கவனிக்க: இந்த மின்னூலைத் தனிப்பட்ட வாசிப்பு, உசாத்துணைத் தேவைகளுக்கு மட்டுமே பயன்படுத்தலாம். வேறு பயன்பாடுகளுக்கு ஆசிரியரின்/பதிப்புரிமையாளரின் அனுமதி பெறப்பட வேண்டும்.
இது கூகிள் எழுத்துணரியால் தானியக்கமாக உருவாக்கப்பட்ட கோப்பு. இந்த மின்னூல் மெய்ப்புப் பார்க்கப்படவில்லை.
இந்தப் படைப்பின் நூலகப் பக்கத்தினை பார்வையிட பின்வரும் இணைப்புக்குச் செல்லவும்: Law and Society Trust 1994.08.01
The Law and Society Trust Fortnightly Review informed about the activities of the Trust, and associated with the Trust. Our publication is concerning the legal rights of citizens, and at instrument for peaceful change. ஆத்
We apologize to our readers for publication d Fortnightly Review we publish Mario Gomez’ c Appeal in a divorce case which will have imp Women's rights in Sri Lanka. In our next artic for secession as a solution to Sri Lanka's ethni conditions of the Sri Lankan refugees by the B accounts by the refugees themselves, present Destination, reviewed in this issue. We conclude aspects of participatory development in Sri Lan
Progressive Measures in a Unitary State
keeps the wider Law and Society community about important events and legal personalities aimed at raising public awareness on all issues gaining wider recognition of law as society's
lelays. In our first issue of Volume V of the pmments on a recent judgement by the Court of ortant consequences on the struggle to secure le Stig Toft Madsen argues that there is no case c problems. An official report on the material British Refugee Council is followed by personal ed in Rohini Hensman's Journey Without a ! with a study by Kanaga Dharmananda on legal ka.
AN EMERGING FEMN
From a male dominated profession - ideologic judgement on the question of gender. Again long supported patriarchy, the judgement has Lankan Women.
The case in question is the Court of Appeal on 19 January 1994.
The judgement is important for its rejection of that for long has sabmerged the identity of th
The case revolved around an action for divc alleged malicious desertion (which is one of th and also sought the custody of the children o Madras and Madras had been the situs of the
leave because of the matrimonial misconduct ( parental home in Colombo.
In the District Court the action was dismissec jurisdiction to entertain the application.
The District Court appears to have dismissed
- desertion (constructive) occurré
- the matrimonial home was not
- the marriage was contracted i
relating to the Court's jurisdict the marriage was contracted ou - it is the Court of the husband's
LAW & SOCIETY TRUST REVIEW - 1
IST JURISPRUDENCE ?
ally and numerically - comes news of a recent it the backdrop of legal culture which has for importance consequences for the rights of Sri
udgement in Kandasamy v Asokan, delivered
the concept of common domicile - a concept
e married woman.
Drce filed by a wife in Sri Lanka. The wife le recognized grounds of divorce in Sri Lanka) f the marriage. The husband was residing in family home. The wife had been forced to of the husband and in 1990 had returned to her
on the ground that the District Court had no
the action of the wife on the grounds that
in Sri Lanka; n Madras (and therefore the procedural law ion was not applicable);
tside Sri Lanka;
domicile that can grant the divorce; and
& 16 AUGUST 1994 1
that wife was not able to prove t
to the husband.
This decision was reversed by the Court of 1 Justice Palakidnar agreed, held that there was n the Court from dissolving marriages contra jurisdiction irrespective of where the marriage
The Court also found that the procedural law a Code) did not prevent a Court from dissolvin outside Sri Lanka. Thus the court accepted th taken place outside Sri Lanka and the act giv Lanka, it was yet possible for the Sri Lankan (
This decision rolls back a long judicial tradi husband as determining the wife's. See Savitri Domicile and Personal Status in the South Asia
presented at the Law Asia Meeting held in Col
In Le Mesurier vLe Mesurier [1 NLR 160the Matara did not have the jurisdiction to dissolve subjects, who though resident in Ceylon still ret not expressly stated that the domicile of the w
The Court did concede though that other mat judicial separation may be granted irrespective
So although their matrimonial domicile was C« domicile and the Sri Lankan courts lacked juri
Marriage has traditionally been looked at as a l that of her husband. In most aspects of the resulted in a submergence of the wife's person
One way in which this has been achieved h 'domicile". The husband's choice of domicile
2 LAW & SOCIETYT
hat she was not subject to the law applicable
Appeal. Justice Ananda Grero, with whom othing in the applicable law which prevented cted outside Sri Lanka. The Court had
pplicable (Section 597 of the Civil Procedure g a marriage where desertion had occurred e position that even where the marriage had ing rise to divorce had occurred outside Sri 2eurts to grant a divorce.
tion which had upheld the domicile of the Goonesekere, 'Some Policies on Nationality, Region and International Standards'. Paper ombo in September 1993.
Privy Council held that the District Court of a marriage contracted in England by British ained their English domicile. However it was ife was that of the husband.
rimonial remedies such as maintenance and
of the domicile of the parties.
2ylon both parties still, retained their English sdiction to dissolve the marriage.
egal method of fusing the wife's identity with elationship this has gone beyond fusion and ality.
as been through the use of the concept of 2 determined the wife's and their children's.
RUST REVIEW - 1 & 16 AUGUST 1994
Thus the wife is subject to the laws of her husb.
In some areas of the law, even now, the husba This is particularly true under the Tesavalamai to deal with some of her property without the capacity to initiate litigation without his appro 633.
The family has been one of the major objects o example argues that patriarchy's chief institu London, Virago, 1985, p 33. Feminists have which supplies the emotional, sexual and dom as a method of exploiting women's labour, and may be expressed violently. It has been vi oppression.
While the judgement raises a whole host of is increases a woman's choice. It gives her a g than she would have had, under the concept C
However where the judgement fails is in its sustaining the conclusion is weak, a vital fact for the future. The Court merely reasons applicable and that the Sri Lankan law on articulated in that case.
Litigation in Sri Lanka has not been a ce characterized by a surprising lack of aggre judgements of this nature may create greater
LAW & SOCIETY TRUST REVIEW - 1
and's domicile even if she was separated from
nd's marital power over his wife is enormous. where upon marriage the wife loses the ability
approval of the husband. She also loses the val. [Ibrahim v Annamma 1982) 2, Sri L.R.
fattack of the feminist movement. Millet for
tion is the family K Millet, Sexual Politics: argued the family is not a natural institution, stic needs of adult partners. Rather it is used
provides a vehicle through which male power
ewed as one of the worst forms of sexual
Sues related to the conflict of laws, it clearly greater degree of control (over her own life)
reasoning process. The process of reasoning or if the case is to be a 'successful' precedent that the earlier case of Le Mesurier is not
the point has evolved beyond the position
ntre of the women's struggle - a struggle ssion. Perhaps the sensitivity expressed in faith in the litigation game.
& 16 AUGUST 1994
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4 LAW & SOCIETYT
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RUST REVIEW - 1 & 16 AUGUST 1994
Stig Toft .
The Charter of the United Nations and the two
not the Universal Declaration of Human Rights
determination". What does this mean, and i
According to Alfreddson, there are at last five
a state, a people, a State population, or a mino
The right of a people to determi to independence, sometimes ref
The right of a state population participate in government, some majority rule and is [sic] somet
The right of a state to territorial and to govern its internal affairs
The right of a minority within or - not only protection and non-dis educational, social and econom
John Stuart Mills discussed self-deter democratic or not, are self-determinin other powers have the right to interven provides people the opportunity "to b 87). This strict non-interventionist st Michael Walzer, for example, argues tyranny is justified when a people ca 1992).
LAW & SOCIETY TRUST REVIEW - I
DN N SOUTH ASA
Covenants of the Bill of Human Rights (but ) state that "All peoples have the right to selfn whom or in what does this right reside? forms of self-determination residing in either rity. Thus, self-determination is:
ne its international status, including the right arred to as external self-determination;
to determine the form of government and to times extended to include democratization or
.imes called internal self-determination;
integrity and non-violation of its boundaries,
without external interference;
even across state boundaries to special rights crimination, but possibly the right to cultural, lic autonomy for the preservation of group
mination in this sense arguing that all states, whether g communities responsible for their own future. No le in the internal affairs of a state as self-determination ecome free by their own efforts" (from Walzer 1992: ance has been softened by later liberal philosophers.
that military intervention aimed at bringing down a innot exercise its right to self-determination (Walzer
& 16 AUGUST 1994 5
identities. Indigenous peoples m to this list of special rights; and
5) The right of a state, especially
social and economic developme
(Alfreddson 1982 quoted by Ortiz 1984
This paper focusses on the first meaning of sel to form a state. The United Nations has so
colonies. Logically and morally, however, the looked upon not as a right limited to a particul right any people may enjoy under certain circ conditions a people may rightfully claim the existing state whether this state happens to be
Allen Buchanan has recently subjected this Buchanan (1991) identifies and discusses tw justified. I will present each of these argum Further, I will match each argument with arg The purpose of this exercise is to sound out h Asian context. No attempt is made to deal Buchanan's analysis.
