations (Confederation), adopts a more moderate posture. This organization was formed in 1997, with the specific agenda of protecting the service related safeguards of employees but has, of late, diversified into political Buddhism. As someone engaged with government employees from the SCs and STs, Mr. Ram Raj has had a ringside view of the working of the Commission from the perspective of the petitioners. He shares the view of Mr. Meshram in holding that in its present form the institution is politicized. However, he does not dismiss the institution entirely, in the way that Mr. Meshram does. Instead, he engages with the institution and describes the experiences of the people who approach it with some grievance or the other, and seeks to locate the reasons of its shortcomings there. According to him, the Commission routinely issues letters which are to be replied to within 30 days, to the concerned departments asking for the facts pertaining to a complaint. But no department complies with that request. To ensure that the Commission takes an interest in pursuing the matter, one needs to approach the chairperson or the members of the Commission and get them interested in the complaint. Under these conditions, it is not difficult to imagine the plight of a complaint that reaches the
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Commission by mail. Despite the routine and prolonged delays in answering the queries, rarely does the Commission issue summons on any official, even though it is authorized to do so. Further, when the long awaited hearing before the Commission members actually takes place, the officials of the concerned department come prepared with their answers, and the petitioners often lose out as the Commission members do not have expertise in the technicalities relating to the law and service rules. The last straw is that even when the officers of the concerned departments agree, before the Commission, to carry its directions and resolve the matter in favor of the plaintiff, there is no guarantee that such a commitment would be implemented. It is not uncommon for the Commission's instructions to be totally disregarded as they are not binding in any way, and there is a standing office memorandum issued by the secretary, Department of Personnel and Training (dated 1st January 1998) that clearly states that the Commission's instructions are not binding in any way. Mr.Ramraj also finds it totally unacceptable that there is no audit of the performance of the members of the commission or its chairperson once they are in the saddle. He is of the view that people with specialized knowledge of law should be appointed to the Commission.
Perhaps the most interesting and engaging responses we received were from Mr. P.L.Mimroth, whose views are neither dismissive nor complaining but creatively critical. Mr. Mimroth is a social activist and an advocate by profession. He has been associated with the National Campaign on Dalit Human Rights since 1998. Since December 2001, he has been based in Jaipur, Rajasthan organizing a center for the human rights of Dalits, with the aim of spreading human rights education in the potential victim population, to organize factfinding committees in the event of atrocities, and to sensitize the bureaucracy. Mr. Mimroth did approach the Commission several times over the past 20 years of his activist career, but claims that he never got justice from the Commission. He points out that Article 338(5) of the Constitution, which
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details the Commission's duties, reads "it shall be the duty of the commission...' He argues that the 'shall' in that Article implies that it is mandatory for the Commission to perform all the duties ordained in the Constitution, and that it is the duty of the State to provide the wherewithal necessary to accomplish this task. As a human rights activist, he has often had occasion to refer to the Commission cases of victims of atrocities to whom due compensation is not promptly given by the state government under the Prevention of Atrocities Act (1989), so that it may direct the government to act on it. These applications are sent along with all the documentation, which normally include a copy of the First Information Report (FIR), newspaper reports of the incident, sworn affidavit by the victim, and a copy of the correspondence between the victim and the concerned authorities. In the normal course, the Commission responds through a routine letter stating that the complaint is taken note of, reference is made to the appropriate authority and 'we will advise you later'. This reply from the Commission might take anywhere from six to eight months from the date of the complaint being lodged. Once it arrives it might take a minimum of one year and beyond to receive a final word from the Commission, which is in most cases is likely to be a negative verdict, citing the logic of the governmental authorities. According to Mr. Mimroth, this occurs primarily because, once the petition reaches the Commission they would be referring it to the same authority - revenue or police - that is complicit in the perpetuation of the atrocity in the first place, or one which is actively engaged in the cover-up operations. Not very different is the case when a complaint is lodged by an employee regarding discrimination faced by him or her in the workplace. In the opinion of Mr. Mimroth, this situation of inordinate delays and utter injustice can only be redeemed if the Commission gets its own autonomous investigative agency to carry out both criminal and civil investigations. The necessary structure for such an agency could be created by transferring the control of anti-atrocity cells - working in
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almost all state governments under various names - to the Commission, to form a centrally administered investigative agency. Another suggestion is to empower the Commission along the lines of the Election Commission, which assumes powers to punish erring officials during the brief period of the polls. On similar lines, the Commission could have the authority to transfer or suspend the erring official in the case of an atrocity and a proven failure or complicity on the part of the authority involved. Further, Mr. Mimroth argues for a system of trial courts across the county that exclusively try the cases pertaining to the atrocities and work under the general supervision of the Commission.
Clearly there is a wide and diverse range of opinions even amongst the leadership of the scheduled population, about the nature and effectiveness of the Commission. This ranges from outright rejection to critical engagement. However, there is an overwhelming consensus that something is wrong with the existing set-up and its working, and drastic measures are required to set it right.
Performance, Evaluation and Recommendations
At its simplest, the mandate of the Commission is to investigate, monitor, evaluate, and advise regarding all matters pertaining to the constitutional and legislative safeguards for SCS and STs. In addition, it has to periodically report on its findings, observations and recommendations to the President of India. In the light of the foregoing discussion, we may reasonably conclude that any evaluation of the Commission's work should proceed from a discussion of the Commission's own interpretation of its mandate in general, and at each instance of its execution. In other words, the Commission may appear to be performing its functions in an exemplary manner if the yardstick of judgement is the Commission's own interpretation of its constitutional mandate. At the outset of this paper, a distinction was made between an internalist and an externalist evaluation of an
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institution. The internalist perspective is open to the charge of viewing the Commission's functioning in a limited way. It can even be seen as less than sensitive to the spirit of the constitutional provisions that animate the very purpose and being of a Commission such as this. However, by adopting an externalist/transcendentalist point of view, the functioning of the Commission can be evaluated in terms of the spirit of the constitutional provisions. Further, it is relevant to note here that the actual work of the Commission does not always follow the analytical distinctions between the activities mandated (viz., investigative, monitoring, evaluative, and advisory), and the constitutional and legal provisions it has identified as its guiding principles. More often than not, these activities are carried out in the rather mundane terms dictated by the essentially administrative division of the Commission's work into education, economic development, service safeguards and atrocities.
It appears that the Service Safeguards Wing is the most active wing of the Commission, though the section related to this area of operation is generally found towards the end of the Annual Reports of the Commission. The wing that deals with service safeguards at the headquarters has the largest workload and the largest work force (with the sole exception of the general administration wing). The recommendations of the Commission in respect of general policy-related issues in this area are more specific, and its inquiries into specific complaints are more effective. This is only to be expected as this wing caters to the needs of the elite created among the SCs and STs during the last fifty-five years of the working of the safeguards.
One may reasonably conclude that the Commission is prompt and effective in monitoring service-related safeguards. It has been going to great lengths to pinpoint exactly where the violations are occurring and specifying the measures that should be undertaken to improve the situation. The Commission has continually monitored recruitment patterns and promotion procedures adopted by the
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government, as well as those in public sector enterprises, nationalized banks, scientific and technical posts and university services. Significantly, it has recommended the application of the reservation policy in other institutions that receive grants-in-aid from the government. It has taken special interest in such significant detail as writing of the annual confidential reports of SC and ST employees by their superiors. It has actively investigated complaints regarding the denial of time-bound promotions or the abolition of reserved posts or discrimination in the matters of promotion. It has also actively endorsed the unionization of SC and ST employees at various levels of government, and in particular in public sector units and nationalized banks, and also recommended the recognition of these unions as legitimate bargaining partners with the management, even outside of the majority union. Further, it has insisted on, and succeeded in institutionalizing the system of liaison officers and special SC and ST cells in all central ministries and public sector enterprises for the speedy and effective resolution of the grievances of employees of these communities. These cells are also expected to work as localized monitoring agencies as far as that particular institution's activities have a bearing on the wider population of SCs and STs. However, the Commission places emphasis on these cells as grievance redressal mechanisms, in the first instance, rather than anything else. The most compelling evidence that the Commission is investing much of its energy and resources into this area is that, in this area, the experiences of the Commission in addressing specific as well as general complaints are systematically being translated into institutional strategies both within and without the Commission.
One issue that has been given rather extensive attention over the years by the Commission's service related complaints wing is the prevalence of false certificates. In its third report, the Commission devoted an entire chapter to this issue. It used its field organization to conduct investigations regarding
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the circulation of false certificates and came up with a check list and a set of recommendations for streamlining the process of issuing such certificates.
A second significant area of intervention is education. The Commission, as is expected, monitors the education of SCs and STs at all levels starting from literacy rates to higher education in all its aspects. Significantly, this is one sector of safeguards in the monitoring of which the Commission has shown some sensitivity to the internal differentiations, relative levels of deprivation and marginalization within the SCs and STs, along gender and community lines. Over the years, it has taken special note of literacy rates among the SCS and STs in general, and particularly female literacy rates, in comparison with other sections of the population and across different states. It marks the tendencies in enrolment at the primary level and dropout rates at successive tiers of the educational ladder. It also monitors the working of book-bank facilities and various scholarship programs at all levels, and has paid special attention to the creation of hostel facilities for these sections. Most complaints received by the Commission in this sector relate to the denial of, or discrepancies in the application of, reservation policy. In its third report, the Commission came out with a comprehensive set of recommendations regarding the changes it considers desirable in this sector. These include a demand that the Ministry of Human Resource Development prepare a ten year perspective plan to bring the educational standards of SCs and STs on par with the general population; significant curriculum reform; the setting up of residential Schools for better quality education; placing special emphasis on nonformal education etc. The key problem in the Commission's approach here appears to be that it lacks a general philosophy of education, and the role that education can play in the betterment of these communities. From such a perspective alone could emerge a more comprehensive list of recommendations which, when implemented, would give definite shape to the welfare profile of these communities.
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A third issue that the Commission addresses itself to is that of atrocities. Its chief thrust in this respect is twofold. One, it monitors the implementation of the various legal provisions in force regarding such occurrences. As such, it collects and comments on the statistics pertaining to cases under the Civil Rights Act, 1955 and the Prevention of Atrocities Act 1989. The data collected by the Commission typically relates to the number of cases registered under each of these Acts, the ranking of states in terms of the incidence of such events, conviction rates, and so on. Significantly, the Commission pays special attention to the atrocities perpetuated by police personnel on the population of these sections. A key monitoring activity performed by the Commission pertains to the setting up of special courts for the speedy trial of offences under the Civil Rights Act and the Atrocities Act. It also monitors the case disposal rates of these courts. Over the years, the Commission has conducted several on-the-spot inquires into complaints of atrocities. While this is a significant contribution, there is a certain irony in the fact that the Commission has never deemed this an issue worthy of detailed study, with the objective of generating a comprehensive set of recommendations, as has been the case with service related complaints, the circulation of false certificates or reservations in general. This inability may be due, at least in part, to the inherent elite bias in this institution, and partly to the fact that the Commission primarily addresses itself to the State rather than to civil society and public discourse. It places far too much premium on the formal mode of raising such issues in the report as would be debated in Parliament. Thus, wherever it could suggest statutory changes, or lay down procedures, the Commission is earnest in intervening. However, where an analysis of social realities is required or normative prescriptions or fundamental changes are necessary, it has been reluctant to play a role.
The singular exception to this observation is perhaps the land question that the Commission raised in its second report.
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Here, the Commission established beyond doubt that the vast majority of the workforce in the agricultural sector is from the Scheduled Castes. It systematically unraveled their plight through the marshalling of Statistics pertaining to occupational holdings, average size of holdings, etc. It addressed the all-important questions of land reform, land records, and the streamlining of land revenue administration. It recommended land ceiling and the redistribution of surplus land by various state governments. It also suggested a range of tenancy reforms and several measures to prevent the alienation of tribal land. While we may uphold this as an example of the earnestness of the Commission in not only safeguarding but even advancing the interests of the SCs and STs, ironically this very move forcefully draws attention to the limitations of this form of institution. The entire political class of India has paid lip Service to the agenda of land reforms. In the face of such overwhelming consensus, the Commission's recommendation has little effect. The Commission has failed to raise inconvenient questions and place them forcefully before the highest representative body of the country. The existing mechanism of annual reports is rendered ineffective in the face of what may appear to be an all round conspiracy of silence or the din of empty rhetoric. Thus, one crucial point to be kept in mind while evaluating the mechanism of this Commission, or suggesting any changes in its working, is precisely where and how to pitch the interventions so that they optimize its efficacy.
Before we proceed to a set of tentative recommendations, we should examine the performance of the Commission in the sector of economic and social development of SCs and STs. Interestingly, until the second report of the Commission, the activities in this area were described as economic development of SCs and STs, covering primarily issues arising out of the planning process and plan implementation, such as the tribal sub-component in the Plan; centrally sponsored Schemes such as the Integrated Rural Development Programme; wage employment programmes; the provision
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of institutional finance; the functioning of the various tribal development corporations; various poverty alleviation programmes, etc.. The monitoring is largely effected through the compilation of statistics. However, in the third report, a separate chapter was added on the development and welfare of STs, which gave the Commission an opportunity to focus on issues that affect the tribal population. Here, the Commission dwelt at length on issues such as the implementation of the Forest (Conservation) Act, 1980, which infringed on the traditional rights of tribal people, apart from retarding the process of claiming forest land for purposes of establishing service institutions like hospitals and schools. It also focused on issues like shifting cultivation, which it sought to discourage Systematically in favour of settled agriculture. Finally, the Commission has taken cognizance of the fact that a large section of the SF population is being affected by the construction of large dams, and has recommended that appropriate rehabilitation plans for these people be put in place. It has also formally taken the position that human costs, apart from the contribution of a project to the national economy, shall be carefully weighed before embarking on development projects. For reasons already noted, such observations by the Commission are largely ineffectual, but the fact that they are recorded by the Commission is significant in its own way. Finally, it is indeed a significant move on the part of Commission to devote a special section to the concerns of the STs. It indicates that the institution is sensitive to the differences between SCs and STs which have been clubbed together chiefly by a stroke of constitutional accident.
Recommendations
The following observations are apposite by way of recommendation. The performance of the Commission seems
to be critically dependent on two aspects: its report and the individuals who hold office in it. These aspects are usually
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overlooked in favour of a "give more teeth to the Commission argument, but appear to be critical to improving its performance. The argument that the Commission is a paper tiger which needs to be armed with greater powers is premised on an inadequate appreciation of the location of the Commission in the existing constitutional setup. To give the Commission additional powers, in the matter of criminal investigation for instance, would require it to follow prevailing rules and procedures pertaining to evidence and prosecution. These may in fact retard the effectiveness of the Commission by rendering it vulnerable to litigation in the form of appeals to higher judicial bodies, and thereby nullifying its operational effectiveness, diluting its moral Stature.
1. The Annual Report that the Commission is required to submit to the President is a crucial activity of the commission, the importance of which is generally overlooked. The delay in submitting and discussing reports has been remarked upon by members of Parliament over the years. The Commission claims that it is up-to-date in the preparation of its annual reports, and has sent all these at the ordained time. However, the last report to have been discussed in Parliament pertains to the year 1998. The delay in presenting the report to Parliament is attributed to the requirement that the Action Taken Report of the various ministries and departments be appended to it before it can be presented to Parliament. This process takes an inordinately long time, sometimes on account of administrative reluctance to act on the recommendations of the Commission, the failure to do which would invite censure in Parliament. As a result, the Report is generally tabled several years after the period to which it pertains, and is barely debated. In this way, the procedures and the lack of political will in adhering to the spirit of the exercise actually render it infructuous. Clearly, an amendment
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is required either in Article 338 itself, or in the rules by which the President may fix a period for the discussion of the Report in Parliament. This would give greater weight to the sanctions behind the Commission's activities.
The quality of reports in terms of the data they contain, and the manner in which the data is organized, has also been declining over the years. Comparisons are often made with the first ten reports prepared under late L.M. Shrikant and the decline in quality thereafter. Part of the reason for this negligence may be that the Commission in its reinvented form since 1991 - with more members, powers and a redefined mandate - takes its interventionist activities more seriously than its report making duties. However, it would do well for the institution in the long run to pay more attention to an activity that perpetuates its legitimacy. The reports of the Commission have all along depended more on statistical data than on qualitative data regarding the changing nature of relationship between various communities and SCs and STs as well as within these communities. This preoccupation with statistical data is also reflective of the self-image of the Commission as an organ of the state rather than as an autonomous body concerned with the welfare of SCs and STs in the widest sense of the term. We believe that it would be appropriate for the Commission to undertake qualitative studies, commission social anthropologists and other social scientists to do these, and to institutionalize mechanisms by which contemporary changes and transitions in the social structure can be mirrored, recorded and acted upon. In this manner, the Commission would also become more responsive to societal issues like the changing context of untouchability and intra-group conflicts of interest, and contribute to the debate in civil society.
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3. It has been frequently observed that the personality, experience, and stature of the members appointed to the Commission is a key determinant of its effectiveness. In the light of these observations, and the oft-repeated allegation that the membership of the Commission is a green pasture for the politically unemployed, a less arbitrary and more thoroughly institutionalized way of appointing the Chairperson, Vice-Chairperson and other members, may be appropriate. The spirit of these changes should inform the institution itself such that it is substantially democratized. At present, the functioning of the Commission is premised on a rather narrow interpretation of what constitutes its mandate and which classes come under its purview. The Commission should go beyond these legalisms, to be proactive in matters relating to the welfare of, and safeguards for, the SCs and STs. This can be ensured only if the process of appointment of to the Commission is made more autonomous of the government of the day. It would be desirable for the members of the Commission to be appointed through a political process that is consensual. This would significantly enhance the ability of the Commission to venture into sensitive areas such as assessing the efficacy of the political safeguards given to SCs and STs that is practically overlooked in all the reports.
4. The existing priorities of the Commission are visibly lopsided in favor of the elite of these communities. The fact that it is most effective in the area of service-related safeguards speaks for itself. This bias is willy-nilly accentuated by the fact that the Commission acts on complaints, and it is the more upwardly mobile sections within these groups that are articulate and capable of mounting claims. The Commission needs to be sensitive to the exclusions that the lack of education and
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information may engender. It should ideally use its suo moto powers more actively.
It would be desirable for the Commission to continuously engage in an internal evaluation of its priorities, and to redefine them in a substantively more egalitarian way so as to accomplish its mandate in the spirit in which it was intended.
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Diagnostic Study of Ministry of Local Development(MLD) and the National Human Rights Commission (NHRC) of Nepal
Nepal South Asia Centre
Introduction
Nepal South Asia Centre (NESAC) carried out the diagnostic study of the Ministry of Local Development (MLD) and the National Human Rights Commission (NHRC) Nepal. This research was guided by a belief that inclusive democracy is necessary for peace, justice and stability in the region.
In November 2000, a declaration: Colombo Principles Ot the Protection of Diversity in South Asia " was produced by the delegates of the conference - Diversity and Pluralism in South Asia, organised by the International Centre for Ethnic Studies (ICES). These principles stressed the need for restructuring institutions in the sub-region for promoting inclusive democracy. The promotion of inclusive democracy requires going away from the current majoritarian model that most of the countries in the sub-region have adopted, towards a more inclusive system of governance, as the present model is not suitable for culturally diverse South Asia. Respect for this diversity is an essential prerequisite for a democratic Society. This requires acceptance of diversity as an important aspect of human rights.
This, in turn, requires participation in the political process of the country at every level - national, regional, and local. Development plans have to be analyzed as to their impact on the rights and lives of the minority communities. This is ever more important as the development model being followed in the region has led to destructive impacts on the livelihoods of many communities.
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The public institutions established for the promotion of diversity should be accessible to all and transparent in their functioning. They should, at the same time, be equipped with the power required for enforcement, punitive sanctions, and the payment of compensation to victims. The composition of these institutions and their activities should reflect the diversity of the country and the sub-region.
Similarly, civil society is an important component of democracy. In a situation of diversity, like that of South Asia, civil society also should reflect this: both in terms of its composition as well as the issues and activities that it gets involved in. The media is an important component of civil society. The participation of diverse groups in the political process cannot be effective unless civil society also becomes inclusive enough to raise these issues.
The political change of 1990 led to the adoption of a parliamentary Westminster model of representative democracy in Nepal. This political change also led to the promulgation of a new Constitution which would ensure fundamental rights of the citizens and, for the first time in Nepali history, bestow sovereignty on the people. The openness resulting from the provision of fundamental rights provided space for assertions of hitherto marginalized sections of Nepali society.
The assertions of janajatis (nationalities), women, dalits, bonded labourers, peasants and rural people had not been this intense in Nepali history before. They are asserting their rightful place in the affairs of every sector of the nation-in politics, in civil society, in the media and in the economy.
These assertions in Nepal, following the political change of the 1990s, highlighted, among other things, the highly nonrepresentative character of the majority of public institutions in Nepal. The assertions of these hitherto marginalized sections of people has also led to the gradual realization by the public of the limitation of the majoritarian model of democracy that Nepal adopted in the aftermath of political change in 1990.
Though political parties differ in approach in dealing with exclusion of large sections of the population from public
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institutions, most of the political parties have accepted that there is a divergence between the aspirations of large and diverse sections of Nepali Society to participate in the affairs of the nation and the structures which still do not allow much room for these aspirations.
For example, most of the political parties have participation of the hitherto marginalized sections of Nepali society as an important component of their campaign manifesto. There have been some policy changes as well.
The establishment of National Committees for the Development of Nationalities (Rastriya Janajati Bikas Samiti) and Committee for the Development and Upliftment of Oppressed, Marginalized and Dalit Community (Utpidit, Upekshit, Dalit Samudaya Utthan Bikas Samiti) is significant in that context. The plan documents, especially since the ninth five year plan, has also recognized the specific need of including diverse communities in the process of governance.
Moreover, the government also passed the Local Governance Bill in 1998 which had specific provisions regarding the participation of marginalized sections of the population in local bodies. Besides that, there have been several government programs aimed at uplifting marginalized sections of Society. The Ministry of Local Development has been an important agent for formulating as well as implementing all these decisions. The above mentioned two committees are part of the MLD itself. Local governance is also an important concern within its operation.
The formation of the National Human Rights Commission (NHRC) is another significant achievement as far as the protection of fundamental human rights enshrined in the new Constitution is concerned. This institution is very new compared to MLD and is evolving as time goes by. What role it can play in making the structure of governance more inclusive and respectful of diversity is yet to be seen.
In Nepal, the human rights discourses - both in civil Society as well as in State institutions - are yet to adopt the aspect of
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diversity as part of human rights, though this situation is slowly changing. In the interviews for this research, some of the commissioners of NHRC accepted the need for incorporating the issue of cultural and social rights in the functioning of the institution itself. In civil society too, there is gradual realization of going beyond the civil and political rights to include the rights of diverse communities as important aspects of human rights.
Study of the MLD and the NHRC
The major question that this study tried to address was whether the Ministry of Local Development and the National Human Rights Commission are conducive mechanisms for the promotion of diversity in Nepal, albeit in their different roles. In terms of size, the Ministry of Local Development is a huge structure, whereas the NHRC is newly established and is a relatively small one. Similarly, MLD is composed of several committees, programs and projects and, therefore, not a monolith. More specifically this study tried to find out whether these institutions were accessible, transparent and inclusive in their functioning and structures.
This study was carried out during July–October, 2001. The methodologies used included interviewing of members and stakeholders of the institutions; literature review and media analysis; participation in meetings and seminars. The interviews with present office bearers and ex-office bearers of institutions which had relationship with the MLD - either through the committees or through different programs - provided important insights into the actual functioning of the ministry.
Though no specific meeting was organized for the purpose of this research, the researcher had the opportunity to participate in meetings and seminars which were directly or indirectly related to the topic of the research. These meetings provided important insights into the experiences and perceptions of different actors about the Ministry and the Committees within it.
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The goals of these institutions under study were not focused exclusively on the protection of diversity when they were established. They, however, are now the two main institutions which could contribute towards that goal through their own programs and also through their role in providing inputs to government programs and policies, as well as to civil society. MLD is not an autonomous body. NHRC is a legally autonomous institution. However, institutions operate within the larger political context. MLD came into being during the Panchayat era whereas NHRC is a newly established constitutional body. The MLD is particularly amenable to direct influence of the political parties which have control over political power. The policies and programs that it takes up have to be approved by the Cabinet of the Ministers. The decisions are subject to a number of other influences - pressure from civil Society, Nepal's commitment to international declarations and legal instruments; the pressure from opposition politics, among many other things. The role of the NHRC is different from that of the MLD in that while the former was set up as an autonomous body to provide feedback to the government in its handling of human rights issues in the country, the latter is part of the government itself and is involved in mostly development projects.
Until the restoration of multi-party democracy in 1990, the MLD was not concerned specifically with the goal of protecting diversity in the country. Its mandate was based on the goals of modernization and promotion of a dominant culture throughout the country during the thirty-year Panchayat regime.
Most of the work of the Ministry and the Local Development Department prior to 1990 were aimed at training local political leaders. This training emphasized the necessity and virtue of the Panchayat system based on active and absolute rule of the king. For example, one of the ministry's important activities was organizing regular training workshops and publication of materials. The curriculum of the training was largely focused on promoting the ideology of monarchical rule
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and the virtue of the panchayat system. The publications also reflected this. The other goal was to carry out regular development work through its offices in the districts.
This began to change after the political change in 1990, which opened the door to public debate about cultural plurality in the country, and raised questions about the nature of State institutions themselves. Moreover, this new open political space provided opportunities to the hitherto marginalized sections of society to raise questions about the very structures of polity itself. This also brought into open public debate the issue of diversity of cultures and the need of redefining the national identity itself (Pfaff-Czarnecka, 1994: 419).
This is reflected in the cultural politics that emerged in the aftermath of the political change of 1990. While the development rhetoric still remains, what has been added in the present context is the issue of participation of people in the political process itself. It is in this light that the evolution of the MLD and the NHRC will be discussed
The Ministry of Local Development (MLD)
This is a government institution. This ministry was called the Ministry of Panchayat and Local Development prior to the political change of 1990. It does not have full autonomy in its functioning. The area of work of this institution is delineated by Cabinet decision as per His Majesty's Government Regulations. Each year the government brings out procedural decisions through its gazette which defines its area of operation. Therefore, the party in power will have much leverage in defining the framework within which this institution works.
The major area of its work includes the development work being done through local government bodies such as the Village Development
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Committees, the Municipalities, District Development Committees and the Municipal Corporations. It also undertakes some of the centrally run developmental projects. In addition, it has some central institutions operating under it.
This Ministry comprises several institutional structures within itself. It has several branches, district offices, committees and regional directorates. Therefore, this is, in fact, a conglomerate of institutions, rather than a single monolith. While some of these institutions are under directjurisdiction of the MLD, others function as semi-autonomous bodies. For example, the regional directorates are under the direct jurisdiction of MLD, whereas the local elected bodies such as District Development Committees, Village Development Committees and Municipalities are semi-autonomous bodies. Some of them also have their own legal framework for functioning.
As with most other government institutions, this evolved within the context of Panchayat system and the structure as such has been carried along in the post-Panchayat political environment as well until now, except with a few additions and subtractions in the aftermath of the political change of the 1990. There are three distinct phases of its emergence and evolution. The Ministry itself was established in 1981, as an outcome of the evolution of institutional Setups and experiments prior to that.
Modern state institutions, of which MLD is an important one, began to evolve in Nepal in the post-1950 era of development. There were two aspects of this new reality: the new political dispensation as well as the beginning of the modernization and development process in the country. The post-1950 period can
be divided into three important phases:
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1950-1960-beginning of development process and construction of Nepal as 'development laboratory' as well as experimentation with multiparty democracy; 1960-1990-the Panchayat era marked by the absolute rule of the king and politics for development' rhetoric; post-1990, as an open political space, which is evolving now.
These divisions are important markers as far as the nature of institutions that emerged are concerned. The different political contexts in these three phases defined the way institutions functioned and evolved. They also determined, to a large extent, the kind of structures they assumed. The three phases of its evolution are described in detail, below.
Pre-Panchayat Era: 1950-1960
Political revolution in 1950 replaced the 104 year old Rana oligarchy with multi-party democracy in Nepal. This political change coincided with the opening up of the country to the development process in the 'underdeveloped areas of the world' (Esteva, 1992). The beginning of the modern institutional system of the State in Nepal, therefore, occurred in tandem with the beginning of the 'development era'.
On January 23, 1951, Nepal signed the Agreement for Technical Cooperation with the United States Overseas Mission (United States Agency for International Development-USAID now). The main objective of this agreement was to initiate community development processes under Point IV program that the then President of the US, Harry Truman, had announced in the aftermath of World War II on January 20, 1949, during his inaugural speech. This program is the beginning of what is called the 'development era' in most of the developing world.
The seed of MLD could be traced to the initiation of this community development program in the country. Called
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Tribhuvan Gram Vikas Pariyojana (Tribhuvan Village Development Project), this was based on the US model of community development. This approach was based on the assumption that what Nepal lacked were some technical inputs and knowledge-e.g. modern agricultural techniques, health services, roads, etc., which the American technical advisors would provide through this project.
PrePanchayat Era (1950-60)
Ø Political experiments of multiparty democracy begins
after the end of Rana Rule in 1950 Ø Ushering in of Community Development Projects and beginning of development/modernization process in the country Ø Some training centres were established for training what were then called 'Gramsevaks' (Male village workers and Gramsevikas (Female Village Workers) Institutionalization of government budget and establishment of ministries and departments Ø Local governance structures began to be set up under community development program Administrative system was beginning to be overhauled and modernized. The administrative system existing then was the legacy of Rana rule.
There was initial optimism among the American Technical advisors. They were confident that Nepal would march on selfSustaining development once a few missing components were added. According to them, the missing components were the modern technology of health, farming and community building. The new multi-party political system ran through ups and downs from 1950 to 1960. The promise of the King to hold a Constitutional Assembly for the purpose of drafting a democratic
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Constitution was never fulfilled. The essential feature of politics during that time was the desire of the monarchy to hold absolute power. A Constitution was drafted and promulgated by the king in 1957, which led to holding of elections for the parliament. This resulted in the Nepali Congress Party coming to power with a sweeping two-thirds majority. However, the elected government was dissolved after eighteen months in office and the King took charge of national affairs with his military might on 16 December 1960.
During the fifties a few initiatives were taken to set up institutions at different levels. The government budgeting was institutionalized. The planned process of development was initiated with the beginning of a five-year planning process. Ministries and departments were beginning to be formed. It was during this time that some institutions for local development were beginning to be created. The initiatives were, however, rather experimental in nature and limited in scope.
The United States Overseas Mission (USOM which later became United States Agency for International DevelopmentUSAID) tried to refocus away from projects towards building and strengthening of institutions for the delivery of government services in the last years of the fifties. A summary of its report in 1959 reads: "The need to expand these services to every district, every area, every village, is essential to the successful establishment of a democratic way of life.... Only as a government shows a Satisfactory response to the felt needs of its people can a democratic government exist" (quoted in Skerry et al. 1991).
During the fifties a few training centres were established in different parts of the country and a few thousand village workers were trained. The community development program envisaged creating a large pools of development workers in the forms of gram sevaks (village workers-male) and later gram sevika (village workers-female).
The village development program (Tribhuvan Gram Vikas Karyakram) was later transferred to the Ministry of Planning and Development (Skerry et al. 1993:38). A training School for
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Village Development Workers was started in July 1952 in Kathmandu. Later several village development centres were established in different parts of the country including in Kathmandu, Biratnagar, Pokhara, Hetauda and Butwal. More were added in subsequent years.
Initially, these village development centres were managed by the USAID staff, but later the first plan was transferred to a Nepali team of managers. The cluster of Village Development Centres formed into District Development Committees, which were chaired by a district governor. His authority included providing grants to local Self-help projects and for small public works. The governor was appointed by the Cabinet of Ministers. The first five year plan envisaged the expansion of this village development program throughout the country with the ultimate aim of creating a network of institutions under the Ministry of Planning and Development (Skerry et al. 1993:42). All these attempts were not leading to institutionalization because of political instability as well as the instability of approaches by the donor, especially the USAID (ibid.).
The elected government was dissolved and an absolute monarchical political system was established in December 1960. This changed the context of the evolution of institutions in the country.
The political instability and conflicts was not conducive to the establishment of state institutions during the fifties. Moreover, the initial optimism about community development rolling on automatically after some initial push from American money had run through a very complex and tortuous course in the subsequent years. For example, after about sixteen years of community development, one advisor to the USAID office in Nepal confessed:
"The changing of people's attitudes and the building of those institutions which makes possible the functioning of a participant form of political organization is not Something which can take place by decree. Perhaps the
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time required for modernization in Nepal should be seen to be much longer than had been earlier thought. Perhaps 5-year or even 20-year plan projections are unrealistic" (Cool 1967, quoted in Skerry et al. 19931991):132).
However, the goal was modernization and the need was to 'change people's attitudes and building of institutions for the functioning of a participant form of political organization'. Therefore, Nepal was not a culturally plural, but rather an underdeveloped country in need of modernization. This formed the basis of institution building and development interventions. Therefore, one could say that, during the fifties, there was almost no concern for the respect of diversity.
Before the 1950's political change, the main State institutions were the judicial and tax institutions, and most of the affairs of social life was outside the bounds of State institutions. Moreover, the rugged terrain and the nature of the State did not allow for the building of institutions beyond those two spheres. There was recognition of multiculturality of the national identity. However, the diversity of the cultures were defined in a hierarchical sense, with the cultures of those in power remaining at the top as reference for others (PfaffCzarnecka, 1994: 419-470).
Therefore, in the Nepali context the evolution of institutions, particularly the State ones, has to be looked at within the twin context of development process and the imperative of autocratic Panchayat rule. This is particularly true in the case of the Ministry of Local Development.
Panchayat Era (1960-1990)
The dissolution of the elected Parliament and usurpation of power by King Mahendra in 1960 led to the initiation of what came to be known as Panchayat system. This system lasted for thirty years and provided a relatively longer time frame for institutional evolution in the country. State institutions proliferated during this period. Under this new political system,
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the King was the absolute ruler with absolute control over judiciary, executive, legislative and the army.
The development and modernization goal further provided impetus to the system by providing much needed foreign aid to the State. It is during this period that the administration system
Panchayat Era-1960-1990
Ø New constitution was promulgated in 1962 which reorganized the country into 75 districts and 14 administrative zones Ø 1963 - a task force was set up for administrative decentralization and reorganization of the country Ø 1965-this taskforce recommended the organizational
structure of the district governance structure. Ø The goal of the administrative structures were
maintenance of law and order in the country. Ø The system was based on absolute rule of the king so did not allow for plurality in the governance process. The governance system was aimed at maintaining that absolute rule. Ø Therefore the focus had been on maintenance of law and order and less and negligible focus on participation of people in the governance structure. Ø Moreover, it was aimed at creating a singular
national culture. Ø While the constitution recognized the plurality of the country, it also demanded loyalty of subjects to the king. Ø 1974- Formulation of District Administration Plan
began. Ø Several new Panchayat training centres were initiated "as a laboratory of the Panchayat system." These training centres were part of Home Panchayat Ministry. −
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began to be established. The King promulgated a new Constitution in 1962 which provided for the creation of village, district, Zonal and national level institutions of governance in the form of village, district, Zonal and national panchayats (later Zonal panchayat was taken out).
A task force was set up in 1963 for administrative decentralization of power. This task force submitted its report in 1965. The recommendation of this task force was put into use in the same year. This led to the setting up of district administrative structures all over the country. In April 1965, the Local Administration Act was promulgated which finally led to administrative reorganization of the country. This replaced the earlier division of the country into 35 garhi and gauda with 75 districts (Poudel 1994) and 14 zones. This also led to the Creation of a district administration with Chief District Officer (CDO) as coordinator of overall development activities and maintenance of law and order in the district.
Another decentralization committee was constituted in 1967. This had recommended more power to the local elected bodies and less to the local administration. But its recommendation was not put into serious use. Instead, yet another committee was formed as Administrative Reform Commission' in the same year. In 1969 yet another decentralization committee was constituted which led to the abrogation of Local Administration Act 1965 and replaced it with the new Local Administration Act 1971. This created a new post in the District Panchayat-the Panchayat Development Officer (PDO). PDO worked as a link between the District Panchayat and the government (Poudel 1994:61). The CDO still remained the overall coordinator of the development activities in the district.
All these activities were carried out under the Ministry of Home Panchayat. In the districts, the district Panchayat formed the main institutional structure for formulating of plans and their implementation. However, it was controlled by the law and order administrative structure in the district. The chief
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district officer (CDO) was the main decision maker in the district affairs. The political participation of the local bodies was limited to showing allegiance to the absolute rule of the king and formulation of development plans.
This later caused friction within the district decision making. The elected representatives resented the domination of Chief District Officer and Zonal Commissioners, both of them appointed by the central government and the king respectively, in the formulation and implementation of the plans. This friction led to several attempts to reorganize the distribution of power among the local bodies.
The institutional structure of what was to later become the Ministry of Panchayat and Local Development went through a series of reorganization during the seventies. In 1974, District Administration Plan was formulated with CDO as the overal coordinator. In 1978, Integrated Panchayat Development Design was formulated. In 1982, the Decentralization Act was promulgated. This later occurred after the setting up of the Ministry of Panchayat and Local Development.
The developmental plans provided money for creating local leaders who would remain loyal to the system. Similarly the excessive focus on law and order machinery emanated from the fear of losing grip on population in case the elected bodies were given power to decide the developmental priorities in the districts. That was the only level where some possibilities for people's participation existed.
The Establishment of the Ministry of Panchayat and Local Development
Most of what later constituted as the Ministry of Local Development was being done, first, within the Ministry of Planning and Development and, then, within the Ministry of Home Panchayat during the early years of Panchayat rule till 1980 when a separate ministry came into being. This followed the results of the national referendum in 1980. Student agitation
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supported by political parties in 1979 had forced the King to announce the national referendum to choose between 'multiparty democracy' or Reformed Panchayat’. The official result went in favour of the Panchayat system. As a part of the reform package, the Constitution was amended which led to the creation of a separate Ministry of Panchayat and Local Development. This constituted two departments: the Local Development Department and Panchayat Division of the Ministry of Home Affairs (Poudel 1994:63).
Some more initiatives were taken for decentralization after that. A new decentralization committee formed in 1982 came up with a set of recommendations in 1984. There were some provisions of direct election for some members of the Rastriya Panchayat, the national legislative. The village panchayat was also elected through adult franchise. The elected councils would form the electorate for the District Panchayat elections. Still the absolute power of the King was intact and the national legislative and the executive was accountable to the King.
In that context, the role of the local administration was minimized in the developmental affairs of the districts within new dispensation. More importantly, the district sectoral offices of the government were brought under the District Panchayat. The government representative now was the Local Development Officer who operated as secretary of the District Panchayat. In 1962, the USAID that a modern administrative system was a precondition of the continuation of its aid to the country. The main purpose of the administrative reform process included the following:
1. Improved planning and administration of economic
development activities
2. Assuming construction costs and operating expenses for HMG ministries, departments, government organizations, local administrative offices, post offices, schools, and libraries
3. Support for implementation of the Panchayat system to
encourage decentralized administration
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4. Training technical and clerical staff
The division of the country into 14 zones and 75 districts as administrative units provided the framework within which the State institutions were created and spread across the country during the Panchayat period. The separation of the realm of politics' and 'development' was the hallmark of the King's take over of power from the elected representatives in 1960.
In March 1962 the then advisor to the USAID made a recommendation to merge the major institutions responsible for development in the country - the Home Affairs Ministry, Panchayat and Local Government Organization and the Ministry of Development's Village Development Department. This recommendations was put into practice, and in July of the same year the Ministry of Development assumed the responsibility for both the Panchayat Ministry and Home Ministry (Skerry et al 19931991):124). The Development Ministry was abolished subsequently. A separate Department of Panchayat Development within Home Panchayat Ministry was created (ibid.:125).
The elaborate institutional structures at the districts and village levels were designed for administrative purposes, though the stated goal was to create "a vehicle through which democracy can be built from the bottom upward in Nepales society" (King Mahendra, quoted in Skerry et al. 19931991):123). Most of the development projects were carried out through the centralized bureaucratic and technocratic organizations.
There was some dissent within the Panchayat Development Department, but this met with further entrenchment of the administrative control side of the institution. In 1965, the department itself was abolished to stamp out this "dangerous political criticism."(ibid.:126). This was followed by the dissolution of the Department of Panchayat Development and subsequently led to the formation of the Ministry of Home Panchayats. This provided for institution of Zonal
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Commissioners and Chief District Officers as the heads of zone and district development, in addition to their main responsibility of maintaining law and order: quelling of any dissent against autocratic rule.
Construction of a Singular Nepali Culture/Nationalism
The most important aspect of the Panchayat regime was its combining of development projects with the goal of constructing a singular national culture as important mechanisms of perpetuating the absolute rule of the king. The monarchy as a symbol of the nation provided the reference for the loyalty of the general public. The monarchy was presented as a unifying symbol for all the cultures. The idea of national unity was promoted through State machinery, but this idea was based on the concept of homogenization.
But it was not a symbolic construction alone. It combined this symbolic ideological project with actual practices on many fronts. The education system tried to promote a singular concept of what it means to be a Nepali. The state rituals, the mass media, the institutional mechanisms now increasingly reaching out to very local levels all functioned as constituent units in the promotion of a singular culture, the Nepali culture.
This cultural project was not new, but found new political meaning and neutralizing element during the Panchayat days. To educate people was no longer seen as cultural hegemony, but as the need of the 'underdeveloped peoples'. However, this project began before the political change of the 1950, and was largely ineffective given the geographical terrain and the rudimentary state machinery and resources at hand.
The ushering in of development regime altered all that. Now foreign aid provided the needed resources. It also brought in a set of new technologies - mass communication, printing, radio, the educational institutions which created a possibility of mass dissemination of ideas through the seemingly neutral process of 'education' (Onta, 2001), and also the building of roads and air links, slowly but surely tried to create a Nepali culture.
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There was acceptance, beginning with Prithvi Narayan Shah, of the multi-culturality of the Nepalisociety, but the actual practices had been based on hierarchical understanding in which some cultures stood on top and others at the bottom. The active promotion of Hinduization was at the heart of the state project after unification. The spreading, though fairly slowly, of Christianity with the British arrival in India had sounded alarm bells to rulers in Nepal, especially after winning the Kathmandu valley in the eighteen century. Immediately after that, Christian missionaries were thrown out of the country. The Ranas also banned missionary activities during their regime. Thus, Hinduization was the basic organizing principle of the Nepali State during that time. The imposition of caste hierarchy was the hallmark of that process. Divya Upadesh (King Prithvi Narayan's Directives) (during Shah rule) and Muluki Ain (Civil Code) (during Rana rule) were important testimony to that. They both helped the entrenchment of caste hierarchy in the Nepali society. This was imposed on cultures which were not under the Hindu fold prior to unification. The caste based legal discrimination ended only in 1963 following the promulgation of a new Civil Code which prohibited any discrimination based On Caste.
However, as said earlier, there was to be an obvious gap between the State's desire and the actual outcomes. It was simply not possible to bring all the peoples and geographies into a homogenized cultural framework when the technology and resources available for that was so meager, and the geography too daunting. Instead, over time, the project got legitimized as a means of perpetuating the absolute rule over whatever rudimentary State structures that evolved after unification. Still, the state tried to promote Hinduization of the non-Hindu cultures through various means: encouraging the settlement of Hindus in the non-Hindu areas (Caplan), the promotion of Hindu rituals among the non-Hindu cultures by sending priests to those areas, and by actively declaring speaking of Nepali as the legitimate linguistic policy
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The conquest of the territory of different cultures under the leadership of King Prithvi Narayan Shah was accompanied by a process of negotiation. This is the case with the recognition of Kipat land tenure system of the Rai and Limbus in Eastern Nepal. According to Gurung (2001) the state brought multiculturality within the fold of caste hierarchy, multi-religious reality within hinduization, and multilinguality within Nepali language. This process got further intensified during the Panchayat era. Like other machinery of the State, the Ministry of Panchayat and Local Development, and other departments before the Ministry came into being, were important vehicles for disseminating development projects and cultural messages.
Some Development Programs
There were some targeted programs from the state for Some minority groups in the country during Panchayat Era carried out by the Local Panchayat Development Department of Home Panchayat Ministry. The Praja Development Program was one of the prominent ones. But they were based not on the concept of cultural plurality of the country, but rather driven by the development and modernization concept which first defined the people believed to be lower in the cultural hierarchy, as 'uneducated, helpless, ignorant, needing injection of consciousness through State sponsored 'upliftment' programs. A beginning was made by converting Chepangs into Praja - the subjects and their identity was altered through that. Looking at this particular program, important light can be shed on the thinking of development programs as regards the cultural diversity of the country.
The Praja Development Program came into being following the royal directive by King Birendra during his visit to the Central Development Region in 1977/78. He directed the government to formulate a suitable program for Chepang's Socio-economic upliftment (Bhattarai, 1995:17). Chepangs also began to be called 'Prajas' since then. Chepang people lived in the rugged
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mountain terrain of primarily the four districts-Chitwan, Dhadhing, Makawanpur and Gorkha in central Nepal. But through a directive of the King, they were converted into
prajas'-literally, subjects.
Panchayat Vikash Prashikshyan Kendra (Panchayat Development Training Centre) did a survey entitled “Prajaharuko Samajik Arthik Vastusthiti” (The Socio-economic reality of Prajas) in 1979 and provided a basis for the formulation of intervention programs by the Local Development Department of Home Panchayat Ministry. As stated earlier, the goal was not to promote cultural plurality, but rather to design interventions for 'economic upliftment'. It was aimed at preventing the 'extinction' of Praja culture, through economic development (ibid.:18). Started in the last year of the fifth development plan, the Praja Development Program came into existence as a full fledged program. In the Eighth Development Program, this was put under Indigenous People and Janjati Program (The Eighth Plan: 564-5).
There were two main goals of the program:
Ø To improve quality of life of Chepangs through the
provisions of community based services
Ø To integrate them into the national mainstream (Bhattarai
and Bhattarai, 1995:61).
The program included education, provision of drinking water, health services, construction of mule-tracks, agriculture, irrigation, cottage industry, credit and market, employment encouragement, and an institutional arrangement for providing Praja people a good life. The Royal directives also included the goal of encouraging the Praja people's participation in local elections. So, in a sense, it was aimed at bringing them into the political mainstream during that period.
The major area of expenditure was education. Out of Rs. 54 lakhs spent during 1978/79-1993/94, 29% was spent on education, 14% in school building (Poudel, 1995:65).
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There was no participation of the Praja community in the program beyond their role as beneficiary. The programs were formulated by the government agencies and carried out by the bureaucratic ministry organs. In writing, there were provisions for the formation of user groups. However, they were limited to providing labour contribution as deemed necessary by the plans. Many Chepangs now recall how the program money was embezzled at many levels before any benefits could reach the community. The highly centralized, vertical and bureaucratic nature of the program did not lend itself to any participation of the 'target' population. What is more important is, Chepangs were so alienated from the whole process, that they were not even concerned about the programs, except a few of the local leaders - for whom it was a source of prestige, money and local power (Jitendra Praja, 2001, personal communication).
Thus, the institutional structure of the MLD emerged during the Panchayat era. This structure obviously was not aimed at the promotion and protection of diversity. More importantly, the Panchayat System was not based on the concept of inclusive democracy, but rather an organ for the maintenance of absolute rule of the King. There was no participation of general people in decision making within the Ministry. It was very nontransparent and one of the most corrupt structures. Civil Society in the real sense was virtually non-existent during that time. Embezzling of money and resources used to be routine by the functionaries ranging from local level to central level. One Local Development Officer who worked within the system for ten years calls the whole system the paisa kamaune bhando' (Money Making Machine).
By the time the Panchayat system ended in 1990, the institution had evolved into a conglomerate of several institutions. This was very non transparent and, as there was virtually no space for voices from the people within the system itself, MPLD also did not allow for inclusion of the majority of the people in the decision making process.
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Post 1990 - the Open Democratic Political Space
This Ministry was transformed from pre-1990 Ministry of Panchayat and Local Development (MPLD) into the Ministry of Local Development (MLD) following the political change in 1990, which put an end to thirty-year old Panchayat System and put in place a pluralistic, multi-party, democratic system. The word "panchayat" was taken out. This is true for all the levels of this institution.
Post 1990-The Open Democratic Space
The Ministry was renamed as Ministry of Local Development Ø The governance structures were renamedessentially removing the word Panchayat from all of them-thus Village Panchayat becomes Village Development Committees Ø Parties have the issue of participation of hitherto marginalized sections of Nepali society as their political agenda Ø Resurgence of activism of these groups-women,
janajati, dalits, bonded labourers Ø Government takes some initiatives and establishes some institutions as a part of its response to the demand by the above mentioned groups.
The district panchayats and village panchayats were changed into District Development Committees and Village Development Committees respectively, whereas the national legislature was changed from Rastriya Panchayat to Pratinidhi Sabha (Representative Assembly).
The new political system accompanied the promulgation of the new Constitution in 1990, and the Ministry started
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operating within this new legal and constitutional regime. The main principle which guides the operation of this ministry is the principle of decentralized governance and people's participation, as is stated in the guiding principles of the new Constitution of 1990.
The institutional structure, however, has not seen any fundamental restructuring after political change. So, though the name has been slightly modified in the new context, its structure is basically a carry over from the Panchayat days. The political context, however, has changed in many ways and one of the most important changes has been the openness of any institutions to public contestation.
The Ministry has been adding new programs in response to the growing demands of hitherto marginalized sections of Nepali society: the janajatis, dalits and women, in addition to its regular 'developmental activities.
The new Constitution recognized the multi-lingual and multi-cultural nature of Nepalisociety for the first time in Nepali history. What is important about the changes that occurred in 1990 is that it provided the space for contestation of the public domain and the State became one of the public arenas of this contestation. Voices hitherto either silenced or co-opted began to be raised. The issues which were not raised during the Panchayat days are being raised now. It is in this context that the politics of plurality and State response to it has to be looked at.
The MLD-Structure, Scope and Functioning
The Ministry is established as per the provisions laid down in the 1990 Constitution of Nepal. The political system is divided into executive, legislative and judiciary. This Ministry is part of the executive. The Minister is appointed by the Prime Minister from among the elected members of Parliament. The Minister is the top authority within the institution. The overall structures are however, a carryover from the Panchayat system.
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Under the Minister are secretaries heading different departments. Secretaries are appointed through internal promotion from within the government bureaucracy. Some institutions have provisions for political appointments. For example, most of the committee and training institutes have directors who are appointed by Cabinet decision. Thus usually the party in power has leverage of who gets to those posts. Political changes have usually led to changes in the leadership of the institutions.
The Ministry of Local Development as specified in the Governance Regulation of HMG 2057 includes the following areas of activities:
Remote area and local development Community development Local mobilization and human resource development Training, research and exploration in the field of local development Integrated rural development project Policy making of decentralization, implementation and follow up Border regulation of VDCs, Municipalities and DDCs. Rural women's development Development of local technologies 0. Coordination among different activities of local
development 11. International conferences on local development and
building of networking 12. Local agencies 13. Vital registration 14. Conducting of Nepal Engineering Service, Civil Group,
General
The promotion of inclusive democracy has not been the central agenda of the MLD. Its main area of work involves 'development'.
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Organizational Structure of the Ministry
The Ministry is a huge structure with several hundred offices under its command. At the top, there are two main divisions: The Local Infrastructure Development and Agricultural Road Department and the Regional Directorates in five development
regions.
Minister for Local Development
z Minister of State for Local Development
Secretary
General Local Policy, Women Technical Administration Governance Planning Target Group Division Division Management and Program Development
Division Division Division
Personnel Municipality Policy, Women Technical
Administration Management Planning & Development Service
Division Foreign Aid Dept.
Internal Rural Monitoring Women Local
Administration Development & evaluation Development Technology - Commodity H Programme Developt.
grant Support dept. Dept.
Financial Decentralisation Program Target - Administration Advisory Coordination Group
Dept. Foreign Aid Dept.
Training registration Research
Dept. and ہا
Documentation
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Under it are seventy five district development committees, about four thousand village development committees and about a hundred municipalities. The local bodies are semi-autonomous bodies as per the Local Governance Act 2055. Legally they remain under the jurisdiction of the MLD.
Organizational Structure of the Ministry of Local Development (Internal)
The ministry also has several committees and projects, besides its internal structure and departments. They are as follows:
Local Development Training Academy Remote Area Development Committee Monastry Management and Development Committee National Council for Solid Waste Management National Committee for the Development of Nationalities Padampur Rehabilitation Committee Oppressed, Marginalized and Dalit Community Upliftment and Development Committee Public Parks and Convention Hall Development Committee 9. Local Development Construction Project
8.
It has several offices in regions and districts. The district development committee Secretariat in all seventy five districts comes under its jurisdiction and secretary of the villages and the municipalities also come under it through DDC. There are regional directorates in five regions.
Functioning"
MLD functions more as a vehicle for carrying out the programs formulated by the HMG than an autonomous institution in itself. The committees within it also do not function autonomously. Various development programs carried out under different projects or by different committees benefit the general people and they may promote diversity.
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However, the Ministry's specific commitment to the promotion of diversity is shown in the formation of two committees, viz., the National Committee for the Development of Nationalities and Oppressed, Marginalized and Dalit Community Upliftment and Development Committee, both of which were specifically established as part of the State's response to growing assertions of janajatis and dalit communities. But, these committees do not function autonomously.
The Ministry is highly dominated by upper caste Hindus and is male dominated, which is in a sense the continuation of the pre-1990 trend. Moreover, this is a reflection of the overall picture in the state structure in Nepal and is not something unique to the MLD. So a change in the overall policy of recruitment will be required to change the current situation.
The functioning of the MLD is highly bureaucratic and transparency is the exception. Again, MLD is not an exception in this regard. The overall administrative and state structures are highly alienated from citizens and their functioning are marked by high level of non-accountability, non-responsiveness and corruption.
The structure is highly centralized and, as it is a part of the executive, it cannot function autonomously. Though it is also an important vehicle for operationalizing the local autonomy process in the country, it has control over the process as is shown by recent policy decisions regarding the restructuring of the local bodies. The proposals for the reconstitution was prepared by the MLD in collaboration with some NGOs and submitted to the Cabinet of Ministers. As of now, there has not been any final decisions, but this new proposal aims to cutting down on the numbers of elected representatives of local bodies. Moreover, it aims to curtail the democratic process of election by allowing the top elected members to nominate the majority of other members of the body - both at the VDC level and at the District level (Nepal Samacharpatra, Nov 1, 2001, headline news). Recently there have been attempts to involve civil society in the formulation of programs. But given the centralized character
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of the institution itself, the role of civil society is that of implementing agencies. It is not uncommon also to see that civil society involved in this would be the ones close to the Ministers of the Party in power. The other important aspect of civil society itself is that it does not reflect the diversity in the country and is largely dominated by urban based, English speaking, upper caste persons. This situation is however, gradually changing with increasing assertions at grassroots level and as people at the bottom of the social hierarchy are getting more and more organized.
The media reports on the Ministry is generally related to developmental programs and not much on investigative reporting on how the Ministry functions or how the programs that the Ministry is carrying out is affecting, positively or negatively, diverse groups of people in the country. The major reporting on the issue of ministerial jurisdiction was on the issue of local governance. But that is mostly because of the fact that that issue has been raised repeatedly by different sections of Society.
Some of the appointments within the Ministry are political, which means that the party in power has the dominant decision making power on who gets into the position. The ministerial bureaucracy at large is appointed through the Public Service Commission. The appointments in the committees, which are aimed at cultural plurality of the country, are carried out largely through arbitrary exercise of power by the Minister.
The inclusion of the issue of diversity within the Ministry programs and policies is fairly recent. In fact, this coincides with the raising of the issue of the multicultural, multi ethnic and multi religious nature of Nepali Society in public discourse in the open political space after 1990.
When the committees try to operate autonomously, the secretaries in the ministry do not coperate with them. This shows the general attitudes in actual practice. ..
The case of the National Committee for the Development of Nationalities is presented to substantiate some of the points made above.
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The Setting up of National Committee for the Development of Nationalities (NCDN)
The setting up of the two institutions, the National Committee for the Development of the Nationalities (NCDN) and the Dalit, Marginalized and Oppressed People Upliftment Development Committee are two important initiatives within the MLD that tries to address the issues raised by the hitherto excluded sections of the society.
NCDN was set up in 1997. The government had constituted a task force under the chairmanship of sociologist Santa Bahadur Gurung for the establishment of the Academy of the Nationalities.
This task force was constituted as per the decision of the government in January 1995. The duration of it was three months. The members included Krishna Bahadur Bhattachan, Tek Narayan Rajvanshi, Bishnu Datta Mangbuhang, Ram Lakhan Chaudhary. The member Secretary was Rabrindra Nath Adhikari. This task force submitted its report shortly afterwards. It carried out extensive consultations with people and organizations concerned and involved on the issues of nationalities in the country. It asked for suggestions and organized several consultation meetings in different parts of the country (Onta et.al., 2058:356).
However, the government did not put its recommendations to use. Instead, it went ahead with the formation of NCDN as a preliminary work towards the formation of the academy (Bhattachan 2058). This in itself is suggestive of the fact the government was not serious about addressing the issues raised by minorities in the country.
The NCDN was constituted under the Formation of Committee Act 2013. This committee is within the MLD and Minister of Local Development is the chair. All the board members are nominated by the chairperson himself/herself. There are provisions for janajati representatives to be included from five development zones. Most of the other posts are ex
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officio for different ministry and department representatives. In actual practice the vice-chairman and the directors are the main decision makers.
This committee is not an autonomous body and until now the ruling parties also do not seem to have that as their agenda. This could be deduced from the fact that the committee members, including the directors, have been changed every time there was a change in the government. So much so that even the reshuffle of Cabinet would result in new members coming from the rival factions of the ruling party. For example, when Chiranjivi Wagle was replaced by Govinda RajJoshias Minister of Local Development, Dr. Chaitnya Subba was replaced by Anand Santoshi Rai as director of the committee subsequent to this change of ministers within the ruling Nepali Congress. This is only by way of an example. The frequent reshuffle of the board leadership was directly related to the change in the ministerial posts. The current director of Dalit Development Committee aptly terms this as a game of 'musical chairs' (Pariyar 2001 personal communication).
There is also lack of transparency, though there seems to have been a gradual improvement in the situations over the years. In the initial first year, projects were distributed only to NGOs close to the ruling party - the staff were appointed as per the 'recommendation' of the Minister or ruling political leaders, and staff, thus appointed, were very much unconcerned about the real aim of the institution itself, says former director Chaitnya Subba. Some current staff also say that things began to improve after the appointment of Chaitnya Subba. He tried to establish the guidelines and policies for transparent decision making. He also established criteria for selection of the programs, the organizations for carrying out programs and staff.
However, he was dismissed as soon as Govinda Raj Joshi was appointed as Minister of Local Development and when he refused to follow his orders, instead going about trying to bring in changes, he initiated the formulation of guidelines for the acceptance of the project proposals, which would automatically
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put an end to providing money to party henchmen. He says, this was not acceptable to Govinda Raj Joshi and the Nepali Congress faction that he represented. So he was replaced by Anand Santoshi Rai, the present director.
In three years, there have been five directors and committee restructuring. Especially during the times of coalition politics, every change in the minister was accompanied by the appointment of directors and other key posts loyal to the party that the Ministers represented. This gives a clear example of how the institutions within MLD actually function in Nepal. This, however, is not limited to the MLD alone, but runs through the total bureaucracy and State systems.
The attitude of the functionaries within the MLD towards these committees is that of non-cooperation. The formation of NCDN is an interesting example as to how the bureaucracy was reluctant to have any autonomous body within the Ministry. First of all, the Gurung Task Force had recommended the formation of the Janajati Academy, but the government formed the NCDN instead. The Janajati Academy envisaged by the task force was an autonomous body. This shows the reluctance of the Ministry officials as well as the political leadership. In fact, Dr. Ganesh Yonjan, the first director of the NCDN says that, even if it is true that the secretaries of the Ministry are generally not cooperative as far as the issues raised by the janajatis are concerned, it was the political leadership which could take bold decisions. In his time, the then minister for local development Mr. Amrit Bohra allowed him enough autonomy.
Dr. Ganesh Yonjan was appointed as the first Executive Director of the NCDN when Nepal Communist Party's Amrit Bohara was the Minister of Local Development. His task was to establish the office and begin the process of drafting the Janajati Academy Bill. His experience is that the government functionaries were totally against any attempt on the part of the committee to function autonomously.
Bal Krishna Mabuhang, present chairperson of the Federation of Nationalities, also shares the same view that the
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secretarial staff of the ministry are not allowing the committees to function autonomously. The committee functioning is entirely dependent on the leadership of the director and the board members. However, that seems to be neglected while appointing the committees. The committee office looks rather desolate, where staff are busy with their own talking. The moot question is: does the government seem to believe that formation of particular committees is enough to address the issues raised by the diverse groups in the country?
Therefore, there is a contradictory tendency: on the one hand, there are pressures from minority groups and organizations for creating more inclusive structures, while on the other hand the governments are responding by creating target-group' oriented committees. The promotion of inclusive democracy is not the goal of these committees. For that a separate institutional arrangement is required. Ideally the current committees could evolve into autonomous bodies. In fact, they are envisaged that way. Once the Nationalities Academy is formed, then the NCDN will automatically cease to exist. However, there is tremendous amount of debate regarding the issue of autonomy of the Academy. Many believe that, if the Bill is passed without any amendment, it will not be much different from the present NCDN.
"However, though organized pressure, some changes have been made in the present bill before it was passed", says Bal Krishna Mabuhang of the National Confederation of the Nationalities. The way the ministry is currently functioning, it cannot be an institutional vehicle for promoting inclusive democracy.
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National Human Rights Commission (NHRC), Nepal
Introduction
In May 2000, the Nepali government constituted a five-member National Human Rights Commission (NHRC), almost four years after the enactment of the National Human Rights Act 1997. The Act came into being after the Bill was passed by Parliament on October 11, 1996 and got the Royal Seal on January 8, 1997. This Commission was constituted following a long and multipronged campaign by human rights activists in the country and abroad.
The Constitution formulated after the restoration of multiparty democracy in 1990 guaranteed the fundamental human rights of the citizens in Nepal. However, the institutions that existed at that time were the legacy of the thirty years of Panchayat autocratic rule. More importantly, the concept of national human rights institutions in the form of human rights commission was new in the world as well at the beginning of the nineties.
Many human rights activists in Nepal had come to know about the national level human rights instruments when they participated in the United Nations Conference on Human Rights in Vienna in 1993. Some activists had already known about them and participated in a workshop of national and regional institutions involved in the promotion and protection of human rights (UNCHR, 1995). They undertook the initiative to bring this issue to public debate in Nepal.
The Informal Sector Service Centre (INSEC) organized a meeting in Kathmandu in 1993 to which it invited several prominent human rights activists from different countries in South Asia. Several local political party leaders from Nepal also participated in this meeting. Moreover, INSEC started lobbying for setting up of a national level human rights institution, though it did not know about the structures and functioning of the institution in much detail at that time.
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The member of Parliament of the Upper House from the then opposition Nepal Communist Party (United Marxist Leninist), Mr. Subhash Nembang, first presented a draft resolution (Stricture -Sankalpa) in Parliament for the formation of the institution. However, the ruling party decided to oppose this. Thus, this could not be passed. The ruling party argued that, since Parliament already had a human rights committee, another institutional set up would be unnecessary. The human rights organizations in the country, however, continued to apply pressure.
Nepal became very active in ratifying international human rights instruments immediately after the restoration of multiparty and constitutional monarchy in 1990. During the Panchayat days of the last thirty years, only four international instruments were ratified by the Nepali State. That was understandable given the autocratic nature of the system.
The interim government led by Krishna Prasad Bhattarai alone signed eight different instruments. Then the political leaders believed that ratifying those human rights instruments was essential for getting aid from western countries. In fact, that was the time of the fall of dictatorships all over the world. After the democratic wave of the 1990s, development agencies began to make human rights a condition for the provision of aid in recipient countries.
Krishna Prasad Bhattarai's interim government ratified all those eight instruments both out of genuine commitment to human rights as well as because of the changed political context of aid conditionalities.
Kapil Shrestha describes his experience of discussing things with Krishna Prasad Bhattarai thus: "We went to him asking him to ratify the human rights instruments. He praised us and Said, 'I am number one human rights activists. He was also declared by Amnesty International as prisoner of the year. He also believed that Nepal would get money (aid) after it signs the instruments. So it may be true. If that is the case, then bring as many as you can and I 70ill sign them in no time".
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Later, some leaders and senior government bureaucrats even regretted ratifying those instruments. In fact, the later governments were not as easily ready to sign any international instruments as the interim government was. Some government bureaucrats later felt that the government was over-burdened with responsibilities by signing the instruments.
In the new Constitution, human rights have been made a basic and fundamental principle of the political system. Moreover, the international treaties and covenants also had a prominent place in the Constitution. In the absence of any law for mainstreaming human rights provision of the international instruments, the instruments themselves are considered as law until the state makes provision for any new laws.
The NHRC Bill
The National Human Rights Commission Bill was first introduced in Parliament during the nine-month CPN(UML) government by Nepali Congress M.P Mr. Mahesh Acharya in 1995. The Lower House had already been dissolved and it was awaiting the court's decision for its reinstatement. The Communist Party of Nepal (UML) was in power but was essentially a minority government.
The introduction of the NHRC Bill by the Nepali Congress M.P. in the Upper House was a dramatic turn of events, because it was a Nepali Congress dominated Upper House which had rejected the draft resolution (stricture) for the formation of a national level human rights institution introduced by then opposition MP Subhash Newang of CPN(UML). After the UML dissolved the Lower House and declared midterm election, some lawyers filed court cases for its reinstatement. The ruling government said that since the government could not provide any business during this time, the Upper House could not be in session. But the opposition countered that by introducing the Bill as a non-government Bill - a Bill introduced by the opposition or those outside the government being called
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a non-government Bill. The Bill was finally passed in 1996 during the Prime Ministership of Sher Bahadur Deuba.
Even if the Bill was passed, the Commission could not be formed immediately afterwards. The Maoist insurgency and rampant violation of human rights by the police and government machinery is one of the reasons. There were a number of cases of police brutality during anti-Maoist operation in the Western region. In fact, police brutality was at its peak at that time. There were numerous cases of disappearances caused by the police.
Political instability was another reason. Several permutations and combinations of parties came to form the governments during that time. The parties did not see the formation of the Commission as an important task and were concerned mostly with political manoeuvering.
The Lokendra Bahadur Chand led government with Bam Dev Gautam as deputy prime minister had formed a taskforce in which Kapil Shrestha and Sushil Pyakurel were also members. But during the same time the anti-terrorist Bill was also brought in by Bam Dev Gautam. So most of the members resigned from the taskforce after two and half months.
The taskforce included Sushil Pyakurel, Kapil Shrestha, Birendra Kesari Pokhrel, Padma Ratna Tuladhar, Bishwo Kanta Mainali and two others nominated by Deputy PM, Mr. Bama Dev Gautam. Padma Ratna was the coordinator of the taskforce. However, the taskforce was dissolved soon after two of the members resigned in protest against the drafting of the Antiterrorist Bill by the then government.
During the coalition governments, formation of the Commission was not prioritized. Human rights activists continued to put pressure on them. The pressure intensified after the re-election of the Nepali Congress to power in 1998. After the Supreme Court verdict to the government to speed up the process of the formation of the Commission, the human rights activists pressurized the government.
This began to change after another election in which Nepali Congress Party got an absolute majority in Parliament. The then
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Prime Minister, Krishna Prasad Bhattarai, announced that his government would take serious note of forming the Commission as soon as possible. However, that promise was also not fulfilled Soon enough.
In 1999 two people from the Centre for the Victims of Torture (CVICT) filed a petition in the Supreme Court asking it to order the government to form the Commission. One year later, the court made a decision accordingly. It asked the government to speed up the process of its formation. The court did not give any deadline about the formation as it is the prerogative of the government as to when to form the Commission.
The activists had hoped that the government would announce the commission in 1998 when the UN was going to celebrate the golden jubilee of the Universal Declaration of Human Rights. The Amnesty International President had visited Nepal and met Krishna Prasad Bhattarai. He even assured that the government was going to announce the Commission before his departure - quite impossible technically, because the government had not done much home work for that.
After Mr. Girija Prasad Koirala came to power, he first formed a taskforce to work on the formation of the Commission. That taskforce did its work for about an year before the Commission was finally announced in 1999.
The Campaign by Human Rights Activists
Human rights activists had to launch active campaigns for several months before the Commission was finally constituted. They organized dharnas and indefinite hunger strikes. They also used international networks to pressurize the Nepali government to form the Commission.
Relay fasts were organized at Bhadrakali, right in front of Singh Durbar, the government secretariat and place where many ministries are located. There were demonstrations. Workshops and seminars were organized. The media also publicized the campaign intensively. The local festival, Gaijatra,
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was also used to put forth the demand for the Commission. There were demonstrations with people wearing black clothes as a symbol of protest. Some of the activists were even imprisoned for one day.
In international conferences, resolutions were passed in support of the human rights activists' demand of the formation of the Commission. Amnesty International also actively campaigned for this internationally. The government finally constituted the five member Commission.
The Commission and the Paris Principle
The mandate of the Commission is based on the Paris Principles. In 1991, several representatives of national level human rights institutions met in Paris and formulated a principle for working out the mandate of the national level institutions. Under these principles, the roles of the national level human rights institutions are defined broadly as protector and promoter of human rights. The Commission has a full mandate in that sense.
Some argue that the Commission is in fact a complaint receiving body, so cannot be very effective. Under the current legal provision, the NHRC does not have any power to enforce its decisions. It can only make recommendations to the government. The Act does not provide it with any mandate to pass judgment on the cases it receives. But the Secretary of the Commission, Mr. Jogendra Ghimire, says that passing judgment and enforcing decisions is not within the principle of NHRC as defined within the Paris Principle of 1991.
Before the formation of the Commission some human rights organizations had tried to campaign for an amendment of the Act to make it more powerful. There was general agreement about that among human rights activists also. But people like Sushil Pyakurel and Kapil Shrestha said that that could be done even after the formation of the Commission and much could be done within the given legal set up.
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The Functioning and Structure of the Commission
The structure of the Commission is defined by the NHRC Act 1997. It is a five member committee and decisions are taken by majority vote. It is an autonomous body appointed by His Majesty the King on the recommendation of the three member Recommendation Committee comprising of the Prime Minister, the Chief Justice and the Leader of the Opposition in the Lower House. The mandates are also delineated by the Act, so also the establishment of criteria for the selection of office-bearers of the connmission.
The functions and duties of the Commission include the following
(1) To protect and promote human rights in the country
(2) Conduct inquiries and investigations on the following matters, upon petition or complaint presented to the Commission by the victim himself/herself or any person on his/her behalf or upon information received from any Source, or on its own initiative: Av
(a) Violation of human rights and abetting thereof
(b) Carelessness or negligence in the prevention of violations of the human rights by any person, organization or authority concerned
(c) Inquiries or investigations on the matters mentioned in (a) conducted by the Commission itself or caused to be conducted through any person or an authority or employee of HMG in accordance with the directions of the Commission; the report to be submitted to the Commission
(d) Order a petition or a complaint to be filed by giving reasons. Therefore if the Commission finds such a petition, complaint or information has no basis or is of such a nature, it cannot be enforced by the courts of Nepal
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(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
Inquire into a matter with the permission of the court in respect of any claim on violations of human rights which is sub-judice in the court Visit, inspect and observe any authority, jail or any organization under His Majesty's Government and submit necessary recommendations to His Majesty's Government on the reform to be made on the functions, procedures and physical facilities which may be necessary for such an organization to protect human rights Review the provisions on safeguards provided by the Constitution and other prevailing law for the enforcement of human rights and submit necessary recommendations for the effective implementation of such provisions Study international treaties and instruments on human rights and submit the necessary and appropriate recommendations to His Majesty's Government for effective implementation of the related provisions Undertake or cause to be undertaken research in the field of human rights Publicize and propagate human rights education among the various sections of society through various Seminars, symposia, conferences and also build consciousness and awareness about the guarantees bestowed by law for the protection of human rights Encourage the functioning and efforts of institutions working in the non-governmental sector Evaluate the existing human rights situation of the country Make necessary recommendations to His Majesty's Government regarding reports to be furnished by Nepal, pursuant to the provisions of international treaties on human rights Carry out such activities, as may deem necessary and appropriate for the enforcement, promotion and protection of human rights.
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(3) On the matter of Nepal's obligation to furnish reports under international treaties on human rights, His Majesty's government shall furnish reports upon receiving the opinion of the Commission thereon. (NHRC 2001)
The Commission however, cannot involve itself in the following area.S.
(1) Any matter within the jurisdiction of the Military Act
(2) Provided that nothing will bar the Commission from carrying out the functions mentioned in this Act on a matter in respect of which the court may exercise its jurisdiction pursuant to the Constitution and the prevailing law
(3) Any matter certified by the Chief Secretary of His Majesty's Government that it may have adverse effect on the treaty concluded between His Majesty's Government and any foreign government or international or inter-governmental organization, or on the security of the Kingdom of Nepal.
(4) Any matter certified by the Attorney General that may have adverse effect on the conduct of an inquiry and investigation being carried out in accordance with the law for the purpose of identifying the crime or the criminal. (NHRC 2001)
It is not an enforcement agency and can only write to concerned agencies regarding the violation of human rights after its investigation. The concerned agency would have three months to respond to the recommendation. If the recommendation of the Commission is not enforced, then the agency has to clarify why it could not be done.
The functioning of the Commission must seem to be transparent. It has active cooperation from civil Society So far, though it does not have much presence in the general public as yet. Most of the cases it has received up to date are related to the Maoist People's War. A significant number of cases are also related to atrocities against dalits and bonded labourers.
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It is one year old now. During this period, over 700 cases have been officially registered in the Commission out of which more than 500 are related to violence of the Maoist People's War.
There had been some emergency actions too. For example, when the plainclothes police arrested people from the compound of the court in Butwal, or when police obstructed the medical treatment of people admitted to Miteri Hospita, the Commission even had a war of words with the government and the police over these issues. The police questioned the legitimacy of the NHRC. The chairperson was not quite ready for the Commission to take this stand on those issues, but we just pushed them though. The then home secretary, Mr. Padam Prasad Pokhrel, condemned the NHRC in public.
"The biggest problem is that the government looks at us as its opposition," says Sushil Pyakurel. It shows in the way resources have been allocated for the Commission. The money that the government allocates is barely enough for the salaries of staff. It considers that the NHRC should raise money from international agencies.
It is also not mandatory upon the government to finance the full cost as the Bill was passed as a non-finance Bill. The government says that as this Commission was formed following the pressure from the UN, the commission should raise its money like any other NGOs does.
The overwhelming majority of people do not know of the existence of the Commission. Regional liason offices are necessary. The mandate is also very confusing. For example, what is the way of redress in case the government does not follow the recommendation. This is not clear in the NHRC Act 1997.
Six people were selected to staff the NHRC, but among them there are no janajati and no madhesi. One woman from the dalit community is present. Three men and three women were selected for the interview. But Kapil Shrestha says that the Commission is consciously trying to make the composition of the staff as diverse as possible and balanced in terms of the men/women composition as well.
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Accessibility
NHRC is a fairly recent institution, so it is hard to make judgments about its functioning within this short period. However, the one year of functioning provides some insights into the possibilities that exist for participation of civil society in the functioning of this institution.
The scope of its operation has been a major subject of controversy. Many point out that it is a lame institution as it does not have any mandate of the execution of its orders. But, says Sushil Pyakurel, one of the commissioners, that it is not the function of the institution. The operational principle of the Human Rights Commission, according to the Paris principle is it is only an advisory body which provides feedback to the government about human rights conduct of its institutions and individuals. According to the NHRC Act 2053, it cannot file court cases, nor can it operate as a human rights court itself. What it can do is to remind the government about the cases filed by the citizens.
Through its programs, an increasing number of peoples know about the Commission. As it does not have liaison offices outside the valley, outreach would be limited. But it is involved in organizing issue-based meetings in different parts of the country which is gradually diffusing information to the general public.
Conclusion and Recommendations
The MLD and NHRC are two important institutions which have the potential of promoting diversity in Nepal. However, as both of these institutions emerge and operate within certain political context, it is that context which requires to be analyzed in detail. The functioning and structure of these institutions depend to a large extent on that context. The experiences of these institutions also shows this fact.
The Ministry of Local Development is an integral part of the executive branch of the state. Most of the policy decisions in
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the ministry are taken by the Cabinet of Ministers. The institutional structure of the Ministry itself emerged in the context of the Panchayat system. Except for the addition and subtraction of a few programs and institutions, there has not been a major change in the institutional structure of the ministry in the post-1990 political context.
The parties in power and specially those which hold the portfolio of the Ministry have made the major decisions. There have been some attempts on the part of the government to address the issues raised by cultural groups and other marginalized sections of Nepali society. But most of the responses have been informed by 'target group' orientation.
There is a clear divergence between the aspirations of these groups to participate in the affairs of the nation and the ways the State has responded to their aspirations. The Ministry of Local Development's main function has been the carrying out of the dominant development programs and so is marginally involved in the promotion of diversity in the country. In fact, the committees which are specifically set up for that purpose fell victim to the reluctance on the part of the Ministry bureaucracy and ruling establishment.
There have been some attempts within these committees to change the situation. But given the political instability of the country, the institutions have not been strengthened as real spaces for the promotion of diversity in the country. They have instead become a place to provide resources to the cadres of the ruling parties.
Saying this, the important aspect of the issue of diversity in Nepal is the assertions of marginalized sections in our society. The institutions of the State have responded only when there were organized pressures. As most of the institutions evolved during the Panchayat period, the structures have been rather non-responsive. The main vehicle for change in the present context has been the political parties. It was only when political parties were pressured enough that there had been some response, be it the formation of committees or initiating of some programs.
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The National Human Rights Commission is barely two years old. As a new institution, it has the potential of promoting diversity. But as with the MLD, a lot would depend on the general political context and the attitude and programs of the political parties in Nepal. While civil society in Nepal is growing in its size and range of issues it has taken up, it is still influenced to a large extent by political parties. In this context, a lot would depend on the way political parties take up and handle the issues of diversity.
Those interviewed believed that the institutional set up of the MLD would not allow for the promotion of diversity per se. Another more autonomous and more representative institution is required for that. The evolution of the NCDP and the NCDUMOD into separate autonomous bodies can fulfill that necessity. The Nationalities Academy has been proposed. There have been discussions about setting up of the Dalit Commission, and Women's Commission. These institutions can be important sites for raising and mainstreaming the issue of diversity, inclusiveness and participation.
But again, this will depend on the attitude of the political parties, especially the ruling party. So far, there seems to be the general impression that the Nepali Congress has been reluctant in creating such institutions. That however seems to have been changing. The Bill for the formation of the Nationalities Academy has already been passed by Parliament.
However, it should be borne in mind that even these institutions cannot in themselves promote inclusive democracy in the country. They can at best work as a forum for raising issues and providing policy feedback to the government. So the primary recommendation to be made is about engaging the political parties on the issue of inclusive democracy and promotion of diversity in the country.
The following specific recommendations are put forth so that the institutions could follow them and play an important role in the promotion of diversity in Nepal:
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FOr MLD
Ø As some of the committees are specifically created for the purpose of addressing issues raised by marginalized groups in the country, those committees should be autonomous. Again this is a policy decision that has to be taken by the Cabinet of Ministers.
Ø The Ministry needs to work on providing real autonomy to the local bodies, especially the DDC and the VDC as participation of the citizens at large could take place in Some meaningful way. The role of the Ministry has to be redefined as a policy making body and as that of a coordinating forum.
Ø The appointment of the board in different committees should be done through meaningful consultation with representative civil society organizations and networks. Moreover, the committees should have a somewhat longer time frame for their programs and actions. Frequent changes taking place in the structure of the board, or in the leadership is of no help as has become clear from past experience.
Ø Ultimately, the success of the institution in promoting diversity will largely be shown by the changes taking place in the overall institutional structures in the state and civil Society and not only within the Ministry, and definitely not within the committees. So the Ministry could take up this agenda of putting in place the policy agenda of restructuring the composition of the staff to reflect diversity. At present, this does not seem feasible as this would require political commitment at the highest level. This question has been raised by marginalized groups and their networks in the past.
For NHRC
Ø There has to be greater interaction between civil society organizations working on the issue of diversity, especially the janajati, dalit, women's organizations, and the NHRC.
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The interactions should not be dominated by the 'formal' human rights organizations. w Ø The staffing policy should have a conscious plan in recruiting staff that would reflect diversity. So far, like any other institution in the country, the NHRC is highly male and upper caste dominated. Ø Until now, the Commission is involved only in the issue of civil and political rights. It has to move into a broader framework including the issues of cultural autonomy, language, decentralization and participation as important aspects of human rights. There seems to be a trend towards that and it has to be strengthened.
This said, it is important to reiterate that these institutions operate in the given political/economic milieu. The main actors are the political parties, as far as formulating and implementing policies in present day Nepal. These recommendations are highly contingent upon the positive attitude of the dominant political parties. Therefore, issues have to be brought to the notice of political parties. Civil Society mobilization aimed specifically at this issue is also necessary for the parties to be pressurized.
References:
Bal K. Mabuhang. 1999. Minorities and Minority Protection in Nepal: Survey of Literature. Nepal South Asia Center: Kathmandu.
Gurung, H. 2001. "Janajati Sandarbha'. (Nationalities Context).
Lawoti, M. 2000. Domination and AExclusion: Continued Marginalization of Minorities in Democratizing Nepal. Country Paper for Minority Protection in South Asia Study. Nepal South Asia Centre, Kathmandu in association with ICES, Colombo.
NHRC 2001. Manav Adhikar (A Biennial publication of NHRC).
NHRC: Kathmandu.
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Onta, P. 2001. Chaapa Ma Janajati (Janajati in Press). Ekta Books:
Kathmandu. Pfaff-Czarnecka, Joanna. 1994. *Vestiges and Visions: Cultural Change in the Process of Nation-Building in Nepal". In Nationalism and Ethnicity in Nepal. Mandala: Kathmandu. Skerry, C. A. et. al. 1991. Four Decades of Development : The History of US Assistance to Nepal 1951-1991. USAID: Kathmandu. Subba, Chaitnya (Dr.) 2001. Janajati Utthan Rastriya Prathisthan ko Gathan: Janajatiharuko Maag ra Sarkari Pahal (The formation of Janajati Upliftment National Academy: The Demand from the Nationalities and Government Initiatives). Paper presented at a conference organized on August 8, 2001, in Kathmandu by Nepal Nationalities Federation on the occassion of Indigenous People's Day. UN Centre for Human Rights 1995. National Human Rights
Institution. Geneva: UNCHR.
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Education Policy in Sri Lanka: The failure of good intentions and little learning
Rajiva Wijesinghe
The Original Educational Ideal - Pursuing Equality
Any survey of education in Sri Lanka must begin with Prof J E Jayasuriya's seminal book, Education under the British'. It explores in careful detail the development of a system that deployed state resources more comprehensively perhaps than anywhere else in the non-totalitarian world, with the aim of providing a uniform system of education to the populace. It was written at a time when Sri Lanka prided itself on its system of education, the success of which seemed most obviously proven by our comparatively high literary rates, as compared say with other countries in Asia. And, even if the last few years have not see much improvement, as compared with several of those countries, certainly there was much to feel proud about in those early days.
At the same time, on reading the book half a century after independence, a quarter of a century after the complete entrenchment of uniformity through state controls, I find myself saddened by two principles Jayasuriya affirms as though they were beyond question. I should add that his position is understandable. As one of the ideologues behind the changes that allowed Sri Lanka to claim higher standards of literacy than almost any other developing country, he was justifiably proud of his principles. And it must be granted that the extension of free education that actually reached almost all citizens of school going age was an achievement largely without parallel. Yet it was those very principles that have led to the current situation where, though education is
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free, it is so limited in its impact that almost all students feel compelled to seek alternative education as well.
And, even more seriously perhaps, it is largely due to the present system of education that we have failed to build up a national identity. Because of the education system the children of the various communities that make up this country grow up in isolation from each other, and see others as aliens. Because of the education system we are unable, except for a very small elite, to communicate with each other, or to access information on a wider scale and thus develop a common foundation of concepts and values that will facilitate interaction.
The two principles Jayasuriya lays down so fervently concern the use of the mother tongue in education and the establishment of uniformity in the system. In both cases I should add however that his ideas are based on egalitarian principles admirable in themselves. In his conclusion there is a passage that sums up his basic approach -
For the replacement of the multi-dimensional dualistic structure of education, with its institutionalization of discriminatory practices and its enthronement of an elitism that conferred unfair advantages on the socially and economically privileged, by a unitary structure that was fair, democratic and egalitarian certain changes of an important character were needed. They were, firstly, the elimination of the competitive and wasteful system of government and denominational schools and the substitution in their place of a system of schools rationally planned and organized under the management of the state which was after all financing the competitive denominational system: secondly, the dethronement of English from its position as the medium of instruction for a privileged few, and
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the substitution in its place of the national languages as the media of instruction; thirdly, the elimination of qualitative differences among Schools purporting to serve the same age groups; and fourthly, the abolition of the requirement of fees for access to a quality education. Agitation for these changes acquired a new momentum in the 1940s. The motive force behind the agitation for change was derived from a predominantly egalitarian ideology that set its sights on the greatest good of the greatest number. The leadership for it came largely from that sector of the elite which, while it had received a high quality education through the English language assimilating thereby liberal ideas from wherever they came, had its roots planted firmly in the national ethos. Pre-eminent among them were certain political personalities of whom some espoused the cause of the common man through a nationalistic orientation and value system, while others espoused the cause of the common man through a socialistic value system." (My emphases)
From a liberal perspective, finding the nationalist and socialist ideologies of the period after independence the main cause of our present sad state, I am tempted to say QED. However, I should perhaps engage in a more detailed critique that gives due weight to the idealism behind the practices adopted. I should add that, in this essay, I will lay stress on the language policies that have helped divide our country in fact if not
1. Jayasuriya, JE. Educational Policies and Progress during British rule in Sri Lanka (Ceylon), 1796 - 1948. Colombo. Undated. P536. It does not take much acumen to realize that the net effect of the passages I have highlighted, and in particular the last of them, is to bring everything to one level, which will naturally be the lowest.
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(yet) in name. Other aspects of the theories that have brought us so low will however also be discussed.
There is no better place to start this analysis than Jayasuriya's account of the debate in the State Council that led to government regulations about the medium of instruction in schools -
20 On the basis of the observations made in the Kannangara Committee Report, the Executive Committee for Education placed the following recommendations, relating to language, before the State Council in May 1944:
(1) The medium of instruction in the primary school shall
be the mother tongue.
(2) The medium of instruction in the lower department of the post-primary school may be either the mother tongue or bilingual.
(3) The medium of instruction in the higher department of the post-primary School may be English, Sinhalese or Tamil or bilingual
21. In introducing these recommendations, C. W. W. Kannangara, the Minister of Education, made the following COmment:
"...we have two classes of society in this country divided by English education. The affluent, the rich, the influential, those that can afford to pay, attend one kind of school imparting the higher education which is given in a foreign tongue. They have to pay for it? Why Because the official language of this country is English, because no one without a knowledge of English can fill any high post."
What was the prospect for the poor who had to attend schools providing education in the mother tongue? In general, they
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had to be satisfied with being "hewers of wood and drawers of water", while a handful of the most gifted of them could aspire to be vernacular teachers. Supporting him, one State Councillor said "Knock out English from the pedestal it occupies today and place thereon our Sinhalese and Tamil languages and we shall soon be a free race" and urging "the Burgher nominated members and his community to join with us even at this stage and adopt either the Sinhalese or the Tamil way of living and the Sinhalese or the Tamil language as their mother tongue", moved the following amendment: "The medium of instruction in all schools shall be Sinhalese or Tamil with English as a compulsory second language.' Some State Councillors were not prepared to have English as a compulsory second language but wanted English to be optional. One of them. moved the following amendment: "The mother tongue shall be made the medium of instruction in all schools, with English as an optional language." He said, "...our educational Structure is divided into two types of educational institutions; some institutions giving instruction through the mother tongue, and the other institutions giving instruction through English. This particular defect has created to my mind, two different nations; one nation learning Sinhalese and Tamil and speaking in Sinhalese and Tamil, and the other speaking and learning English. I think this has been one of the worst features of British rule introduced into this country. We find 95 per cent of our pupils in the schools learning their mother tongue but completely unequipped to take part in the government of the country, because the government of the country is conducted in English. We find 5 per cent of our schools teaching English; and those who go through those schools are completely denationalized, are out of touch with the people, are ignorant of their history and their customs. If we make English a compulsory subject it may be that after a time we may revert to the bad old system and that Sinhalese and Tamil in Ceylon may not be of economic value and will therefore gradually
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disappear." The above mentioned amendments were defeated, and in so far as the medium of instruction was concerned the decision, based on the recommendations of the Executive Committee, was that (i) in the primary School the medium shall be English, (ii) in the lower department of the post-primary school the medium may be either the mother tongue or bilingual, (iii) in the higher department of the postprimary school the medium may be English, Sinhalese or Tamil.
22. In rejecting the second of the above mentioned amendments, in so far as it related to the medium of instruction in classes above the primary level, the State Council was rescinding part (a) of its earlier decision of May 1944, based on an amended version of the motion of 22nd June 1943 (see paragraph 16). In the form in which the motion was accepted, it read as follows:
"That with the object of making Sinhalese and Tamil the official languages of Ceylon within a reasonable number of years this Council is of opinion
(a) That Sinhalese and Tamil should be made the medium
of instruction in all schools; (b) That Sinhalese and Tamil should be made compulsory
subjects in all public examinations; (c) That legislation should be introduced to permit the business of the State Council to be conducted in Sinhalese and Tamil also: (d) That a Commission should be appointed to choose for translation and to translate important books of other languages into Sinhalese and Tamil; (e) That a Commission should be appointed to report on steps that need to be taken to effect the transition from English into Sinhalese and Tamil."
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23. There was an incontrovertible and compelling logic underlying this resolution, but the State Council-chose to negative it by its decision of 1945 to modify part (a) and to allow Sinhalese and Tamil children educated through these media in the primary classes to receive their post-primary education through the medium of English. This proviso, in conjunction with the great illusion of compulsory English for all school children' decided upon in 1945 not only threw the entire language situation into a welter of confusion from which there was no escape for years, but it also prevented the establishment of a democratic system of education by making large sectors of education the monopoly of the socially and economically privileged strata which alone were able to give their children the necessary proficiency in English. A close analysis is required of the educational and social implications of these twin branches of language policy, namely the promise of compulsory English for all school children, and the option given to certain schools to use English as a medium of instruction in the post-primary classes for Sinhalese and Tamil children in spite of their having been educated through the Sinhalese and Tamil media in the primary school.
Compulsory English - fact or fiction?
24. Compulsory English for all children in and above Standard III is one of the greatest deceptions perpetrated on the people of this country. It is a deception for two important reasons. In the first place, about 20 per cent to 25 per cent of the schools never had a single English teacher in them. Secondly, the calibre of the staff recruited to teach English was sub-standard. In the matter of acquiring a knowledge of English, discrimination against the mass of students arose from the fact that only a small number of schools had good facilities for the study of English, and also from the fact that, when the actual quality of teaching in so many schools was
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poor, children's knowledge of English largely became a function of the extent to which they were exposed to English in the home environment. From every angle, therefore, it was the child from a relatively prosperous home who was able to acquire a good knowledge of English.
25. If English were unimportant, it would not matter if a good knowledge of English was the preserve of a small and select minority. But the truth is that English occupied a position of pre-eminence in Ceylon in so far as educational and employment opportunities were concerned. The State Council resolution of 1944 regarding the relative place of English and the national languages in the educational and public life of the country was logical in conception and comprehensive in scope. It was never implemented as a totality. As a concession to vested interests, the State Council approved various deviations beginning from the year 1945; the State Council attempted to implement the language proposals hesitantly and in piecemeal fashion phasing the changes over an unconscionably long period, punctuated by months or years of inactivity. Students receiving education through the national languages came up against two kinds of frustrations - one of finding that for education beyond a certain level English was a requirement but that they were ill equipped for it on account of the deception that had been practised on them by the government, and the other of finding that proficiency in English was a requirement, express or implied, for most worth-while appointments in spite of the lip Service that was being paid to the national languages. The first of these was intimately connected with the policy followed by the Minister of Education in giving a language option. The second of the two frustrations was largely a consequence of the worship of English as a result of a mentality deriving from the unthinking force of inertia, long after it should have been dead and buried. To be sure, State Councillors were not lacking in sensitivity to the realities of this problem, but their words were not effectively translated
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into action, largely because of the strength of vested interests dedicated to the perpetuation of the status quo with all the advantages that went with it. w 26. As from October 1945 the primary school medium became Sinhalese or Tamil with no option of an English medium. In post-primary classes the medium could be a national language or English, at the option of the school, and where a school desired to use English, it meant that students whose primary education had been in a national language had to switch over to the English medium.
27. One alleged reason for the option was a shortage of teachers capable of teaching through the national languages. The few students who had a knowledge of English, owed in the vast majority of cases not to the teaching done at school, but to the students' home background, made the transition from the medium of the national language with ease, but others became educational and emotional casualties in the switch over. Martyrs to the self interest of teachers and administrators who, finding the thought of their acquiring a knowledge of the national languages exasperating to themselves in spite of their intellectual capacity, maturity and adulthood, evolved the bright solution of requiring the children to accommodate themselves to English somehow, the children had none to complain to about the sorry plight into which the official policy of making matters as comfortable as possible to teachers had driven them; a stray one, here and there, became the subject of a case study by a teacher in training, and what a tale of lost hope and frustration was unfolded then. Official reports recognized the existence of the problem, but instead of attacking the problem at its source, most of them engaged in various kinds of digression. The Director of Education set the tone for this kind of thing. He recognized the fact that students who were weak in English "faced the prospect of a five-year connection with the junior school," but went on to say, "The defeatist proposal that some adjustment is urgently needed to ensure an
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unbroken or unhindered study in the mother-tongue (which means dropping the English medium before text books in the mother-tongue are available). . cannot be accepted'. An additional Sixth Standard, called the Lower Sixth, was started in which special work was to be done in English, making the junior school a four-year one for all students involved in the transition. With some effort, books could have been produced in a matter of months. The truth, however, is that there was no determination to pursue the national language media to a logical and successful conclusion. (Jayasuriya, 485-489) (My emphases) *
I have quoted this passage at length, because it goes into great detail about the ideals the writer hopes to achieve through education while also completely ignoring the problems his approach raises. A modern reader would immediately notice the blithe assumption in Para 21 that the dichotomy within Sri Lanka is between the English speaking on the one hand, and those who speak Sinhalese and Tamil on the other. What we now know, that the more serious dichotomy is between those who speak Sinhalese and those who speak Tamil, was not something that Jayasuriya, writing I believe in the seventies (the book is not dated), could comprehend. When he did consider the problem, it was from a standpoint that suggests a less than pluralistic viewpoint
While English was socially divisive in the manner, stated, it was partly integrative in the sense that it provided a medium of communication between
2 I have emphasized the point about textbooks, because this has continued a perennial problem. Though in time some textbooks were prepared, these have fallen behind those available in other countries. As we developed a group of educationists who find it difficult to read in English, the books they produce have been seof-perpetuating, with the result that standards have fallen, in comparison say with countries like India where curriculum developers are fluent in English too and can benefit from international trends. I take up this matter later in this paper too.
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the Sinhalese and Tamil elites. This, however, was in the nature of a short term benefit. In the long run, it created a vacuum in regard to a common language of communication between the majority of the Sinhalese and the Tamils...... The decision to replace English with Sinhalese as the official language caused a sharp cleavage between the Sinhalese and the Tamils, and in this sense English proved to be divisive. (Ibid, pp 541-2)
Education and Social Policy - Asserting More (or Less) Equality
The sub-text implicit in Jayasuriya's above argument is that the common language should be Sinhalese, and that Tamils should necessarily learn it. Now that may well seem logical to many people, and Jayasuriya perhaps has a point in suggesting that, if Sinhalese had been taught to all before it was made an official language, that switch might not have seemed so intolerable. Given however the manner of its imposition, it is unlikely to be even remotely acceptable that Sinhalese can now be made compulsory. That it should be enforced universally as the medium of instruction is of course intolerable. If it were to be made a compulsory second language for those educated in a different medium, the Sinha lese would have an advantage since their second language would be English. If Tamil were made compulsory for them, that would mean all Sri Lankan children would only get English as a third language. Given how badly it is taught as a second language, as Jayasuriya So graphically describes, with his use of the term 'deception', there is no doubt that as a compulsory third language it would be nonexistent.
But in the heady days, not only of independence, but of what can only be termed callous majoritarianism, sentiments
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such as Jayasuriya's were rampant. Callous is perhaps the wrong word, for people like Jayasuriya were indeed endowed with a social conscience and a sense of egalitarianism that one should admire. But it went hand in hand with insensitivity and an immense impracticality that has contributed to the massive inefficiencies he diagnoses.
In one sense indeed that impracticality has to do with the very successes of the education system. Jayasuriya and his associates destroyed by their insistence on uniformity. It is no coincidence I think that the mover of the motion Jayasuriya describes above, who wanted to make vernacular education compulsory for all, was J R Jayewardene. Later Jayewardene's soulmate in the move to enthrone Sinhala was S W R D Bandaranaike. These two were of course originally Christians, both of them from highly westernized families, who had to run twice as fast as everyone else as it were to prove that they were good Sinhala Buddhists. Hence perhaps the national dresses they wore, hence their obsession with a status for Sinhala that it had never had in their own homes. And unfortunately, given the need for publicity, the movement turned against the other languages, first English, then Tamil.
But I suspect neither of them would really have understood that the fruits of their policies would be a land divided. They themselves after all communicated fluently with Tamil politicians in the medium of English, and they knew their children would do the same. That this would not be true of the vast majority of children would never have occurred to them, cocooned as they were in Colombo. They themselves had gone to schools where even children not born with silver spoons in their mouths, whose parents perhaps knew no English, had rapidly picked it up so that they could function on (almost) equal terms with Bandaranaikes and Jayewardenes.
And so too Prof Jayasuriya, aware of similar success stories all over the country, could ignore the schooling system
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that had made that possible. Instead he lamented about those who had suffered because they were unable to cope with English medium education. The obvious answer to that, to ensure that they could take up the option of vernacular education, and receive it at levels commensurate with English medium education, did not occur to Jayasuriya. Vernacular education was indeed widely available, since as noted above the 1945 decision allowed for choice. The problem was that the schools offering that option were considered inferior. But, instead of developing those, Jayasuriya's solution was "eliminate qualitative differences among schools purporting to serve the same age groups'. This in effect meant bringing all schools down to the level of those considered inferior to begin with.
And what this would do to the pool of potential English teachers was also not considered. Jayasuriya rightly points out that, in 1945, access to English was limited, largely because there were not enough second language teachers for all schools in the country. The fact that there would be plenty of these after Kannangara's initial reforms had created English medium Central Schools all over the country was forgotten. What should have happened then, if English as a second language was to be taken seriously, was a concerted attempt to recruit and hire competent teachers. These would have been available, given that many students were indeed undergoing English medium education all over the country. But that opportunity was passed up, that particular stream died in a very short time, and in the aftermath the pool of potential English teachers was reduced to those who had been educated in the vernaculars, and whose command of the language was therefore limited. A qualification that had earlier been quite respectable, namely a pass in Ordinary Level English, continued to be taken as sufficient even when the standard of that examination had been so reduced that it was no longer taken seriously for any other purpose. For many years though, it was used as a measure to decide who would be selected to teach English to future generations.
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There were of course those whose English was much better, even though they had been educated in the vernaculars, because they hailed from the towns where opportunities to develop English were greater. But such people were not likely to join the teaching profession and serve in rural areas. These areas then suffered from gross deprivation as far as English was concerned, with motivation amongst students also being limited. The politicians and intellectuals such as Jayasuriya meanwhile continued to fight the anti-colonial battles of yore and declare with righteous reforming anger that "English occupied a position of preeminence in Ceylon in so far as educational and employment opportunities were concerned'. By insisting that they were going to change this, they reduced the incentives to learn English to non-existent levels; so that their diatribes about the deception practised by government became self-fulfilling prophecies.
Social Policy regardless of Education - Statism, Employment and Discrimination
In fact they did change the situation radically, with the sad consequences that we now witness. Though Tamil initially went hand in hand with Sinhala in education, the latter became the prerequisite for state employment at almost every level. More seriously, burgeoning statism meant that, with much of the economy in state hands, state employment was
3 There is a tendency at present to blame Bandaranaike for all this, in terms of the Act he introduced to make Sinhala the Offical Language. It should however be noted that the nationalists who had advanced the original arguments mentioned above in the forties were well in the ascendant in the period after independence, and the regulations were in fact changed in the early fifties by a UNPMinister, so that the option of English medium education began to be phased out, rapidly for Arts students, more gradually for those Studying Science. All that can be said against
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the only employment available for the vast majority of the educated population. The exceptions were those in the towns, who had access to a wider range of private sector jobs. But, in actual fact, in many of these English was considered more important than educational qualifications that were thought to be sub-standard, and candidates without education but with good English were preferred.
Jayasuriya and his ilk would have described this as due to the unfair pre-eminence accorded English. However, in the private Sector, at higher commercial levels at any rate, there was a need to read and comprehend documents written in English, and also to communicate in English with Tamils and foreigners as well as those of the older generation whose Sinhala was not fluent.
Bandaranaike was that his national language policies made redundant the idea of a second language that had been assumed by all educational policy makers from the beginning (albeit with the caveats enunciated by Jayasuriya, who it would appear wanted that too abolished, on the grounds that it inhibited an effective switchover to Sinhala).
In the larger picture of course, Bandaranaike's enthronement of Sinhala only ensured that the Tamils, for whom Tamil medium education had been made compulsory, would no longer be in a position to compete for government jobs. In some mitigation it should perhaps be noted that this was a contingency, and that the idea of Tamil medium education was profoundly egalitarian. At the same time we should not forget that there was in the forties a Permanent Secretary to the Ministry of Education who argued against extending Sinhala medium education to the Plantation Tamils, on the grounds that they would then successfully compete against Sinhalese for jobs. Though the story is based on hearsay, it encapsulates the mindset of at least some Sinhalese officials who felt that the newly independent country should essentially be seen as a Sinhalese fiefdom, and that Tamils should be actively prevented from learning Sinhalese so that they could not aspire to positions of importance. It should incidentally be noted that the proportion of Muslims in this type of private sector job increased from the sixties to the eighties, since they were permitted to continue with English medium education for more than a decade after Sinhalese and Tamil were forced to learn in their mother
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The Sinhala middle class in Colombo then, whether educated to tertiary levels or not, had an outlet. The rural Sinhalese population also had an outlet in the form of jobs in the state sector. Though these were less attractive, there were plenty of them. The main losers were the Tamils, Tamils from the rural sector and also, most significantly perhaps, those from the urban Jaffna area who had previously obtained high levels of employment in white collar state jobs. Bogged down as it were in their mother tongue, they found that it was useless as far as productive employment was concerned.
And then there occurred another blow when education, even at the levels bestowed by the state, was made more difficult for them. In the late sixties the story began to spread that Tamil students were at an advantage when it came to university entrance because they were awarded higher marks than their Sinhalese counterparts at the Advanced Level (University Entrance) Examination. Universities were a state monopoly in Sri Lanka, and there were comparatively few places available, so there was immense competition for these, especially to study for the more lucrative professions such as Medicine and Engineering. Given now that entrance examinations took place in two languages, and there was hardly anybody competent to mark papers in both languages,
tongues. It is probably not a coincidence that the Minister of Education who permitted this exception (which also obtained for Burghers, who could claim their mother tongue was English) was a Muslim, who had been a leading educationist and understood the value of the language. Though the logic of a concession based on mother tongue usage obviously did not apply to Muslims, whose mother tongue was generally Tamil, Mahmud's policy was not challenged at the time. It should be noted however that the concession only lasted for about a decade, until English medium was stopped in the seventies. And of course it was only Muslims in urban areas - and in a few special areas like the Minister's own hometown Gampola - who benefited, while in most rural areas Muslims were straitjacketed into education in the vernaculars along with the Sinhalese and Tamils.
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the results could be wildly disparate. More tellingly, allegations could be made with no possibility of dispelling them.
Matters came to a head in the early seventies, when the United Front government headed by Mrs Bandaranaike was in power. That government included Marxists, while claiming to have a base amongst the Sinhala peasantry. News that a vast number of Tamils had got into the Engineering Faculty roused reactions that the government wanted to quell, so it embarked on a process of standardization based on the principle that any wide disparity in results when comparing subjects, mediums and even areas of origin, had to be compensated for in deciding on university admissions. And given that the government had just centralized the whole university system, reducing the various universities that had developed over the preceding two decades to campuses of a Single body, it could make far-reaching changes in admissions policy with hardly any consultation, and certainly no requirement to take the views of others into account.
Of course it could have been argued that the policy had some justification, given the disparities that certainly existed. Initially indeed it met with approval from both Sinhala and Tamil politicians from rural areas, since the numbers admitted from their catchment areas increased. In Colombo, as noted above, students had alternatives, including in some cases resources to go abroad. In Jaffna however there were few
5 Premadasa Udagama, Secretary to the Ministry of Education at the time, tells me that, though the government felt it had to take urgent action in this regard, originally there was no plan to standardize. However, the Minister of Education mentioned above, Badi-ud-din Mahmud, jumped the gun and announced that standardization would take place, and the Ministry was then compelled to formulate a theoretical justification for this.
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alternatives, and this contributed to increasing bitterness that led to the development of popular separatist movements.
The perception that this new policy was unfair led the
UNP government elected in 1977 to abolish it, and return to a system whereby admission to university was based on raw aggregates of marks at the Advanced Level Examination. However, just a few months later, one of its senior ministers’
6
I asked Dr Udagama, whether he had not thought about positive discrimination to ensure suitable employment for Tamils, to balance what seemed positive discrimination on behalf of the Sinhalese with regard to university admissions. He mentioned that he had indeed proposed this, but had not followed it up. Incidentally, though he was probably one of the most idealistic figures to occupy that position, he was often overborne by his political masters. Particularly interesting is the story that, during his tenure, a circular was issued limiting opportunities for Sinhalese to learn Tamil and Tamils to learn Sinhalese. His explanation of what was clearly a retrogade measure was that his Minister insisted on this. I have been informed, and he confirmed this, that the Minister's position was that, if Sinhalese and Tamils could converse with each other, there would be no place for the Muslims.
It is claimed that Senanayake was diffident because he felt there was more opposition within his party, involving J R Jayewardene, who was its Deputy Leader at the time. Jayewardene, whose Sinhala Buddhist aspirations have been noted above, was always close to Mathew, and gave him much prominence when he took over the leadership of the party and then the country in the seventies. He was most certainly privy to Mathew's actions during the ethnic riots of July 1983, and initially his approach, like Mathew's, was to blame the Tamils for rousing the Sinhalese. International reactions led him to see sense, and he gradually distanced himself from Mathew over the next few years, and removed him from the Cabinet even before the Indo-Lankan Accord of 1987. It is nevertheless significant that the government press gave Mathew much prominence when he attacked Mrs Bandaranaike's initial pledge in her 1988 Presidential Manifesto to restore the 1947 Constitutional Provision guaranteeing equality that her government had abolished when it brought in the 1972 Republican Constitution. This was Cyril Mathew, who already had a marked reputation for racist politics. He had been the leading opponent within the UNP of the 1965 UNP government's attempt to establish District Councils. The then Prime Minister, Dudley Senanayake, took disciplinary action, but in the end had to withdraw the Bill, to the bitter disappointment of the Tamil parties that had reached agreement with him.
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alleged in Parliament that Tamil examiners were cheating in allocating marks at the Advanced Level, and that this had contributed to a vast number of Tamil candidates gaining admission to university. Without any investigation of these allegations, the government promptly introduced a new policy based on District Quotas that had an effect similar to that of standardization, in that it too reduced the number of university entrants from Jaffna. This had gone back to its previous high after the abolition of standardization, so when the figures plunged again, this second disappointment, which was so clearly motivated by a desire to discriminate against them, roused even greater anger than before. It certainly contributed in no small measure to increased recruitment to separatist groups that were now becoming more overtly violent. s
And it should also be noted that, though the Jayewardene government was in theory in favour of the private sector, it took even more of the economy into its hands than the previous socialist dispensation. The government was very much a Colombo based regime, and its encouragement of private sector activity was targeted at Colombo businessmen. So employment opportunities remained almost as restricted in Jaffna as previously. With the state then being still the largest employer for young people not from the charmed circle of the capital, and with state employment geared towards those proficient in Sinhala, the prospects for young Tamils continued bleak. As the terrorist movement developed, prospects of investment in the north declined further, so that prospects for nation building collapsed almost totally.
The Monolith of the Ministry of Education - Power without Responsibility
The monolithic power of the Ministry of Education, that has so adversely affected our nation, rests in fact on the
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Ordinance of 1939. This has been frequently amended but, more significantly, it empowers the Minister to make regulations practically at will. There is provision that such regulations should be approved by Parliament but, in a context in which Parliament hardly ever challenges the executive authority, that provision is of little consequence'.
Another provision that might have proved a check on the Minister has never been implemented. Though the Ordinance provides for the establishment of an Advisory Council, which would help the Minister take decisions, such
8 Jayasuriya describes how education in Sri Lanka has always been dealt with in an ad hoc manner, with the appointment of officials and bodies that had no formal status. The formalities, when they were introduced, were often observed in the breach. It is a mark of the confusion that reigns that the Legal Officer of the Ministry, from whom I obtained copies of the laws and regulations she had to work by, observed that the set kept in her office was not complete. This is not an unusual phenomenon in a context in which the National Institute of Education, for instance, does not have a full set of the syllabuses it is supposed to oversee in Teacher Training Colleges. School syllabuses cannot be found in its Library and, to find out whether copies have been deposited, recourse is had to a ledger in which materials are recorded according to the date on which somebody kindly brought them in. Needless to say, Ministry officials concerned with particular areas have no copies of any of these syllabuses, and have to obtain them from the NIE when they need them - which is rarely.
9. This is part and parcel of the failure of the Westminster system in the former colonies, which had never developed a tradition of legislative independence of an executive authority. Technically, in Britain, once the executive is constituted, albeit on the basis of a parliamentary majority, there are enough parliamentarians outside the executive, both on the government and the opposition benches, to keep the executive on its toes. In Sri Lanka however, as in most former colonies, those on the government side, many of them aspiring to become members of the executive themselves (which is seen as the raison d’etre of getting into parliament) are obsequious to the executive. The opposition generally criticizes on political grounds, without assessing the merits of a measure
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a Council has never been established. The Minister therefore has to rely on the advice of his officials, who naturally have a tendency to defend and increase their own authority.
This tendency has become worse because the Education Ministry has managed to set up a number of 'Services' which tightly control the entire administrative structure of education without any very clear demarcation of responsibilities. These are of course in addition to the main Sri Lanka Administrative Service, from which very often the Permanent Secretary of the Ministry is drawn, if the government does not choose to bring in someone with a greater professional commitment. Any SLAS official however has to rely very heavily on the professional educationists, and here he comes up against
independently. Thus there is no chance at all of the joint scrutiny by representatives of the citizenry that is envisaged by the Westminster system. The recent attacks by the UNP on various aspects of the education reforms that began to be implemented under Tara de Mel, together with the JVP when they acted as a joint opposition, bear ample witness to this absurd situation. No matter that most of the reforms had been suggested by the NEC appointed by the previous UNP government, no matter that on issues like English medium education they are now trying to move even further ahead. In 2001 what mattered was scoring political points. So now we can expect the PA in opposition to attack UNP measures, while UNP members will keep silent about what should be discussed openly and perhaps amended.
Part II Sections 5 & 6 of the Ordinance read “There shall be established a Central Advisory Council...consisting of such persons not being less than ten in number as may be appointed by the Minister....The function of the advisory council shall be to advise the Minister on all such matters relating to education as may be referred by the Minister to the council for such advice or in respect of which the council may think fit to tender advice. Needless to say the other bodies prescribed by that section, Local Advisory Committees, a School Examinations Advisory Council and an Educational Research Council, have not seen the light of day either.’
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barriers formed of a potent combination of lethargy, ineptitude, diffidence and just plain ignorance. This last perhaps is not entirely culpable, in view of the vast range of activities conducted by the Ministry and the various bodies set up to support it, none of which have been coordinated systematically for well over a decade.
Apart from the actual Teacher Service of the Ministry, there are a Principals Service, an Educational Administrative Service, and a Teacher Educator Service. Each of these has an elaborate system of Classes and Grades, and it is technically possible to move between the services in taking up particular assignments. Unfortunately it is the class and grade within these services that is considered important with regard to any job, not the particular outputs that might be expected. Thus you have the almost inconceivable situation that various posts connected with specialist subjects, such as ASSistant Director of Education (English or whatever), have no job descriptions'.
Admittedly the problem was compounded by the fact that, under the Provincial Councils Act of 1987, Education
The present Secretary, drawn from the SLAS, has frequently complained, at public meetings, that he receives little guidance from his subordinates on memos, but simply the word forwarded', the classic refuge of the administrator unwilling to commit himself.
' I say inconceivable advisedly, because I was assured by the Addl Secretary responsible for the Teacher Educator Service that job descriptions did exist. This was in all good faith, but when I asked to see them it transpired that they did not exist. His view then was that a particular committee was in the process of drafting them. At a subsequent meeting at the Ministry it turned out that that did not come within the purview of that particular committee. A draft I then prepared was accepted in principle, but there was some uncertainty as to which branch of the Ministry was responsible for finalizing it and implementing it. The ball was finally placed in the court of the Policy Division, but that Addl Sec left the Ministry soon after, and no further action was taken. The draft that was accepted in principle is attached to this paper as Appendix A.
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became a devolved subject - but with certain very significant qualifications. Thus educational policy, curriculum and exams and so on, remained under the central government, as did the production and distribution of all textbooks. Also controlled by the centre were the institutions called National Schools, without any clear definition of this, so a Minister could bring under his own purview any school he chose to. Again, Teacher Training Colleges came under the central government, which meant in effect that all teaching appointments were controlled by the centre. Even though Provinces could make some selections, the Services mentioned above were all national ones, so getting into those, which was essential for career development, was vital for any teacher or educationist. Last but not least, since all training came under the centre, it was clear to anyone in the education system that provincial authority in this area was minimal.
Of course it is in the provinces that most members of the various educational services function, so it would be assumed that that is where and for whom they have to prove themselves. However, all promotions in the services are made centrally. Incidentally this leads to the very sad situation in which, if a Provincial Director of Education is doing a good job, and this is noticed, he gets transferred to a post in Colombo. It is difficult then for the provinces to build up effective systems with good management over a system of time.
And, at a lower level, when provinces need administrators and educators, the recommendations made by the provincial authorities carry little weight since the determination of the centre to make decisions in a uniform fashion is not to be gainsaid. Since however the authorities at the centre can have little idea of the merits of each case, the tradition has developed that seniority is the most important qualification for promotion. This has been elevated into a principle, and there is little provision to make satisfactory use in their prime of able young people who can prove their prowess in terms of intellect or initiative.
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Another reason for this, in addition to the centripetal tendencies of our administrative system, is that there is no provision for probation, or reversion once promotion has taken place. This is particularly anomalous with regard to the various fields in which it has been difficult to find candidates with basic qualifications. The result is that appointments based only on seniority are made to posts which require a range of skills, including knowledge of the subject, management and inter-personal abilities and flexibility and initiative. The idea of expecting work plans from the personnel involved in educational administration, of asking them to devise effectiveness measures for their work, is unthinkable in a context in which productivity is an alien concept.
Conformity after all is what the system has entrenched. This was the aim of the main measures taken under the Ordinance, measures on the lines prescribed by Jayasuriya to bring everything into line in terms of the ideal he so unquestioningly asserted.
English is an obvious case in point, in that for years the universities offered degrees only in English Literature, rather than the language qualification necessary for English teachers in the vast majority of schools. Since the Teacher Educator Service (which provides lecturers at Training Colleges as well as Coordinators at regional Teacher Centres for in-service teacher development) requires a degree plus a postgraduate qualification, it has proved almost impossible to find suitable candidates in English. The Ministry then decided to allow Trained Teachers with experience to be appointed to these posts. It was beyond the Ministry however to make these appointments fixed term or probationary, subject to the obtaining of appropriate qualifications (one university now having started external degrees in English suitable for teachers). Some adjustments to this system were suggested (see Appendix B) and accepted in principle last year, but there has been no attempt to implement these.
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Reinforcing the Monolith - Abolishing Choice
So the most significant step taken under the regulations was perhaps the enforcement of education in the vernaculars, which began in the fifties and was completed in the seventies, as noted above, with the abolition of the English medium. These steps were taken without public discussion. The Minister in the first instance, the amiable aristocrat Nugawela, probably signed what was put in front of him without much thought'. And later, though Badi-ud-din Mahmud held the bridge on behalf of his community for as long as possible, he too perhaps had no choice when English was conclusively got rid of as a medium of instruction, given that the concession Muslims and Burghers had enjoyed for a decade was clearly rousing envy and criticism.
There was however another measure taken under the regulating power that perhaps was as important, and that was the takeover in the early sixties of almost all private schools in the country. Incidentally it should be observed that part of Jayasuriya's crusading zeal against plurality in education was due to his resentment of what he termed the denominational schools. It will be noticed that, when he criticizes private education, what he is fiးဇုန္နိ of in particular are the Christian schools which, as a fervent nationalist, he thought propagated ideals opposed to those of the Sinhala Buddhist nation he cherished.
In a theoretical sort of sense he had a point, because of course for many years education had been provided by missionaries whose funds were derived from sources keen on propagating their religion. What Jayasuriya failed to
' Though Bandaranaike is often blamed for this measure, it was enacted while he was in opposition in fact. It flowed naturally, as explained earlier, from the consensus that had developed amongst the younger nationalists - Jayewardene and Bandaranaike foremost amongst them, and with no dissent from their peers amongst the Tamils - in the run up to independence.
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observe was that many of those who actually ran the missionary schools were, first and foremost, educationists who benefited all students in their charge, and for whom religious conversions were a secondary matter. In the days when non-missionary schools were few and far between, there was perhaps a tendency to take advantage of the value of scarce education to push religion excessively. Soon enough however, with the advent of Buddhist schools, religious proselytizers had fewer advantages, and in most instances education was all they offered.
It should be noted that Jaffna, which had had a plethora of missionary schools to begin with, diversified early on, whereas in the Sinhalese areas it was only with the arrival of the American Buddhist Col Olcott that mass indigenously inspired education began. Even that however was limited, and it was only with Kannangara and his Central Schools that Sinhalese areas began to have education in numbers proportionate to what had long obtained in Jaffna and Batticaloa. By the sixties then the number of denominational Schools was comparatively small, and in any case they had all previously had to fall in line with government policy
' I have heard this too used as an argument for discriminating against Tamils in the field of education, on the grounds that the British had favoured them unfairly to begin with. What is conveniently ignored is that, initially, under the terms of the Kandyan Convention, the British had stayed out of education in most Sinhalese areas, whereas there were no such restrictions with regard to the Tamils. Nevertheless, in the first few years of British rule, they were not really interested in such services, and it was in fact Americans who initially ran most of the schools even in the North. The situation changed after the Colebrooke reforms of 1830, but even then British intervention was limited.
Unlike say in India, where no government has confused the obligation of the state to provide education for all with a right to control all education. The result is that India continues to have centers of excellence, which in turn provide inspiration even for the state schools, which with responsive management can sometimes produce equally good results. It is notable for instance that the curriculum even in state schools in India is far in advance of what we have in Sri Lanka.
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and follow the government curriculum including with regard to language policy. The takeover then was largely political, based on the paranoia of some of Mrs Bandaranaike's officials that Catholics were opposed to her7. It was done in terms of the regulation that had previously required denominational schools either to be fee levying or, if they were to continue to receive government assistance, to stop levying fees.
Interestingly enough a few prominent schools were spared, including those Mr and Mrs Bandaranike had attended, which were left in the hands of the Anglican Bishop of Colombo and Catholic nuns respectively. This was because: such schools had been prestigious enough to opt to levy fees and survive on the income they were thus able to raise. A few Catholic schools which had continued to receive government aid in the fifties struggled on in the sixties, as independent schools that did not receive such assistance and could not levy fees. In the seventies however, in the apotheosis of socialist and nationalist ideals that overtook even the Catholic church, they threw in the towel and became part of the state monolith. There are now therefore just about 20 schools nationwide that are private, but as noted before they all have to follow government regulations.
Escaping the Monolith-Privilege without Accountability
In such a bleak situation, with all education reduced to the
lowest common denominator that Jayasuriya elevated to a principle, how do people survive? More importantly, how
The old adage, that just because you are paranoid it cannot be argued that no one dislikes you, seemed proven when Mrs Bandaranaike's government had to face an attempted coup led by military men who were almost none of them Sinhala Buddhists. This fuelled the paranoia, and led for instance to a policy of recruitment to the forces as well as the Public Service that rapidly reduced other elements in these services. A pluralistic outlook is therefore difficult to find, and this has contributed still more to the sense of alienation felt by minorities.
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do the politicians who perpetrated all this survive? - given that politicians too have children and will obviously want the best for them, and in some cases will be able to deduce that what they have instituted is certainly not for the best. Not I suppose coincidentally, it was the very year in which the English medium stopped completely in Schools that the phenomenon of International Schools began. International Schools, it should be explained, are those in which children are educated in the English medium. Initially this was for foreign exams, but soon enough there sprang up the phenomenon of so-called International Schools' teaching the local syllabuses in the English medium'. The first International School began in 1982, perhaps because it was then that the drawing rooms of Colombo woke up to the fact that their children would otherwise suffer. To rescue them there appeared, a new St. George to attack the dragon of ignorance, a Tibetan who had originally come to Sri Lanka to set up a fast food restaurant. It was his wife, an English Oxford graduate, who became Principal of the Colombo International School that some businessmen set up. The entrepreneurial skills of the fast food expert cannot however be underestimated. Between them, when they fell out with their sponsors, they convinced the Secretary to the Prime Minister to have the school taken over. The Prime Minister's children went to that school, and it became a Government Owned Business Undertaking, under the Ministry of Housing and Construction.
The Examinations Dept continues to offer its General Education Examinations in the English medium as well. It is noteworthy that the regulations with regard to medium are extremely convoluted, and in some instances prescribe not the language in which students should be educated but rather the medium in which schools are permitted to present candidates. Thus, technically, for the Advanced Level schools can teach students in English, whereupon the students can leave. school and enter for the examination as private candidates.
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This was just as well, for the Minister of Education was on the warpath and sent the papers to the Attorney General's Department so he could prosecute the school. But, whether it was because of political influence or the recognition that the legislation would not stand up in the courts, there was no prosecution. The Colombo International School still flourishes, and counts the current President's children, now at English universities, amongst its alumni. Other politicians in turn helped to set up other International Schools, and there are now several all over the country. They all charge fees, some quite a lot, which means they cater essentially to the richest in our Society. This is no problem for politicians, nor indeed for most of those who contribute to decision making in this country'. The vast majority of our students however
' Though the Higher Education sector is outside the scope of this paper, it should be noted that similar opportunities are available in that area too for the well off to escape from the limitations of the state sector. As the quality of university education in Sri Lanka declined-in general, I should note, for there are still a few centers of excellence, albeit they can cater only to very limited numbers - the number of those obtaining undergraduate education abroad has burgeoned. An informal calculation by the Ministry of Higher Education in 2001, as indicated to me by its Secretary, suggested that about 40,000 students were at universities or tertiary level institutes abroad. This was as many as were in place in Sri Lankan universities, and represents a massive outflow of funds- though I should perhaps add that, given the inefficiency of our system, the cost to the country per student is relatively high, and in that sense students going abroad probably receive better value for money than those funded within Sri Lanka by the state.
The Ministry had therefore planned to allow private sector tertiary level education to be provided in Sri Lanka, since the costs would be much less, and the country would benefit from savings with regard to foreign reserves. Unfortunately, contrary to the advice of their Secretaries - who had been brought in from outside the bureaucracy in an effort to modernize thinking - the two Ministers, of Education and Higher Education argued against the proposal. The latter, a member of the Communist Party, arbitrarily announced the withdrawal of the proposal, and in the political uncertainty that prevailed for much of the latterpart of 2001, the idea seemed to sink without trace.
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have no such possibility of liberation from the restraints imposed upon them.
There has of course been much discussion about this sad situation where practically all those who can try to get their children out of the state system. In the process it has become clear that a principal reason for this is the fact that the state system does not equip children with the English they need for the modern world. For many years indeed this has been recognized, with various attempts made to improve English teaching, accompanied by a great deal of breast beating. Successive governments have bewailed the appalling levels of English teaching in this country and engage in various projects to improve it. But, even though they finally got round to identifying one of the principal reasons for the situation, namely the poor levels of English of the actual teachers, there was until very recently no coherent attempt to analyse this phenomenon and explore the reasons behind it'.
Going along with recognition of the poor quality of teachers was a recognition too of the paucity of available teachers or potential teachers. But in focussing on this, rather then the actual language of these teachers, successive governments engaged in different plans for teacher training, without working on language development, and language development at levels at which it would be meaningful and easy.
The lack of planning that prevails may be seen for instance in the failure to make use of the system of Technical Colleges that was set up to supplement the traditional education system by concentrating on practically useful courses. Despite general awareness of the poor standard of English education in the school system, even Technical College syllabuses stressed literature and linguistic theory instead of the basic language skills that were required. A paper proposing changes was presented to Ministry officials following a Workshop (See Appendix C), but this too has been forgotten in the uncertainties that followed the recent change of government.
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What would have helped, instead of repeated attempts to pull oneself up by one's bootstraps, was the commencement of English medium education at secondary level for those who wanted it. This would have provided the requisite opportunities for those who wanted this for their own children, but were unable to provide it due to their own deficiencies in English as well as a lack of funds to make use of International Schools. And from a national standpoint it would have developed a pool of youngsters proficient in English, some of whom would be likely - unlike the elite who alone enjoy high level proficiency in English and / or English medium education now - to choose teaching as a profession. And it is such persons who would be willing to serve in their own relatively deprived areas.
Unfortunately the opposition to the concept of English medium education came from various sources and various ideological standpoints. There are still some who are fighting the anti-colonial battles of the independence period, and think that English medium is a way of subordinating ourselves to the colonial master. That English is now a world language has evidently escaped them. Then there are those who argue that the practice would be pedagogically unsound. They ignore the fact that education in a medium apart from one's mother tongue is as much a right as education in one's mother tongue. The benefits children would derive from such possibilities, and the ability of parents to review such benefits and decide that they would outweigh any disadvantages, is of no consequence to such educationists in comparison with the dogmas of their youth. And most worryingly, they are incapable of discrimination, of recognizing that certain disadvantages are greater at primary level, but diminish later, so that allowing choice at least at secondary level is, even from their perspective, not so heinous.
And then, perhaps most influential of all, are the absolute egalitarians, who accept that English medium education would be a good thing, but who feel that, since
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there aren't enough competent teachers to make it widely available, it should not be permitted until that problem is solved. Again, the fact that solving the problem would be helped by commencing English medium education in at least the few places where it is possible is not a concept they can recognize, let alone respect. Dogma continues to take precedence over reality', and as the years pass the number of schools where English medium could be introduced without much effort diminishes rapidly.
Bypassing the Monolith - Creating New Structures
Fortunately the year 2000 saw the appointment of a Secretary to the Ministry of Education who carried none of the baggage of the past. Tara de Mel had been a university academic who then, as Adviser on Social Infrastructure to the President, was entrusted with coordinating the work of 3 Presidential Task Forces on Education. Those Task Forces had been instituted to prepare focussed plans of action and to facilitate the accelerated implementation of the reforms proposed by the National Education Commission' in these 3 areas. The NEC had been set up in 1991 when a Presidential Youth Commission diagnosed the inadequacies of the existing
21 I would find this tolerable, though sad, were it not that many such ideologues have children whose own English is perfect. Some went to International Schools, many have received their tertiary education abroad. The world is open to them, while their parents continue to make dogmatic and restrictive decisions for others.
’ It is typical of the confusion that reigns at official levels that no one thought of implementing the provisions of the ordinance and appointing the prescribed Advisory Council. Of course in those days the President may well have thought a Council responsible to the Minister would be worse than useless, given the calibre of the minister he had appointed. However, the latest government has indeed brought the NEC under the Minister, but not thought it necessary to bring in the legislative measures required to bring some coherence to the system.
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system of education as contributing significantly to the youth unrest that had disrupted the country so dangerously in the late eighties.
Interestingly enough, many of the recommendations of the NEC were similar to reforms undertaken by Udagama in the seventies. The failure in most other respects of the government Udagama served however contributed to adverse views of what he had done, and his educational reforms were promptly scrapped. In actual fact some of his ideas, with regard to broadening of the curriculum for instance, or less rigid systems of evaluation, or concerted training for teachers, formed part of the White Paper on Education the next government introduced.
That government, under the guidance of another able Secretary, Edward Wijemanne, implemented certain reforms that should have been generally acceptable'. Unfortunately the election of 1989, though it brought the UNP back to power, saw also a different Minister who was unashamedly populist. His policies were soon seen to be disastrous, and he was moved to another Ministry within a year, but by then the damage had been done. The systematic system of continuous assessment that had been introduced was done away with, and the rigid examination system that reinforced
' Though its main focus was the JVP uprising in Sinhala areas, the report
made clear that its diagnosis applied also to Tamil areas.
* The Minister at the time was Ranil Wickremesinghe, who is now Prime Minister. He was just over 30 when he took over this portfolio, which raised several eyebrows, but he proved an effective Minister and allowed experienced educationists such as Wijemanne full scope for productive changes. The one criticism that might be made was that they moved slowly-perhaps because of the furore caused by the White Paper, although most of the contentious issues in it were to do with Higher Education rather than Education. Because therefore the reforms had not been entrenched, Wickremesinghe's successor, from his own party, was able easily, in a very short time as noted above, to subvert a lot of what Wijemanne had achieved.
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the influence of tuition classes came back to the fore. Scores of teachers, many of them from the area he represented, were given appointments without training, which destroyed at a stroke the phiosophy Wijemanne had instituted of pre-service training for all teachers. Also destroyed was the concept of cluster schools, which had been designed to encourage regional centres of excellence. Indeed, though education had been handed over to the Provinces under the Provincial Councils Act of 1987, the Minister entrenched his own power by designating as National Schools all those he wanted to control. Naturally several of these, some of them with very few students in them, were in his own area.
By 1991 therefore the reforms that should have borne fruit had been stymied. The NEC then proceeded to recommend reforms that were similar to those of both Udagama and Wijemanne’. Unfortunately progress in implementing these was slow, in large measure because the Ministry had become so entrenched in its ways that innovation was beyond it.
It was in recognition of this perhaps that the President set up the 3 Task Forces shortly after she was elected to office but, even though this saw some results, it was clear that radical measures were necessary if implementation was to be swift enough to be meaningful. Tara de Mel therefore moved to work within the Ministry as its Secretary, and in the short period she was there achieved remarkable results. To concentrate on the field of English medium education, she insisted, against many protests from the old education
' I suspect these individuals and institutions may not take kindly to my arguing that their ideas were similar. If so, it is part of the problem we face, that there has been no attempt to build up a coherent national policy on education that all parties would accept. In actual fact I would argue that, though of course there are some differences, the similarities in the recommendations mentioned above should be recognized, and recognized as being based on generally valid principles that look to the product of an educational system rather than its processes.
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establishment, that students be allowed a choice of medium. Unfortunately this could not be extended officially to all classes and subjects, so the experiment was begun with Science at the Advanced Level. This was considered very essential, given that for many years students had been restricted to the knowledge they got from notes provided by teachers or tuition classes. The government did not print books for Advanced Level classes, and in any case translating the most modern knowledge and methods into Sinhala and Tamil would have been an almost impossible task. Since secondary reading was essential for proper education, but since this had to be in English and few students had adequate English for the purpose, the system was producing people who found it very difficult to cope with subsequent levels of knowledge and skills, at university or technical colleges. This was obviously one reason for Sri Lanka to fall behind in the globalized world of modern technology.
The idea then made sense, but introducing English medium for Science at Advanced Level ran into various problems, including most significantly perhaps the fear of students that they would be at a disadvantage at the Examination, in which every single mark counted, given the system of admission to university that prevailed. Nevertheless the Ministry persisted with the experiment, and the numbers that have continued with the programme suggest that it will develop further in years to come. Fortunately, though the UNP in opposition raised some questions, on coming back to government at the end of 2001 it made clear that it would persist with the programme, and in fact widen its scope, perhaps to include Advanced Level Commerce in English too. Meanwhile, in 2001, Tara de Mel began work on introducing English medium at Grade 6 from 2002. This programme too was supported by the new government, and whereas about 2500 students had opted for English medium at that level in January, by February the numbers had doubled.
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This Project was launched in terms of Amity Schools, thus underlining the fact that segregated education had been one of the prime reasons for continuing disjunction between the different communities in the country’. The proposal was approved in terms of a cabinet paper presented jointly by the Ministries of Education and of National Integration. In effect Zonal Directors were invited to permit schools in their catchment areas to opt for introducing English medium at Year 6, with the proviso that they should make arrangements for students of other schools in the Zone, especially those of different communities, to transfer to the pilot schools if they so wished.
World Bank assistance was obtained for the production of textbooks and the training of teachers, and the scheme has now commenced in about 80 schools islandwide. It should be noted that not many schools have made arrangements for admitting students of other communities, but in any case the fact that all these children now participating will be able at some future stage to communicate with each other is at least a step in the right direction. It is also heartening that several principals are keen on this measure, though thus far they have not received much administrative support for this.
Institutionalizing the Monolith - The Monopoly on Textbooks
In the midst of all these problems, the process of translating textbooks has brought up another issue that may well have remained hidden otherwise to the lasting detriment of school children all over the country. This is the highly idiosyncratic
'' It should be noted that Tara de Mel also instituted a concerted attempt to improve the quality of education in the areas worst affected by the Ethnic Conflict, through the Quality Assurance Unit that she had set up in the Ministry, which worked with NGOs etc in the affected regions.
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manner in which textbooks are prepared, with very little reference to educational practices elsewhere, or indeed to wider bodies of expertise even within the country.
To discuss this it is perhaps necessary to retrace some of the history of, not the Ministry in this case, but one of its related bodies. In the eighties, perhaps because it was recognized that the Ministry had become unwieldy, Wijemanne and his Minister established a National Institute of Education, as agency created by Act of Parliament with specific responsibility for teacher education and development. Though these were the responsibilities enjoined upon it by legislation, it also absorbed the former Curriculum Development Centre that had been responsible for syllabuses. This has resulted in a general assumption, which no one I consulted could justify, that the NIE was legally empowered to lay down the curriculum and produce materials’. It was
It was not entirely unexpected, when I went through the Act establishing the NIE, to find no mention at all of any responsibility for devising syllabuses for schools or producing textbooks for school children. Its statutory duties were largely in the area of teacher training, and devising qualifications in this field, in a context in which the Ministry of Education felt the universities, and even their Faculties of Education, were not concerned with courses that would produce teachers for the Secondary schools. Of course there may have been some later legal provision to transfer the work of the old Curriculum Development Centre to the NIE, but I have been unable to trace any relevant documents at the Legal Branch at the Ministry. In any case, even if there were a specific regulation, it would not I believe be in conformity with the legal responsibilities of the NIE as prescribed in the Act. Incidentally, powers with regard to syllabuses are conferred by a tiny paragraph in the middle of the 1939 Ordinance, in Part V, which relates to the power of the Minister to make regulations - Section 37 (2) says he may make regulations in respect of '(d) the admission to schools, the course and schedule of studies, and the books and apparatus to be used therein'. (It is (e) that adds - 'the language through the medium of which instruction shall be given in any class in any Government school or assisted school). Incidentally, the fact that no one in the Ministry seemed to have gone through the Act carefully, and that everyone assumed the NIE legally had the powers it
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also at this period that the government took upon itself the task of preparing and supplying textbooks free of charge to all students. The result is that officials, who had previously devised syllabuses and checked out a number of books from different sources through which a syllabus could be covered, found themselves required to write, print and distribute textbooks all over the country'.
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In my view this was the final nail in the coffin of education, though it was presented at the time as the apotheosis of free education (and went along with the supply too of free school uniforms). Though there may have been some idealism involved, what it led to was the crystallization of one particular viewpoint and the imposition of that on all children. Hayek's point about the fatal effect of state monopolies could have had no better illustration. And officials themselves recognize this, when they suddenly discover that a particular textbook is so bad that it has to be radically revised. Unfortunately, such officials are unable to grasp the basic principle that what they produce may seem equally bad, and the solution is to encourage plurality. Instead, with touching myopia, they proceed to enshrine whatever is their particular flavour of the day or month or year. And even though now, under pressure from the World Bank, there is an attempt to introduce what is termed a multiple book option, the manner in which it is being implemented (which led to hardly anything suitable being found at the first trawl) suggests that getting the Ministry / NIE to abandon their monopoly will be extremely difficult. Apart from obvious problems of competence the Sri Lankan system also produced massive scope for fraud and inefficiency, the one sometimes masking the other. A massive scandal at the Ministry a few years back led to the replacement even of its Secretary, though the matter was never made public. Meanwhile, whenever there are shortages of books, the victims are rural children, who during the last decade received very few of their books on time. Sometimes books languish for months in provincial offices, with no remedy since there is no accountability, and the so-called beneficiaries of handouts are not in a position to complain. Printers meanwhile have a field day in turning tender procedures to advantage and producing inferior goods which the so-called beneficiaries cannot reject.
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Matters were complicated by the fact that the responsibilities of the Ministry and the NIE were not clearly demarcated. Initially this did not prove a problem, perhaps because the NIE's first Director General was Wijemanne's principal ally amongst educationists, D A Perera, and the two of them worked together extremely well.
With the change of Minister noted above however, complications occurred. At one stage a Ministry Secretary occupied both positions and then, when a new Secretary was appointed, stayed on as DG of the NIE and worked towards different purposes. This, albeit with less animosity, has continued since then to characterize relations between the two institutions. Sometimes activity is duplicated, which can ill be afforded in a context in which capable officials are few and far between. What is almost always lacking is informed consultation that would contribute to raising professional standards'. Textbooks then are produced by ever diminishing groups of self-perpetuating experts, whose work tends to be approved by formal bodies lacking in the necessary expertise and certainly without the capacity to study Sinhala and Tamil textbooks thoroughly to ensure at least some uniformity.
It was perhaps in recognition, following the Youth Commission report mentioned above, that the NIE too was now contributing to the problems it was created to help resolve, that the government set up the National Education
' An obvious example of the confusion that reigns emerged when, in the course of translating the Grade 6 books into English, it was found that they were singularly lacking in content or coherence. The Educational Publications Division of the Ministry, which was supposed to produce textbooks, denied all responsibility, claiming that the Director General of the NIE had introduced new concepts which he had wanted implemented immediately. When EPD said this was impossible, he had got the books written up at the NIE, and insisted on their production and distribution by EPD.
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Commission. This was supposed to report direct to the President in initiating policy reforms. However, just as the Ministry of Education lost none of its powers when the NIE was set up, so too the NIE lost none of its when the NEC was established. So, by the time a new government came into office in 1994, there was total uncertainty as to who was responsible for what.
Typically, one of its innovations was the creation of a National Authority for Teacher Education within the Ministry, with a separate Director General. This is despite the fact that, as mentioned above, the NIE was initially set up primarily for the purpose of teacher training, and still continues to do much of this. In addition there is a Commissioner for Training Colleges within the Ministry, who is in charge of the former In-Service Training Colleges as well as the Pre-Service Colleges of Education that were set up while Wijemanne was Secretary. As noted above, the Minister who came into office in 1989 and destroyed much of what his predecessor (of the same political party) had achieved was ignoring the principle of appointing as teachers only those who had received training. So the Teacher Training Colleges, which should have been phased out, are still in existence”.
With all this confusion, and the consequent moribundity, it was typical that an even grander entity was created by the government that took office in 1994, namely the Presidential Task Forces mentioned above, to expedite implementation of reform. And again, typically, it was probably to cut the
Following the change of government in December 2001, it was placed within the Ministry, though without any very clear policy directives or responsibilities vis-à-vis the Ministry or NIE officials. Subsequently, perhaps when the Act was read again, it was put back under the President.
'. It should be added that, since talk of closing them has continued over the last decade, motivation and performance in them has been adversely affected.
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Gordian Knot that the chief agent of the Task Forces felt it necessary, after the 2000 General Election, to take on the post of Secretary to the Ministry of Education. Surprisingly, and perhaps entirely due to the character and the energy of the person in question, that provided some sort of a fillip, and the various reforms Tara de Mel pushed through in one short year, including those noted above, indicates that even the Ministry can move if pushed. But the efforts required, and the lack of administrative support from within the Ministry, due perhaps to incomprehension and incapacity rather than active hostility, suggest that Swifter remedies are required if any reforms are to be effective.
And the inactivity that has affected the Ministry since Tara de Mel's enforced resignation, following the change of government in December 2001, suggests that within the Ministry at any rate the possibility of change is non-existent. Of course the new UNP government, which has failed, more through oversight it would seem than policy, to appoint a Cabinet Minister of Education, may not really be interested in reform in this area. It obviously had not had any coherent
' And from the Minister and Cabinet too. One very obvious failing was that, though regulations had been prepared that freed up the medium of instruction, the Cabinet got cold feet and postponed introducing these in Parliament.
' This was remedied with the elevation to cabinet rank at the beginning of March of the Minister for Human Resources Development, Education and Cultural Affairs. Given however that the Ministers of School Education and of Tertiary Education and Training (and perhaps more portentously their aides) had already built up relatively independent empires, it is a moot point as to whether the Cabinet Minister will be able to devise and implement policies and programmes swiftly and coherently.
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plans for education, because it floundered for a few days in seeking a Secretary, before finally appointing an administrator who makes no bones about the fact that this is not a subject he is familiar with. He is not helped by the fact that Tara de Mel's Senior Additional Secretary also sought a change, so that the pool of assistance he can draw from is markedly limited.
At the same time it should be noted that, despite the criticisms the UNP made of the reforms when Tara de Mel was trying. to push through with them, the pronouncements of some of its Ministers since they took office indicate that they intend to continue with them - which is of course understandable, since many of them had been formulated by the NEC set up by the UNP during its last period in power. Unfortunately, since they had not tried to study the policies in depth, they may not quite understand what is needed, and of course the paucity of capable senior staff in the Ministry at this point does not help. It seems almost a matter of luck as to whether anything will be carried out with sufficient commitment and consistency to allow for at least a fair chance of success.
So one is left only with the hope that, since the new government has obviously not got any strong determination to achieve things, some measure of consensus has at last been
* The post was even reportedly offered to Eric de Silva, who was Ranil Wickremesinghe's first Secretary at the Ministry of Education, though he soon took up an assignment overseas, and was replaced by Wijemanne. de Silva, having then been a Ministry Secretary in the seventies, on this occasion sensibly said that he preferred retirement. This did not however prevente him from launching criticisms in the newspapers of the last government's initiatives with regard to English medium education, initiatives which the present government decided in fact to expand on.
Entertainingly, one might say, the Prime Minister, probably because of dissatisfaction about the situation in the Ministry, appointed at the beginning of April several Committees to suggest structural and other changes. Two of them are chaired by Eric de Silva and Wijemanne.
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achieved, if only by default. At the same time, the findings above suggest that more radical measures, involving a conceptual change, are essential if our children are not to be stymied and compartmentalized by the Ministry of Education, together with its attendant bodies.
I would suggest then that those concerned with providing a better education to our children, that would actually help with the nation building process, strive to ensure implementation of the following reforms as soon as possible —
(a) the introduction of a new Education Act that will govern educational policy and practice in Sri Lanka on the following principles -
O recognition that with regard to policy the role of the state should be regulatory rather than prescriptive, ie the state should lay down minimum standards in particular areas and monitor educational institutions to ensure that these are achieved, rather than enforcing a uniform system that does not encourage excellence and choice
O recognition that with regard to practice the state should supplement rather than provide, ie it is the duty of the state to provide education to all those who are otherwise unable to obtain it. Far from precluding the provision of private education at all levels, it should be positively encouraged
o permitting free choice with regard to medium of
instruction and examinations to be taken
(b) the development of a publishing industry that will ensure
the availability of a wide range of educational materials. The role of the state will be to formulate syllabuses which
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(c)
(d)
(e)
(f)
will prescribe minimum achievement levels. Nothing should prevent schools from providing education in excess of these levels. Schools should be free to choose materials that will provide optimum benefit to their students. This should apply even to schools in the government sector, where on a voucher system subsidies may be made available for books that are more expensive. There is little doubt however that, as occurs in India at present, competition will ensure the availability of high quality low cost books
the provision of high level reading competence in English to those involved in syllabus design so that they can benefit from practices in other countries. Mechanisms for drawing up syllabuses should include consultation with educationists representing all sectors
the establishment of an Advisory Body from outside the bureaucracy to ensure that plurality of outlook is developed. The Board should include representatives of particular interest groups, to which those representatives should be accountable
rationalizing the roles of the various institutes now involved in planning and implementation in the field of education, and ensuring responsiveness to public needs and priorities in all their activities. This should in particular involve analysis of institutions such as the National Education Commission, the National Institute of Education and the National Authority for Teacher Education, together with various Ministry Departments. A principal aim should be to preclude duplication of efforts, while laying down clearcut responsibilities along with mechanisms for ensuring that these are fulfilled
ensuring the professional and academic development of teachers by providing them with reading competency in
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English that will enable them to keep abreast of modern developments in their fields
(g) developing provincial libraries with stocks of books that
are readily accessible to teachers and students
(h) extending opportunities to all children for tertiary education by permitting private sector investment and activity in this area. It may be salutary in this respect to reconstitute the University Grants Commission as mainly a funding agency, to which private as well as State institutions may apply, in terms of the public service they perform
(i) in particular enhancing opportunities for teacher training by encouraging private sector involvement in the field and collaboration with foreign agencies and institutes. Universities, both private and public, should be encouraged to contribute in this area
(j) promoting the establishment of institutions that will enable students from different communities to learn together
Rajiva Wijesinha Professor of Languages, Sabaragamuwa University Coordinating Manager, English and Foreign Languages Unit, Ministry of Education
April 13th 2002
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Appendix A
Structures for Administration and Training in English at Provincial Levels
(This paper was ratified in principle at the meeting of the Board of Management of NCoEs held on 1 November 2001. It came up there because the Additional Secretary responsible for NCoEs was also responsible for Provincial Training. He has now retired, and there is no replacement with specific responsibility for these areas. The situation with regard to other subjects differs little from the situation with regard to English, and it was noted that the principles suggested here could be applied to other subjects too. Cadre is prescribed across the board, with no distinction as to subjects, and apparently no analysis as to particular requirements in terms of the number of Educational Zones and Divisions into which the country is divided.)
At the last meeting of the NCoE Board it was decided to clarify the status of teacher educators at RESCs in the context of Teacher Centres. Clarification is also required about the position of those within the Educational Administration Service who engage in training activities.
There are many anomalies at present with regard to Deputy and Assistant Directors of Education who have administrative responsibilities as well as professional ones. The same applies to In Service Advisors. There are at present no job descriptions for holders of these posts, and appointments seem sometimes to be made on an ad hoc basis. For the last there is supposed to be an examination, but this has not been held in the field of English for some time.
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The following clarifications are therefore proposed for
these posts in the field of English.
Each Province should have a Deputy Director of
Education (English), whose job description should include the following -
Planning and Reporting on work in English to the Provincial Director of Education Liaison with the Directors of English at the Ministry and the NIE Providing data on English teaching in the Province to the Provincial Director and the Ministry Monitoring the activities of Quality Circles with regard to English Supervision of English Teachers and Trainers in the Province Ensuring the organization of workshops for English teachers in the Province Ensuring the supply of English texts, workbooks and Teacher Guides to schools Monitoring the work of RESCs and Teacher Centres in the field of English Ensuring opportunities for professional development for English teachers and trainers Arranging monthly meetings for all ADEs in the Province Organizing English Competitions throughout the Province
The DDE (English) should have a Degree in English plus postgraduate qualifications. Those who have been appointed already may continue in the post but would be required to obtain appropriate qualifications within a specified period.
Each Zone should have an Assistant Director of
Education (English), whose job description should include the following -
Reporting to the Zonal Director of Education
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O Liaison with the Provincial Deputy Director of Education
(English) and Ministry / NIE officials o Providing data on English teaching in the Zone to the
DDE (English) and the Ministry o Monitoring the activities of Quality Circles with regard
to English O Ensuring the supply of English texts, workbooks and
Teacher Guides to schools Supervision of English Teachers and Trainers in the Zone Ensuring the organization of workshops for English teachers in the Zone o Providing opportunities for professional development
during school vacations and weekends O Monitoring the work of RESCs and Teacher Centres in
the field of English O Developing opportunities for professional development
for English teachers and trainers Arranging monthly meetings for all ISAs in the Zone O Ensure collaboration between ISAS and Teacher Centres
and RESCS O Organizing English competitions through the Zone
The ADE (English) should have a Degree in English or a Trained Teacher Certificate with a specified period of teaching experience and a Certificate or Diploma in English from an approved Tertiary Level educational institution. They should be appointed after an examination which should be conducted at least once every two years. The examination should include language and aptitude tests as well as a test of the ability to train teachers. Those who have been appointed already may continue in the post but would be required to obtain appropriate qualifications within a specified period. Each Division should have an In Service Advisor for English, whose job description should include the following -
o Reporting to the Zonal Director of Education and the
Zonal ADE (English)
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O Providing data on English teaching in the Division to
the DDE (English) and the Ministry O Ensuring the supply of English texts, workbooks and
Teacher Guides to schools O Organizing and conducting Quality Circles with regard
to English o Supervision of English Teachers in the Division o Ensuring the organization of workshops for English
teachers o Providing opportunities for professional development
during school vacations and weekends O Monitoring the work of RESCs and Teacher Centres in
the field of English O Ensuring opportunities for professional development for
English teachers
In Service Advisors in English should have a Degree in English or a Trained Teacher Certificate with a specified period of teaching experience. They should be appointed after an examination which should be conducted at least once every two years. The examination should include language and aptitude tests as well as a test of the ability to train teachers. Those who have been appointed already may continue in the post but would be required to obtain appropriate qualifications within a specified period.
The following division of duties and mechnisms for monitoring are also proposed.
1. ISAs should monitor teaching in schools and provide professional and administrative assistance to teachers. Monitoring should include checking on the availability of teachers and textbooks, as well as ensuring that teachers are functioning effectively. This should include attention to the schedule of basic achievement levels for each grade. ISAs should be responsible for ensuring that the training needs of the division are met, and should
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work in conjunction with the Zonal ADE to use other resources such as RESCs and Teacher Centres for this purpose, in addition to their own inputs.
Following on weekly reports from ISAs, ADEs should present a consolidated monthly report to the DDE, as well as the Zonal Director, and indicate what remedial measures are planned. These should include at least one workshop a week, though no teacher should be invited more than once in each term. At the conclusion of each workshop a quiz should be conducted in writing, and those teachers who fail to make the grade should be required to attend further remedial workshops on holidays or in the vacation.
The DDE should send the Ministry and the Provincial Director a bi-monthly consolidated report regarding activities in the Province. A meeting with all ADEs should be held once a month, and reported on to the Ministry as well as the Provincial Director.
There should be a Teacher Centre in each Zone and at least one RESC, which should be part of the Teacher Centre network, for every two Zones. The RESC Coordinator should be responsible to the Zonal Director in whose Zone the RESC is, but the RESC should include staff from each Zone the RESC serves, and such staff should report to the the ADE (English) of the Zone as well as the Zonal Director. RESCs should coordinate with Teacher Centres, with the former concentrating on Primary and English medium work, while Teacher Centres should prioritize secondary work in collaboration with ISAs, as well as Advanced Level General English.
The DDE's/ADE's reports and meetings should also deal with RESC and Teacher Centre activity. These may
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concentrate on the areas given above, and should assist in the monitoring of availability and teachers and books accordingly. RESCs should also serve as centres for books suggested for supplementary reading.
While responsibilities should be divided as above, joint activity between ISAs and RESC / Teacher Centre staff should be developed to achieve objectives. Ensuring cooperation in this regard should be the responsibility of the Zonal Assistant Directors of Education (English).
Reports should include information about books and teachers in individual schools. By the middle of 2002 DDEs and the Ministry should have updated information about the situation inevery school in every division.
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Appendix B
Recruitment of English staff to Teacher Educators' Service and Educational Administrative Service
(This paper was ratified at the meeting of the Board of Management of NCoEs held on 15 November 2001, but no further action has been taken).
There has been much discussion recently about recruitment of Educators and Administrators with regard to English. Recent minutes make exceptions to general criteria because until very recently graduates in English were few and far between. This was because, for many years, degrees in English were primarily for Literature, which was not in fact the ideal for Educators and Administrators in the field of English Language. In addition, stringent admission requirements meant that very few graduates were produced each year, and these were likely to stay in urban centres, where they found ready employment.
The position has changed recently with the development of new courses at university that concentrate on Language and cater to those who do not have Advanced Level English. Yet, since products of these courses have passed out recently, they do not fit the high level criteria for regular recruitment, which involves experience as well as higher qualifications.
Meanwhile Ministry policy has been to allow for those who have Trained Teacher Certificates and experience to be appointed to these posts. However, it is increasingly difficult to find suitable candidates, and in any case the lack of a degree means their status is in question. This in turn affects their effectiveness as Educators and Administrators, while their capacity to develop and acquire new techniques and the felxibility to apply them is also limited. Despite the importance of these positions, the most recent advertisement for instance allows, in English, for candidates with 5 years
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teaching experience in a relevant subject with an O/L pass in 6 subjects, not necessarily including English to sit the examination. Since the examination itself does not have an English paper, there may be strange outcomes, given that English teachers were appointed as recently as the early 90s without any relevant qualifications. (Incidentally, it should be noted that, for the General cadre too, a Trained Teacher qualification suffices with some experience).
At the Meeting of the Board held on September 6th a paper was presented regarding policy on appointment of Managers to Teacher Centres. The problem arose because of a mismatch between those who had already been appointed, and the new qualifications required by the Teacher Educators' Service. After other solutions to this problem had been considered and found wanting, it was decided that such officers be given a letter of appointment personal to them. These would have to be issued by Provincial Ministries, following a policy decision by the Ministry. This special provision has to be made only for Managers, since other TC staff do not necessarily have to belong to the new Teacher Educators' Service.
While this solution may be satisfactory for Teacher Centres, it should be noted that NCOE lecturers also come from the same service, and there is need of at least Some Solid academic achievement for such. Given difficulties of recruitment, some temporary schemes are required, but so far emphasis has been on experience. This is inappropriate in the present context, where academic skills are essential.
It is proposed therefore that criteria be drawn up that will allow for recruitment to the Teacher Educators Service (and if appropriate the Educational Administrative Service) on a temporary basis. Credit may be given for academic achievements or for experience but with the proviso that, if advanced academic qualifications as required by the general criteria are not met within a specified period (I would suggest five years) the candidate revert to the ordinary teacher service.
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Appendix C
Report on a Workshop held at the National Institute of Technical Education in Sri Lanka For English Lecturers and Instructors, on December 1st 2001
Summary of recommendations
Revision of English Diploma Course offered at Advanced Technical Colleges, to make it useful for the main target group, ie teachers of English (SLIATE - Ministry of Education and Higher Education)
Popularizing the National Diploma now offered at NITESL by making it available, preferably on a fee levying basis, at Technical Colleges as well as ATIs (Dept of Technical Education and Training - Ministry of Vocational Training; also SLIATE - MoE&HE)
Ratifying the detailed version of the English Certificate Course syllabus prepared at NITESL and making it available to all Technical Colleges (DTTE - MVT)
Streamlining the syllabuses for the English component of Diploma / Certificate Courses in other subjects, and including a foundation level general component based on the first part of the English Certificate course (DTTEMVT)
Producing simple English readers with activities for the English component of Diploma / Certificate Courses in other subjects (DTTE-MVT; SLIATE-MoE&HE
Devising and implementing basic English syllabuses for
courses offered under the VTA (if this has not already been done - Vocational Training Authority - MVT)
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Background
1.
The Workshop was organized to clarify the present situation with regard to English courses and suggest improvements as appropriate. It was organized by personnel at NITESL, but invitees included instructors working at Technical Colleges for the Dept of Technical Education and Training and also lecturers at Advanced Technical Institutes (ATIs) who work for the Sri Lanka Institute for Advanced Technical Education. The latter body comes under the Ministry of Education and Higher Education, while the former two come under the Ministry of Vocational Training.
It should be noted that the latter Ministry also has a Vocational Training Authority, responsible for 248 Vocational Training Centres, which run short courses, generally of less than a year. The Dept runs 36 Technical Colleges which offer Certificate Courses, usually of a year's duration. NITESL conducts Diploma courses that are largely but not exclusively aimed at potential trainers, for the Technical Colleges as well as the Private Sector. Higher National Diplomas are offered by ATIs, usually through 2 or 3 year courses.
With regard to English then, the following training is offered -
A National Diploma at the ATIs (this is the only Diploma they offer that is not called 'Higher). Generally speaking it caters to two groups, students after Advanced Level who wish to improve their English and teachers of English who use it to help with external degree courses A National Diploma at NITESL. This is a new course, targeted at post A/L students and others who wish to improve their English to a level at which they can function in it professionally
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A National Certificate at the Technical Colleges. This is for those who need English for their careers, but at second language levels. General English and English for Specific purposes for the Diploma and Certificate courses offered at ATIs and Technical Colleges General English for those taking short VTA courses
Though attendance at the Workshop was very small, the group covered most of the above areas and participated actively. It should be noted that the need for such workshops was widely acknowledged, with problems ranging from non-availability of syllabuses and paucity of materials to non-attendance of Students and inconsistencies as to evaluation.
At the same time it should be noted that NITESL. has recently done a great deal of work to improve the situation. Necessary reforms can therefore be implemented Swiftly, if appropriate administrative mechanisms can be found.
Advanced Technical Institutions
6.
This is the area where reforms are most urgently needed. The current syllabus has not been revised since the early 80s, and was archaic then. It is totally unsuitable for those who apply for the course. It includes a great deal of theory about language, and literature texts that are more difficult than those now taught at many universities for English degrees.
Given that NITESL has now developed an effective Diploma Course for some of those who take this Diploma, I would suggest that the ATI Diploma be renamed a Higher Diploma (as with all other ATI courses), and
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targeted mainly at teachers who need higher qualifications. Instead of being based on old university syllabuses, it can be revised to include areas required for the new ELT degrees offered by Kelaniya and Sri Jayawardenepura Universities.
8. If ATIs also wish to target school leavers, I suggest they also offer the present NITESL Diploma as a National Diploma. However, they should charge fees as NITESL does, to ensure that the course is taken seriously and attendance is regular.
9. The English courses now offered for other Higher National Diplomas are also in need of revision. Given that these Diplomas, are supposed to be in the medium of English, but are now taught for 1 or 2 years in mother tongue, there is need of concerted effort to bring students to the level where they can follow lectures and read in English. Syllabuses should specify the achievement levels required, after a discussion with those responsible for the other courses as to what is necessary for the satisfactory delivery of those courses.
10. I recommend also the development of easy readers in these areas so that at all ATIs lecturers can have ready access to materials with prescribed activities. Much time is now wasted in producing materials and devising activities, when these can be entrusted to a central body.
NITESL / Technical Colleges
11. The NITESL Diploma has been extremely well thought out and should be offered elsewhere, if suitable staff are available. It could be taught at Technical Colleges as well as ATIs, on a fee levying basis.
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12.
13.
14.
15.
The NITESL revision of the Certificate syllabus has also been done extremely well. This has been sent to the Dept for ratification and distribution to the Technical Colleges, but no action has been taken for over a year. This is doubtless due to a shortage of staff qualified to look into this at the Dept, so it may be useful for the Ministry to delegate authority in this regard to a Committee that would include staff at NITESL. Though the previous syllabus was a good one, since it is a short document without details as to the delivery of the course, instructors are burdened with the necessity to expand on it themselves. They could be saved much time and trouble if the new document were officially prescribed.
With regard to General English / ESP for other courses, it seems wasteful to have totally different syllabuses. Given the entry level of most students, there is clearly a core requirement that should be given to all. This should consist largely of building confidence about the language through the development of oral skills. Some basic reading and writing should also be done. I suggest therefore that, making use of the first parts of the revised Certificate course, a syllabus be developed for a Foundation type course involving 2 contact hours per week.
For further work, depending on the hours that are allocated for each course, separate syllabuses can be developed, for another two hours each week. Any additional allocation should also be devoted to General English, based again on the Certificate course syllabus.
As suggested for the ATIs, easy readers should be developed to be used in common by Technical Colleges. These should include activities based on text types students are likely to come across - advertisements (of products and jobs), manuals, forms etc
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VITAS
16. No representatives of the institutes under the VTA were present, so these suggestions are necessarily cursory. However, having done a Consultancy for WUSC in this area, I am aware that some English is taught on these courses, and that students find it useful for some jobs. Participants at the Workshop were of the view that syllabuses and material for this area would also be useful. In this area too the expertise of the NITESL English Dept could be used, if the VTA does not have a separate English Unit.
Prof Rajiva Wijesinha
Consultant Manager English and Foreign Languages Unit / MoE&HE
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The Role of the Attorney General in cases of torture, illegal arrest and arbitrary detention
Priyadharshini Dias
Chapter 01
Introduction
The right to be free from torture, illegal arrest and arbitrary detention has been recognized by both international and domestic laws. In Sri Lanka these acts are prohibited by its penal laws. Fundamental rights entrenched in the Constitution afford protection against these acts. International laws and treaties too have made it obligatory for the relevant state parties to eradicate such practices. This paper highlights the local and international laws relating to the protection of these rights; acts that amount to violations of these laws, the prevailing impunity in Sri Lanka and the Attorney General's powers and the procedure adopted to deal with the same.
Acts of torture, illegal arrest and arbitrary detention take place during the pre-trial investigative stage and are committed by public officials who are vested with powers of arrest and detention which include the police, armed forces, prison officials and any para military forces such as home guards, who are given de facto powers of keeping the peace on behalf of the state. The fundamental rights provisions and international human rights instruments deal with violations committed by the state on its citizens in the course of an executive or administrative function. Thus acts of torture committed by nonstate actors are not within the topics covered in this paper.
The role of the Attorney General comes in as a result of the powers vested in the Attorney General as the chief law officer of the country. Though the functions of the Attorney General
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are not of an investigative nature, the Attorney General as the chief law officer of the island is vested with wide powers to give directions in relation to the investigative functions of the police in addition to the exercise of the Attorney General's quasijudicial powers. The Attorney General therefore has a dominant role to play in taking preventive measures to put an end to these violations of human rights. In this regard this paper will deal with the role and the powers of the Attorney General in the event of an occurrence of cases of torture, illegal arrest and arbitrary detention.
Upon an examination of the different aspects of these rights and its breach the paper makes recommendations to improve the current methods used by the Attorney General and the different institutions dealing with the office of the Attorney General which include the Police, the Judiciary and the Medical Profession.
This paper serves as a background paper for the South Asian Conference on Diversity organized by the International Centre for Ethnic Studies. This conference will primarily be directed at the national and state level institutions that have been established to protect minorities, promote pluralistic and foster integration. Thereby the role of the Attorney General in ensuring that the minority population of our country enjoys the equal protection of the law has been referred to in this study. International standards on the rights of minorities arose as a result of the growing phenomenon of ethnic violence, internal armed conflict and human rights abuses associated with such conflicts. The United Nations Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities (Minority Rights Declaration) came into being in December 1992 as a recognition of the need to ensure the protection of the rights and freedoms of minorities with states. The protection and promotion of minority rights in a multicultural Society is necessary to sustain political and Social stability which enables economic stability and development.
Sri Lanka has witnessed recurrent abuses of human rights during the past three decades. The cases occurred in the context
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of two armed insurrections in the South by the People's Liberation Front (JVP) (in 1971, April to June and in the 1980's) and a two decade old armed conflict between the Liberation Tigers of Tamil Eelam (LTTE) and the Government.
In the past few years the crime rate has increased tremendously in spite of the introduction of strict penal laws. Torture and other ill treatment also occur in the context of ordinary police work concerning criminals with no connection to the security situation in the country. However these abuses can never provide a justification for governments to disregard their obligations to respect human rights, including the right not to be illegally arrested or arbitrarily detained or tortured from which there is no derogation permitted under any circumstances.
The Attorney General has an indispensable role to play to bring an end to the impunity of these transgressions. One must not create an atmosphere where the offenders can continue to commit these violations without fear of arrest, prosecution or punishment. Bringing the culprits to justice not only deters them from repeating their crimes, it also makes clear to others that torture and ill treatment will not be tolerated. However, when the functionaries responsible for upholding the law routinely flout it when dealing with their own members, they undermine the whole criminal justice system.
The State's failure to bring to justice those responsible for torture often goes hand in hand with a refusal to investigate the facts of the matter and an unwillingness to provide reparations for victims. One must keep in mind the right to equal and fair justice that a victim is entitled to, and the impunity itself can be seen as a multiple human rights violation, denying the victims and their relatives the right to have the truth established and acknowledged, the right to see justice done and the right to an effective remedy to obtain reparation.
Many international instruments have recognized the right to an effective remedy for victims of torture, illegal arrest and detention and obliged state parties to investigate and bring
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perpetrators to justice in fair and effective criminal proceedings and punish them appropriately. The right to an effective remedy is of paramount importance when a state fails to take action on its own initiative to investigate, prosecute and provide redress when violation of these rights are alleged. The UN Special Rapporteur on the question of impunity of perpetrators of human rights violations (civil and political) held, "the right to justice implies that all victims shall have the opportunity to assert their rights and receive a fair and effective remedy, ensuring that their oppressors stand trial and that they obtain reparations’.
The right to an effective remedy comprises several issues. The state must award appropriate reparations to the victim, including compensation, rehabilitation, restitution (restoring the victim to the previous situation), satisfaction (such as restoration of reputation and public acknowledgement of the harm suffered) and measures to ensure non-repetition. Like the other obligations that follow from an act of torture, the duty to provide reparations rests with the state, not a particular government. "In cases where the Government under whose authority the victimizing act or omission occurred is no longer in existence, the State or Government successor in title should provide restitution to the victims'.
Collective measures include public recognition by the State of its responsibility, and measures to ensure that crimes will not be repeated. These include repealing the laws which facilitate torture and ill-treatment (such as the Prevention of Terrorism Act which gives wide powers of arrest and provides for prolonged incommunicado detention, admissibility of
l Universal Declaration of Human Rights (Article 8), ICCPR Article 2 (3)}, The European Convention on Human Rights (Article 13), The Convention against Torture, the American Convention on Human Rights (Article 25), the 1981 African Charter on Human and People's Rights {Article 7(1)}
2 UN Doc. E/CN.4/Sub.2/1997/20/Rev. 1,2 October 1997, para 26
3 UN Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power (1985) Principle 11.
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confessions), disbanding armed political groups and removing from office senior officials implicated in serious violations.
Thus the examination of the powers of the Attorney General in this respect is of paramount importance. This study will highlight the fact that if the Attorney General exercises the entire range of the ambit of the powers given to the said office, it is the Attorney General's Department which will be in a position to put an end to the impunity prevailing in our country that facilitates the commission of these human right abuses.

Chapter 02
History of the Office of the Attorney General
The office of the Attorney General in Sri Lanka is a high and exalted office, and the functions he/she performs under the Constitution and certain other statutes are of a responsible and solemn nature. The Attorney General is appointed by the President and is the chief legal advisor on all matters to the Government. The Attorney General is responsible for the legal advise given to the Government on matters relating to political or national importance. The Attorney General's Department is consulted by statutory bodies or corporations who act on advice so received. The Attorney General has wide powers relating to the administration of the criminal procedure in Sri Lanka and is the chief prosecutor in all criminal matters before the High Court and also exercises quasi judicial powers in terms of the Judicature Act No. 2 of 1978.
Traditionally the Attorney General of this country has been accepted as the titular head of the Bar both of the official and of the unofficial; being given a special place of honour and of responsibility on behalf of the Bar at all ceremonial sittings of the Supreme Court and over meetings of the Bar Council.
4 Constitution, Article 54
5 The Attorney General take (or make) and subscribe the oath or affirmation, which is set out in the Fourth Schedule to the Constitution to “faithfully perform the duties and discharge the functions' of the office “in accordance with the Constitution and the law'.
6 The provisions of law relating to civil actions in which the Attorney General figures are to be found in Part VI of the Civil Procedure Code, Chapter 101 (as amended by Laws Nos. 19 and 20 of 1977. Sections 456,457, 458, 461, 463,589,591, 592(2), 556(2),572 (2), 575 (1)).
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Ranasinghe J, in the case of Land Reform Commission vs.
Grand Central Limited traced back the origin of the office of the Attorney General to the office of the "Advocate Fiscal'.
The development of the office of Attorney General in this
island thereafter under the British could be followed through the pages of the Reports of the Donoughmore Commission of 1928 and of the Soulbury Commission of 1945. The Ceylon
7
8
(1981) (2 SLR 147) “Advocate Fiscal' was in existence under the Dutch towards the latter stages of their rule in this island, and which office continued even during the early years of British occupation until the year 1834 when the name was changed to that of "Kings Advocate". This designation was thereafter changed, in the year 1883, by the provisions of Ordinance 1 of 1883, to the present day appellation of "Attorney General'.
In the early case of Le Mesurier vs. Attorney General (3 NLR 227 at 230) Bonser, C.J. observed that “the present Attorney General is the lineal successor of the old Advocate Fiscal, and just as in old days action against the Government was brought against the Advocate Fiscal as representing the local "Fisc" or Treasury, so they may now be brought against the Attorney General' An Advocate Fiscal in the Dutch period of colonial rule was both a Judge and a prosecutor. Though this office of Advocate Fiscal was continued for some time after the cession under the British Government his role was transformed into one that was familiar to the British legal system. Ceylon's Advocate Fiscal was the chief law officer of the Crown in the colony, and fulfilled some of the tasks of the Law Officers of the Crown in that country. (“The Constitution and the Attorney General” by Savitri Goonesekera (4" Kanchana Abhayapala Memorial Lecture) Furthermore, the Judgments of Cayley, C.J. and Clarence, J. in the case of Moragodaliyanage Peris Perera , show that the Queen's Advocate was the principal law officer of the Government in all criminal matters as well. "We have already recommended that the A.G. should be charged with the duties now carried out by the Legal Secretary under this heading. We envisage that, under the Constitution we recommended, Ministers will require legal assistance in (a) the day to day running of their departments, (b) the passage of Bills through Parliament, especially at the Committee stage, (c) the interpretation of existing laws and the departmental matters which may involve legal proceedings, and (d) matters of high constitutional policy, on which the Cabinet as such may require advice.” (Soulbury Commission report page 107 Paragraph 401).
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(Constitution) Order in Council 1946 (cap 379) which came into operation thereafter in 1947 had certain specific provisions relating to the Attorney General. The first Republican Constitution of 1972 provided for the appointment of the Attorney General by the President of the Republic."
The Attorney General's powers in relation to torture, illegal arrest and arbitrary detention arise as a result of the laws that have been passed in relation to these acts. In Sri Lanka since 1883 early provision was made for actions against torture in the Penal Code. Sections 310-329 deal with the offences of causing hurt, which was applicable to private citizens and public servants. Cases of illegal arrest and detention could be challenged under the offences of abduction and wrongful restraint and wrongful confinement.'
In the first Republican Constitution (1972), torture, illegal arrest and detention was recognized and was declared in Article 18 (1)(b) in broad terms, as "no person shall be deprived of life, liberty or security of person, except in accordance with the law". The second Republican Constitution (1978) of Sri Lanka under
10 e.g. the appointment of the Attorney General by the Governor General (Section 60): that the Speaker should, before giving his certificate to certain specified Bills, consult the Attorney General or the Solicitor General (Sections 33 (2) and 34 (2).
1972 Constitution, Article 108 (b). Other specific provisions relating to the duties of the Attorney General were duties pertaining to the examination of and the communication of his opinion to the Speaker in regard to certain Bills, which have been published and the amendments proposed to such Bills (Article 53); the right to be heard on all matters before the Constitutional Court (Article 63)
' Section 321 also deals with the aggravated form of committing the offence of hurt for which the punishment is greater, where the hurt is caused in order to try to extract information or a confession which may lead to the detection of an offence or to compel the restoration of property or satisfaction of a claim. In this section three out of the four illustrations given in this Section refer to an act of torture by a state officer.
Sections 353,356,333 Penal Code
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its chapter on fundamental rights gave justiciability to this right to be free from torture', illegal arrest and arbitrary detention in terms of Article 126 of the Constitution.
* Constitution, Article 11 o Article 13
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Chapter 03
Attorney General's Powers under the Present laws
Attorney General's powers under the Constitution
Under the present Constitution of the Democratic Socialist Republic of Sri Lanka enacted in 1978, the Attorney General as the chief law officer of the state has direct constitutional responsibilities.
Article 134 (1) of the Constitution specifies that the Attorney General has a special status in all matters in which the Supreme Court exercises important constitutional powers. In terms of this article "the Attorney General shall be noticed and have the right to be heard in all proceedings in the Supreme Court in the exercise of its jurisdiction under Articles 120", 1217, 122, 125', 12620, 1292 (1) and 1312."
The Attorney General's role is somewhat different when appearing for the President in exceptional circumstances in which the President is not immune from suit. Article 35 (3) of the Constitution creates an exception to the general rule of
Article 120- Constitutional Jurisdiction of the Supreme Court 7 Article 121 - Ordinary exercise of constitutional jurisdiction in respect of
Bills Article 122 - Special exercise of constitutional jurisdiction in respect of urgent bills. 9 Article 125 - Constitutional jurisdiction in the interpretation of the
Constitution. * Article 126 - Fundamental rights jurisdiction and its exercise o Article 129 - Consultative jurisdiction ' Article 131 - Jurisdiction in respect of the breaches of Parliamentary
privileges.
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Presidential immunity, and in these cases, proceedings must be initiated against the Attorney General.
The Attorney General has a direct role to play in the protection of the fundamental rights of the people. The exercise of this role becomes a focal point of discussion in this paper as one of the frequent methods used to challenge an act of illegal arrest, arbitrary detention or torture has been through the exercise of the fundamental rights jurisdiction of the Supreme Court.
A person applying to the Supreme Court in terms of Article 126 (2) of the constitution, for relief or redress in respect of an infringement or imminent infringement of any fundamental rights by executive or administrative action is required to "name as respondents the Attorney General and the person or persons who have infringed or are about to infringe such right'. In compliance with Article 134 (1), the Attorney General is served with the petition, including the annexures at the time of filing a fundamental rights application'.
Attorney General's powers in criminal proceedings
The exercise of the Attorney General's powers in criminal proceedings and the investigations leading up to the institution of the criminal proceedings is important in cases of arrest and detention, as the Attorney General can take certain preventive measures to avoid cases of prolonged detention, which in most instances lead to the commission of acts of torture on the suspects. The Attorney General in addition exercises certain inherent functions in cases of torture by taking the initiative to institute indictments before the High Court.
Supreme Court Rules 1990, 44(1)(b)
'' Supreme Court Rule 44 (6), See case of P. Jayathevan vs Attorney General (1992) (2 SLR 356 at 362) where it was held that the Attorney General has a right to be heard in the proceedings in terms of Article 134 (1) of the Constitution.
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Currently the Attorney General has been vested with the power of filing Indictments and conducting prosecutions in the . High Courtin terms of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act No 22 of 1994. (hereinafter referred to as the Torture Act).
Under the provisions of the Code of Criminal Procedure Act, No 15 of 1979 the Attorney General has been vested with very wide and far-reaching powers and functions which call for the exercise of an independent and impartial determination. These powers are to decide, in case of doubt, the court in which an offence should be inquired into: to grant the requisite sanction without which the courts will not take cognizance of certain offences: the initiation of proceedings before a Magistrate's Court,” giving of directions to a Magistrate with regard to the initiation of a preliminary inquiry in respect of certain offences; and the proviso to Section 142 (2): to present indictments to the High Court: sanctioning of the discharge of an accused person by a Magistrate: the conduct of the prosecution in the Magistrate's Court, and even in regard to private plaints: powers in regard to withdrawal of prosecutions initiated before the High Court the tender of pardon to accomplices: appeals from acquittals' and from convictions the appearance for the State in every appeal to
' Code of Criminal Procedure Act, Section 133
26 Section 135
7 Section 136(1)(c)
Section 145(1)(b)
Section 16
30 Section 190
Section 191 (1)
Section 191 (2)
Section 194, Nolle Prosequi, Section 401 nolle prosequito be entered only by the Attorney General
* Section 256,257
Section 318
Section320 (2)
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the Court of Appeal where the state or a public officer is a party:7 with regard to certain offences affecting the administration of justice: the power to exhibit information, present indictments to institute, undertake and carry on criminal proceedings in certain specified cases: the power to give advice, whether on application or ex mero moto, to State Departments, public offices, officers of the police and officers in corporations in criminal matters:" the power to summon any officer of State or of a Corporation or of the Police to attend his office with the necessary books and documents for certain specific purposes: the right to have Superintendents and Assistant Superintendents of Police reporting to him the commission of certain specific offences and the supplying of all relevant information required by the Attorney General:" the power to call for the original record and productions: power to quash a commitment made by a Magistrate and issue instructions to a Magistrate:" power to order a Magistrate to take further evidence:' power to call for the proceedings in any criminal case from a Magistrate or a Judge of the High Court: power to direct a Magistrate to commit an accused person who has been discharged:' power to exhibit information to the High Court to be tried by the High Court at Bar: In addition there are many other special laws which gives the Attorney General wide powers in relation to its conduct of criminal proceedings.
7 Section 360 * Section 389
Section 393 (1) * Section 393 (2) Section 393 (3) * Section 393 (5)(b)
Section 395 Section 396 Section 397 Section 398 7 Section 399 Section 45sh
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The provisions of the Judicature Act, No 2 of 1978, confer upon the Attorney General powers of a very responsible nature: the power to determine whether a trial in the High Court shall be by Jury:' the right to appeal to the Court of Appeal from sentences imposed by and also orders of acquittal made by the High Court: by his fiat in writing to designate, in certain circumstances, the court or place at which any inquiry into or the trial of any criminal offence shall be held:5, the right to elect, in certain circumstances, the court, before which a prosecution for any crime or offence declared punishable by fine or imprisonment, may be initiated.*
Judicial pronouncements relating to the functions and duties of the Attorney General
In Wijesiri vs. Attorney General it has been observed that "the Attorney General is a creature of law and that he is possessed of, and entitled to exercise only such powers as have been vested in him by express provisions of law. There do not appear to be any inherent powers vested in him to which recourse could be had to justify any step taken by him which is not specially authorised by an express provision of law."
In Mallikarachchi vs. Shiva Pashupathi the Supreme Court pointed out obiter that the Attorney General's role is to assist court in determining constitutional questions. In that sense he acts as an advisor to the court. It was also pointed out that when an infringement of fundamental right is alleged by executive or administrative action, he is noticed to watch the
9 Judicature Act, Section ll
Section 15
51 Section 47
Section 51 53 (1980) (2SLR317,324-327,337) * (1985) (1 SLR74)
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interest of the state. He is not cited as a person who committed the alleged infringement, and the Constitution does not envisage him as the sole party responsible to answer the allegation. This case clarifies that the Attorney General's constitutional role in fundamental rights litigations correspond with his professional role as a lawyer and as head of the Bar. His role and responsibilities are an intrinsic aspect of the administration of justice. He has a higher duty to court, than to his client, the State.
Victor Perera J, in Land Reform Commission vs. Grand Central Ltd.' held that he was the chief prosecutor for the Crown at the time and all indictments in criminal cases against the accused persons were under his name. As chief prosecutor he was the Director of all Crown prosecutions and in his discretion exercised the right of entering nolle prosequi. In non-summary proceedings before Magistrates, he gives instructions to Magistrates as regards the conduct of cases. Thereby he exercises quasi Judicial powers.
In the case of The Attorney General vs. Don Sirisena, H.N.G. Fernando, C.J. held 'Our law has, since 1883 if not earlier, conferred on the Attorney General in Ceylon powers directly to bring an alleged offender to trial before a Court, to direct a Magistrate who has discharged an alleged offender to commit him for trial and to direct a Magistrate to discharge any offender whom he has committed for trial. These powers of the Attorney General which have commonly been described as quasi judicial, have traditionally formed an integral part of our system of Criminal Procedure, and it would be quite unrealistic to hold that there was any intention in our constitution to render invalid and illegal the continued exercise of those powers'
Victor Ivon v Sarath N. Silva, Attorney General and another M.D.H. Fernando, J held that the Attorney General's power to
55 bid 56 (1968)70NLR347 57 (1998) 1 SLR340)
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file (or not file) indictment is a discretionary power, which is neither absolute nor unfettered. Where such power or discretion is exercised in violation of a fundamental right, it can be reviewed in proceedings under Article 126. His Lordship further held that "It is clear that the Attorney General has a statutory discretion, which involves several aspects. He has to decide whether to give or refuse sanction: and whether to exclude a summary trial, and in that event, whether to order non summary proceedings or to file an indictment. The exercise of that discretion is neither legislative nor judicial but constitutes “executive or administrative action”.
The Structure of the Attorney General's Department
The Attorney General is the principal law officer of the State. He is assisted by the Solicitor General, Additional Solicitor Generals, Deputy Solicitor Generals, Senior State Counsels and State Counsels. The Department in addition consists of temporary acting State Counsels, State Attorneys, Senior Assistant State Attorneys and Assistant State Attorneys.
In terms of Section 393 (4) of the Code of Criminal Procedure Act "the Attorney General may nominate State Counsel or employ any Attorney-at-Law to conduct any prosecution in any court and determine the fees to be paid to such Attorney-at-Law." Section 2 of the Code interprets the Attorney General as the Attorney General of the Republic of Sri Lanka and includes an acting Attorney General.
Conflict of interest of the Attorney General in cases of torture, illegal arrest and arbitrary detention. -
In exercising the powers vested in the Attorney General presently, a conflict of interest arises in the following instances. The Attorney General is entitled to appear as counsel for the respondents in the fundamental rights applications filed by the victims of torture, illegal arrest and arbitrary detention. On the
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other hand the Attorney General appears as the prosecutor in the high court cases filed against the perpetrators of torture in terms of the Torture Act No 22 of 1994 and/or in cases of wrongful restraint or wrongful confinement in terms of the Penal Code.
Till the recent past the Attorney General appeared for the respondents in fundamental rights applications and thereby was informed of the entire position or defence of the state officer accused of torture, illegal arrest or detention. On the other hand under the Torture Act and the Penal Code it is only the Attorney General who can file indictments against the perpetrators of Torture, illegal arrest and arbitrary detention. Further the Attorney General, as the chief law officer of the state is the only person empowered to file a case against another law officer who might perhaps be still in service.
In terms of the Establishment Code, if allegations of a personal nature including allegations of torture or assault are made against any public officer in proceedings for the enforcement of fundamental rights under Article 126 of the Constitution, such officer should arrange for his defence through his own lawyers and may seek reimbursement for his expenses in terms of the Code.
In a report submitted by the Government of Sri Lanka to the Committee against torture” it was stated, "in recent years the Attorney General as a matter of policy has declined to appear on behalf of such officers and they have had to retain their own legal counsel."
However in spite of the Establishment Code provisions and the above position taken up by the Attorney General, respondents in torture, illegal arrest and arbitrary detention cases are represented by the Attorney General, if the Attorney General is satisfied upon a study of the medical reports, the
* Establishments Code, Chapter xxxiii Section 6.6 ' Report submitted by Sri Lanka to the Committee against torture dated 21,
November 1997. CAT/C/28/Add.3
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documents sent and the observations of the respondents that there is no poof that the injuries alleged are as a result of the actions of the respondents and that the respondents innocence is established on the face of the documents, the Attorney General may represent the said respondents in fundamental rights cases.
Conflict of interest of the Attorney General in Habeas Corpus cases
Yet another instance in which the conflict of interest of the Attorney General arises is inhabeas corpus applications. In these cases the Attorney General appears in the Court of Appeal and in the Magistrate Court inquiries, for certain officers who are named as respondents till the issue of order nisi by the Court of Appeal after the conclusion of the Magistrate's Court inquiry. Thereby the Attorney General is made aware of the entire case of the respondents both in the Court of Appeal and in the Magistrates Court.
The Attorney General on the other hand is entitled to file indictments regarding the disappearance of the victim under the offences of Kidnapping or Abduction in order to secretly or wrongfully confine and/or to murder or may be so disposed of as to be put in danger of being murdered'.
Thus the issue of conflict of interest of the Attorney General is a matter to be addressed and steps should be taken to completely do away this conflict.
Penal Code Sections 355,356 and 335
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Chapter 04
Application of International Treaties in Sri Lanka
The International Community has played a fundamental role in preserving the inherent dignity and the equal and inalienable rights of all members of the human family through the protection of the rule of law. In some countries, international law automatically becomes enforceable as part of the national law system. In Sri Lanka however, once a treaty has been signed, local laws have to be specifically enacted to bring it into conformity with international standards. Even where this has not been done, however, international law can be used as a persuasive authority in the interpretation of national laws. The applicable standards of international law in Sri Lanka reside primarily in the obligations undertaken as a result of its accession to the following instruments.
o International Covenant on Civil and Political Rights
(ICCPR).61 O The International Covenant on Economic, Social and
Cultural Rights.((ICESCR) o The Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (CAT). O Convention on the Elimination of All forms of
Discrimination against Women (CEDAW).
acceded on 10 June 1980, Signed the Optional Protocol to the International Covenant on Civil and Political Rights on 3 October 1997.
acceded on 10 June 1980
acceded on 2 January 1994
acceded on 4 October 1981
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O International Convention on the Elimination of All forms
of Racial Discrimination. (CERD)'s
o Convention on the Rights of the Child (CRC).
International Convention on the Protection the Rights of all Migrant Workers and Members of their Families.”
O Convention on Prevention and Punishment of the Crime
of Genocide.
Thereby Sri Lanka is legally bound to implement the Human Rights safeguards required by these treaties, including the right to life and the right not to be tortured.' Article 4 of the ICCPR clearly states that both rights must be upheld at all times, even "in time of public emergency which threatens the life of the nation". Sri Lanka is a party to the Geneva Convention relative to the Protection of Civilian Persons in time of war of 12 August 1949 and is, therefore bound by its provisions. Article 3 of the Convention (common to the four Geneva Conventions and applicable to situations of internal armed conflict) provides for minimum standards of protection to civilians.
Apart from CAT, the UN has also adopted other international human rights instruments dealing with the protection from torture, illegal arrests and detention. These non binding UN documents include the Standard Minimum Rules for the Treatment of Prisoners (1955); Basic Principles for the Treatment of Prisoners, Code of Conduct for Law Enforcement Officers (1979); Principles of Medical Ethics relevant to the role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment", and Body
acceded on 17 February 1982
acceded on 12 July 1991
67 acceded on 10 March 1996
68 Article 6, ICCPR
69 Article 7 of the ICCPR and the CAT. 7 Adopted by General Assembly resolution 37/194 of 18 December 1982
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of Principles for the Protection of all Persons under any form of Detention or Imprisonment.”
In view of the crucial role played by the Prosecutors in the administration governing Justice the United Nations has adopted "Guidelines on the Role of Prosecutors' at the "Eight United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990. In addition the UN also adopted "Basic Principles on the Role of Lawyers."
It must be stated that our constitution is not oblivious to the provisions governing the application of international law in our country and its application has been expressly recognised in our Constitution under the Directive Principles of State Policy’. International law is also given the force of law by Article 157 of our Constitution and is referred to under the Presidents powers in Article 33 (f) of the Constitution.
The Supreme Court has in several cases recognized and respected the applicability of International Conventions including the Convention against Torture.7 Hon. Justice Amerasinghe advanced the application of the International law into our law in the Eppawala case when His Lordship held that although the principles set out in the Stockholm and Rio
7 adopted by General Assembly resolution 43/173 of 9 December 1988.
' Art 27 (15) reads “The State shall promote international peace, security, and co-operation, and the establishment of a just and equitable international economic and social order, and shall endeavour to foster respect for International law and treaty obligations in dealings among Nations.'
7o Abisin Banda vs S.I. Gunaratne and others (1995) 1 Sri LR 244, Ratnasiri and another vs Devasurendran Inspector of Police Slave Island and others (1994) 3 Sri LR 127, Mallawarachchi vs Seneviratne OIC Police Station Kollupitiya and others (1992) 1 SLR 181, De Silva, Mrs. W.M.K. Vs. Chairman, Ceylon Fertilizer Corporation (1989) 2 Sri LR 393
7 Tikiri Banda Bulankulanma and others vs. The Secretary, Ministry of
Industrial Development and others. SC FR 884/94FRSCM02.06.2000
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de Janeiro Declarations are not legally binding in the way in which an Act of our Parliament would be it may be regarded merely as "soft law". "Nevertheless, as a Member of the United Nations, they could hardly be ignored by Sri Lanka. Moreover, they would, in my view, be binding if they have been either expressly enacted or become a part of the domestic law by adoption by the Superior Courts of record and by the Supreme Court in particular in their decisions."
In Weerawansa vs Attorney General 75 Fernando J held 'A person deprived of personal liberty has a right of access to the Judiciary, and that right is now internationally entrenched, to the extent that a detainee who is denied that right may even complain to the Human Rights Committee.... should this court have regard to the provisions of the covenant? I think it must. Article 27 (15) requires the State to "endeavour to foster respect for international law and treaty obligations in dealings among nations". That implies that the State must likewise respect international law and treaty obligations in its dealings with its own citizens. The State must afford to them the benefit of the safeguards which international law recognizes'.
It was pointed out by Dr. Deepika Udagama, "often, the legal profession has been hard pressed to use arguments based on international law before domestic courts because of the wellentrenched principle of dualism in Sri Lanka's legal system. The conservative position has been that international norms have to be transformed by enabling legislation of Parliament in order to be binding on courts. Increasingly, however, the Supreme Court has, particularly in fundamental rights judgments, referred to international human rights standards as interpretative aid. But a direct pronouncement that international law can be transformed either by Parliament or by the express recognition of superior courts is a crucial breakthrough, enabling international standards to be used to expand the parameters of constitutional protection of fundamental rights. However, it is
7 (2000) (1 SLR page 387 at 408)
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doubtful that petition could be grounded directly on international law. International law will have to be pleaded to expand the scope of existing domestic legal provisions.'
International Human Rights Instruments on Torture
The prohibition against torture or cruel, inhuman or degrading treatment or punishment has been recognised by international law since 1948 and has since then been included in most of the international instruments protecting human rights. Article 5 of the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations', states that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". This provision was a direct outcome of the nightmare years of the Second World War - times that tried men's souls. However, the declaration had no legal force. Eighteen years later, on 16 December 1966, prohibition against torture was legally reaffirmed in a formal international agreement called the International Covenant on Civil and Political Rights (ICCPR) and was made legally binding”. The Convention on the Rights of the Child also prohibits any acts of torture, deprivation of liberty and detention of a child”.
Some of the regional human rights instruments also contained the prohibition against torture or cruel, inhuman or degrading treatment or punishment, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) of 1950, European Convention for the Prevention of Torture and other Inhuman
7 "Sri Lanka State of Human Rights 2001”, Law & Society Trust, "Review of the Fundamental Rights Jurisprudence" page 154 10 December 1948 7 Article 7 of the ICCPR “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experiment'. 7o Article 37 and 40 * Article 3-provides that "No one shall be subjected to torture or to inhuman
or degrading treatment or punishment'.
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and Degrading Treatment or Punishment, the American Convention on Human Rights of 1969, the Inter American Convention on the Prevention, Punishment and Eradication of Violence against Women, Convention of belem do Para?" The American Declaration of the Rights and Duties of Man', the Inter American Convention to prevent and Punish Torture, the African Charter on Human Rights of 1981 and the Universal Islamic Declaration of Human Rights issued in 1981. In addition the Geneva Convention contains provisions concerning torture. In 1975 the UN General Assembly adopted the
"Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment". The work to enhance the protection against torture and to introduce a legally binding instrument dealing exclusively with torture continued and on 10 December 1984 the UN General Assembly adopted the "Convention against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment' (CAT). This Convention came into force on June 26, 1987. A Special Rapporteur (SR) on Torture was appointed since 1985 with the function of fact-finding and reporting. The SR has the mandate to take up individual cases on the basis of urgency but tends to avoid taking a judgmental approach to issues. The Rapporteur's mandate is broad as it is for instance, not limited to the countries that have ratified the CAT.
International Human Rights Instruments on lawful arrest and detention
Article 3 of the Universal Declaration of Human Rights provides that "Everyone has the right to life, liberty, and security of the
* Article 5- Right to humane treatment
** Article 4 (d)
*** Article 26
*** Article 6
adopted by General Assembly resolution 3452(xxx) of 9 December 1975
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person'. Article 9 of the Universal Declaration provides that No one shall be subjected to arbitrary arrest, detention or exile'. Article 9(1) of the ICCPR provides that "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law." Article 9 (2) of the Covenant provides that "Anyone who is arrested shall be informed, at the time of his arrest, of the reasons for his arrest and shall be promptly informed of the charges against him".
The Fifth Amendment to the American Constitution (1791) provides; inter alia, that no person shall be ‘deprived of life, liberty or property without due process of law'. The sixth amendment (1791) provides, inter alia, that in all criminal prosecutions the accused shall have the right 'to be informed of the nature and cause of the accusation'. Section 1 of the fourteenth amendment (1868) provides, inter alia, that no state shall 'deprive any person of life, liberty, or property, without due process of law'.
Similarly Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms also provide for the right to liberty and security of a person.
In terms of Article 7.3 of the ICCPR and Article 5 (3) of the European Convention, a person arrested or detained is required to be promptly brought before a Judge or other officer authorized by law to exercise judicial power.
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Chapter 05
Fundamental Rights Provisions in Sri Lanka
Chapter iii of the Constitution of the Democratic Socialist Republic of Sri Lanka 1978 enumerates the Fundamental Rights guaranteed by the Constitution; these are enshrined as principles of fundamental law beyond the reach of legislative majorities or of governmental officials. These rights have been entrenched against infringement by Parliament through ordinary process of legislation - the fundamental rights are thus not at the mercy of legislative majorities."
Article 17 read with Article 126 of the Constitution provides direct access to the apex court of the country, viz the Supreme Court by proper application for the enforcement of fundamental rights by any person alleging that any fundamental right or language right relating to such person is infringed or is about to be infringed by way of executive or administrative action. The victim may by himself or through his attorney at law on behalf of him apply to the Supreme Court within one month in accordance with the rules of the Supreme Court.
Article 11 of the Constitution declares, "no person shall be subjected to torture or to cruel, inhuman and degrading treatment or punishment." The right to freedom from arbitrary arrest, detention is enshrined in Article 13 of the Constitution. The right not to be tortured is a non-derogable right and may not be abridged, restricted or denied under any circumstances in that it is not subjected to any restrictions that are laid down in Article 15 and therefore has to be respected and advanced at all times.
* Article 83- an amendment to this clause would need a two-thirds majority
in Parliament and also a referendum
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The Supreme Court has power to grant relief to the victims of torture, illegal arrest and detention by way of ordering the release of the person, if the petitioner is unlawfully detained, order compensation to be paid and refer the case to the IGP or the Attorney General to take "appropriate action" (by way of criminal proceedings and/or disciplinary action).
It has also been held by the Supreme Court that the time limit of 1 month within which a fundamental rights case should be filed depends on the facts of each case, and in cases where a remand prisoner cannot contact a lawyer, with the same ease and facility as other persons, additional time has necessarily to be spent in sending messages to or in awaiting a visit from a relative, who would then have to contact a lawyer, and more time would be necessary to give proper instructions. It was further held that until the Petitioner had knowledge, or could with reasonable diligence have discovered, that an injury sufficient to bring him within Article 11 had resulted, time did not begin to run.
The Supreme Court has held the state liable for acts of its officers for acts of torture in cases where the alleged torturer cannot be identified. However in a recent case the Supreme Court directed the State to pay compensation of a sum of Rs 150,000/- to a woman who was raped at a security checkpoint, inspite of the fact that the alleged perpetrators were identified and named as respondents in the fundamental rights application.'
87 Constitution, Article 126 (2) ' Saman vs Leeladasaandanother (1989) (1 SLR 1), ' Saman vs Leeladasa and another (1989) (1 SLR 1), Velumurugu vs. Attorney
General (1FRD page 180) Velu Arasa devi vs. H.P. Kamal Priyantha Premathilake and others. SCFR application no 401/2001 SCM 24.01.2002
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The role of the Attorney General in relation to fundamental rights applications
The Attorney General is served with notice and the petition, affidavit and the documents at the time of filing an application in terms of Article 126° and he has the right to be named as a Respondent in terms of Article 134 (1) of the Constitution. State Counsel is, or ought to be, present in Court watching the interest of the State. There is no reason why the Attorney General may not in an appropriate case take steps to prosecute a person whose conduct in violating Article 11 also constituted an offence under Torture Act No 22 of 1994 or under the Penal Code or other law. Section 82 of the Police Ordinance makes it an offence for a police officer to knowingly and willfully exceed his powers or to offer any unwarrantable personal violence to any person in his custody'.
In Sri Lanka, the Supreme Court has referred to the fact that it would seem that officials have been spared criminal proceedings in circumstances when private persons would have been prosecuted. The Court, however, does not direct the institution of criminal proceedings. The Court expects the Attorney General to take action, if in the circumstances he is of the opinion that action should be taken'.
The suggestion has been made that violation of Article 11 should per se be made a criminal offence, This is a matter of policy for the Government. However, attention should be drawn to the fact that the standard of proof in a criminal proceeding is different from the standard required in a fundamental rights
9 Supreme Court Rules 1990, Rules 44(1)(b) and 44 (6)
9 “Our fundamental Rights Of Personal Security And Physical Liberty"
A.R.B. Amerasinghe, Page 54.
9 eg, see Wimalawardena vs Nissanka SC App 685/92 SCM9, September 1992, Pellawattage (Attorney-at-Law) for Piyasena vs. OIC Wadduwa Police SCApp 433/93 SCM31, August 1994
“Our fundamental Rights Of Personal Security And Physical Liberty” A.R.B. Amerasinghe, Page 54.
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inquiry. Moreover, the method of adducing evidence varies significantly. In a fundamental rights application, the Court relies solely on the petition, affidavits and the documentary evidence. No oral testimony is heard and the Court has neither the opportunity of observing the demeanor of witnesses nor the benefit of Cross-examination'.
AS far as disciplinary actions are concerned, the Supreme Court has, where police officers have been involved, sometimes directed the Registrar to send a copy of the Judgment to the Inspector General of Police requiring him to maintain a record of the Court's findings against the officers for departmental purposes”. In one instance, two of the three judges took the extraordinary step of ordering that certain police officers who had acted in violation of Article 11 should not be promoted for one year”.
The Supreme Court in granting relief for victims of torture has taken into account the liability of the state and the personal liability of the respondents in awarding compensation.” However our Constitution does not provide for the heirs to obtain compensation in the event of the death of a person tortured” though the UN Convention against Torture provides for the same.00
'' Supra, page 55
oo eg see Jayasinghe v Samarawickrame and others SC Application 157/91 SCM 12, January 1994, Pellawattage (Attorney-at-Law) for Piyasena v OICWadduwa SCApp. 433/93 SCM31, August 1994
” Wijeratnev Vijith Perera SC Application 379/93 SCM 2 March 1994.
o8 Vivienne Gunawardena vs. Hector Perera and others. (2 FRID 426,
436)Samanathilake vs. Ernest Perera & others (1990) (1 SLR318)
o Article 17 and 126 (2)
' UN Convention against Torture, Article 14 (1) stipulates that “Each State
Party shall ensure in its legal system that the victim of an act of torture
obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation. (2) Nothing in this Article shall affect the right of the victim or other persons to compensation which may exist under national law.
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The Supreme Court in most instances order that part of the compensation be paid personally by the offender from his own resources, pointing out that payment by the State can foster notions of impunity.
In recent years in addition to an order that compensation be paid the court generally refers the matter to the appropriate authority concerned for action that it seems fit and proper. For example where a police officer has been found guilty of torture it has directed the Inspector General of Police (IGP) to take disciplinary proceedings or directed the registrar to forward a copy of the Judgment to the IGP to maintain a record of the findings for departmental purposes and to ensure that the sums are paid expeditiously."
In many cases court has expressly expressed frustration on the part of the Department of Police regarding the commission of acts that amounts to violation of Human rights.
However violations continue despite the strictures. As Hon. Justice Amerasinghe points out "However, the contribution towards the payment of compensation by a respondent is perhaps justifiable on the principle of retribution; it may be
* Jayasinghe vSamarawickrame and others SC Application 157/91 SCM 12, January 1994, and Pellawattage (AAL) for Piyasena v OICWadduwa Police SC Application 433/93 SCM 31, August 1994.
* Saman v Leeladasa and another (1989) l Sri LR 01,
Amal Sudath Silva v Kodituwakku IP and others { 1987) 2 Sri LR 119, Gamlath v Neville De Silva And Others [1991) 2 Sri LR 267 Wimal Vidyamuni v Lt. Co Jayatilleke (1993] 2 SLR 64, Ratnasiri v Devasurendran IPSlave Island de others 1994.3 Sri LR 127, Weerakoon v Weeraratme SCApplication 42/92 SCM 16.11.92, Geekiyanage Premalal Silva v Rodrigo SC Application 24/89 SCM 05.09.90, Jayaratne vs. Tennakoon SCApplication 18/189 with No. 10/89 SCM04,0791, Pelwattage Attorney-at-Law) for Piyasena vOIC Wadduwa SC APP 433/93 SCM 28. 10. 1994, Senthinayagam vs. Seneviratne (1981) 2 Sri. L.R.187, 208, Dissanayake v Superintendent Mahara Prison (1991) 2 Sri. L.R 247, 263, Ratnapala v Dharmasiri (1993) (l SLR 224), Samanthilaka v Ernest Perera and Others [1990) 1 Sri LR 318
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useful as a reflection of society's abhorrence of such conduct. Whereas Courts are not obliged to reflect public opinion, they must not disregard it, especially where there is general anger, or dismay or fear over transgressions of this nature. The principle of retribution is one that is most easily understood by the public. Moreover, the fact that the violator is personally required to contribute towards the discharge of the responsibility of the State will to some extent assuage the wounded feelings of the victim, and also partly respond to the anxiety of the taxpayer that he should not pay for the transgressions of delinquent state officials'.
“Our fundamental Rights Of Personal Security And Physical Liberty" A.R.B. Amerasinghe, Page 58
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Chapter 06
TORTURE
Torture in Sri Lanka
The right to be free from torture and not to be subjected to arbitrary arrest and detention is undoubtedly of great importance. In Sri Lanka there have been instances of allegations of extensive violations, disappearances, extra judicial killings, torture, arbitrary detention, death in custody and the like.
Amnesty International Report on Sri Lanka titled "Sri Lanka - Torture in Custody' commences with the paragraph. "For years, torture has been among the most common human rights violations reported in Sri Lanka. It continues to be reported almost (if not) daily in the context of the ongoing armed conflict between the security forces and the Liberation Tigers of Tamil Ealam (LTTE), fighting for an independent state, Ealam, in the north and the east of the country. In addition, police officers regularly torture criminal suspects and people taken into custody in the context of local disputes overland or other private issues'.
In the initial report of Sri Lanka to the Committee against Torture' it was acknowledged that torture was a problem in the country and that the Government was aware of allegations concerning acts of torture reportedly committed by members of the security forces in the context of counter-terrorist activities and held that the police in combating crime use excessive force in the handling of criminals. The Government took up the position that these transgressions were not the outcome of a deliberate policy but isolated acts carried out by Some individuals
104 June 1999, AI Index ASA37/10/99, Distr:SC/CO 0 CAT/C/28/Add.3 dated 21 November 1997
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and assured to the Committee "that every effort is being taken to eliminate the occurrence of such excesses. The CAT Act No. 22 of 1994 further strengthens the legal mandate of the state prosecuting authorities to take action to investigate and prosecute offenders".
The Report of the Special Rapporteur on Torture gave a description of the types of torture practiced in Sri Lanka as follows:
"The Special Rapporteur (SR) received information indicating that torture and other forms of ill treatment are employed on a widespread basis by members of the Security forces, particularly against Tamils held in detention. Despite judicial pronouncements against these practices, various methods of torture are said to continue to be used in police stations and other detention centers where individuals are forced to confess that they are members or sympathizers of the Liberation Tigers of Tamil Ealam (LTTE). Worse forms of torture and ill-treatment are believed to be inflicted on persons arrested under the Prevention of Terrorism Act and detained in police stations or army camps. These methods reportedly include electrical shocks and beatings all over the body: in particular, detainees are believed to be often beaten with sand filled plastic pipes, iron rods or truncheons on the Soles of their feet and genitals. Victims may reportedly also be suspended by their wrists or feet for long periods, forced to assume contorted positions, or spun at high speeds on revolving platforms: victims may be burned, or submerged in water - almost to the point of drowning. Sometimes bags soaked in insecticide, chili powder or gasoline are placed on the detainees
10 Torture, Special Rapporteur on. E/CN.4/1999/61 paras 659-669
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head. Further, chillies may be put in a detainee's rectum or bottles put into a woman's vagina. Rape is also widely employed as a form of torture against the Tamils in detention, victimizing the woman and children, or relatives forced to witness the rape. Tamils are allegedly locked up in tiny dark cells with no food or toilet facilities for many days. Tamil detainees are often allegedly kept in the same detention centers as convicted criminals of singhalese origin. Several clashes between the two communities, which were allegedly neither prevented nor repressed by jail guards, have been reported".
The prevalence of torture is intrinsically linked with other human rights violations, particularly to 'disappearances' reported in the country. The cases occurred in the context of two major sources of conflict: the confrontation of Tamil separatist militants and government forces in the north and north-east of the country, and the confrontation between the People's Liberation Front (JVP). Many cases of 'disappearances' reported in Sri Lanka since the early 1980s concern detainees alleged to have died under torture or army custody whose bodies were subsequently disposed of in secret.
A European Parliamentary delegation visiting Sri Lanka in 1990 had estimated a number of disappearances and killings to have been as high as 60,000 in the years 1988-1990 alone, when the extremist People's Liberation Front had been finally liquidated.”
There were three commissions of Inquiry appointed by the President to inquire into involuntary removal or disappearance
07 CERD/C/SR. 1079 (9March 1995) Summary of record of the 1079th meeting commissions committee on the elimination of racial discrimination. Paragraph 14 (Sri Lanka 09.03.1995)
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of persons that took place from 1st January 1988 till 1995.108The commissions investigated a total of 27,526 complaints and found evidence of disappearances of 16,742. A further 10,135 alleged complaints were inquired into by the 4th Commission, which had power to investigate into the island wide disappearances that took place during this period. Each commission was responsible for examining the evidence available to establish the allegations, the present whereabouts of the persons concerned, the identity of the persons responsible, the legalaction which could be taken and the relief, if any, which could be afforded. It was subsequently ruled that cases of abduction or involuntary removals followed by death also fell within the ambit of these commissions. In terms of Section 7 (d) the Commissions of Inquiry Act, evidence which might be inadmissible in Civil or Criminal Proceedings were admitted in the Commissions of Inquiry notwithstanding the Evidence ordinance.
Mr. Sundaralingam, Chairman of the Commission of Inquiry into Involuntary removal or disappearance of persons in the Central, North Western, North Central and Uva Provinces explained Article 7 (d)' of the warrant as follows. "Although it may not constitute evidence that could stand up to criminal court scrutiny, evidence gathered under the wide scope of this article could determine the effectiveness of future police investigations and deliberations made by the Attorney General's office. Such 'credible material based largely on eyewitnesses accounts or hearsay rather than forensic evidence - may not prove the guilt of the alleged perpetrators, but it is useful
' Each commission had jurisdiction a geographical area which included the Northern and Eastern provinces, Central, North Western, North Central and Uva Provinces, and Western, Southern and Sabaragamuwa Provinces. (the north-east, central and south-west zones)
' The 2" Interim Report of the Commission of Inquiry into Involuntary removal or disappearance of persons in the Central, North Western, North Centraland Uva Provinces. Sessional paperiii-1997 Page 4
Article (d) - "Whether there is any credible material indicative of the person or persons responsible for the alleged removals or disappearances'
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evidence, nonetheless, that could point the Criminal Investigations Department or the AG in the right direction as well as facilitate their work... That term is very helpful to collect information that is reliable. This prevents Police from saying there is no proof or evidence. If Police want to send it under, they can't because this is recorded evidence'.
The Commission of inquiry into involuntary removal or disappearance of persons in the Western, Southern and Sabaragamuwa Provinces described the bodies found with marks of brutal practices. "Several autopsy reports led in evidence bore witness to this. Autopsy reports on certain other bodies, almost invariably ascribed by witnesses to be killings by the Security forces, bore evidence of the use of modern fire-arms, while Some in this category were cut and chopped about in Savage mimicry of subversive killings and alleged they were the work of this-or-that 'vigilante' group in reprisal for subversive acts".
In addition there have also been incidents of death in Custody. In the Kalutara Remand Prison, where many persons are held under the PTA and Emergency Regulations, a clash between inmates and the authorities in January 2001 led to the death of two inmates. Fifty eight other prisoners sustained injuries. The investigation into the incident, including the inquest inquiry was very slow.
The Government established "rehabilitation" camp at Bindunuwewa, Bandarawela to rehabilitate young people who had been combatants with the LTTE was attacked on 24 October 2000 and 28 of its 41 inmates, all Tamils were killed. The Attorney General's Department decided to circumvent the usually lengthy process of a non summary inquiry before the Magistrate by requesting that they be permitted to hold a trial at bar before three Judges of the High Court.
Interview to Sunday Times. Article by Imran Vittachi titled “that time of terror 5.03.1998
'' Sessional paper v - 1997 page 33
Sri Lanka State of Human Rights 2001. Law & Society Trust (page 20)
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Sri Lanka's obligations under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
By an instrument of accession dated 14 December 1993 and deposited with the General Seçiretary of the UN, on 3 January 1994, Sri Lanka acceded to the UN Convention on Torture. The Convention came into force in Sri Lanka on 2 February 1994. In terms of Article 2 (1) of the CAT Convention, each state party is required, inter alia, to “take effective legislative, administrative, judicial and other measures to prevent acts of torture in any territory under its jurisdiction'. The Parliament of Sri Lanka enacted the "Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act No 22 of 1994' and certified it on 20 December 1994.
A two member delegation of the United Nations Committee against Torture visited Sri Lanka in the year 2000 and submitted a confidential report to the CAT committee in terms of Article 20 of the CAT Act. Currently the recommendations are not available for perusal and publication. However it is the position of the Government of Sri Lanka that upon the recommendations of this Working Group a Central Registry for Detainees was established and circulars were sent to the Magistrates making it mandatory for them to visit places of detention.
Inconsistencies between the UN Convention and the Torture Act 22 of 1994.
While the Convention against Torture Act 22 of 1994 covers most of the provisions of the Convention, there are certain significant omissions. Though Sri Lanka acceded to the UN Convention against Torture the Government did not recognize
1 Interview with Yasantha Kodagoda, Senior State Counsel on 12.02.2002
at the Attorney General's Department.
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the competence of the Committee to consider communications made in accordance with Articles 21 and 22 of the Convention.
The Committee against Torture in May 1988 urged the Sri Lankan Government to review of the Torture Act No 22 of 1994 and other relevant laws in order to ensure complete compliance with the Convention, in particular in respect of (a) the definition of torture; (b) acts that amount to torture, (c) extradition, return and expulsion'7.
The Amnesty International Report titled "Sri Lanka: Torture in Custody' ' expressed its regret that several provisions in the UN Convention against Torture were not fully implemented in the Torture Act which uses a more restrictive definition of "torture' than that contained in the UN Convention against Torture.
Definition of Torture
Torture has been defined in Article 1 of the UN Convention against Torture as follows:
"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person
declaration that a State Party recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Convention. Declaration that a state party recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention. Concluding observations of the Committee against Torture: Sri Lanka 19.05.1998. A/53/44, para 254 Amnesty International June 1999, Al Index: ASA37/10/99
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by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity or such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind (exclusionpain or suffering arising only from, inherent in or incidental to lawful Sanctions).
The Sri Lankan Constitution does not give any guidelines on how to define torture. With the enactment of the Torture Act 22 of 1994, a definition of torture was introduced in Section 12. This section defines torture as:
(i)
(ii)
(iii) (iv)
"any act which causes severe pain, whether physical or mental, to any other person, being an act which is - (a) done for the following purposes that is to say -
obtaining from such other person or a third person, any information or confession: or punishing such other person for any act which he or a third person has committed, or is suspected to have committed: or intimidating or coercing such other person or third person: or done for any reason based on discrimination, and being in every case, an act which is done by, or at the instigation of, or with the consent or acquiesce of, a public officer or third person acting in an official capacity.
As stated above, the UN Convention against Torture defines "torture' as "any act by which severe pain or suffering... is intentionally inflicted on a person for such purposes as." (emphasis added). In subsection 1 of Article 2 of the Torture Act, however,
the
causing of "suffering" is not explicitly made part of the
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definition of "torture", and the purposes for which torture in
inflicted are listed in an exclusive (rather than inclusive) way by use of the wording "for any of the following purpose(s)".
Thus, torture for other purposes, such as sadism alone, are not
defined as a crime under this Act.
Other inconsistencies
Subsection (3) of Article 2 of the Torture Act stipulates that "the subjection of any person on the order of a competent court to any form of punishment recognized by written law shall be deemed not to constitute an offence' under the Act. This means that courts can impose cruel, inhuman or degrading punishments under the Penal Code and the Children and Young Persons Ordinance 1939. .
Amnesty International report' further stated that Section 52 of the Penal Code lists whipping as a punishment to which offenders are liable under the Code and provided for an additional punishment for theft of, among other things, vegetables and fruit. The Children and Young Persons Ordinance 1939 allows for whipping as a form of punishment to be imposed by Magistrate's Court on male children, as an additional punishment for certain offences.
Although Government delegations appearing before the Committee against Torture in 1998 and the Human Rights Committee in 1995 have stated that these punishments are no longer carried out, there have been reports in Sri Lanka's newspapers confirming whipping as punishment being carried out. For instance, in 1995, the Report pointed out to two cases of caning of minors imposed as a sentence by local magistrate's courts reported in the local press. In May 1996 one case and in February 1998 four further cases were reported. In October 1998, two 15 year old boys were whipped six times on the order of
119 AI Index:ASA371/10/99 Amnesty International June 1999
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the Homagama magistrate who had found them guilty of stealing a bicycle.
The Committee against Torture recommended that the government reviews the Torture Act and other relevant laws in order to ensure complete compliance with the Convention, including respect of "acts that amount to torture'
Article 3 of the UN Convention against Torture, which provides that "(n)o State Party shall expel, return ('refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being Subjected to torture", has not been given effect in Sri Lanka. This means that under current legislation, people who could be Subjected to torture or cruel, inhuman or degrading treatment or punishment in another country cannot invoke this provision to contest their return to that country. The failure to include this against torture, in contrast to the UN Convention relating to the Status of Refugees, applies to all persons and not only to asylum seekers.
Other provisions such as right to compensation and rehabilitation for torture victims and the right of his dependents to gain compensation in the event of his death,' inadmissibility of statements made as a result of torture,' the right to prompt and impartial investigations,' protection of complaints against ill treatment or intimidation as a consequence of his complaint or evidence given,' and the need to education and information regarding the prohibition against torture in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment' and other
supra
o UN Convention, Article 14 1” UN Convention, Article 15 1* UN Convention, Article 12 * UN Convention, Article 13 o UN Convention, Article 10
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preventive measureso stipulated in the UN Convention against Torture have not been given force of law in Sri Lanka.
The Legal Provisions relating to the Prohibition of Torture in Sri Lanka.
In Sri Lanka currently an act of torture committed by a state official in the discharge of his/her official functions can be challenged in two methods.
Filing a Fundamental Rights Application by the victim in the Supreme Court in terms of Article 126 of the Constitution.
Filing an Indictment by the Attorney General in terms of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act No 22 of 1994 (hereinafter referred to as the Torture Act No 22 of 1994).
Attorney General 's Role in cases of Torture
The Attorney General's role relating to torture comes up in two instances.
As counsel for the respondent in an application filed by a petitioner for infringement or imminent infringement of a fundamental right guaranteed in terms of Article 11 of the Constitution.
As a prosecutor in indictments of torture filed in the High Court under the Torture Act No 22 of 1994.
26
UN Convention, Article 16
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The Torture Act No 22 of 1994
In terms of the Torture Act No 22 of 1994 the High Court has been vested with the jurisdiction to hear cases of torture committed within and outside Sri Lanka. In terms of Section 2 the jurisdiction of the High Court has to be invoked by the Attorney General.
In the latter part of 2000 a special Unit called the “Prosecution of Torture Perpetrators" (PTP) was established in the Attorney General's Department to deal with torture cases. Currently the Unit is headed by a Senior State Counsel and there are 5 State Counsels assigned to this Unit, in addition to their routine responsibilities in the Department. It comes under the direct supervision of the Attorney General and the Senior Additional Solicitor General in charge of the Criminal Division of the Department.
The primary task of this Unit is to consider investigative material submitted to it and to consider filing of Indictments and to advise on supplementary legal action, eg. disciplinary actions. The investigation of the torture cases are closely monitored by this Unit. Currently the Unit maintains systematic documentation of the complaints received by them, by entering the cases under a data base system.'
The Attorney General receives complains of torture in the following means.
(i) Supreme Court determinations on the violation of Article
11 of the Constitution.
(ii) Information pertaining to Torture contained in communications to the Government from UN Agencies such as the Special Rapporteur on Torture and the UN Committee against Torture.
7 Interview with Yasantha Kodagoda, Senior State Counsel on 12 February
2002 at the Attorney General's Department.
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(iii) Credible information brought to the notice of the Attorney General by international and domestic human rights NGO'S.
(iv) Direct complaints to the Attorney General or to the Police by victims or through an Attorney at Law. In certain instances the Attorney General launches the criminal investigations before the conclusion of the fundamental rights application.'
Upon receipt of a complaint of torture by any of the above means the Attorney General's Department enters the said complaint into their database and thereafter takes steps to bring it to the notice of the Criminal Investigations Department (CID) and advices them to commence investigations. The Attorney General's Department thereafter periodically monitors the progress of the investigations.'
Since the enactment of the Torture Act in 1994, 14 Indictments have been filed in the High Court and details of 7 cases were available.' There have not been a single conviction in the cases filed under this Act.
1. H.C. Chilaw Case No. 7/99
alleged victim: J.A. Hiran Priyankara S.C. Case No. 241/96
2. H.C. Colombo Case No. 9973/99 (HC 7)
Victim : M. Sisira Kumara FR Case No. 258/94
3. H.C. Chilaw Case No 69/99
Victim : Sudath Nishantha Jayasinghe SC FR Case No. 66/97
supra
Supra source, Attorney General's Department as of 12 February 2002
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4. H.C. Colombo Case No: 9975/99 (HC 02)
Victim: A.R.M. Refaideen SC FR 71/99
5. H.C. Kandy Case No: 1275/99
Victim : D.M. Gamini Dissanayake SC FR 117/97
6. H.C. Kandy Case No: 1275/99
Victim : M.A. Sunethra Dissanayake SC FIR 857/97
7. NS 21928 MC Moratuva
Victim : Anura Sampath Died in Police Custody. The case was brought to the attention of the Attorney General by the UN Special Rapporteur on Torture.
Reasons for lack of Convictions in Criminal Cases
Article 4 (2) of the UNConvention against Torture obliges states to punish crimes of torture "by appropriate penalties which take into account their grave nature". In Sri Lanka Torture Act 22 of 1994 makes torture punishable by imprisonment for not less than seven years and not exceeding ten years and a fine. The mandatory jail sentences might cause problems if the Judge is not willing to convict an accused if the facts of the case do not warrant a term of 7 years imprisonment.
Some of the impediments in Sri Lanka to a successful prosecution are the obstacles standing in the way in proving a criminal charge to the high degree of proof beyond a reasonable doubt required in a criminal trial. The criminal justice system requires the prosecution to prove the case beyond a reasonable doubt. In most instances the witnesses fail to identify the perpetrators and the complainants fail to appear by the time the investigations are taken over by the Criminal Investigation Department (CID) or the Disappearance Investigative Unit (DIU). There have been instances where the witnesses are not
3.54