Grounds of secession
1. Protecting liberty: This argum be honored as prohibiting sece according to Buchanan, is not s If all or many groups were to S both those seceding and thosen Buchanan, it is up to those resis
In South Asia, the argument that demands for would be illiberal to do otherwise, is seldom h
6 LAW & SOCIETY T.
light want to have the right to their land added
claimed by developing countries, to cultural,
k: 114 quoted by Kushner 1988:27).
lf-determination, i.e. on the right of a people ught to limit this right to overseas Western right to external self-determination should be lar historically defined set of people, but as a umstances. The question arises under which right to form a state by seceding from an a Western colonial power or not.
question to a liberal philosophical analysis. elve grounds on which secession has been
hents as well as Buchanan's stand on them.
uments current in or relevant to South Asia.
ow Buchanan's analysis resonates in a South
with all possible regional ramifications of
ent posits that demands for secession should ssion would be anti-liberal. The argument, ound as there has to be a limit to secessions.
ecede on this ground, it would be harmful to ot wanting to secede. However, according to ting secession to specify why secession would
secession should be heeded simply because it eard. On the contrary, it is often argued that
RUST REVIEW - 1 & 16 AUGUST 1994
secession should be resisted if it is not in the i
the argument that Khalistan would be harmful would return to medieval anarchy as seems ti Akbar 1991) are attempts to justify resis consequences to those supposed to benefit fron as V. M. Tarkunde have argued that the dema future Sikh theocratic state would bring har paternalism, but it is, nevertheless, widely used a policy toward "misguided youth" and others
A variant of the argument against secession of harm Punjabi Hindus and Kashmiri Pandits in these states to secede. If the properties of ti compensation, the case against secession wo scenario, and one which has already to son requires, to demonstrate that property will
Following a similar argument, secession may investment de-legitimizes secession. A seced by promising to pay a fair compensation.
2. If diversity is good, the more th therefore seem justified. Howe enjoyed must be experienced. of diversity is lost as each p society. Strong borders bet argument based on diversity.
In South Asia, the argument for furthering Those who value diversity generally want boundaries. Those who demand secession specific culture which they claim is threatene to limit diversity often go hand in hand, the
2 Interview with V.M. Tarkunde, Feb
LAW & SOCIETY TRUST REVIEW - 1
nterest of those who lay claim to it. In India,
to Sikhs and that an independent Kashmir o be the lesson of Akbar's book on Kashmir
tance to secession by postulating harmful n secession. Even human rights activists such nd for Khalistan should not be supported as a m to the Sikhs. The argument smacks of l, officially and unofficially, while formulating
n the grounds of protecting liberty stresses the Indian Punjab and Kashmir would suffer were nese Hindus were to be appropriated without uld be strengthened. Though this is a likely he extent unfolded, it is hard, as Buchanan not be compensated in case of a negotiated
be opposed by arguing that the state's loss of ing state would be able to meet that objection
e better: Secession to further diversity would »ver, according to Buchanan, diversity to be If each state aims at homogeneity, the purpose erson only experiences a particular type of ween diverse states seriously weakens the
diversity through secession is rarely voiced.
to further pluralism within existing state generally seek to safeguard and isolate one d. As the demand for secession and attempts argument that secession is just as it furthers
& 16 AUGUST 1994
diversity carries little weight in South Asia.
3. Secession to preserve liberal pu thriving on the tolerance of a lib of these illiberal groups would b illiberal groups would cease to t to preserve its purity. The argu that illiberal groups have a du argument has some merits, but r
This argument also does not command muc presumption in South Asia holds that secession lead to further secession as the establishment c another. The experiment of preserving liberal risk defeating its purpose by furthering all-rou British India into a liberal India and a not-sobetween India and Pakistan or between Hindu apprehension. It is sometimes argued, howev peace, Pakistan has served as a negative model reinforcing liberal convictions in India. In th allowing India's liberal regime to feed on the
4. The limited goals of political
just if a union were voluntarily and if it were understood that permissible for the constituent is relevant whether the units we entered into such a pact, and w together henceforth.
It would be possible to argue that several of t of British colonialism and that they have no ot parts of South Asia independence was won by colonial and adverse to princely rule. At the t most people certainly did not visualize that t colonial status quo ante once the goal of
8 LAW & SOCIETY T
rity: Where illiberal or fundamentalist groups eral state pose a threat to that state, secession 2 a prudent solution for the liberal state as the ea threat, and the liberal state would be able ment may be stretched to the point of arguing cy to secede. According to Buchanan, this ot enough to constitute a ground of secession.
h credence in South Asia. A widespread aimed at getting rid of illiberal groups would of one illiberal state gives rise to demands for purity by creating purely liberal states would nd illiberalism. The fact that the division of iberal Pakistan has not lead to a stable peace is and Muslims is often seen to bear out this ar, that while partition did not lead to a stable for Indians, the vagaries of Pakistani politics at sense, the gamble of partition has paid off fears of India going the way of Pakistan.
association argument posits that secession is contracted with some specific aim in mind, once its purpose was achieved, it would be parts to withdraw. According to Buchanan it re bound together before the constituent units hether the pact specified that they would stay
he present South Asian states are the creations her historical justification. However, in some nationalist movements which were both antime of independence most political leaders and he states they inherited would revert to a preevicting the colonizers was achieved. This
RUST REVIEW - 1 & 16 AUGUST 1994
conviction was incorporated into the constitut the different parts of the union have no right have be redrawn several times, but the U 1990:153).
In the case of Kashmir, it could be argued tha Indian union only for the particular purpos Pakistani army and Pathan irregulars who we therefore, rightly detach itself from India once according to Buchanan, are the actual terms
entering into the contract.
5. Making entry easie: In c prospective members, the right Buchanan does not accept this relevant provided a territory is nullification.
None of the constitutions in South Asia provi special case: Though not guaranteeing the ri its accession to India would be subject to cor has not been held and no territory in contemp of seceding.
Buchanan suggests that the right of veto or nul by widening the scope of self-determination in political competence is divided between the fi powers being shared or "concurrent". State o the federal government under certain conditio times since independence (Hannum 1990:15 would decrease were the states to be guarante determination. Other countries in the regi structure and, hence, the demand for autonon India or Pakistan.
Some smaller territories in South Asia enjo
LAW & SOCIETY TRUST REVIEW - 1
ions. In the Indian constitution, for example, to secede or even to exist. State boundaries nion is regarded as indestructible (Hannum
it the Kashmir ruler Hari Singh acceded to the e of securing assistance in fighting off the re invading Kashmir, and that Kashmir could, that danger subsided. However, what matters, of the contract, not the subjective purpose of
order to make a union more attractive for
to secede from the union could be guaranteed. argument stating that the right to secede is not guaranteed the right of veto or the right of
de for a right to secede. Kashmir, again, is a ght to secede, Jawaharlal Nehru promised that nfirmation by a referendum. This referendum orary South Asia has, thus, enjoyed the option
lification may substitute for the right to secede the fourth sense above. In India and Pakistan, 2deral union and the states or provinces, some r provincial governments may be dismissed by ns. In India, this has happened at least seventy 4). It is widely felt that secessionist claims 2d against this abrogation of their right to selfon, notably Sri Lanka, have a more unitary ly and secession carries greater weight than in
constitutionally guaranteed autonomy. The
& 16 AUGUST 1994 9
Federally Administered Tribal Areas (FAT, Pakistan is an extreme case. Many laws, incl neither does representative democracy in the accession becomes possible by granting consi society. It also shows the high costs of such not discuss at which point autonomy becomes
6. Secession to escape discrimi ground of secession. Taxatio
programs that "systematically W
benefiting others, in morally discriminatory redistribution. A
a valid ground of secession.
As Buchanan notes, charges of discriminator South Asia where politics has revolved and st powers-that-be allocate resources, favors and ( groups in return for their support and loyalty tendency to defend old privileges as well righteousness and zeal, and to claim negl entitlements are withdrawn. Though it is cle ground of secession, it is difficult for the sta groups are subject to a severe form of discri defending privileges.
Buchanan would accept secession by better o future will not contribute to their worse off f rich by virtue of positive discriminatory redist the seceding group pays an appropriate compe (Buchanan: 120).
In the case of Punjab it is perhaps impossibl become relatively well-off due to pamperin Punjabi Sikhs and Hindus. However, insofa
a condition of economic well-being the case
10 LAW & SOCIETY
A) in the North-West Frontier Province of
uding criminal laws, do not extend to FATA,
full Sense. The case of FATA Shows how
derable guarantees and immunities to a tribal a loose union to both parties. Buchanan does
natory redistribution is a frequently cited in schemes, regulatory policies or economic 'ork to the disadvantage of Some groups, while
arbitrary ways" (Buchanan:40) constitute \ccording to Buchanan such discrimination is
y redistribution abound. This also applies to ill, to a large extent, revolves around how the ntitlements to a number of distinct, competing '. In such a polity there is inevitably a strong as newly acquired group entitlements with ect and discrimination when privileges and ar that redistributive discrimination is a valid
ite a well as the observer to determine which
minatory redistribution and which groups are
ff groups even though this means that they in ormer fellow citizens. If a group has become ribution secession would not be justified unless insation to the worse-off group it leaves behind
le to determine whether this part of India has g or due to the entrepreneurial spirit of the r as positive discrimination has contributed to
for secession is weakened.
TRUST REVIEW - 1 & 16 AUGUST 1994
Secessionist movements in the region are of
1) Larger tribal groups, especia Manipuris, Mizos, Baluchis, t
and the tribes in the Jharkhand
2) Non-tribal centrally placed gro Sri Lanka, Sindhis in Pakistan
While the tribal groups often stress that they time of de-colonization, the non-tribal grou number of areas: lack of large state-owned inc of sufficient water for irrigation due to unfair chapter III), discrimination in higher educat Lanka) etc. Some such claims are thinly dis; policy to reduce thể proportion of Sikhs in thi are over-represented, was one of the factor
around 1980. It is doubtful that reaction car
The movement for Pakistan combined arg arguments in favor of safeguarding group pr
Muslims was often made with reference to the
Muslims, the Muslim League also openly de for the Muslim aristocracy and the Muslim r
In contrast, the movement for Bangladesh v discriminatory redistribution by West Pakista
fact that the establishment in West Pakistan
an East Pakistani party into power, show discriminated against.
3 See Brass (1991: 198-99) for a dis against by the Indian State.
LAW & SOCIETY TRUST REVIEW - 1
lly in the peripheral areas, such as Nagas, he "Jumma" tribes in Chittagong Hill Tracts,
ups, such as Sikhs in Indian Punjab, Tamils in
and Muslims in British India.
were cheated of their erstwhile autonomy at the ps often stress systematic discrimination in a lustries (in Punjab and Kashmir), unavailability distribution policies (for Punjab see Jafar 1988, ion and discriminatory language policies (Sri guised attempts to retain privileges. Thus, the e Indian army in which the Sikhs were and still s which sparked off the Khalistan movement
be considered morally justo.
uments of discriminatory redistribution with ivileges. While the case for protection of the a suppressed and backward Bengali and Punjabi :manded positive discrimination and privileges middle classes in Northern India.
was more persuasively argued on the basis of in against a weak and poor East Pakistan. The refused to accept the electoral verdict bringing ed that the East Pakistanis were politically
cussion of whether the Sikhs have been discriminated
16 AUGUST 1994 11
7. Secession to enhance efficien
economists who claim that smal
but Buchanan does not judge distinguishes three scenarios of S and the remainders are better
secessionists reap an improveme
a third scenario in which the se
are worse off than before. Not
have a moral right to secede. N seceding areas have a right to so desire, according to Buchana
Though many people feel that smaller states, than bigger states like Uttar Pradesh, argume importance in South Asia. Some may desp arguments for efficiency are rarely turned into argument, apparently current in parts of N economic advantage as it would enable the development aid.
It is often doubtful whether seceding states
Kashmir be better off in Pakistan? Would Kl
states? If not, that would further weaken the
8. The pure self-determination
that all "peoples" are inherentl
determination above. Buchana
to the high human costs of c number of ethnically homogen dangerously vague (Buchanan:
Buchanan's reservations to the pure nationalis highest stage of nationalism, has relevance t highly interwoven groups in order to create a at least 63 historic centers of power in the re
Historical Atlas of South Asia) as well as thou
12 LAW & SOCIETY T
icy is a popular argument of no-nonsense ler territorial units are better than larger ones,
the argument to carry much weight. He ecession: an outcome where both secessionists
off than before, a scenario in which the
nt whereas the remainders are unaffected, and
cessionists are better off while the remainders
even in the first scenario do the secessionists
Non-secessionist groups having property in the remain in possession of that property, if they
like Haryana in India, are better administered :nts along these lines have not been of much air that India is too big and populous, but arguments for secession. An exception is the orth-East India, that secession would be an seceding state to gain access to international
would, in fact, be better off: Would Indian nalistan or Eelam be better off as independent
or nationalist argument for secession posits y entitled to a state in the first sense of selfn does not find this argument convincing due reating a world solely consisting of a large eous nations. In fact, he finds the argument 50).
st argument that secession, so to speak, is the o South Asia where sorting out innumerable state for each seems impossible. There are gion (Lyon 1992:26 following Schwartzberg's sands of castes and other ethnic, sectarian and
RUST REVIEW - 1 & 16 AUGUST 1994
linguistic groups. The problems of identify Tamils in Sri Lanka are small in comparison to to a state. In practice, might rather than right who would obtain a state and who would have
Under the telling title "The Evils of Self-Dete States of America should discontinue support tribalism and support democratic pluralism wit 1992-93). Etzioni agrees to granting stateh Mongolia and, possibly, to some or all Kurds, such as Indian Kashmir or Indian Punjab. T self-determination followed by Buchanan and much contemporary social thought which has movements in the Third World over the last d not likely to be accepted by those who put a hig than on political and international stability.
9. The argument in favour of sec according to Buchanan, but it r a right to exist: some are inhu should have a chance of actu independence it must be shown for a culture to survive. Acc culture rarely justifies secessio preserving a culture. These ir enabling groups to buy land, a enable a group to own a partic enough as the threat to a culture from other competing life-styl against (e.g. by banning pornog seceding state will establish an allowed to emigrate, secession i solely on grounds of the need t from which it wants to secede
else has. As Buchanan admit
Quebec, these criteria are not e
LAW & SOCIETY TRUST REVIEW - I
ng illegal immigrants in Assam or "Indian" the problems of identifying all groups entitled would be the determining factor in deciding o be satisfied with "moth-eaten" alternatives.
mination", Etzioni has argued that the United
to movements leading to fragmentation and hin economically viable states instead (Etzioni bod to a few countries such as Tibet, Inner but explicitly argues against secession in cases he restricted liberal view on the pure right to Etzioni, obviously, goes against the grain of generated wide support for national liberation ecades. On this point Buchanan's analysis is gher value on liberation and self-determination
ession to preserve a culture has some merit must be qualified. First, not all cultures have man. Secondly, the culture to be preserved ally surviving and thirdly: to be entitled to that full control over a territory is necessary 'ording to Buchanan the need to preserve a in as there are other, less drastic, means of clude the ordinary liberal laws of property s well as special group property rights which ular area. Some would argue that this is not may stem not from threats to its territory, but s. But these threats may also be legislated graphic literature in an area). Fourthly, if the illiberal state from which its citizens are not s not morally acceptable. And fifth, secession D preserve culture is justified only if the state has no valid claim to the territory and no one while discussing the case for secession of asy to apply in practice.
16 AUGUST 1994 13
In South Asia, preservation of culture form secession. The argument, however, often fails Khalistan, for example, at times posits that the to Hindus: Male Sikhs in Delhi or in Punjab thereby being "re-absorbed" by Hinduism. T own identity, the Sikhs should secede. The ar. serious as to warrant secession. All cultures m to plan for the preservation of all cultures in pe could also mean supporting severe restrictions Khalistan proponents to schools in Punjab that on pain of death is a typical example of illi illiberal dress-code orders have been issued b royal government of Bhutan.
A group, of course, may claim a right to exerc does not imply a right to secession. The right an extension of a right to preserve culture, an
Buchanan posits that for secession on grounds allow emigration. In South Asia, this has not t whether to dissidents or not, has not taken roc
Buchanan's last condition is quite tough. Acco preserve Sikh or Tamil culture are not just bi Punjab and not Tamils alone have a valid clai such as discriminatory redistribution, would secession stick.