interested in pursuing the matter due to threats and various reasons that are highlighted elsewhere in this report and the witnesses fleeing to the uncleared areas in the North or seeking asylum abroad.
Successful prosecutions are also hampered by technical grounds and other factors which result in the lack of adequate and reliable material that would give rise to a realistic prospect of securing a conviction. Factors which affect the credibility of the witnesses are delay incomplaining, lapse of time and memory, lack of proper identification of perpetrators, contradictions arising from their statement to the police, affidavits filed in. the fundamental rights applications and in the evidence led in the High Court proceedings, improper or inadequate medical evidence etc. Thus the need for the protection of witnesses and the need for an independent investigative body are matters that must be addressed in Sri Lanka
Impunity surrounding Torture
As pointed out despite the long term existence of legislation to punish torture and the enactment of the Torture Act in 1994, only 14 cases have been filed and out of which details of 7 cases are available at the Attorney General's Department. There have not been a single conviction despite the prevalence of torture in the country and the repeated pronouncements of the Supreme Court on the subject. The investigations and prosecutions under the Torture Act remain very slow. Indeed, the UN Special Rapporteur on Torture noted in his report on Sri Lanka covering the year 2000 that "It remains evident that more prosecutions and convictions will be required in order significantly to affect the problem of impunity. In any event, personnel responsible for injury leading to compensation should be removed from office.'
Civil and Political Rights including the Questions of Torture and Detention: Report of the Special Rapporteur, Sir Nigel Rodley, submitted pursuant to the Commission on Human Rights resolution 2000/43, E/CN.4/2001/66, 25th January 2001.
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One of the factors that facilitate the commission of torture and prolonged arbitrary detention is the wide powers given to the security forces in the Emergency Regulations (ERs) and the Prevention of Terrorism Act (PTA) which allow long-term detention in police and army custody without having to bring detainees before a judicial authority.
In the absence of standards laid down in law setting out minimum detention conditions most of the detainees are kept in inhuman and degrading conditions in overcrowded prison cells, without proper access to lawyers and their families.
Under the ER's and PTA confessions topolice officers above a certain rank are admissible as evidence in court and this constitutes an incentive to interrogating officers to obtain such confessions by any means, including torture. This is exacerbated by the fact that at the trial stage the burden of proving that such a confession was extracted under torture is placed upon the person making such an allegation.
The PTA also provides that a statement recorded by a Magistrate or made at an identification parade shall be admissible in evidence even if the person is dead or cannot be found and thus cannot be cross-examined'. Any document found in the custody of a person accused of an offence under the Act may be produced in court as evidence of the facts stated therein.
In this connection it must be borne in mind that Article 11 of the Convention against Torture obliges state parties to keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.
The ER further permitted dead bodies to be disposed of without post mortem examinations or inquests. This facilitated
Section 18(1)(a) Section 18(1)(b)
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the cover up of deliberate and unlawful killings of those in custody or otherwise, and the perpetration of torture and disappearance with impunity by the Police and armed forces.
The Indemnity (amendment) Act, No 20 if 1982 amended by No 60 of 1988 provided immunity from prosecution to all members of the security forces, members of the government and government servants involved in enforcing law and order between 1 August 1977 and 16 December 1988, provided that their actions were carried out "in good faith" and for the public safety in the public interest under the authority of a direction of a Minister, Deputy Minister etc. Furthermore Section 26 of the PTA also provides immunity from prosecution for "any officer or person for any act or thing done or purported to be done in good faith in pursuance of any order made or direction' given under the Act.
A specific directive by the President issued on 11th January 1996 to send on compulsory leave nearly 200 police and Army officers against whom there is evidence of complicity in disappearances has not been carried out so far. The directive addressed to the Inspector General of Police and the Services Commander to comply with the report within one month from the said date has been defied with impunity. The failure of the President to take action against the violators of her order shows that the officers concerned know that no follow up action would be taken against them.
It is reported that 597 cases against armed forces personnel are to be indicted on the finding of the Presidential Commission on disappearances and further investigation conducted by the Criminal Investigation Department at the initiative of the Missing Persons Unit (MPU) of the Attorney General's Department.'
In terms of the Establishment's Code any public officer against whom criminal proceedings have been instituted has to
source Attorney General's Department, February 2002 * Establishments Code of the Government of Sri Lanka, Vol. Il Cap. XLVIII,
Section 21
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be interdicted from service till the conclusion of his case and the said public servant should mandatorily be dismissed in the event of his conviction. But in reality only in certain cases have the public servants been interdicted. On the other hand circular no DIG/PS/71/2001 dated 5th January 2001, to all DIG's and SSP's to the effect that "The Inspector General of Police has approved the reinstatement of all officers who have been interdicted following the inquiries conducted by the Disappearances Investigative Unit, and charged in courts, but subsequently bailed out in connection with cases of disappearances of persons". This shows the degree of concern shown by the Government of the day of the outcome of the Commissions appointed by the same Government.
Furthermore these officers could be transferred to the areas within which the complainants and the witnesses in the cases live and is very likely that they will resort to harass and threaten the witnesses in order to prevent them from testifying against these police officers in those cases. In addition to criminal proceedings these accused officers shall have to face departmental inquiries for violating departmental rules and procedures in committing these crimes. The re-instatement of these accused officers may mean that they will not even face a disciplinary action for the crimes alleged to have been committed by them.
The Report of the Special Rapporteur on extra judicial, summary or arbitrary executions held "several relatives of disappeared people and human rights organizations from all areas of Sri Lanka have expressed concern that many members of the security forces and others allegedly responsible for grave human rights violations in the recent past continue to hold official posts in the same areas where the violations took place and may try to interfere with the investigations. This was a particular concern in relation to the hearings held by the commissions of inquiry in the areas allocated to them, most notably the north-east, where concern pertains not only to
358 -