10. Secession on grounds of self-( threat to survival is unprovoke include the right to create a sta attack by a third state. Thus, Je of Poland as a defensive meas
14 LAW & SOCIETYT
s a very important part of arguments for to pass Buchanan's tests. The argument for Sikh identity is threatened if Sikhs live close may cut their hair and discard their turban hus, to get a better chance of realizing their gument is unconvincing as the threat is not so ust face some exposure, and it is not feasible petuity. To allow secession on these grounds on individual freedom. The order issued by all school-children should wear Punjabi dress beral methods of preserving culture. Other y the Zia government in Pakistan and by the
:ise its culture, e.g. to sport a turban, but that to carry swords in airplanes is probably not d may be restricted on grounds of security.
of culture to be just, the seceding state should been a problem: The idea of not allowing exit, ots in the region.
ording to him secessions based on the need to 2cause not Sikhs alone have a valid claim on
m to north and east Sri Lanka. Other criteria, have to be proposed to make the claim for
lefense is a valid ground of secession if the d and deadly. The right to secede may even te within a state to protect oneself against an ws in Poland had a right to carve out a piece ure against Nazi Germany during the second
RUST REVIEW - 1 & 16 AUGUST 1994
Allegations of consistent discriminatory viol genocide are recurrently made in South Asia Various groups frequently occur, few groups il groups which have been most subject to unpro and perhaps some groups in Burma and in the of the Chittagong Hill Tracts Commission 19
The argument for secession on grounds of against Secession. A state may resist Secession its viability. The threat could be economical secede, or political if secession would encour According to Buchanan, only when there is a lethal attack can a state claim the right to re would not accept that a state has a right to fi other grounds.
In South Asia, India would probably argue t would invite economic decline and political a Sri Lanka would argue that Eelam would pa Lanka by (South) India. The main questi probability of these events is high or not. H resists secession in the name of a moral princ defending itself on lower principles. One wo just for India and Sri Lanka to resist secess defending democracy, while it is less just fo democratic credentials of Pakistan are poorer of Kashmir on grounds of upholding secularis example, military considerations?
1 1. The argument of rectifying pas to secede if it was unjustly inc members wish to separate" (Buc Either the region was unjustly to Secede, or it wants to sec. conquest. The Baltic states ex
LAW & SOCIETY TRUST REVIEW - 1
ations of political and civil rights including
However, while short repeated attacks on the region remain under attack. Probably, the voked, deadly attacks have been the Tibetans, Chittagong Hill Tracts in Bangladesh (Report 91).
elf-defense may be turned into an argument arguing that to allow secession would threaten f a rich part of a country would be allowed to age a third state to launch a damaging attack. high probability that secession will lead to a sist secession. Even in such a case Buchanan broibly resist secession, if Secession is just on
hat to allow Punjab and/or Kashmir to secede narchy as well as Pakistani aggression, just as ve the way for the eventual absorption of Sri on, according to Buchanan, is whether the However, Buchanan also allows a state which iple like democracy a higher right than a state nders where this sliding scale leads: Is it more sion of Khalistan and Eelam in the name of
r Pakistan to resist secession in Sindh as the ? Is it more just for India to resist secession m than to resist secession with reference to, for
t injustices "contends that a region has a right :orporated into the larger unit from which its chanan:67). Buchanan distinguishes two cases: incorporated into the state from which it wants de from a state which itself was based on amplify the first case while Bangladesh
& 16 AUGUST 1994 15
exemplifies the second. Buchar cases, but balks at a full discuss grounds that the seceding group most compelling reason for sece,
states, including states in Sol annexation, makes possible ter notions of Sovereignty and subo)
as the controversial case of
Buchanan acknowledges that the
would like the date of its ow
Buchanan notes, Some states acc
In South Asia the chief case for secession to
Kashmir for secession. The dispute dates back
in the case. The case is complicated as both
territory, and by the fact that the circumstanc
remain disputed. The case for secession of
Khalistan or Eelam. Eelamists and Khalistani
which would probably not satisfy Buchanan's
The case for Secession of East Pal redistribution or perhaps even with
separation of the Western and Eastern the refusal of West Pakistan to accept a of the few successful secessions in rect a minority (Noman 1990:47). Though such as the desire to stop the flow of often considered permissible under int in the UN at the time (Bazyler 198 interventions in recent times was Tanz in Kampuchea cannot be justified thou ("auto-genocide") committed by the K intervention should satisfy the followi the motives for intervention should be attempted, 4) the intervention should b 5) other remedies should be tried befo
According to Hannum, Tibet and Sikki after 1945. Both states enjoyed a limi incorporation of Tibet was clearly aga
LAW & SOCIETY T.
an apparently judges secession valid in both on of the Bangladesh case'. Secession on the has an undisputed claim on a territory is the ssion coording to Buchanan. The fact that all ith Asia, have a record of conquest and ritorial claims multiply. Older forms and rdination cloud the issue of territorial control China's overlordship over Tibet shows. re must be a time limit. The United Nations
in creation to be the cutting point, but as :ept much older land right claims.
rectify past injustice is the claim of Indian only to 1947 and the UN has been involved Pakistan and Kashmiri nationalists claim the es surrounding Kashmir's accession to India
Kashmir seems stronger than the case for shark further back to establish hazier claims
kistan can be made on grounds of discriminatory reference to inefficiency caused by the geographic wing of undivided Pakistan. The immediate cause was in election verdict. The secession of Bangladesh is one ent history and a rare case of a majority seceding from motivated by other than humanitarian considerations, refugees, India's intervention in East Pakistan is now ernational law. India's action was widely condemned 7:589). One of the few other lawful humanitarian ania's intervention in Uganda. Vietnam's intervention igh warranted by the mass killings of its own citizens Khmer Rouge. According to Bazyler, a humanitarian tng criteria: 1) Atrocities must be on a large scale, 2) predominantly humanitarian, 3) joint action should be elimited and the invading forces should withdraw and re the military option (ibid: 598-607).
m are among the few states which have lost sovereignty ted independence before they were incorporated. The inst the will of most Tibetans (Hannum 1990:22).
RUST REVIEW - 1 & 16 AUGUST 1994
12. Consent is the last basis for sect state to exist the relevant group have a right to dissent, i.e. a consent a sufficient condition f consent (through a refusal to secession. Even if consent we imply a right to secede. A va (Buchanan:72). Whether a gro is a matter of the state's auth
According to this argument the fact that K government refusing to enjoy state benefits d right to rule. Neither can it be inferred fro participate in a number of elections in India t
Rights and chaṁge
An important problem in Buchanan's analy Buchanan does recognize that rights may be 155).
In South Asia and elsewhere, secession is j situation, but with reference to events occurrin noted:
"...state repression of legitimate strug violations rapidly escalates the physic status quo ante - even after redres violations - no longer suffices" (Hann
Hannum's observation applies to situations ir come too late. This raises the question wheth the state if the seceding group uses unreasonab questions would require an expanded theor invalidated by state repression and by secessic
LAW & SOCIETY TRUST REVIEW - 1
ssion, the argument being that for a legitimate s have to consent. This implies that they also right to secede. Buchanan does not consider or political obligations, nor the withdrawal of 2njoy state benefits) as sufficient ground for re a condition for an obligation, it would not id claim to territory must also be established up consents to receive political benefits or not brity, not of whether the state has a right to
halistani Sikhs created parallel structures of oes not imply that they thereby established a m the fact that Kashmiris have consented to hat they thereby agreed to be a part of India.
sis is how to account for change of rights. invalidated and generated (ibid., pp. 65 and
astified not only with reference to an initial ng after the conflict escalates. As Hannum has
gles against discrimination and human rights al side of the conflict, until the return to the sing prior discrimination and human rights
which concessions become too small if they er concessions may also be justly reduced by le violence to achieve its ends. To answer this to establish when rights are generated or nist violence during periods of confrontation.
& 16 AUGUST 1994 17
"International Law, International Organ International Affairs, 36: 113-25.
Akbar, M. J.
Kashmir: Behind the Vale, New Delhi:
Bazyler, Michael J.
Reexamining the Doctrine of Humanita Kampuchea and Ethiopia, Stanford Jou!
Brass, Paul R.
Ethnicity and Nationalism: Theory and
Secession. The Morality of Political
Ouebec, Boulder: Westview Press, 199
"The Evils of Self-Determination", Fo
· Hannum, Hurst
Autonomy, Sovereignty, and Self-Detel Rights, Philadelphia: University of Pe
The Sikh Volcano, New Delhi: Atlanti
"Powerless People: The Administere Downing and Gilbert Kushner (eds.), F Survival Report 24), Peterborough, 19
18 LAW & SOCIETY TR
izations, and Indigenous Peoples", Journal of
rian Intervention in Light of the Atrocities in nal of International Law, XXIII, 2:547-619,
Comparison, New Delhi: Sage Publications,
Divorce from Fort Sumter to Lithuania and
reign Policy 89, 1992-93:21-35.
mination. The Accommodation of Conflicting nnsylvania Press, 1990.
c Publishers and Distributors, 1988.
d Community", pp. 27-42 in Theodore E.
Human Rights and Anthropology, (F Cultural 88.
UST REVIEW - 1 & 16 AUGUST 1994
South Asia and the geostrategics of the 1:25-39.
Pakistan. Political and Economic H International, 1990.
Indians of the Americas.: Human Rights
Report of the Chittagong Hill Tracts €ommiss
Land is not Ours". Land and human rig Copenhagen and Amsterdam, May 199
Just and Uniust Wars. A Moral Argum Second edition 1992 with a new prefac
Briefing issued by the B
1) Representatives of over ten European rt 1994, for the third in a series of spec Nations refugee agency UNHCR.
2) The meeting was chaired by Mr. Wer UNHCR and attended by other UNHC) officer Asia Oceania Bureau, Mr. Patri de Lophem, Switzerland desk.
LAW & SOCIETY TRUST REVIEW - 1
1990s, Contemporary South Asia 1992, 1,
istory i since 1947, London: Kegan Paul
and Self-Determination, New York: Praeger
its in the Chittagong Hill Tracts, Bangladesh, 1.
nt with Historical Illustrations, Basic Books,
ATION ON SRI LANKA
ritish Refugee Council
fugee NGOs gathered in Geneva on 22 June ial meetings on Sri Lanka called by United
ner Blatter, director, Asia Oceania Bureau, R staff including Mr. Bo Schack, senior legal ck de Souza, Sri Lanka desk, and Ms. Lucy
16 AUGUST 1994 19
Mr. Blatter welcomed participants drawi tabled by UNHCR including status report repatriation movements from South Indi project development assistance and an a for $13 million for UNHCR's programm tabled was the text of an agreement for programme of forcible repatriation of Sri an exchange of letters between UNHCR
Among the NGO documents tabled wer Monitor", "Focus", a new bulletin from projected deportation of Sri Lanka asy deteriorating conditions in South Indian human rights organisation based in Mad
Mr. Blatter gave a brief overview of U. Lankan asylum-seekers:
- facilitating the repatriation of S
monitoring the voluntary nature
providing reintegration assistanc returnee areas of Sri Lanka
to provide passive monitoring to a repatriation that will return Sri
Mr. Blatter reported back on the develo the changing Social and political climate equally important, said Mr. Blatter that influencing the refugee status determinat the refusal of refugee status to Sri Lank
In reply, representatives of Refugee Cou Britain expressed concern over rising r
LAW & SOCIETY TR
ng attention to wide-ranging documentation s from UNHCR's Sri Lanka office on recent
a in February 1994, an overview of microppeal to the international donor community e in Sri Lanka for the next 18 months. Also
UNHCR to provide passive monitoring of a Lankans refused asylum in Switzerland and and the respective countries.
e the British Refugee Council's "Sri Lanka the NGO Forum on Sri Lanka deploring the lum-seekers from Europe and a report on refugee camps from ProTEG, a Sri Lankan
NHCR activities involving Sri Lanka or Sri
ri Lankan refugees from South India and
of their return
e to returnees and infrastructural support to
a bilateral government programme of forcible Lankans refused asylum in Switzerland to
pment of the Swiss programme, highlighting regarding asylum-seekers in Europe. It was UNHCR involvement should not be seen as on procedure i.e. encouraging or legitimating an asylum-seekers.
ncils from Switzerland, France, Denmark and ates of refusal of asylum for Sri Lankans in
UST REVIEW - 1 & 16 AUGUST 1994
their countries. They confirmed that UNHCR's position statement of 16 June 19 for the return of rejected cases and refer programmes in many refusal notices to involvement was used as a "green light" c
Swiss officials such as Police Justice mi UNHCR involvement to deflect NGO criti public were not aware of the passive natu to report comprehensively on the security
statement on the issues and the nature of it
in Switzerland said Mr. Marcus Loosli,
Council (OSAR). Mr. Blatter said a publi and more likely to feed xenophobic resp
Mr. Blatter'said the Swiss programme V seekers in Colombo, returning no more th
first-out" basis. Mr. Loosli said Swiss Fe
interpret. Over 1,500 cases would be exar were from cases registered in 1991. Suc and were given a date by which they had te there was a need for an agreed plan of ac
There was a wide-ranging discussion on th of returnees on the Swiss programme. N meetings with UNHCR in February and S security forces in Colombo would be per intervene. Swiss Refugee Council repr profile was clearly required and that they of their representatives in Colombo. Mr. the restriction of UNHCR's mandate w
potential for NGO involvement.
A Danish Refugee Council representati UNHCR's resident representative to a
LAW & SOCIETY TRUST REVIEW - 1 &
many European governments interpreted 93 as endorsing southern Sri Lanka as safe red positively to UNHCR's position and asylum applicants. Clearly, UNHCR or legitimating factor.
nister Mr. Arnold Koller frequently used cism of the return programme. The Swiss re of UNHCR monitoring and its inability situation in Sri Lanka. A UNHCR public s involvement would improve the situation Secretary General of the Swiss Refugee c statement by UNHCR would be difficult onses some of which were created by the
was designed to send a signal to asylumhan 300 a year for two years on a "last-in
:deral Office actions were more difficult to
mined this year, and over 90 recent refusals h individuals then lost their work permits
) leave Switzerland. NGOs reaffirmed that
tion and a clear set of procedures.
e question of UNHCR's passive monitoring GOs again expressed doubt, as they did in September 1993, that returnees detained by
mitted to contact UNHCR who would then
2sentatives said a more active monitoring were now examining proposals to place one
Blatter welcomed the development saying ith regard to rejected cases offered clear
ive raised the question of comments by Scandinavian government delegation in
16 AUGUST 1994 21
Colombo in March 1994, saying that Ta take up residence wherever they preferre June 1993 position statement where "Ul areas not directly affected by the arm UNHCR's position remained as outlined
French Refugee Council staff expressed de Sri Lanka" circulated by the French R departments, NGOs and lawyers in Franc Colombo, used an OSAR questionnaire a of the Swiss Appeals Commission (ARE returns to Sri Lanka.
Mr. Walter Stockli of ARK had written staff at the meeting said the draft of the and was the result of a misunderstanding
A representative of Medecins Sans Fron run-up to general and presidential elect Colombo remained very unsettled and r postponed until the elections were over.
Representatives of the British Refugee meeting from ProTEG a Sri Lankan r Madras, South India.
The report expresses concern over dete over 70,000 Sri Lankan refugees in questions the role of UNHCR in facilita Zone in northern Sri Lanka. Letters of ( to return by camp officials remained u PrOTEG.
The British Refugee Council expressed UNHCR still had no access to the 132 to monitor the voluntary nature of ret
LAW & SOCIETY TIR
mils returning from Western Europe could l. This was clearly contrary to UNHCR's HCR insists that return should only be to d conflict". Mr. Blatter reaffirmed that
in the June 1993 statement.
concern over a report entitled "Les tamouls 2fugee Appeals Commission to government 2. The document originating from UNHCR nd the alleged opinions of a senior member ) to promote a relatively positive view of
to UNHCR expressing concern. UNHCR locument had been withdrawn and replaced
tieres (MSF) Colombo, reported that in the ions in Sri Lanka in the next six months, ccommended that forcible returns should be
Council referred to the report tabled at the efugee human rights organisation based in
riorating social and material conditions for government-run camps in South India and ting repatriation to what is effectively a war :omplaint to UNHCR from refugees coerced answered and their concerns ignored, says
:oncern that after two years of involvement, refugee camps in South India and its ability rn was limited to cursory interviews at the
JST REVIEW - 1 & 16 AUGUST 1994.
point of departure, where returnees feare or withdrawal of rations if they refused
Council staff to UNHCR camps for re March and April 1994, more than half of coercion was used by camp officials in
18) Mr. Blatter admitted that there might be that UNHCR monitoring at the point of people wished to return home volunta UNHCR was still seeking regular admi NGOs like OFERR, ProTEG's sister age position to keep UNHCR informed. Fro. Indian camps, Mandapam, by UNHCR the circumstances, adequate.
19) Refugee Council representatives conclud promoting repatriation to Sri Lanka fron
COC6CT OVC (WC) a T6CaS:
a) UNHCR’s public information pol
b) its inability to perform its informa prospective returnees on conditio
20) Articles such those appearing in the Au; magazine maintained that "refugees kne situation and have weighed the risks inv and interviews with returnees in Sri Lank
21) British Refugee Council representatives sessions on UNHCR/NGO cooperation i one of the Parinac conclusions that joint repatriation programmes would address effectively.