members of the police but also the army, the home guards and various armed militant groups'
At the conclusion of the trial at bar on the death of Wijedasa Liyanarachchi from 100 injuries suffered in police custody the court, accepting a plea by two of the accused police officers to the crime of wrongful confinement, passed strictures on Premadasa Udugampola DIG Southern Range, who had been a witness at the trial and went on to state, as part of its Judgment that it was the fervent hope of the court that "the Hon. Attorney General the law enforcement agencies and the executive will in the near future probe and investigate into the issue as to who cause this death, using the varied facts, matters and information disclosed in these court proceedings." -
The Commission of Inquiry into involuntary removal or disappearance of persons in the Western, Southern and Sabaragamuwa Provinces reported, "No steps, as directed by court, have been taken to this date. Nor does the service record of Udugampola show that any steps have been taken by way of disciplinary inquiry in the Liyanarachchi case, 18.03.91 Udugampola was Head of the newly established Bureau of Special Operations, on Presidential Directive.'
The Report of the Special Rapporteur on extra judicial, summary or arbitrary executions further held that the impunity enjoyed by human rights violators in Sri Lanka to be very pervasive. The judiciary is competent to deal with cases involving security forces personnel accused of human rights violations. The justice system can be tough and effective in prosecuting and punishing disciplinary offences involving manifest disobedience of orders. However, it has proved itself equally effective in guaranteeing impunity for violations of the ordinary criminal law in respect of acts (murder, torture, kidnapping) committed in the line of duty.'
136 E/CN.4/1998/68/Add 2, 12 March 1998.
Sessional paper v - 1997 3. E/CN.4/1998/68/Add 2, 12 March 1998.
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The Special Rapporteur holds that "Thus, Sri Lanka fails to fulfill its obligations under International law to carry out effective and impartial investigations with a view to identifying those responsible, bringing them to justice and punishing them. Although, in a number of cases, tribunals have granted compensation to victims, or their families, for damages suffered at the hands of state agents, the tribunals conducting criminal proceedings against the same agents do not find grounds for their conviction. This strongly suggests the lack of institutional willingness to hold the authors of human rights violations responsible".
Failure to Prosecute
The reports of the Disappearances commissions have also revealed the existence of several torture chambers some of which were maintained by the police in the early 1990. However the mandate of the commission did not authorise the commission to further investigate into these torture chambers. But reference was made to the following torture chambers.
(i) St. Sylvester's College, Kandy (ii) Y.M.C A Army Camp at Welimada' (iii) Hali Ela Motors at Badulla** (iv) Community Center Hall (Praja Shalawa) in Monaragala'
3' supra
The 2" Interim Report of the Commission of Inquiry into involuntary removal or disappearance of persons in the Central, North Western, North Central and Uva Provinces. Sessional paper iii-1997 Page5. It was held that 'according to the evidence, about 1000 persons have were detained in this camp and systematrically tortured before being taken away and killed'
'' Interim Report iii, supra it was held that "persons who were fortunate enough to have survived these torture chambers gave evidence before this commission.” (page9)
'' supra
'' supra
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(v) Paddy Marketing Stores at Walapane. (vi) Beragala Army Camp, Haputale (vii) St. Ritas Camp, Nuwara Eliya
Several persons are alleged to have been done to death in such places and the bodies had been disposed of. It is recommended that separate investigations be conducted through an appropriate authority into these places to bring to book those responsible for the incidents'
The Commission of Inquiry reports further mentions about 15 mass graves in various parts of the country and no action has been taken to probe them to exhume the sites or record the evidence of the witnesses who have mentioned about these sites to the Commission in spite of recommendations to that effect. The Government was under pressure to investigate the graves at Chamanni in the North because of the dramatic revelation by two of the convicted soldiers at the High Court trial relating to the abduction, rape and murder of Chrishanthy Kumaraswamy and the murder of her mother, brother and a neighbour at a security checkpoint in 1996. It was the testimony of these two soldiers that that there were 300 to 400 bodies at Chamanni where the bodies of Chrishanthi Kumaraswamy and others had been discovered. Statements about the alleged mass graves at Chamanni were taken from the five convicted men by the Criminal Investigation Department and the Human Rights Commission. However this matter is still pending waiting the DNA reports from Hydrabad, India. The delays surrounding the investigation of the Chemanni site are totally unacceptable. The Final Report of the Commission of Inquiry into Disappearances in the Western Southern and Sabaragamuwa Provinces speaks of mass graves. "All these mass graves reported to this Commission are matters of knowledge shared by the people of the area where the mass graves are located, even though
' Final Report of the Presidential Commission on Disappearances, Sessional
paper No. iii of 1997, p. 20
36

Page 193
unknown nationally and unacknowledged by the authorities. The Police either do not record or record the report as merely that of a 'disappearance'. I did so on superiors orders, admitted a recording officer of the CID, which was investigating the Hokandara Mass Grave - Colombo South'. The report gives a list of 12 such graves that had been reported to the Commission.
The Need for an Independent Investigation Body
The Attorney General as the chief law officer of the State is entirely dependent upon the evidence and the material provided by the investigative arm of the State as the Attorney General's office is not vested with any investigative functions or powers. As held by Justice Fernando, "A citizen is entitled to a proper investigation - one which is fair, competent, timely and appropriate - of a criminal complaint, whether it be by him or against him. The criminal law exists for the protection of his rights - of person, property and reputation - and lack of a due investigation will deprive him of the protection of the law. But the alleged lack of a proper investigation, which resulted in those reports not being made available to the Attorney General was a lapse on the part of those whose duty it was to investigate, and not on the part of the Attorney General.'
Thus it is pertinent in this context to examine the need for an impartial investigative body in order to have an effective system working in line with the UN Conventions, to gain effective remedies and protection from arbitrary acts of the state officials.
Article 13 of the Convention against Torture lays down that "Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under
1. Sessional Paper No. v of 1997, p 117 “ Victor Ivon v Sarath N. Silva Attorney General and another. (1998) (1 SLR
340 at 349)
362