LAW & SOCIETY TRUST REVIEW - 1 &
d reprisals like detention in "special camps" io return. During visits by British Refugee turnees in South Vavuniya, Sri Lanka, in those interviewed said secondary or primary ndia to convince them to repatriate.
cases of primary or secondary coercion but departure offered adequate safeguards. If ily it was UNHCR's job to assist them. ision to the camps from Indian authorities. 'ncy, had access to the camps and were in a m a half-day visit to one of the largest South staff in early February, conditions were in
led many NGOs saw UNHCR as, in effect n South India largely because of continuing
licy - how it portrays the programme
tion dissemination responsibility - informing ns in their country of origin.
gust 1993 edition of UNHCR's "Refugees" w they were returning to a less than ideal 'olved". Reports from South Indian NGOs a did not bear out such facile and optimistic
referred positively to the recent Parinac Oslo in early June 1994, and suggested that UNHCR/NGO committees at both ends of operational and protection concerns more
16 AUGUST 1994 23
22) Mr. Blatter thanked participants and c
clearly emerging possibilities for N repatriation from South India and Swi
CONCLUSIONS AND RECOMMEND
23) The two primary concerns outlined abc
portrayal of repatriation from South conditions in their country of origin concern. International NGOs must be and supporting local NGOs to promote
VOICES OF TE (Boôk Review b
Title Journey without a D
Author : Rohimi Hensman
Published by : The British Refugee
It seems almost banal to say that w destination in mind: why would you sei on a desperate journey without any de from the horror behind them ....
Rohini Hensman has produced a remarkable a little written about, and from a perspective of and displaced persons, and the perspective is
The question of refugees and displaced perso quick solutions. It is easy to stereotype all re
24 LAW & SOCIETY T
losed the meeting, suggesting that there were jO cooperation or complementarity in both tzerland and they should be further explored.
ve in point 19, UNHCR's unilaterally positive India and its inability to inform returnees of
leaves the initiative with NGOs to activate more proactive in monitoring such programmes solutions to operational or protection concerns.
y Mario Gomez)
phen you set out on a journey, it is with a ' out otherwise? Yet millions of people embark stination, impelled only by the desire to escape
nd unusual book. The book deals with a theme en ignored. The theme is Sri Lankan refugees that of the displaced themselves.
ls is a complex one. It defies generalities and fugees into 'economic migrants' seeking more
RUST REVIEW - 1 & 16 AUGUST 1994
fertile pastures overseas. It is also easy sympathetic legal regimes in the West. Simi displaced within the country and existing on si of this nature hides the different histories and c and displaced person.
Rohini Hensman attempts to dismantle some ventures to do this through a series of interv themselves. She contends that the first step t to listen to them. This she lays down as the
Britain she chooses as an example of a country from which they have fled. Her interviewees in 1989. These have been supplemented wit Lanka; Sinhalese, Tamil and Muslim, conduc
Hensman argues in her introduction
... that is possible to learn more about from an in depth study of this kind than of situations - although such studies an
She then sets about dealing with the issues spawned and possible solutions. These issues the displaced.
Viewed from a purely statistical perspective the one. Over a million Sri Lankans were displace lower but still hovers around 800,000 we are public discussion and debate on the subject is li ad hoc and sometimes very condescending. A as 'objects and ignore their humanity.
Her task has obviously been painstaking and te to her commitment to relevant social research
LAW & SOCIETY TRUST REVIEW - 1
to classify them as freeloaders, exploiting ar generalisations are easy to attach to those ate dispensed food rations. Yet pigeonholing omplex experiences of each individual refugee
of these stereotypes in her book. And she
ews with the refugees and displaced persons
owards understanding the refugee problem is
principal objective of the book.
of flight. Sri Lanka, an example of the situs are 53 Tamil refugees in Britain, interviewed h interviews with those displaced within Sri ted in 1990 and 1991.
the fate and treatment of refugees in general from a more cursory examination of a variety e useful in their own way. p. 4)
relating to the conflict, the refugees it has are dealt with through responses elicited from
question of displaced persons is a frightening d not so long ago. This figure is now slightly told. Despite the enormity of the numbers, mited. Even the responses have been limited, s Hensman argues it is easy to view refugees
dious. And the book is an eloquent testament
& 16 AUGUST 1994 25
Hensman explores in her book a range of sub cause of flight and possible solutions.
Where do the roots of the conflict lie? This q her interviewees; the responses highlighting th segment of those interviewed blamed politicia policies on land and education were also critici of those thought of and traced the historical ol
Hensman also highlights the difficulties of cor argues that often applications for asylum sta familiar with the political situation from whic never experienced a single day of hardship in themselves in the place of those whose cases
there is no way asylum claims can be proce handled by people familiar with the historical
day to day developments. Ibid.
It was perhaps to remedy this situation that
recently. The delegation consisted of some c asylum status. One of their objectives was to human rights and political situation in Sri Lan
Hensman seeks to demolish the myth that exil interviewees display an unequivocal desire to r racial harassment in their host countries (in this whether harsher asylum laws would pull Brita employment, house the homeless and eliminat
While the perspective of the refugee herself (1 an understanding of the issue, the book would and political context, including a consideratio would also have benefitted from an analysis of
26 LAW & SOCIETY TR
themes and issues. These include origin, the
uestion evoked a diversity of responses from e complexity of the problem. A fairly large ins, on both sides of the ethnic fence. State zed as having alienated the Tamils. Only one igin of the conflict to pre colonial times.
sidering applications for asylum status. She tus are considered by officials only faintly ch the refugees have fled. They have almost their lives and lack the imagination to put they are judging. p 26 She points out that ssed efficiently unless such applications are background to the conflict as well as current
a Scandinavian delegation visited Sri Lanka officials involved in determining refugee and obtain a more thorough understanding of the
e is a comfortable and cozy experience. Her aturn. They also paint a picture of tension and s case Britain). Hensman sarcastically queries ain (in this case) out of recession, create full e poverty. p 39
most often these days) is vitally important for have benefitted from an analysis of the social in of some recent trends in refugee policy. It the developments that have occurred in 1992
USTREVIEW- 1 & 16 AUGUST 1994
World refugee policy is going through a proces on keeping refugees in their countries of origi global refugee policy are now resorting to the e flows on the ground that they would create a focus of this policy is on the host country and Refugees observes in its 1994 World Refugee
Support for the concept of asylum is cl
In the absence of any serious and sustained eff have to live with the dislocation of large numb would need to devise responses in a programm coordinating at the level of the government anc responses would also need to be guided by cel participation and the non use of any coercion,
Hensman argues that resettlement cannot be vi of refugees and displaced persons. The ideal Sc enable them to ”live in peace in their own hom of the international community is not limited is also bound to do whatever is possible' to el in their original places of residence.
Hensman's 'Journey without Destination' is a r Lanka's meager collection of material on ref intensive, dedicated and demanding research, has the potential to be expanded, updated and hopefully, Hensman will not stop here. Mo researcher's commitment and to a vision of so
LAW & SOCIETY TRUST REVIEW - 1
s of change. There is an increasing emphasis n. Some of the major actors in determining asiest and cheapest option, preventing refugee burden on the international community. The not on the victim. As the US Committee for Survey
2arly - and tragically - waning.
ort at de fusing the conflict, the country will 2rs of people. Against this backdrop then we ed and systematic way. It would need better the more active involvement of NGOs. The tain basic principles like non discrimination, subtle or obvious.
ewed as a permanent solution to the problem blution is the creation of conditions that would hes'. She thus reasons that the responsibility o providing decent conditions of asylum. It nd the crisis and help them rebuild their lives
emarkable and imaginative contribution to Sri ugee studies. It is the result of a period of n an area in which little has been written. It reproduced in a more appropriate format and re than anything it is a testament to a lone ciety bereft of violence.
16 AUGUST 1994 27
LEGAL ASPECTS OF PARTIC
The image of the hour glass is apt for an appr the South Asian region. The hour glass, with one chamber to the other, brings home at leas alleviation. First, and perhaps, tangentially, i diverse image of views as to the most effective the ground is shifting with consideration development strategies'. Second, the image o of sand and earth to any poverty alleviation st million poor live in rural areas, the imp development is immense. Third, the hour gl: time is running out; the imperative for an eff
The purpose of this paper is to discuss, as g framework for the institution and operation of adopted by the Janasaviya Trust Fund ("JTF"
bank of the poor, has four divisions: Comi m Development and Credit. It is beyond the sco operation of each division. The paper will fo
See the Report of the Independent South 1 Challenge", November 1992, especially at pp. 25-29 f
See ibid at p 1.
The author was part of Tiruchelvam Asso and prepare a report on the contractual agreements and is confidential and, accordingly, comments in this pap
The topic is a vast one and the enormo Policy Symposium", (1993) 81 Geo LI at pp 1697-20"
28 LAW & SOCIETY T
eciation of the endemic problem of poverty in its shifting sands descending inevitably from it three facets of the enormous task of poverty t captures the reality of the shifting debate and 2 poverty alleviation strategies; in this respect, of both conventional and unconventional
f the hour glass reminds us of the significance rategy; as, according to estimates', nearly 360 portance of measures affecting agricultural ass is a powerful symbol of the grim fact that ective response is self-evident.
enerally and as briefly as possible, the legal the participatory development poverty strategy ). The JTF, intended as an apex munity Projects, Nutrition, Human Resource pe of this paper to comment specifically on the
ocus on the framework for the
Asian Commission on Poverty Alleviation "Meeting the or a consideration of some of the strategies.