its jurisdiction has the right to complain to, and to have his case properly and impartially examined by its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given'.
In Sri Lanka since 1865 the Police Ordinance' made it an offence for a police officer to knowingly and with evil intent to exceed his powers or to 'offer any unwarrantable personal violence to any person in his custody'.
The abuse of his powers by the police officers was condemned by our Supreme Court as far back as 1902. In The King vs. Tajudeen Bonser CJ held " Now, it seems to me that violence used by Police Constables, the abuse of his powers when it is proved, ought to be severely punished. It is very difficult to bring home such a case against police constables, for the tendency of Courts and their own officers is to support the police in the performance of his duties: and the public, too, are very unwilling to come forward, as a rule, against police constables unless it is a very clear strong case."
The following observations in the Greek Case' identify some of the difficulties in established a case. 'There are certain inherent difficulties in the proof of allegations of torture or illtreatment. First, a victim or a witness able to corroborate his story might hesitate to describe or reveal all that happened to him for fear of reprisals upon himself or his family. Secondly, acts of torture or ill-treatment by agents of the police or armed services would be carried out as far as possible without witnesses and perhaps without the knowledge of higher authority. Thirdly, when allegations of torture or ill-treatment are made, the authorities, whether the police or armed services or the Ministries concerned, must invariable feel they have a collective
'' Police Ordinance No. 16 of 1865 as amended, Section 82.
148 6NLR 16
1“o Vide Journal of Universal Human Rights, Vol. 1 No, 4, Oct-Dec 1979 at p. 42. Quoted by Sharvananda J in Velumurugu vs. Attorney General FR Decisions Vol 1 page 180 at page 241
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reputation to defend, a feeling which would be all the stronger in those authorities that has no knowledge of the activities of the agents against whom the allegations are made. In consequence there may be reluctance of higher authority to admit or allow inquiries to be made into facts which might show that the allegations are true. Lastly, unrecognizable, even by medical experts, particularly where the form of torture itself leaves... few external marks'
Hon. Justice Amerasinghe lays down the present context of the interference by police officials with the complainants as follows'. "In some instances in which fundamental rights applications are filed, criminal and/or disciplinary proceedings are initiated. In other instances the Petitioner, it is reported, refuses to "co-operate' by giving evidence, and there the matter ends. There is a need to devise some method of an independent body undertaking disciplinary inquiries in these matters ensuring at the same time the safety of the person who made the complaint as well as the safety of members of his family. Article 13 of the UN Convention on Torture requires that "steps shall be taken to ensure that the complainant and witnesses are protected against ill-treatment or intimidation as a consequence of his complaint or any evidence given.'
Cases are not unknown when persons who have filed petitions in the Supreme Court are persuaded to withdraw their petitions. In Porage Lakshman vs Rohan Fernando and Others'', the Petitioner had filed an application alleging that his fundamental rights guaranteed by Articles 11, 13 (1) and 13 (2) had been violated. Subsequently an application was made by his lawyer to withdraw the application. The Court had information that the Petitioner had been forced to make the application and it was found that at the time the application for withdrawal was being supported, the petitioner was outside
50 Our fundamental Rights Of Personal Security And Physical Liberty” A.R.B.
Amerasinghe, Page 56. 5 SCAppNo. 24/90 SCM 29 September 1995.
364

the court premises in a police vehicle. Although the matter was subsequently fixed for hearing, the case could not be proceeded with, since the petitioner was not available to instruct his Attorney-at-Law. The matter was referred by the Court to the Special Presidential Commission of Inquiry on Involuntary Removal of Persons. In its Interim Report (Inguiry No. 24/1991), the Commission reported that there was "credible information that the petitioner was involuntary removed on 15.02.1991 in a Police vehicle no 32 Sri 7298 and that his whereabouts subsequently are not known". The matter was referred also to the Inspector-General of Police who reported that there was no evidence upon which a criminal matter was taken up for hearing on 25 September 1995, the petitioner was still missing. Learned counsel on behalf of the State conceded that the vehicle in which the Petitioner had been taken away was a police vehicle and that the abductors were probably police officers, although they had not been personally identified. The court held that the removal of the petitioner by executive action had disabled him from pursing his fundamental right under Article 17 of the Constitution to proceed with his petition in respect of the alleged infringement of Articles 11, 13 (1) and 13 (2) and ordered the State to deposit a sum of Rs. 200,000 in court to the credit of the Petitionerl32.
In W.M Herath Banda vs Sub Inspector of Police, Wasgiyawatte Police Station, Polpitigama and others, the petitioner had been granted leave to proceed for the alleged infringement of Article 11 on account of having been rendered unconscious and hospitalized following an assault by a police officer. When the matter came on for hearing, his Counsel moved to withdraw the petition on the ground that the petitioner had "settled his differences with the police officer'. The Court fixed the matter
' Our fundamental Rights Of Personal Security And Physical Liberty” A.R.B.
Amerasinghe, Page 60.
SC AppNo. 270/93 SCM 29 November 1993
15' 1959 SC (India) 149
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for hearing the submissions of the Attorney General on the question of withdrawal. The Deputy Solicitor General citing Basheshar Nath vs Commissioner of Income Tax, submitted that the violation of a fundamental right, especially the right guaranteed by Article 11, was not a private matter that could be settled or withdrawn. He also referred to the fact that the Court in Velumurugu held that Article 11 had special features. It was held that no useful purpose would be served by attempting to arrange fundamental rights on a hierarchical scale and determine the question of withdrawal by reference to importance. It was observed that, although withdrawalhas been permitted in hundreds of cases, each case depended on its own circumstances and leave to withdraw was a matter "within the absolute discretion of the Court'. In the matter before it there was ample medical evidence to support the allegation of a brutal assault. The court declared Article 11 violated, but no compensation was awarded since the "differences" had been settled. The Inspector General of Police was directed to investigate the matter'.
The use of police for the settling of personal differences is closely linked with widespread corruption reported in the force. It was further held by the Commissions, "Personal jealousies, animosities, family disputes due to property-related issues, and even controversies surrounding love affairs, caused untold misery to people during this period. Caste rivalry also featured in a few cases of disappearances'.
"There was an administrative direction that the Deputy Inspector General (DIG) should be subjected to the control of the political authority usually the Chief Minister,
5 (1981) (1 SLR406)
' Our fundamental Rights OfPersonal Security And Physical Liberty” A.R.B.
Amerasinghe, Page 61.
' final report of the Presidential Commission of Inquiry into Involuntary Removal or Disappearances of Persons, Sessional paper V, 1997, ibidem page 154
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notwithstanding the fact that Police powers had not been devolved to the Provincial level... This confirms the practice of "Lists', whose source was the local politician. It also clarifies the path by which the Security Forces came to be used in the narrow interests of particular politicians."
Rohan Daluwatta, a former Commander of the army gave evidence before the Commission about how this practice worked when he was coordinating officer, Ratnapura during that period:
"I was given a list of names with the direction to take them into custody, that they were JVPers. I received the list from a former Minister... when I checked the list with the Police, I came to know that they were SLFPers." 15
As pointed out by a former Chief Justice H.H. Basnayake in 1970 in the Final Report of the Police Commission, the current practice requiring that a complaint against a police officer be inquired into by another police officer is inadequate:
"Courteous attention and civility must replace the rude and militaristic attitude that is characteristic of a Police Station. No laws can effect the change. Even after public attention has been focused on a number of incidents in which the Police have belaboured the public, reports of Police violence still continue to appear in the Press. We think that this attitude of mind of the Police is largely due to the fact that the machinery for investigating complaints by the public against the Police at present is unsatisfactory and does not command the confidence of the people'."
Too Sessional paper V, 1997, ibidem page 35 o Sessional paper V, 1997, ibidem page 35 o Sessional Paperxxi, 1970, para 54
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As one mother giving evidence before the Presidential Commission of Inquiry into Involuntary Removal or Disappearance of persons in the Western, Southern and Sabaragamuwa Provinces stated when she was asked why she had not complained to another police authority about the abduction of her son: "No, it would have been like asking the thief's mother to catch the thief", yet another common complaint was "we were chased away like dogs'.
The 2d Interim Report of the Commission of Inquiry into Involuntary removal or disappearance of persons in the Central, North Western, North Central and Uva Provinces held "A surprising feature is that complaints of abductions in most cases had been entered in the Minor Offences Information Book of the Police Station. Abduction with intent to kill is punishable under the Penal Code with rigorous imprisonment up to 20 years and a fine. The Officers-in-charge of Police Stations concerned and their superiors should be held responsible for this default....there have been cases where the Police Headquarters had issued letters denying that certain persons had ever been taken to custody, when there are witnesses who had seen them in custody at the Police Stations'
Medical Evidence relating to Torture and the Role of the Medical Practitioners
Reliable and credible medical evidence is important to corroborate evidence of torture in an application for infringement of fundamental rights under the Constitution or a criminal charge under the Torture Act No 22 of 1994.
In terms of our law the Officer in Charge of a Police Station' and the Magistrates' are required to cause a person
Sessional paper No. v., 1997, Government Publications Bureau, September 1997, page 155
' Sessional paper iii-1997. page 4
Section 122, Code of Criminal Procedure Act
Section 137, Code of Criminal Procedure Act
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to be examined by a medical officer if such examination is considered necessary. The medical evidence in a case may be of critical importance not only in deciding whether the injuries were quantitatively of a nature that brought a case within the ambit of Article 11, but sometimes it is also of assistance in deciding whether, in the circumstances of a case, the petitioner's or respondents version of the events is true. In the absence of evidence to corroborate the allegations of physical abuse, the court may have to hold, as it did, for instance, in Kapugeekiyane vs Hettiarachchi that the violation of Article 11 had not been established.
In a rare case there might be doubts as to whether the injuries complained by the victims are self inflicted, or caused by a friendly hand in order to be eligible to obtain compensation from the Supreme Court or the Human Rights Commission. However this is a question of forensic medicine and the medical profession must be geared to address these issues in identifying and distinguish the nature of the injuries and the causation.' When a medical report is said to be based on an examination made as a result of the person having been produced by the police, there should be caution with regard to accepting the accuracy of the report. Indeed, when respondents file a standard Medico-Legal Report' supporting their case, one tends to become suspicious. Why, if they had caused no injuries, should the police take a man on their custody to a doctor? It is to create evidence with the connivance of the Medical Officer?
'' (1984)2SLR 153, also see Namasivayam vs. Goonewardena (1989) (1 SLR
394 at 401)
In Siriwardene vs. OIC Mirigama and others SC Application 216/94 SCM 17 March 1995. it was alleged that the petitioner has lost an eye on account of an assault by prison officers. However, the medical evidence was that the petitioner, who was schizophrenic, had pulled out his own eye in an attempt to commit suicide.
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There have been many instances where the Courts have rejected the medical evidence due to doubts cast on the medical officer and acted on the facts of each case.'
In Amal Sudath Silva VS. Kodituwakku, Inspector of Police and others' Atukorale, J held "The report of the M.O. is in my view, valueless and unworthy of acceptance. On his own showing it is evident that he has not carried out an independent examination of the petitioner to ascertain whether he had any injuries. It seems to me to be preposterous for any medical officer before whom a suspect is produced for a medical examination in the custody of a police officer to expect him to tell the officer in the very presence of that police officer that he bears injuries caused to him as a result of a police assault. I therefore reject the report of the M.O. as being worthless and unacceptable. The circumstances of this case disclose a gross lack of responsibility and dereliction of duty on the part of the M.O. Bandaragama.
Attention of the Medical profession is also made to The Declaration of Tokyo of 1975 which was a specific statement on torture and other cruel, inhuman or degrading treatment or punishment.
Attention is also drown to the Principles of Medical Ethics relevant to the role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (1982).
Ansalin Fernando vs Sarath Perera and others (1992) (1 SLR 411 at 419), Weerasinghe V. Premaratne and others 1998 (1 SLR 127), Somawardena vs. Superintendent of prisons (SCApp. 494/93 (Spl), SCM22 March 1995 Premadasa vs. OIC Hakmana and others SC App 127/94 SCM 10 March 1995, Sudath Peiris vs. Adikari and others SC/FR 94/93 SCM 7 March 1994, in the matter of Dr.S.Abeykoon. SC App. 454/93 SCM 14 June 1994.
168 [ 1987]2 Sri LR 1 19.
' Adopted by the United Nations general Assembly by resolution 37/194
of 18, December 1982.
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Chapter 07
Arrest and Detention
Right to liberty and to freedom from arbitrary arrest and detention
In Sri Lanka protection of the personal liberty of a person has been elevated to a constitutionally guaranteed right'. Violations of personal liberty are committed once again in the context of the armed conflict in the North and the East. In this regard illegal restraints of the freedom of movement and restraint takes place under the guise of the PTA and the emergency regulations in the past. However it must be noted that these rights are not violated only in the context of the armed context and many cases of arbitrary detention and arrests are committed in other context too and prompt action must be taken to remedy these violations.
It must be noted that in almost every case of torture or disappearance in the custody of state officials, the first step was an arrest and detention. In many cases, no reasons for the detention were given and, in some cases, despite overwhelming evidence to the contrary, the relevant authority denied the arrest and detention.
In spite of regulations that provided that for the police to immediately register all detentions in the central registry and at the Human Rights Commissions these are seldom carried out.' The reason for this appears to be to delay the detention, sometimes by more than a week, until interrogation is over, thus
7o Constitution, Article 13 (2)
see Human Rights Commission Act, No. 21 of 1996 Section 28 (1) and Direction issued by her Excellency the President under regulation 8 of the Emergency (establishment of a Human Rights Task Fore) regulations, No.
Of 1995. Gazette notification No. 874/8 dated 07:06.995
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facilitating the use of torture, and in case the detainee should die, the police could then deny that the person was ever in custody.
In most instances the best that family members could hope from the police or the army camps was a verbal confirmation of the detention, and that, in some cases of enforced disappearances, such conformation was initially given by later denied. In the absence of any official notification, a family is frequently denied of seeking the protection of the law on behalf of the detainee.
Under ordinary law, authorities must inform an arrested person of the reason for arrest and bring that person before a Magistrate within 24 hours. In practice, persons detained under ordinary law generally appear before a Magistrate within a few days of arrest. Many cases filed in the Supreme Court challenging the legality of the arrest state that at the time of arrest, no reasons were given or the arrest was not in accordance with the law.
Many police officers also do not maintain any records at the time of arrest in order to suppress the actual date of arrest and thereby deny the allegations of torture said to have been committed within those days. Most victims or eyewitnesses also have difficulty in identifying a particular arresting officer and thereby the Attorney General has little or weak material to maintain a charge in this regard.
In the north and east, the persons most often reported detained and missing were young Tamil men accused or sympathizing with the LTTE. Tamil persons internally displayed owing to the conflict and staying in informal shelters such as school centers were particularly at risk of detention and disappearance. The most frequently utilized method of detention in the north-east was the cordon-and-search operation in which the army, often in conjunction with the police, and particularly the Special Task Force, went into a village or a rural area and detained scores of persons. Many were released within 24 to 48 hours, but a percentage of persons remained in custody for questioning.
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The detention of a person takes place as a result of the person being imprisoned without formerly charging him or releasing him onbail. It has been held that prolonged judicial proceedings do not per se, constitute cruel, inhuman and degrading treatment'. Nor do long periods of incarceration pending trail constitute a violation of Article 117. In Martin vs. Jamaica, 7 the UN Human Rights Commission held that prolonged periods of detention under a severe custodial regime on death row cannot generally be considered to constitute cruel, inhuman or degrading treatment if the convicted person is merely availing himself of appellate remedies.
"Due Process' or 'Procedure established by law"
An arrest must take place 'according to procedure established by law'. Deprivation of personal liberty is in certain circumstances permissible, but there must be no arbitrariness.
It has been said from time to time that in drafting our Constitutional safeguards relating to personal liberties it would have been preferable to use the phrase 'due process of law' instead of the phrase procedure established by law'.7 The formulations using the phrase procedure established
'' Griffiths v Jamaica, Communication 274/1988, Views of the Human Rights
Committee, 24 March 1993.
73 Karmegan v Jansz and others SC Application 100/87 SCM 28 January
1988
'' Communication No. 317/1988, 24 March 1993
7o In Magna Carta, there was recognition of the need to assure the subjects of the realm that they would not be deprived of their personal liberty arbitrarily, but when it was necessary to do so, it would be according to the law of the land — per legem terrae. King John promised that “No man shall be arrested or detained in prison or deprived of his freedom or outlawed or banished or in any way molested and we will not set forth against him, not send against him, unless by lawful judgment of his peers, and by the law of the land See "Our fundamental rights of Personal Security and Physical Libertyʼ. ARB Amerasinghe. Page 81
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(prescribed) by law" follow Magna Carta, as do the 1972 and 1978 Constitutions of Sri Lanka, Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 9 of the ICCPR.
Article 13 (1) and (2) of the 1978 Constitution confer three rights upon a person who is arrested. Firstly, he shall be produced before a nearest Magistrate within twenty-four hours of his arrest." In computing this period of twenty-four hours, the time spent on the journey from the place of arrest to the Magistrate is excluded. Thirdly, he is not to be detained in custody beyond a period of twenty-four hours without the authority of the court. Article 13 (3) entitles a person charged with an offence to be heard in person or by an attorney at law. In terms of Article 13 (4) of the Constitution the arrest, holding in custody, detention, or other deprivation of personal liberty of a person, pending investigation or trial shall not constitute punishment. Article 15 (7) provides that the exercise and operation of the above rights shall be restricted by law in the interests of national security, public order etc
The legal Provisions relating to the manner of arrest are spelt out in the Code of Criminal Procedure Act No 15 of 1979 read with the amendments. 77 Arrest without a warrant, Code of Criminal Procedure Act, Sections 23, 32, 33, 34, 35, 41, 42, 107, 109, Police Ordinance, Sections 56,63, 69,70, 85
Arrest with a warrant, Code of Criminal Procedure Act, Sections 50, 51, 52,53,55,59.
In addition some of the special statutes also deal with the laws relating to arrest'.
76 Section 37 of the Code of Criminal Procedure Act No 15 of 1979.
Detention, after arrest without a warrant, Code of Criminal Procedure Act, Sections 36, 37, 38, 39, l 14, l 15, 16, Police Ordinance, Sections 65, Detention, after arrest with warrant, Code of Criminal Procedure Act, Sections 54,58
7. Prevention of Terrorism Act No. 48 of 1979, Section 6.
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The Attorney General's powers relating to the arrest and detention of a person
The Attorney General does not have a direct role to play in relation to the arrest and detention of a person as these acts are done during the investigation into an alleged crime. However the investigative bodies can seek the advice of the Attorney General in relation to an impending arrest of a person.
The Attorney General's involvement in regard to the detention of a person comes up as a result of the Attorney General's appearance for the respondents in the applications for bail filed by a remandee or a detainee. Bail could be sought either in the Magistrates Court during the summary or nonsummary proceedings, in the High Court or in the Court of Appeal in respective cases. The Attorney General upon a perusal of the observations of the police either objects to bail or assists court to arrive at a decision to grant or refuse bail.
The Attorney General could reduce the period of detention of a suspect by filing indictments speedily and by giving directions to the Police to conduct its investigations within a reasonable time. Through the powers vested in the Attorney General by section 393 of the Code of Criminal Procedure Act the Attorney General can periodically monitor the progress and assist in the conduct of speedy investigations by the police.
In relation to the delay of the completion of trials before court the Attorney General as a result of his/her appearance on behalf of the state can assist Court to conclude the cases in which the suspects have not been released on bail.
In the case of Mahanama Tilakaratne vs Bandula Wickramasinghe SSP and others' the Petitioner alleged that the Attorney General in his personal capacity violated the fundamental rights of the Petitioner by failing to take preventive measures and his inaction to prevent an unlawful arrest. The court in this case held that the Attorney General was informed
79 (1999) (1 SLR 372 at 382)
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of the arrest only after the event and that he had no complicity in the arrest.
Magistrate's role in cases of arrestand detention of suspects
The Magistrate too plays an important role in the protection of personal liberty and security of persons and in ensuring that an arrest is made according to the procedure established by law." Courts have held that Magistrates who issue such warrants of detention should be careful to see that the provisions of the law are complied with and the warrants are complete in every necessary detail. "It behoves the authority to whom the warrants are addressed, to bring it to the notice of the Magistrates when such are wanting and incomplete in any way, so that any errors due to inadvertence or otherwise may be promptly rectified.'" Magistrates must play a more active role rather than a passive role at the point of remanding. It has been held by the Supreme Court that "issuing a warrant is a judicial act involving the liberty of an individual and no warrant of arrest should be lightly issued by a Magistrate simply because a prosecutor or an investigator thinks it is necessary. It must be issued as the law requires, when a Magistrate is satisfied that he should do so, on the evidence taken before him on oath. It must not be issued by a Magistrate to satisfy the sardonic pleasure of an opinionated investigator or a prosecutor'.'
With regard to the order of remand by a Magistrate it has been held that "It may perhaps be suggested that such production is "of little consequence or a minor matter, because
Constitution, Article 13 (1), Chandra Kalyanie Perera and Another Vs. Captain Siriwardene and Others (1992) 1 Sri LR 251, Thavarasa & two others vs Gunasekera & two others (1996) 2 Sri LR 357
' Chandra Jayasinghe vs. Mahendran and others (1987) 1 Sri LR 206
' Mahanama Tilakaratne vs Bandula Wickramasinghe SSP and others. (1999) (1 SLR 372 at 382) also see Wills vs. Sholay Kangany (18 NLR443), Section 32 (1)(b) code of Criminal Procedure Act.
376

a judicial officer cannot order the release of the detainee. Nevertheless, it has been held that such production "is more than a mere formality or an empty ritual, but is recognized by all communities committed to the Rule of Law as an essential component of human rights and fundamental freedoms', and must be exactly complied with by the executive. That Safeguard Serves many important purposes. A judicial officer would be able, at least, to record the detainee's complaints (and his own observations) about various matters: such as ill treatment, the failure to provide medical treatment, the violation of the conditions of detention prescribed by the detention order and /or relevant statutes and regulations, the infringement of the detainee's other legal rights qua detainee, etc. Indeed, he may even be able to give relief in respect of some matters'.
Justice Fernando laid down two essential requisites in terms of Article 13 (1) of the Constitution. "The suspect must be taken to where the nearest competent judge is, or that Judge must go to where the suspect is, and the suspect must have an opportunity to communicate with the Judge. If those conditions are not satisfied the Judge would have no jurisdiction in respect of that suspect to make a remand order.
In terms of Section 5 of the Release of Remand Prisoners Act No. 8 of 1991 "it is the duty of every Magistrate to visit every prison stipulated within the judicial division in respect of which he is appointed, at least once in every month." The Magistrate while visiting the prisons is entitled to exercise his powers and release on bail the suspects who are in remand for offences that are within the schedule to this Act.
See Edirosuriya vs Navaratnam (1985) 1 Sri. L.R. 100, Nallanayaham vs. Gunatilake (1987) (1 Sri. L.R. 293) Rodrigo vs. De Silva (1997) (3 Sri. L.R. 265 at 323-5) ' Weerawansa vs Attorney General and others (2000) (1 SLR at 408)
supra
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Powers of the Attorney General in relation to Magistrates
The Code of Criminal Procedure, Act No. 15 of 1979, imposes specific duties and grants wide powers to the Attorney General. Under section 142, he could give directions to Magistrates. In non-summary inquiries under chapter XV the Attorney General had been given the sole right of the presentation and service of Indictments. Section 193 provides that in any trial in the High Court, the prosecution shall be conducted by the Attorney General or the Solicitor General or by an appropriate appointee of the Attorney General
The Attorney General can exercise his powers in respect of the functions set out in Section 191 (1). Thereby the Attorney General has the power to appear and conduct prosecutions in any summary trial before the Magistrates Court including private plaints in accordance with the procedure laid down in the Section. The Attorney General can also use this power to ensure that speedy inquiries are held and thereby reduce the period of detention of the detainee.
The Attorney General can use the power given under Section 190 to stop proceedings in appropriate cases that do not see the light of a successful conviction and thereby reduce the period of incarceration of the suspect. In terms of this section the Attorney General has the power to give sanctions to discharge an accused at any stage without pronouncing any judgment whether of acquittal or conviction. This same power can be exercised by the Attorney General in the High Court proceedings by entering a plea of nolle prosequi under Section 194 of the Code.
Section 396 gives the power to the Attorney General to quash an order of committal made by a Magistrate if the Attorney General is of the opinion that there is not sufficient evidence to warrant a commitment for trial and that the accused should be discharged. In terms of section 398 the Attorney General has the power to call for the proceedings in any criminal case before the High Court or Magistrates Court and the inquiry
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is thereby to be suspended provided the Attorney General returns the records within 2 months with directions regarding the conduct of the proceedings. In terms of section 399 if the Attorney General is of the opinion that an accused should not be discharged by the Magistrate the Attorney General has the power to direct the Magistrate to commit the accused to the High Court or to re-open the inquiry and conduct the same in accordance with the instructions given by the Attorney General.
Arrest and Detention under the IPTA
Each year a large number of prisoners are arrested in Sri Lanka for suspicion of being members or sympathizers of the LTTE. These arrests were carried out in the past under the Emergency Regulations and currently with the repeal of the Emergency Regulations the arrests are still taking place under the Prevention of Terrorism Act No. 48 of 1979. (PTA)
The PTA was enacted by Parliament by a special majority. Under Article 84 of the Constitution, even if a Bill contains provisions that are unconstitutional, it can be enacted into law if passed by a special majority. Notwithstanding the constitutional sanction, civil libertarians have been extremely critical of the vast powers conferred on the authorities by the PTA at the expense of individual liberty.
As the UN Special Rapporteur on Disappearances stated, "Although the PTA was seen as an effort to contain what by then amounted to civil war, its usually broad provisions are said to have increased tensions instead. Indeed, the Prevention of Terrorism Act contains a number of disturbing provisions from the human rights perspective." '
Section 6 gives wide powers to any police officer not below the rank of Superintendent or any other police officer not below the rank of sub inspector authorized in writing by him to act without a warrant, notwithstanding anything in any other law
86 E/CN.4/1999/62
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to the contrary to arrest any person, enter and search any premises; stop and search any individual or any vehicle, vessel, train or aircraft; and seize any document or thing connected with or concerned in any unlawful activity.
The PTA further provided for detention up to 72 hours without producing a suspect before a Magistrate'. The Magistrate has the power to keep the person so arrested in remand till the conclusion of the trial on an application made by an officer in the rank of Superintendent or above, and unless, a detention order has been issued.
In terms of the PTA, a person may be detained for periods of up to 18 months (renewable by order every 3 months), if "the Minister (of defence) has reason to believe or suspect that any person is connected with or concerned in any unlawful activity". The same section provides that such person may be detained "in such place and subject to such conditions as may be determined by the Minister'. This may lead to having persons detained without access to attorneys or to relatives for prolonged periods.
The Act does not expressly exclude coerced confessions as evidence but rather provides that confessions made by a person orally or in writing, at any time, can be admissible as evidence unless made to a police officer below the rank of Assistant Superintendent.' Thus, confessions made to police under torture or threats may be admitted.
In Weerawansa vs Attorney General' the Supreme Court held that the Minister of Defence in issuing detention orders must independently exercise his/her statutory discretion, either upon personal knowledge or credible information. His Lordship Justice Fernando, further held that "not only must the Minister
Section 7 (1), under normal law a suspect must be produced before Magistrate within 24 hours
Section 9
9 Section 16.
190 (2000) (1 SLR 387)
380

of Defence subjectively have the required belief or suspicion, but there must also be objectively, "reason' for such belief".
Attorney General's powers in terms of the PTA
In this regard the proviso to Section 7 (1) makes it mandatory for the Magistrate to release such person from custody if the Attorney General consents to the release, of such person before the conclusion of the trial. However our law does not make provision for the Attorney General to be informed of an arrest of a person under the PTA till an application for bail is made on behalf of the detainee. If no application for bail has been made, the Attorney General is informed of the arrest only at the time of conclusion of the investigations when the file is sent to the Attorney General to prepare Indictment.
On the other hand the Human Rights Commission of Sri Lanka Act, No 21 of 1996 currently requires security officials to inform the Commission forthwith or within forty eight hours when a person is detained under the PTA and under Emergency Regulations and the place of detention and of the release or transfer of such person to another place of detention.' The Commission is also given wide powers to inspect places of detention and make examinations and ascertain the conditions of the persons so detained'. Officers who fail to inform the commission the fact of arrest and detention and obstructs the inspection of the places of detention is said to commit an offence punishable by the Magistrate's Court'.
However apart from the above safeguards provided to the detainees the HRC law does not empower the HRC to give binding decisions, prosecute or bring to the notice of the Attorney General appropriate cases to consider filing of Indictments under the Torture Act or order the release of persons. Due to its
' Human Rights Commission of Sri Lanka Act, No 21 of 1996, Section 28 (1) 19 Section 28 (2) 193 Sec 28 (3)
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failure to fulfill the hopes and aspirations the HRC has been criticized as being a "lion without teeth."
Attorney General's office has a special unit dealing with PTA cases and according to this unit the ways in which a file can be opened in the Attorney General's Department in normal PTA cases are:
(1) Upon the police forwarding the IB extracts after completion
of investigations to consider indictment. (2) Upon information given by an Attorney at Law on behalf of a detainee regarding the detention of a person under the IPTA a W. 194 (3) Filing of a Fundamental Rights application in the Supreme
Court challenging the illegal detention. (4) An application for bail made on behalf of a detainee. (5) A filing of Petition to the Human Rights Commission, or
tribunals such as the Anti Harassment Unit.
In these instances the Attorney General undertakes to consider expediting the Indictments by calling for police reports within a time frame undertaken by the Attorney General. Further the Attorney General in appropriate cases agrees to the release of the detainee upon a consideration of the observations sent by the investigative officers.
However there is an urgent need for the Attorney General to be informed immediately upon an arrest and detention of a person under the PTA in order for the Attorney General to consider his discretion to consent to bail in terms of the Act or in taking steps to file Indictments. In the absence of such a provision the detainees who seek one of the remedies mentioned above may gain an advantage in getting relief faster than a person who has not had the means of bringing to the notice of the Attorney General regarding his arrest and detention.
'' Interview with Shavindra Fernando, Senior State Counsel at the Attorney
General's Department on 25.01.2002
382

Denial of counsel to a detainee
Article 13 (3) of the Constitution entitles a person to be heard in person or by an Attorney-at-Law at a fair trial. Section 41 (1) of the Judicature Act states that "Every person who is a party or has claims to have the right to be heard in any proceeding in any such court or other such institution (established by law for the administration of justice) shall be entitled to be represented by an Attorney-at-Law. A similar right is given in respect of proceedings in tribunals exercising quasi-judicial powers unless otherwise expressly provided by law. Section 260 of the Code of Criminal Procedure gives an accused the right to legal representation in court.
Similarly, neither the Constitution nor any other law in Sri Lanka recognizes a legally enforceable right of a person in police custody to consultan Attorney-at-Law before proceedings have commenced in court.' On the other hand the Indian Constitution provides in addition to the right to be informed of the reason for arrest, that a person arrested shall not "be denied the right to counsel, and to be defended by a legal practitioner". The right to have the assistance of a counsel is also recognised in Principles 11, 17 and 18 of the "Body of Principles for the protection of All Persons under any form of Detention or Imprisonment" adopted by the United Nations General Assembly in 1988. Therefore the denial of a protection to a legal counsel may lead to the detainee being exposed to severe ill treatment and torture at the hands of the investigative officers and the detainee is also not given a chance of getting to know his legal remedies and rights such as filing of fundamental rights applications and seeking bail from an appropriate court.
Secret places of detention
Another matter that contributes to the impunity surrounding arbitrary detention is the existence of secret places of detention
oo Constitution Article 13 (3)
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in Sri Lanka. The UN Working Group on Enforced and Involuntary Disappearances' referred to people held in secret places of detention, especially in the Jaffna peninsula, Colombo and Vavuniya, in spite of the requirement that detainees can only be held in officially gazetted places of detention. "It is alleged that, although keeping a detainee in a place not authorized as a place of detention was made a specific offence under the Emergency Regulations, no member of the security forces has so far been charged under these provisions'.
The WG further commented that safeguards relating to the maintenance of registers of detainees, including a central register of detention, provided within the framework of the Human Rights Commission of Sri Lanka and Presidential directives to the security forces, are not being fully implemented. The need to speed up the habeas corpus procedure and the establishment of a High Court in Jaffna to deal with the same was highlighted in this report.'
Two authorized places of detention in Siyabalanduwa and Buttala police stations, were gazetted during 1998. It may be noted that these same police stations appeared in a previous Gazette in 1996.' This is not the first instance of a place being gazetted more than once. The legal implications of such repetitions, and whether they are connected to the changes in the areas in which the Public Security Ordinance has been in force from time to time, remains to be explored. In the meantime it may be noted that up to the end of 1998, under the Emergency (Miscellaneous Provisions and Powers) Regulations, a total of 386 authorized places of detention have been listed in separate Gazettes.
196 E/CN.4/999/62
' supra
Supra
Gazette Extraordinary No. 946/5 of 22, October 1996 at locations 178 and 79.
198
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Chapter 08
Recommendations
Steps to curb the surrounding impunity
1.
The Attorney General as the chief law officer of the State has an indispensable role to play in order to maintain law and order, to ensure that people's rights are respected and protected and that the Rule of Law is maintained at all times.
The Attorney General therefore must instill confidence in the people that their rights are respected and guaranteed and the Attorney General must exercise his powers in order to bring an end to the prevailing impunity and the circumstances that lead to the commission of these acts.
In this respect the Attorney General must take steps to demonstrate his total opposition and to unreservedly condemn acts of extra judicial killings, torture, illegal arrest and detention. It should be made clear to all members of the police, military and other security forces that transgressions of these rights will never be tolerated and those responsible shall be criminally liable for these acts.
The method of "mobilisation of shame" by "naming and shaming used by the international community could be used in this regard. It is a toothless remedy where widespread violations of human rights are documented and publicised. It has been the strongest sanction for the enforcement, promotion and protection of human rights.
One of the best ways in which the Attorney General could do this is by conducting speedy and effective prosecutions
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and departmental inquiries with severe repercussions for violation of these rights and ensure that the state officials are aware of the consequences of committing these acts."
The responsibility of law enforcement officers for a great many cases of torture and disappearances in Sri Lanka has been universally acknowledged. However, no legal provisions and mechanisms have been developed to prevent this happening again in the future. Prosecutions for past offences have proved illusive in most instances. It is recommended that these cases be prosecuted speedily.
The purpose of the appearance of the Attorney General in all fundamental rights cases before the Supreme Court is in order to ensure that the remedies granted by the Supreme Court are carried out by the State officials. Attorney General should ensure that the departmental inquiries ordered by the Supreme Court are carried out effectively and keep a close tab on the said inquiries.
The Attorney General should make it mandatory that the perpetrators be subjected to departmental inquiries for violation of departmental procedures and regulations in appropriate cases of torture and extra judicial killings where the accused are acquitted or where the Supreme Court dismisses the applications on technical grounds.
The Attorney General should ensure that compensation is paid to the victims and that the victims of torture are given appropriate rehabilitation treatment and medical care. Currently there is no mechanism to compel a person to pay
200
Article 12 of the UN Convention against Torture obligates states parties to ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed...' also see Article 13
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10.
11.
12.
13.
the compensation ordered by the Supreme Court, apart from filing cases for contempt of court. In this regard the Attorney General should order the IGP or the Army Commander to withhold the promotions and impose pressure on them indirectly in order to compel the perpetrators of torture to pay the compensation ordered to the victims.
In most instances persons found guilty of torture by the Supreme Court, Human Rights Commission and the Criminal Courts are still continuing in service and this might amount to an acquiesces of the acts done by the perpetrators of grave violations of the Human Rights in this country.
There must be stringent measures of deterrence that must be adopted by both the Government and the Attorney General's Department in particular to curb the use of torture.
Eminent Jurists in our country have expressed great concern and deep reservation about the manner in which the functions of the Attorney General has been performed in several instances in the recent past. In this connection abuse by the Attorney General of the powers vested in him, in particular the power to enter nolle prosequi, and the power to give directions to magistrates in pending criminal proceedings. The Attorney General's Department Sri Lanka needs to assimilate the trends in other jurisdictions where even public officers who violate human rights are prosecuted for appropriate crimes by the Attorney General's Department.20
In view of the powers and functions vested in the Attorney General under the Constitution and the role played by him
20
Human rights related legal reforms in Sri Lanka, Final Document, Asian Resource Centre page page 4
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14.
15.
16.
in the administration of justice in particular, and in the judicial system as a whole, the holder of the office of Attorney General must be a person of independence, total integrity, and professional competence. He should balance the rights of the individual against interests of the state, not be biased in favour of the establishment and in doing so he is called upon to play a crucial role in the protection, promotion and development of all human rights.'
The Attorney General must take effective steps to deal with times of crisis in the country and must ensure that people's rights are guaranteed at all times. For example at times of an emergency or an insurrection the Attorney General must advise the Police hierarchy to dispatch independent investigative officers to the areas to take over the investigations and instill confidence in the people to lodge complaints and seek legal remedies.
The Attorney General's Department must have proper coordination and closer links with the various investigative bodies and must create a climate under which no case is left without a proper investigation and proper action. Currently it is the complaint of many human rights activists that cases that attract intense local and international pressure are brought to justice while many others go underground. It has been pointed out that while the Embilipitiya students disappearances case saw the light of successful conclusions, many other cases highlighted by the disappearances commissions have moved at snail speed or are not pursued in all earnest.
There should be proper coordination and documentation with the investigative bodies. It is recommended that a database be installed to connect all the police officers in
202
Supra.
388