Iciates' consultant group by the World Bank to examine arrangements of the Janasaviya Trust Fund. That report er are general, not specific.
us literature (see, for example, "The Poverty Law and 72) cannot be easily summarised.
RUSTREVIEW - 1 & 16 AUGUST 1994
global operations of the JTF and comment, g underpinning the JTF to action and practical
The Ideals and Incorporation of the JT
The instrument of trust constituting the JTF w as to the nature and structure of the JTF, wit poverty alleviation to be adopted by the JTF indicate the JTF’s raison d'etre and essential n. poverty alleviation, which views the poor as premise that locally rooted, participatory mic determine and realize measures to alleviate p participatory development is social mobilizat taken to be a complicated, dynamic idea invo. political resources, in the generation and impl alleviation”.
The JTF's incorporation may be said to ado development paradigm was dominated by the
would lead mechanically to wealth "trickling d criticized and there has been a shift in thinki objective of which is broadbased participatory on poverty alleviation. The new paradigm col instrument to get the poor to cross a given t sustained increase in productivity and an integ
It may be seen that the new development para
This view was formed by the author af
January of this year.
See supra No. 1 at Chapter 3.
Ibid at Chapters 2 and 3.
See I. Jazairy, M. Alamgir and T. Panuc into its Cause and Consequences at Chapter 2.
Ibid at p 20.
LAW & SOCIETY TRUST REVIEW - 1
enerally, on the translation of the philosophy mplementation.
as formed after serious and considered debate
particular attention focused on the model of The recitals to the instrument of trust clearly ature is to engage in participatory development "subjects" not "objects" and proceeds on the 'o-development organisations are most able to overty at the grassroots'. A key concept of on. That concept is not easy to define but is |ving self-governing communities, with socioementation of programs for their own poverty
pt the new development paradigm. The old notion that the growth of the overall economy lown" to the poor. The old paradigm has been ng towards a new development paradigm, the and environmentally sustainable growth based nceives of poverty alleviation not merely as an hreshold of income or consumption, but as a ration of the poor into the process of growth.
digm centres on work at the grass roots. The
ter meetings with some of the Trustees of the JTF in
cio The State of World Rural Poverty - An Inquiry
& 16 AUGUST 1994 29
clear significance of the very process of reforn the new paradigm as concerned with a contin rather than a schedule or timetable for the atta
shifted from the ends to the means.
The World Bank and the Government of
It is in light of the ideals of the JTF and its p its operations must be undertaken. It is essential unlike other World Bank projects, the JTF i specific, tangible objective, such as dam cons conventional project financing. The JTF re development model of poverty alleviation by th is a trust; the organisation is intended to b catalystic powers to engender and sustain stra roots; that is, from bottom up.
It is too early to tell what success the JTF will
goal but it is to be remembered that the World Sri Lanka, has sought to involve non-govern based organizations ("CBOs") and bodies at
implementation of projects. This emerges fron constituent documents of the JTF. The crucial has been incorporated in the work and contrac
The JTF’s Contract: A Prima Facie Viev
If you glance at the most recent annual report ( the operations for which it was established by each of its four divisions. Partner Organisat companies, cooperatives or unincorporated ass. responsibility for the achievement of an objec some cases with CBO’s For example, a Partnel in the Community Projects division of the JT the assistance of a CBO.
30 LAW & SOCIETYT
and its incidental effects on the poor marks uing program of integration and alleviation inment of specific results. The emphasis has
hilosophical derivation that an assessment of to an understanding of the JTF to realize that s not concerned with the achievement of a truction or road building. The JTF is not a presents a commitment to the participatory leWorld Bank. It is no accident that the JTF e an apex body applying discretionary and tegies for poverty alleviation from the grass
achieve towards the realization of its ultimate
Bank, in association with the Government of mental organisations ("NGOs"), community the grass roots level in the preparation and h a consideration of the intended structure and issue is, of course, whether such lofty intent tual arrangements of the JTF.
of the JTF, you will see that the JTF conducts contracting with the partner Organizations in ons can be NGOs, government departments, ociations. The Partner Organisations are given tive; they work, on the particular project, in Organisation may be required, when working , to complete the construction of a well with
RUST REVIEW - 1 & 16 AUGUST 1994
It is difficult, without particularizing the speci enters into with Partner Organizations, to co terms with the philosophy explaining and leac
The JTF does however, utilize standard form the result of a heavy negotiation process. Star such as hire-purchase arrangements, are not, or a consultative process between the parties.
Certain features appear to be common to the the JTF enters into with Partner Organizatio) observed:
(a) a tendency to use a language (English) in respect of which the Partner Organi
岑 (b) a tendency to use legalistic terminolog
(c) a tendency to invest discretionary pow adequacy of the Partner Organisation's
(d) a tendency to utilise dispute resolution
locality of the dispute;
(e) a tendency to gloss over the concept
(f) a tendency to set out obligations inter
than specific tasks.
These features represent an attitudinal approa is not necessarily consistent with the central alleviation strategies. It is incontrovertible th endowing them with power. The expression o of contract formation does not allow for the matter of vital importance to the success of the model. It is envisaged by the proponents of tha
LAW & SOCIETY TRUST REVIEW - 1.
fic provisions of each type of contract the JTF mment on the consistency of the contractual ing to the JTF's incorporation.
contracts, which, it may be fairly said, is not dard form contracts, prevalent in many areas, by their very nature, the result of a dialogue
various types of standard form contracts that ls. Some trends from these features may be
not understood by sections of the community sation's, work is to be done;
er in the JTF with respect to determining the
procedures which are far removed from the
of social mobilization; and
ms of the achievement of broad results rather
:h to the process of contract formation which values of participatory development poverty at recognition of the poor as subjects involves f the power is rendered nugatory if the process r input. The empowerment of the poor is a participatory development poverty alleviation t model that the fostering of independence and
& 16 AUGUST 1994 31
strength at the grass roots will lead to a spiri term gains in the battle against poverty.
Quite apart from the enormous significance of attainment of the goals of the JTF, it is clear not entirely compatible with the explicit obje theme which informs the general approach t unconsciously, adopted by the JTF. That th formalistic traditional contract theory.
Classical Contract Theories and Theore
There are many theories of contract, ranging Professor Charles Fried in Contract as Pr( (1981) to the post modernist critical leg Kennedy'. The theory, known as classical eighteenth century and was pre-eminent in th the bargain. Classical contract law as domina premises. The tacit paradigm case was that o' perfect knowledge by both actors. The tac developed by deduction, like some species standardized rules were preferable to individ
The astonishing power of the classical con jurisdictions including the United Kingdom, beginning of this century. The classical mode to the position of sacred law; the contra enforcement of contracts, under the classical
deterrent or hortatory purpose. The classica existence of one model, despite the reality th
'' Kennedy "Distributive and Paternalist
Compulsory Terms and Unequal Bargaining Power"
' See Eisenberg "The Duty to Negotiate Perth, Western Australia on 22 July 1994, at pp 1-4, Deceptive Conduct.
32 LAW & SOCIETY
t of resilience and self reliance, vital to long
the process by which a contract is made to the that the tendencies in the JTF's contracts are :tives of the JTF. The tendencies represent a o contract formation apparently, but perhaps 2me may be regarded as taking its genesis in
tic Operational Procedures
from the liberal theory, elegantly espoused by mise; A Theory of Contractual obligation all theory expounded by professor Duncan contract theory, which had its origins in the e nineteenth century stressed the centrality of ted by a tacit paradigm case and a set of tacit f strangers transacting in a perfect market with it premises were that contract law could be of geometry from axiomatic rules and that ualized rules'.
tract model was felt, in most common law the United States and Australia well into the l elevated the supposed intentions of the parties xtual document was beyond question. The theory, was seen as important primarily for its ll conception of contract also presupposed the at most contracts fall into particular categories
Motives in Contract and Tort with Special Reference to 1982) 41 Maryland L. Rev. 563.
in Good Faith in American Law" a paper presented in as part of a seminar on The Action for Misleading and
TRUST REVIEW - 1 & 16 AUGUST 1994
which have their own rules and qualification the model'.
It does not take much consideration to conclui World Bank, has been much influenced by the making.
First there is an assumption, evidenced by th made by the JTF as to equal bargaining pov Even to a disinterested bystander this would a has been a recognition in common law jurisdict standard form contracts. Lord Diplock in Sch (1974) 3 ALLER 616 at 624 said"The terms been the subject of negotiation between the p representing the interests of the weaker party. bargaining power, either exercised alone or goods or services enables him to say: "If you the only forms in which they are obtainable. minor variations, may, some would argue, ap
Secondly, the JTF's concern with penalties an theory of contract. It would be intellectually to the creation of responsibility in the context surely disingenuous to suggest that the JTF rea power that say, a commercial banker requires; A balance must be struck between the rationa situation and the true capacities and capabilitie: the ultimate objective of the JTF's program remedial powers and the exercise of those pov is required. The JTF's contracts, as th circumspection.