17.
18.
19.
20.
21.
the country along with the Attorney General's Department and the Human rights Commission, so that the Attorney General will have first hand information regarding the progress of the investigation of a case.
The Attorney General's Department should maintain a website for the Torture, PTA and Disappearance Units. This will ensure complete transparency regarding the stage of a complaint and the progress of a trial and accountability of the department to ensure that prosecutions are conducted efficiently and speedily.
The Torture, PTA and Disappearances Units in the Attorney General's Department must be made permanent and the officers appointed to these units must be given the power to function on a permanent basis, without any additional routine work being imposed on them.
The cases that attract international attention must also be completed speedily and effectively. The Attorney General too has the duty to ensure that Justice is done and not merely seem to be done. For example the Chamanni grave excavation case is still pending for the arrival of the DNA reports inspite of the fact that some of the bodies have been identified.
The Attorney General should address the root causes for the commission of the acts of Torture, Illegal arrest and detention and take the effective legal and administrative measures within the purview of the Attorney General's powers to put an end to the same.
Hon. Justice Mark Fernando? posed these questions, in order to curb future acts of Torture etc.
203
"Human Rights in Sri Lanka” published in Law & Society Trust, Fortnightly Review, 1 August 1991, Volume ii issue No. 21
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"There have been allegations of extensive violations. Disappearances, extra-judicial killings, torture, arbitrary detention, and the like. My office precludes me from commenting upon the truth or otherwise of these allegations, and I refrain from comment. However, some of these allegations have been proved in proceedings in Courts: and if, in any appropriate forum, other violations are also satisfactorily proved - whether at the hands of the State or private citizens: of one political party or another, or of the armed forces or vigilantes, or terrorists - all such findings would be relevant to any human rights assessment. Condemnation must follow upon such findings.
But even in this area, should any human rights assessment restrict itself to such findings and condemnation or exculpation? If a human rights assessment is not made in a hostile or antagonistic spirit, and is genuinely intended to promote respect for human rights, must it not have a remedial and preventive aspect? Can genuine and effective remedial and preventive measures ever be proposed without an identification of the root causes of such violations? If so, must not the real and effective causes of such violations be investigated? If torture has been inflicted by means of the rack and thumbscrew, is it enough to condemn those who use those devises? Will torture then cease? Or is it vital to determine who made the rack, and who sold or supplied the thumbscrew to the user? Who financed the purchase, and who trained the user? Who instigated, or gave aid, comfort and shelter? If it is a matter of condemnation, are they not equally guilty? If condemnation alone will not result in the cessation of human rights violations - is it necessary to ascertain the political, economic, Social and other causes which gave rise to the situations in which those violations occurred? Did those causes arise solely from internal factors? Or were they mainly or substantially the result of
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external factors? Are there external factors which inhibit the implementation of remedies? Is it proper for an assessment to ignore such external factors? Illustrations are Superfluous.
Identifying the other persons or bodies responsible, and the causes which gave rise to violations, will in no way exonerate culprits, or mitigate their offence. But the question is whether an assessment which fails to probe responsibility and causation, which does not address the issues of remedies and prevention, can ever be complete or adequate".
Steps to be taken by the Government
1.
The office of the Attorney General and the Investigative officers should be made totally independent of the executive head of the Government who is a representative of a single political party. It is suggested that the Attorney General should be appointed by the Parliament on the recommendation of a select committee of Parliament. He should be removable for misconduct only in an address in Parliament passed with a two thirds majority.
Similarly a totally independent body is an urgent need to prevent political interference and the conduct of investigations. There must be specialized bodies to deal with state sponsored terror or crimes committed by state officials. The essence of criminal law is that crimes are primarily offences against the State. The basic contradiction in cases of torture, arbitrary arrest, detention and disappearance are that these crimes are committed by the State itself. Thus the contradiction arises when the crimes committed by the State are tried within a framework defining crime as an offence against the State.
Thus the establishment of an independent prosecution unit and an independent investigative unit is a pre requisite in order to address the violations discussed in this paper.
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Steps should be taken to involve the prosecutors in the law reform process. As it is they who come face to face with the weak points in the law and the difficulties in implementing them. In Sri Lanka prosecutors are rarely consulted with regard to law reform nor are they included in the Law Commission.
The Government should ensure that prisoners are held in only officially recognized places of detention and accurate information regarding their arrest and whereabouts must be made known immediately to relative's lawyers and the courts. Effective judicial remedies should be available to enable relatives and lawyers to find out immediately where a prisoner is held and under what authority and to ensure prisoners safety. Up to date registers of all prisoners should be maintained in every place of detention and centrally.
Sabaragamuwa Commission held that they have received 191 petitions from persons alleging that they have been involuntarily removed but were later returned. They have complained of unlawful arrest and detention, assault and injury and humiliation, pain of mind and psychological ill effects. It was recommended by the Commission report that "the Human Rights Commission should be requested to advise the government in formulating legislation, administrative directives and procedures' for the protection of the fundamental rights of this category of Petitioners. They have lost their right to petition to the Supreme Court in respect of the breach of their fundamental rights to freedom from illegal detention and torture by reason of the constraints of the time limit places by the Constitution on the invocation of the jurisdiction of the Supreme Court in respect of an allegation of a breach of fundamental right.'
204
Sessional paper v - 1997 page 27
392

10.
All prisoners should be immediately informed of their rights. These include the right to lodge complaints about their treatment and to have a judge rule without delay on the awfulness of their detention. Judges should investigate any evidence of torture and order release if the detention is unlawful. A lawyer should be present during interrogations. Governments should ensure that conditions of detention conform to international standards for the treatment of prisoners and take into account the needs of members of particularly vulnerable groups. The authorities responsible for detention should be separate from those in charge of interrogation. There should be regular, independent, unannounced and unrestricted visits of inspection to all places of detention'.
Accurate information about the arrest of any person and about his or her place of detention including transfers and releases should be made available promptly to relatives, lawyers and the courts. Prisoners should be released in a way that allows reliable verification of their release and ensures their safety.
The government should at al times ensure that effective judicial remedies are available which enable elatives and lawyers to find out immediately where a prisoner is held and under what authority, to ensure his or her safety, and to obtain the release of anyone arbitrarily detained.'
It is pointed out that while the government incorporated Some of the provisions of the "Directions issued by her Excellency the President under regulation 8 of the
205
206
Amnesty International International's 12 point program for the Prevention of Torture by Agents of the State, Amnesty International International's 14 point program for the Prevention of 'disappearances
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Emergency (establishment of a Human Rights Task Force) regulations, No. 1 of 1995" into the Human Rights Commission Act, No. 21 of 1996, some of the other important safeguards in the said directions were not given legal force. These measures related to issuing a document to the spouse, father, mother or any close relation acknowledging fact of arrest. According to these directions it was mandatory to specify the name and rank of the arresting officer, the time and date of arrest and the place at which the person was to be detained. It was made the duty of the holder of such document to return the same to, or produce the same before, the appropriate authority when the person so arrested or detained was released from custody. The person arrested was also to be given reasonable means of communicating with a relative or friend to enable his whereabouts to be known to his family. It is recommended that these provisions be given legal force.
Attorney General's powers in relation to the International Treaties
1. In the Sri Lankan legal system under the principle of dualism, upon ratification of the international treaties the provisions must be incorporated expressly into our law through domestic legislation to have legal force. There is no procedure by which a Sri Lankan court could test the conformity of a domestic law or of executive or administrative actions with the international human rights treaties by which the state is bound.
2. In his regard the Attorney General as the chief law officer of the state has many obligations in relation to Sri Lanka's accession to international treaty provisions. The main aim of the international law is to bring national law in conformity with international obligations. The Attorney General must do a careful study of the international
394

covenants and treaties and ensure that the Sri Lankan domestic laws are in line with the same.
As pointed out in this study there are many shortcomings in the CAT Act No 22 of 1994 in relation to the definition of Torture and legalising other provisions in the UN Convention against Torture such as right to compensation and rehabilitation for torture victims and the right of his dependents to gain compensation in the event of his death,207 inadmissibility of statements made as a result of torture, the right to prompt and impartial investigations,’’ protection of complaints against ill treatment or intimidation as a consequence of his complaint or evidence given,' and the need to education and information regarding the prohibition against torture in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment' and other preventive measures' stipulated in the UN Convention against Torture have not been given force of law in Sri Lanka.
The Attorney General should advise the Government in regard to these shortcomings and adopt the practical and effective methods in the UN Convention that will help ease the practice of Torture in this country. Merely criminalising torture as an offence will not put an end to the said crime if the other machinery and the legal provisions set out in the UN Convention are not made use of.
207 -
208
209
20
211
212
UN Convention, Article 14 UN Convention, Article 15 UN Convention, Article 12 UN Convention, Article ! 3 UN Convention, Article 10 UN Convention, Article 16
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Sri Lanka has also not declared its obligations under Articles 21 and 22 of the UN Convention against Torture, which recognizes the UN Committee against Torture to receive Individual communications. The Attorney General could advise the Government regarding these deficiencies in its international obligations.
The prevailing laws that provide for whipping, as a punishment in the Penal Code and Children and Young Persons Ordinance should be reviewed to ensure full compliance with the Convention's prohibition of cruel, inhuman and degrading punishment.
The need to review the Prevention of Terrorism Act as well as the rules and procedure pertaining to detention to ensure that they are in compliance with the UN Conventions has been pointed out by many UN Committee reports.' In this regard it is recommended that the Attorney General take immediate steps to oblige with these recommendations and ensure that steps are been taken to amend the said provisions of the PTA.
The absence of a right to life provision in our constitution has been a subject of criticism in many international forums. This requirement is more important in the face the number of the cases of disappearance pointed out in the Government appointed Presidential Commissions and in the UN Working Groups etc. Therefore the Attorney General should move in this matter and advise the Government of this serious lacuna in our law, which acts as a denial of justice to the families of the disappeared, and bring pressure on the Government to bring the right to life provision back in to our Constitution. It is indeed a fact
23
ex. See Concluding observations of the Committee against Torture: Sri Lanka 19.05.98A/53/44, para 255.
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10.
11.
that this right was present in the 1972 Constitution and the obvious absence of the said fundamental right in the present constitution is a question mark indeed, as this very same Government that introduced the 1978 Constitution was accused of being responsible for cases o disappearances during their regime.
It must be noted that the right to life, the right to be free from torture and other inhuman or degrading treatment or punishment are amongst the non-derogable rights defined in Article 4 of the ICCPR. These rights are so fundamental that they are considered to be not only customary international law but also peremptory norms of jus cogens'. And the absence of this provision in our constitution is a mater to be considered by the Attorney General as the chief legal officer of the State.
The act of causing enforced or involuntary disappearance should be made an offence under the penal law of Sri Lanka, punishable by appropriate penalties as stipulated in Article 4 of the UN Declaration on the Protection of All Persons from Enforced Disappearances.
The Attorney General should intervene and inform the Government of the serious contradictions between the international treaty obligations and the Emergency Regulations, which were more or less prevalent in our country since 1979 till the latter part of 2001. Provisions that are inconsistent with the international treaty obligations and the Prevention of Terrorism Act should be abolished or brought into line with internationally accepted standards of personal liberty, due process of law and humane treatment of prisoners.
214
Jus cogens norms are those that are not subjected to limitation, denial or suspension under any circumstances. Including those of public emergency.
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The UN Convention against Torture requires States to take effective legislative, administrative, judicial and other measures to prevent acts of torture. The Attorney General should in this regard ensure that 'effective' legislation is passed, incorporating the provisions of the treaty, not merely a law criminalizing torture. The Attorney Generalshould inaddition issue circulars, and carry out educational Campaigns to Sensitize the police, military regarding the implications of acts of torture. The circulars could contain the latest strictures and the guidelines passed by the Courts.
As pointed out in this report there are instances where the witnesses have been threatened or intimidated to withdraw complaints filed by them. In this regard the Attorney General should take steps to enact legislation, which affords protection to complainants against police action. Article 13 of the UN Convention against Torture obligates States parties to take steps "to ensure that the complainant and witnesses are protected against all ill treatment or intimidation as a consequence of his complaint or any evidence given".
An officer of the Attorney General's Department is a member of the Sri Lankan delegation before the UN Human Rights Committee. Sri Lanka (which ratified the ICCPR in 1980) made its initial report in March 1983, and this was examined by the Human Rights Committee in November/December of that year. Sri Lanka's second periodic report was submitted in March 1990, and it was examined in a public session in New York in April 1991, when the members of the committee subjected the representative of the government to intensive questioning. Sri Lanka's third periodic report was submitted in July 1994, with an addendum in July 1995, and was examined in public sessions in Geneva in July 1995. Once again, government representatives were subjected to close
25
Article 2 (1)
398

15.
16.
17.
questioning. At the end of the hearing, in line with its practice since 1992, the Committee issued a document commenting on the report and making a series of recommendations.'
Sri Lanka's periodic report to the UN Committee against Torture which was due on 1st February 1999 has not yet been submitted. Though it is the position of the Government that three periodic reports have been submitted to the Committee including a report containing legal submissions the delay in submitting the periodic reports under the treaty obligations will be noted against the Government.
The other reports which are overdue by the Sri Lankan Government in terms of its treaty obligations are the fourth periodic report to the ICCPR which was due on 10.09.1996, the fifth periodic report to the CEDAW which was due on 04.11.1998, the tenth periodic report to the CERD which was due on 20.03.2001 and the third periodic report to the ICESCR which was due on 30.06.2000.
The need to bring the perpetrators of extra judicial executions to justice has been established as an obligation in international human rights standards. Paragraph 18 of the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions provides that "Governments shall ensure that persons identified by the investigation as having participated in extra legal, arbitrary or summary executions... are brought to justice... This principle shall apply irrespective of who and where the perpetrators or victims are, their nationalities or where the offence was committed". The Principle also provide that
26
See consideration of Reports Submitted by States parties under Article 40 of the Covenant: Comments of the Human Rights Committee, Sri Lanka. (UN doc. CCPR/C/179/Add. 56 of 27 July 1995).
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18.
19.
20.
persons alleged to have committed these grave human rights violations should be suspended from any official duties during the investigation and removed from any position of control or power, whether director indirect. They also state that steps should be taken to ensure that all those involved in the investigation, including the complainant, counsel, witnesses and those conducting the investigation, are protected against ill-treatment, violence, threats of violence or any other form of intimidation or reprisal.
The Government should also act in accordance with the Basic Principles of Justice for Victims of Crime and Abuse of Power which provide, inter alia, that victims should be entitled to access of the mechanisms of justice and to prompt redress for the harm they have suffered. Families of the deceased and their legal representatives shall be informed of, and have access to any hearing as well as to all information relevant to the investigation, and shall be entitled to present other evidence. The family of the deceased shall have the right to insist that a medical or other qualified representative be present at the autopsy.
The Government should consider accession to the Rome Statute for the establishment of an International Criminal Court, the Convention on the Non Applicability of Statutory Limitations to War Crimes and Crimes against Humanity and Protocol ii to the Geneva Conventions of 12 August 1949.
The Human Rights Commission should be strengthened, in accordance with the Principles relating to the status of national institutions (Paris Principles), annexed to the Commission on Human Rights resolution 1992/54 and the General Assembly resolution 48/134. Such an institution should be based on the recommendations of the Commission on Human Rights concerning the competence,
400

responsibilities, composition, guarantees of independence and pluralism, methods of operation, status and functions of national human rights institutions. The Human Rights Commission might consult the Office of the High Commissioner for Human Rights for advice and technical corporation in this particular field.
Sensitizing the officials
1.
The prerequisite for a practical impact of a convention, like the CAT is for the most part, general knowledge of its existence and content. In Sri Lanka the general knowledge of the CAT is very weak. The text does not exist in Sinhala or Tamil and the availability of the English text is limited.”
The Supreme Court in Abasin Banda vs Sub Inspector Gunaratne of Police Haguranketha, made explicit references to the CAT and stressed that Sri Lanka should adopt educational programmes and certain procedural steps to prevent torture and other ill-treatment. The present situation is, though, far from satisfactory. The training of different groups dealing with detainees is usually lacking in teaching of the legal aspects. As an example, it could be mentioned that prison guards do not receive any education in human rights during their preparatory period of training. The Police are equally hampered and their training is mostly confined to physical drilling although it does contain some legal training. This, however, is quite insufficient and there is a lot left to be done in the field of education.'
·
27
28
29
Sri Lanka Journal of International Law Vol 10, November 1998. Published
by the Faculty of Law and the Department of International Relation of the University of Colombo Sri Lanka. “The implementation of the Anti Torture Convention” by Katarina Marholm. SC Application No. 109/95, (1995) (1 SLR 244)
supra footnote 215
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Human rights education should have the utmost priority. Education and enlightenment are the best means to prevent torture from taking place in the long run. Torture is a part of the every day life in Sri Lanka and has been so even before the first emergency rules were introduced. It is the rule rather than the exception to be abuse in police custody and this has become more or less accepted by the population. There needs to be change in the general perception of the police both within the police force and in the minds of the general public.
the officers should be instructed that they have the right and duty to reuse to obey any order to participate in a case of illegal arrest, torture, extra judicial killing or 'disappearance'. An order from a superior officer or a public authority must never be invoked as a justification for taking part in a 'disappearance'.
The police needs to be educated in alternative methods of interrogation and made to understand the limits of the powers conferred on them. There needs to be a change in attitude within the police force and they should be made to understand that assaults on detainees are never justifiable. If such a change could take place it would have been more far reaching consequences, for the enhancement of the right of the detainees to humane treatment. The issue of immunity is a very important one but to effectively prevent torture there needs to be an understanding that torture in itself is something wrong. The Sri Lankan people are very well aware of their own rights. What they need to learn is, to respect the rights of others as well.'
It must be noted that the national legal system is the best method of protecting human rights of the individuals. These
Supra
402

include the police and security forces, and a highly developed judicial system. Human rights law must not be
made law on books' but law in action' Therefore it is an
essential requisite that the said organs are educated on the
application of the national and international human rights
laws.
The investigators must be educated on effective means of interrogating the suspects. The Government should ensure that transfers of training and equipment for military, Security or police use do not facilitate torture. Article 11 of the UN Convention against Torture obligates states parties to keep under systematic review interrogation rules, instructions, methods and practices with a view to preventing torture.
At a recent publication it was reported, "in fact at a seminar on "Torture in Sri Lanka" conducted by a well known NGO Sometime ago, a Senior police officer who was a participant, had the audacity to say to a shocked audience without torturing, how else does anybody expect evidence needed to convict a person in a court of law to be unearthed?" This statement only helped to expose the ineffectiveness of the police investigation techniques and the scant disregard the police have for the laws of the land, i.e. the presumption of innocence guaranteed in the constitution'
Training should be given to these officials to motivate and educate them with the latest techniques on interrogating while respecting the basic fundamental rights of the people. The rights of the accused must also be preserved and respected as against the rights of the victim and the Society
22
Prevention of Human Rights Violations: are the Police Sincere? MCM Iqbal, LST Review Volume 12 Joint issue 168 & 169 October & November 2001.
40.3

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10.
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12.
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at large. The junior officers must be informed of the implications of torture and the must be seriously warned not to indulge in acts of torture.
The training programmes provided by the Office of the High Commissioner for Human Rights for the Security forces and which is being implemented in other countries might be a possibility. They should take into account the need to provide specialized and distinct training to both army and police offices. The relevant international standards developed by the United Nations, such as the Code of Conduct for Law Enforcement Officials, should be part of Such training.
It is important that the officers of the Attorney General's Department are made aware of the existing treaties, conventions, declarations, principles, and guidelines formulated by the United Nations. As discussed in this paper our courts have referred to the application of international law provisions and the State Counsels must be given specialized training on the said international norms and its applications into our local jurisdiction. By invoking these principles, courts can formulate new laws, or use them as persuasive authorities in interpreting national laws to cover the wide range of protection given inter alia in the fields of detention, prevention of extralegal executions and torture.
The officers of the Attorney General's Department could also use the international obligations entered into by the State when advising Government authorities about lapses or violations. If one can point out precisely where and how such authorities are failing in their international legal obligations, this is much more forceful than just saying they are "wrong" or "unfair".
International law may be cited to raise public awareness when a government is not living up to its legal obligations,
404

14.
15.
and thus stimulate public pressure on it to comply. Parliamentarians and others influential in the decision making process must also be made sensitive to the provisions in the UN treaties and the international norms.
Besides legal education in general there should be specific education for Judges. The Institute of Judges Training could provide comprehensive courses that will help the judges to improve their competence in understanding law as well as Society. In this context the study of the new methodologies developed in other countries may prove useful. (eg South Africa)
The improvement of the competence of the judiciary is very much linked to the improvement of the quality of the legal profession. If the lawyers adopt creative and innovative ways to expand the jurisprudence they would be helping the judiciary to be more sophisticated. The modern forms of repression and tyranny call for Sophisticated approaches by lawyers and Judges if they are to protect the liberties of the people.
The Need for an independent Investigative Body
1.
The state must ensure that complaints of torture, 'disappearances' and extrajudicial killings are investigated promptly, impartially and effectively by an independent body who is responsible and has the necessary powers and resources to carry out the investigation. The methods of finding complaints of these acts must be made public. Officials suspected of committing these crimes must be suspended from active duty during the investigation. Relatives of the victim should have access to information relevant to the investigation and should be entitled to present evidence. Complainants, witnesses, lawyers and others involved in the investigation should be protected
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from intimidation and reprisals. The investigation should not be curtailed until the fate of the victim is officially clarified.222
It must be noted that the violations consisting of torture, illegal arrest and detention are peculiar cases, in that the perpetrators and the investigative bodies remain one and the same body. Thus if a person is denied of these rights the said victim or his relatives are expected to complain to the same officials and/or the colleagues of the perpetrators of the said violation. Thus it is of paramount importance that effective measures are taken to install independent and accessible investigative bodies and the public must be made aware of these bodies to make complaints of the transgressions of their rights.
It is indeed agreed that the ideal situation to monitor these human rights violations committed by the State officials one should have a statutorily independent investigative arm unconnected to the normal functions of the Police Department and the armed forces. Appointment of officials to these bodies must also be carefully done and the sensitizing of the officers to the fact that even the accused are entitled to their fundamental rights is an urgent need.
Currently there is a special team of Police Officers in the Criminal Investigation Department to investigate into cases of Torture. The Unit is headed by the Deputy Inspector General of Police who is in charge of the human rights issues in the Department of Police. However these are not statutorily created bodies but administrative procedures. The individuals appointed to these units must be selected on merit and not on political affiliations. These institutions
See Amnesty International International's 14 point program for the Prevention of 'disappearances .
406

must ensure complete transparency at all times, and encourage the civil Society and the media to publicise the steps taken by these organs on a regular basis.
The Final report of the Commission of Inquiry into Involuntary Removal or Disappearances of Persons in the Western, Southern and Sabaragamuwa Provinces recommended in view of the seriousness of the acts revealed by the evidence available that the investigations by the IGP should be under the supervision of the Attorney General and be referred to the Attorney General for the determination of the appropriate legal proceedings that should ensue.***
There should be a means by which the Attorney General is vested with a formal duty to investigate into crimes that are not reported to the police even if there exists a reason to believe that a crime has been committed. Currently even a important indicator as a judgment from the Supreme Court to pay compensation does not automatically lead to an official investigation. Secondly, even if the case is reported to the police there is still the problem of loyalty among police officers that has been shown to be pernicious to the idea of an impartial and prompt investigation. Cases have been broadly treated, neglected and unjustifiably delayed. The Attorney General in this regard has no power to intervene and has to rely on the evidence provided by the Police.
The prosecutor must be present at the post mortem inquiry. Currently the Attorney General receives the investigation file submitted by the police after the completion of the investigation or when the police are seeking the Attorney General's advise. As discussed in this paper there are many
223
Sessional Paper v- 1997 page 29
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12.
cases where the police are strongly under suspicion and criticism of inadequate transparency, fairness. Hence the presence and participation of the Attorney General's representative right from the inception of the investigation will be a check on the police and might contribute towards' some form of control of the investigations.
Currently prosecutions in the Magistrate's Court in summary trials are conducted by the Police officers. This system is based on the British model as against the French model where an investigating Magistrate is involved in the investigations. However some form of compromise to overcome the arbitrary nature of police investigations is necessary, and it is recommended that all police prosecutions be conducted by a legal officer from the Attorney General's Department.
A legal officer should also be appointed to an area within the jurisdiction of the Magistrate's court in order to facilitate the police officers to be able to obtain legal advice.
The officials suspected of committing torture must be suspended from active duty during the investigation. Complainants, witnesses and others at risk should be protected from intimidation and reprisals.
A more permanent solution to this problem would be to create an office of the Public Prosecutor who will be responsible for all prosecutions conducted by the state. This way, the types of prosecutions presently conducted by the Police would be brought directly under the supervision of the Public Prosecutor.
In view of the various recommendations made to establish
an independent investigative body and in line with the proposed establishment of the Independent Police
4.08

Commission in terms of the 17th Amendment to the Constitution, it is recommended that a further study be done of the workings of the Police Department, its powers and functions with a view to analyse the best methods of avoiding the prevailing culture of impunity
Means of receiving complaints of torture, illegal arrest and detention
1. It is noted with regret that only 14 cases have been indicted Since the 1994 Torture Act came into force and details of only 7 cases are available in the Attorney Generals Department currently as being filed in the High Courts as at February 2002. This is a serious deficiency inspite of the large number of fundamental rights cases that are been filed in the Supreme Court and before the Human Rights Commission. It is recommended that the Attorney General should take note of the cases and take steps to initiate prosecutions so that no torturer is left free of the strict laws, which penalise his acts.
2. Attorney General should be more proactive to solicit complaints of torture. He could send circulars to the Magistrate, Police and law enforcement officers, Medical officers and the Human Rights Institutes and solicit information regarding incidents of torture. The Attorney General could invite the Human Rights Commission to forward complaints of torture. If the Police do not record complaints a special unit at the CID or the Police Headquarters could be opened and the public should be informed of these remedies and of the legal protections they have against torture.
3. There is an urgent need to have proper legislation to enable
the authorities to bring to the notice of the Attorney General of the fact of arrest or detention of a suspect under the
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PTA. This is all the more important as currently there is very poor procedure adopted by the Courts to enable the Attorney General to use his discretion in terms of Section 7 (1) proviso.
The Attorney General could also co-ordinate with the Human Rights Commission (HRC) to obtain the information received by the HRC as a matter of routine. The HRC must also strengthen its procedures and devise procedures to prosecute those officers who fail to comply with this obligation. The HRC could establish a separate sub unit within the commission to discharge these functions considering the actual number of violations it has to monitor under this Section.
The Attorney General must order the conduct of further investigations into the fundamental rights cases in which leave to proceed has been granted by the Supreme Court with a view to initiating criminal prosecutions.
The State can also encourage private persons and responsible citizens to bring to the attention of independent investigative bodies of complaints of torture, or of an illegal arrest or detention. There are numerous cases of acts of illegal detention and torture committed by the police officials without bringing the suspects before the judicial authority or a medical officer.
The Attorney General's Department should make the public aware of the methods of receiving complaints of torture and give due publicity upon the institution of criminal proceedings under the Torture Act.
224
Section 28 of the HRC Act No. 21 of 1996
40

10.
11.
Though the receipt of direct evidence is indeed the best evidence in any criminal investigation one must not leave aside the effectiveness of strong circumstantial evidence.
With regard to filing of cases in relation to torture and disappearances it is indeed noted that difficulties do arise in maintaining the degree of proof and the requirements of the Evidence Ordinance in order to maintain a criminal charge. This is more so as a result of the poor investigations carried out by the Police authorities in order to avoid a conviction of a fellow officer.
However the Attorney General should encourage the courts to take a broader approach to the types of evidence that could be adduced. For instance in the case of Velasquez Rodriguez vs. Honduras' the Inter American Court took a broad approach to the type of evidence, press clippings, and circumstantial evidence, stating that direct evidence was not the only type of evidence that could be legitimately considered in reaching a decision. Circumstantial evidence, indicia and presumptions were all held to be admissible so long as they led to conclusions consistent with the facts. In the Courts view: "Circumstantial or presumptive evidence is especially important in allegations of disappearances, because this type of repression is characterized by an attempt to suppress any additional information about the kidnapping or the whereabouts and the fate of the victim. (para 13)
Similarly in Sri Lanka circumstantial evidence could be obtained through the evidence of other detainees who observed the act of torture or the health condition of the
225
Judgment of the IACourtHR, 29 July 1988, Annual Report of the IACourt HR 1988, Annex vi; Human Rights Law Journal 9 Nos. 2-3 (1988) page 212249, also reported in the Interights Bulletin 4, No. 1 (1989) page 9-10
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victim, through the evidence of medical officers and other police officers who were present at the police station. With regard to establishing the date of arrest, if the police officer evades the actual date of arrest and the illegal detention with reference to the records maintained at the OIC's investigative books, circumstantial evidence could be obtained with reference to the food register or the records maintained by the junior officers regarding their movements and duties. In this regard one must not minimize the effect of a strong circumstantial evidence case.
The Attorney General has filed indictments in over 597 cases following the reports from the Presidential Commissions of Inquiry into involuntary removals. The Police has concluded investigations in 1060 of the 1681 cases that were identified by the three zonal commissions as having sufficient evidence of the perpetrators. One of the main drawbacks of the commissions of Inquiry is that the investigative authorities must duplicate the Commission's investigations. It is recommended that all mandates to Commissions be carefully examined to prevent duplication. Either the current prosecution authority (the Attorney General) should be able to adopt the Commissions evidence without further assistance from the police, or the Commissions should themselves be empowered to follow up with prosecutions where they consider it possible. This would prevent both duplication of investigative work and the long delays that characterise prosecutions for human rights violations which also translate into crimes under the Penal Code.226
226
Sri Lanka State of Human Rights, 2001 Law & Society Trust, "Integrity of the Person', by Ramani Muttetuwegama.
412

Right to a speedy trial
1.
The right to a speedy trial is universally accepted'. Every remandee who is not enlarged on bail is entitled to a speedy and a fair trial. It is pertinent to note that denial of a speedy trial without just cause leads to an inevitable inference of prejudice and denial of justice and a fair trial. It is prejudicial to a man to be detained without a trial.
"Measures must also be taken to speed up the police prosecution procedure. As a major cause for the overcrowding of remand prisoners is the inordinate delays in the prosecution procedure. Delays in obtaining medical reports, analyst reports and experts reports essential for evidence, absence of key witnesses and at times officers assisting the prosecutors, lawyers requesting for dates on flimsy grounds, heavy case loads in courts are very often the causes for delays in disposing of cases, especially in the lower courts. Many experts who have examined this problem have suggested Setting up mandatory time limits for the completion of investigations and the prosecution'.'
The Filing of the Indictment must be expeditiously and effectively done. One must agitate for a limited period within which the Non Summary Inquiry ought to be completed and for filing of Indictment. It must be noted that under the PTA it is the Attorney General who should file Indictments in the High Court and the Attorney General has a duty to file these Indictments within a reasonable time as these suspects are not entitled to bail as of right.'.
227
228
229
ICCPR, Article 9 (3) (4), European Convention of Human Rights (Article 3), The sixth amendment to the United States Constitution H.G. Dharmadasa “Overcrowding in Prisons and countermeasures' ResourceMaterial UNAFEI pg 17 Section 15, Prevention of Terrorism Act No. 48 of 1979
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The Attorney General on his own initiative has the power to call for the Police Records and also for the Magistrates Courts proceedings. This power could be used by the Attorney General as a matter of routine in order for the Attorney General to come to the conclusion regarding releasing the suspect on bail or to monitor the progress and the speed of investigation in each case under the PTA.
It is recommended that the Attorney General be pleased to use his discretion given to him in terms of Section 7 of the PTA to consent to bail, effectively and more often and the Attorney General could as of right in certain cases agree to release of suspects on bail. e.g. offences like failure to give certain information' In agreeing to release suspects on Bail it is recommended that the quantum of bail ordered and the conditions of bail be made reasonable and not be beyond the capacity of the suspect.
Thus the Attorney General can exercise these given quasi judicial functions in order to withdraw inconclusive cases and he could also direct the Magistrate to insist that the investigations are done expeditiously.
It is a fact that courts are clogged down with cases, some of which could be disposed of before reaching the courts. In this instances the Attorney General can use his powers to suspend prosecutions and compound the cases. They may be ordered to pay compensation to victims of crime or their dependents in lieu of prosecutions in Suitable cases.
Attorney General must take all possible steps to expedite and monitor the conduct of investigations relating to cases
230
232
233
Code of Criminal Procedure Act, Section 393 (2) & (3) Code of Criminal Procedure Act, Section 398 (2) Section 5 PTA
Pathirana vs. State (1985) (2 SLR 75)
414

10.
11.
of torture. The advisory powers vested in the Attorney General must be used most effectively. He could monitor the progress of the investigations and set up reasonable time periods to conclude the inquiries and forward the reports to the Attorney General or file plaint in the Magistrate's Court. The Attorney General could for periodic reports of the stage of investigations.
Magistrates must take serious note of delay in completing the investigations and for extension of the period of remand of suspects. One must bear in mind that the Non Summary Inquiry is only an investigation which examines if the offence merits the filing of an Indictment and every effort
must be taken to speed up the Non Summary Inquiry.
When a person is brought before a Magistrate' he/she must ascertain whether the suspect has any complaints to make and record the observations of the Magistrate. This information may be useful in making the subsequent claims that such person may make regarding torture in custody. The Magistrate also plays an important role in preventing torture in his capacity as Supervisor of places of detention under Emergency Regulations.
The Report of the Special Rapporteur on extra judicial, summary or arbitrary executions held, "the Attorney General and the Government, throughout its correspondence with the Special Rapporteur with regard to cases of executions in recent years, expressed their willingness and intention to bring to justice members of the security forces believed to be responsible for human rights violations. Unfortunately, the Special Rapporteur notes that little progress has been reported in those cases
234
Sections 36 and 37 of the Code of Criminal Procedure Act and Article 13 (2), Constitution
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submitted by him since the creation of the mandate. The Attorney General said that every effort was being made to expedite those cases, but that the Government had no control over court proceedings and the steps taken by the defence in such cases to protect the interest of the accused. However, while recognizing that the Government cannot intervene once a trial has started, the Special Rapporteur wishes to point out that the Attorney General himself has recognized that there are delays in actually bringing members of the security forces suspected of involvement in human rights violations to trial.'
In Sri Lanka plea-bargaining ' is not governed by statute and the appellate courts have recently "frowned upon' this procedure being adopted. However, one must do a comparative study of this method of dispensing with the case load and recommend as to whether pleas bargaining should be given legality or not.
The Attorney General must use his discretion to grant nolle prosequi in terms of Section 194 of the Code of Criminal procedure Act. However this discretion must be exercised with caution and must not be abused. The Attorney General could inform the court that he no longer wishes to prosecute the Accused after a careful study of the contents of the evidence led before court and if there is no likelihood of a conviction. The exercise of this power should be resorted to more in the cases of political prisoners and in instances where the accused are not granted bail.
236
E/CN.4/1998/68/Add 2, 12 March 1998. Blacks Law Dictionary (6 Ed, pg 1152) definition "Plea bargaining is the process whereby the accused and the prosecution in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the Defendant pleading guilty to a lesser offence or to only one or some of the counts of a multi count indictment in return for a lighter sentence than that possible for a graver charge'.
416

14. The Attorney General can use his powers vested to him by
Section 393 (2) of the Code of Criminal Procedure Act 7 to
advise public officers and make order for the
Superintendent of Prisons to comply with the provisions in terms of the release of Remand Prisoners Act No. 8 of 1991. The Superintend of Prisons is bound by certain powers in this Act to take steps in order to obtain bail for the suspects who are on custody for offences specified in the Schedule to the Act.
Medical evidence
One block to successful investigation of torture, and indeed of other causes of death in custody, seems to be lack of proper medical evidence. In most places the Judicial Medical Officers (JMO) have fairly good experience in forensic medicine. However, JMO's are only found in the larger towns, close to the High Courts. In other places, forensic examinations are conducted by District Medical Officers (DMO's) who have little or no training in forensic medicine. It is recommended that more forensic training be given to all medical officers so that consistent and useful evidence can be gathered from the point of first contact with doctors.
237
238
239
Section 393 (2) - AG has power to summon any officer of the state or of the Police to attend his office with any books or documents and there interview him for the purpose of (a) initiating or prosecuting any criminal proceeding or (b) giving advice in any criminal matter of importance or difficulty. The officer concerned is mandatory required to comply with such summons and attend at the office of the Attorney General with such books and documents as he may have been summoned to bring. Section 3 Sri Lanka State of Human Rights, 2001 Law & Society Trust, Integrity of the Person, by Ramani Muttetuwegama
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The Medical Profession must be geared to distinguish between the injuries and proper forensic training must be given to Doctors in order to identify injuries caused by a friendly hand and self inflected injuries of torture as against those injuries implicated as a result of acts of torture committed by State officials.
The Medical officers must also adopt some act of discretion, in that they should take the initiative to examine the complainant privately, without the presence of the police officers. They should give time for the complainant to reflect and take into account the agony and trauma faced by the victim.
The Attorney General is vested with the power to direct the Magistrate to record evidence of any expert witness or police officer and the Magistrate is empowered to comply with such directions.’" This power can be used by the Attorney General in cases of torture where the victim who has been examined by the medical officer has been reluctant to relate the history due to the presence of the police officers. The medical officer in this regard can testify to his independent observations relating to the injuries of the torture victim and the pressures to which he was subjected to by the police in his presence.
In the case of fundamental rights applications too the JMO could submit a detailed affidavit explaining the injuries described in his medical report. It has also been pointed out that in the absence of oral testimony being led, the Supreme Court should be satisfied with the affidavits and the documents filed by the parties. The Medico Legal Report (MLR) filed by the Petitioners at the time of filing the Fundamental Rights application gives inadequate details
240
Section 397 (2)
418

as to the nature of the injuries. This matter could be looked into and it is suggested that a detailed form of medico legal report should be given to the victim as this will enable the court to have a better understanding of the injuries at the time of granting of leave by the Supreme Court.
The Prisons Ordinance requires the Prisons Medical Officer to "personally examine every prisoner on the day of his arrival in the prison or at least on the following morning, and.... Enter in writing his opinion as to whether the prisoner is fit for hard or light labour'. There is no specific requirement that he should be examined with a view to ascertaining injuries or complaints of assault. This provision must be strictly complied with and the court could obtain an affidavit from the Superintendent of Prisons that at the time of admission to the Prisons the prisoner was subjected to a thorough medical examination and as to his injuries if any.
24
Rule 51
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Chapter 09
Conclusion
Torture, illegal arrest and arbitrary detention in Sri Lanka are considered widespread, endemic and pervasive. In terms of the number of violations that take place on a daily basis, the lack of proper conduct of investigations and the absence of convictions resulting from successful prosecutions is a serious matter to be addressed by the Hon. Attorney General.
The Sri Lankan population and the international community will be powerless to halt the existing violence without concrete measures being taken by the government of Sri Lanka to have an immediate effect to put an end to the abuses of human rights discussed herein. Respect to the rule of law and putting an end to the prevailing impunity which perpetuates the mass violation of human rights is the responsibility of the government towards its citizens. Thus the systematic absence of investigation into violations of the right to life and integrity of the person facilitates impunity.
The study makes it clear that it is the Attorney General's Department that has a direct link and control over all organs of the government i.e. the Executive President, Members of the cabinet, Members of Parliament, Government Departments, investigative bodies and the Judiciary. The Attorney General is vested with powers to take steps to prevent, the abuses from occurring, monitor investigations and decide on initiating prosecutions in the event of an occurrence, and conduct the prosecutions in courts in order to punish a wrong doer for the violations of human rights.
In this context the various powers that can be exercised by the Attorney General to bring an end to the prevailing impunity, to speed up the investigative period and the trials, the follow up actions to be taken, and the steps that could be taken to
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strengthen the existing procedure by recommending legislative changes and measures that could be taken within the Attorney General's department have been recommended in this study.
One of the causes for the prevailing abuses of human rights discussed in this paper is the internal armed conflict in Sri Lanka. It must be noted that while taking measures to bring to book the perpetrators in the armed forces, and the police, the LTTE members who kill members of the security forces, members of the opposing factions, those who refuse to continue the armed insurgency or continue to support the LTTE, including civilians, paramilitary organizations, alleged to the security forces (home guards) are also responsible for committing torture and extra judicial executions.
This paper did not enter into a discussion of the violations committed by the LTTE or non-state actors, as they do not fall within the ambit of human rights discussed in this paper. However it is recommended that the machinery of law be strengthened to deal with these violations committed by the non-state actors as well.
Thus while valuing the great service done to the nation by the members of the security forces and the police, the Attorney General must take immediate action to ensure that isolated perpetrators of these abuses are made accountable and that justice is meted out to the families and the victims of these abuses and that their rights are guaranteed and upheld at all times.
For "the great many countries of the world are not those that have never experienced periods of darkness and barbarity, but rather those that have been able to examine such times without fear and overcome them. True democracies must be capable of examining their past; only in this way can they embrace the future... True democracies does not come from silence nor from ignorance, but from the clear and open recognition of our limits and errors".
* “The Facts Speak for Themselves': The Preliminary Report on Disappearances of the National Commissioners for the Protection of Human Rights in Honduras (New York, 1994, p. xi)
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