* See Attlyala "Contracts, Promises and t
( 1986) at pp 10-17.
LAW & SOCIETY TRUST REVIEW - 1
lerogating from the general body of law and
le that the JTF, much in the same way as the classical theory of contract. Four points merit
e widespread use of standard form contracts, "er between it and its Partner Organisations. ppear incongruous with reality. Indeed, there ions of the power wielded by those who utilise roeder Muric Publishing Co. ltd. v Macaulay of this kind of standard form contract have not arties to it, or approved by any organisation They have been dictated by that party whose in conjunction with others providing similar want these goods or services at all, these are Take it or leave it". These comments, with ply with full vigour to the JTF.
ld enforcement is consistent with the classical dishonest to deny the importance of sanction of contractual performance. However, it is sonably requires the same artillery of remedial against a sophisticated international borrower. needs of the JTF to act or react to a default of the Partner Organizations. In this regard, ought to temper and colour its approach to Vers; essentially an element of circumspection y stand, do not appear to exhibit such
e Law of Obligations" in Attlyala Essays in Contract
16 AUGUST 1994 33
Thirdly, the JTF's use of standard form cont contractual model. While it is clearly accepta each type of contract, it is perhaps fatuous to which has relevance to all categories of work sophistication of the worker.
Fourthly, the JTF assumes, as classical theor to individualized rules. This has the necessary used in preference to a process of guided or (
Classical contract theory has, of course, been The Death of Contract say it is dead. The ri influence, economic duress, promissory esto notions as to duties of good faith are sympto perhaps, deluded) nature of classical contract United States and the Commonwealth dema classical contract theory. While the duty to n. concept in contract law', it is tolerably clea and influenced developments in the common
It is, therefore, puzzling to discover the JTF. ostensibly paternalistic ideals concerning pc outdated and largely displaced classical theor is, of course, not that a decision has been mac theory as the foundation for its attitudes and But there is some evidence to suggest that, a reflect a theme or strategy more attuned paternalistic theory holding sway in many jur
Recognition of the development in the law, es influence and economic duress, may exhor operational procedures. This may yield sig beneficiaries of the JTF - the poor - and tow
* See Eisenberg supra No. 11.
34 LAW & SOCIETY
racts is suggestive of a view that there ie one able for certain boiler plate clauses to exist in
resume that there is but one model of contract , regardless of the purpose of the work or the
ists did, that standardized rules are preferable consequence that standard form contracts are consultative contract formation.
challenged. Some such as Grant Gilmour in se of the doctrines of unconscionability, undue ppel, relief against forfeiture and the nascent matic of an appreciation of the illusory (and, heory's presuppositions. Developments in the rcate a disenchantment with the strictures of
egotiate in good faith may be a relatively new r that elements of paternalism have instigated
(and, perhaps, the World Bank), inspired by verty alleviation, apparently clinging to the y of contract in its operational procedures. It le by the JTF to embrace the classical contract its approach to the task of contract formation. t this stage, the JTF's structural arrangements to classical contract theory than the same isdictions, such as United States, Australia and
becially as it relates to unconscionability, undue t the JTF to adopt a different theme in its gnificant change to the benefit of the ultimate ards the realisation of the JTF's goals.
TRUST REVIEW - 1 & 16 AUGUST 1994
Applying the Doctrines: Prospects
it takes little ingenuity to apply the principles usually deriving from the courts of equity, relief against penalties or forfeiture so as to su JTF's contracts. A primary and essential rel formation, if headway is to be made in treati subjects, not objects. The shaping and negoti of responsibility in relation to that task, ac isolation of projects the poor themselves wis) dhe development of a maturity of spirit and sel
More specifically, if we apply the doctrines a jurisdictions and renounce the classical contra
(a) the contrac must be in the langua Organizations and the people in the c particular Partner Organisation;
(b) the contract must be expressed in plai reduced to a level of simplicity so th project has a basic understanding of th
(c) the determination of the adequacy of p
made referential to objective criteria,
(d) dispute resolution procedures should ir
available for use at the specific local where the work is to be done);
(e) the key features of the concept of socia the operation of each contract;
(f) obligations cast on Partner Organisatic out specifically by reference to identific goals.
LAW 3 SOCIETY TRUST REVIEW - 1
, largely obtaining in the Commonwealth and s to unconscionability, economic duress and ggest reform of the tendencies observed in the orm must be made to the process of contract ng the poor (or, the Partner Organisations) as ation of the task to be done, and the assigning hieves two worthwhile objectives: first, the to see completed and, second, more subtly, f reliance in the party negotiating the contract.
ind principles prevalent in other common law ct theory, it may be seen that:
ge spoken by the members of the Partner
ommunity to be affected by the work of the
1 language. The maps and schedules must be lat, if possible,every worker involved in the e work to be completed
rformance by a Partner Organization must be ather than the JTF's discretion;
Ivolve consultative mechanisms and should be level of the dispute (for example, the village
mobilization should be defined in and inform
ns should, as in commercial contracts, be set d tasks rather than the achievement of general
& 16 AUGUST 1994 35
The reforms suggested do not all flow from a
reflective of a discarding of the classical the should not, of course, be incorporated withou and the Partner Organizations as identified thro reforms do, it is suggested, more closely conf the JTF in that they foster the independ Organizations.
The World Bank has recognised the importanc to its projects'. Some have noted that the W the NGOs. Effective and equitable develo participatory strategies pursued in a spirit of 1 of this ideal that the JTF must, following the with Partner Organizations both as to contract
There is no panacea to the problem of poverty to combat poverty, appears to be empowering t catalysis of the process of social mobilization a right of the poor to participate in decisions th suppose that the text of a contractual docun however, be a greater mistake to take no acti between the JTF and Partner Organizations c perfect. They are not.
The World Bank has indicated it is concern a changing world, where 50 years after its crea
'' See Ibrahim F.1. Shihata "The World Ba Cornell International Law Journal at pp 623-641.
1S See Zygmunt JB Plater "Damming Environmental Discoveries, and International Reform P Law and Policy 121, 142.
See supra n. 1 at pp. 49-60 and pp 130-13
'' Shihata The World Bank in a Changi
36 LAW & SOCIETY T
n application of the developments in the law ry of contract law. The reforms suggested
reference to the actual intentions of the JTF ugh the process of negotiation. However, the irm with the perceptible philosophical base of ince, strength and vitality of the Partner
e of the role of NGOs and the work of NGOs orld Bank has improved its interactions with ment can proceed only with interactive and mutual trust. It is in aspiration of realization World Bank's lead, actively seek a dialogue formation and as to contract implementation.
. The key attributes of a successful program he poor, sensitive support mechanisms for the and human development which guarantees the at affect their lives'. It would be foolish to hent can achieve all these ends. It would, on to alter the substance of the arrangements in the basis that those arrangements are now
2d to maintain its adaptability, in the face of tion, there is much opposition to its existence,
nk and Non-Governmental Organizations" in (1992) 25
he Third World : Multilateral Development Banks, essure on the Lending Process" (1980) 17 Den. J. Int’l
g World. Selected Essays (1991).
RUST REVIEW - 1 & 16 AUGUST 1994
despite World Bank President Preston's recent JTF is undoubtedly not the World Bank but th the practice and operations of the JTF. The is Bank's pronouncements, can also adapt and desperate puzzles of poverty.
The complex question to be addressed is how b into action. There is no easy answer. The l experience, can only go so far. The cultivatic a spirit encouraging participatory interaction produced by such provisions. The first step is operational procedures of the JTF and to recon participatory development poverty alleviation The sand in the hour glass does not stop runni
Printed and published at the Law & Society Trust
* See reports of Mr Preston's speech in The
at p 30.
LAW & SOCIETY TRUST REVIEW - 1
commitment to "human" development'. The e Bank does hold some sway in determining sue is whether the JTF, in light of the World answer the critical questions raised by the
est to translate the philosophy behind the JTF aw, which proceeds not only from logic but n of an ethos appropriate to cooperation and can be assisted by legal provisions but not to perceive the themes inherent in the extant sider those themes in light of the ideals of the strategy. The sooner this is done, the better.
3, Kynsey Terrace, Colombo 8, Sri Lanka
Australian Financial Review Tuesday, July 26, 1994
16 AUGUST 1994 37
Mr. K. Shanm Director, Depa Religious and 21, Vauxhall S Colombo 2
If undelivered please return to: Law and Society Trust No.3, Kynsey Terrace Colombo 8
38 LAW & SOCIE'
ugalingam rtment of Hindu Cultural Affairs
TY TRUST REVIEW - 1 & 16 AUGUST 1994