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Group rights vs individual rights in the context of devolution

According to the Washington Post of May 24, 2009, UN Secretary General Ban Ki-Moon had warned that if the grievances of Sri Lanka’sTamil population were not addressed "history could repeat itself". In an editorial of May 19, the Post stated: "If he (President Rajapakse) is to ensure that Sri Lanka leaves behind the violence that has plagued it for so long, he will have to sponsor a political process that is fully inclusive and democratic and that guarantees the rights of Tamils under a peaceful rule of law".

The implication in both these statements is that other communities in Sri Lanka enjoy rights that are denied to Tamils. It also means that if the rights denied to the Tamils are granted, they would become equal with the other communities. Therefore, ascertaining what these denied rights are should be fundamental to any solution. However, attempts to identify these specific grievances or rights have not been successful. Nor would it be helpful to revive this discussion at this stage.

At this defining moment in Sri Lanka’s history when open discussion is possible without the threat of the LTTE, earnest debate is required to ascertain what appropriate measures need to be adopted for the Tamil community along with other communities to commit to a collective Sri Lankan nation. It has to be acknowledged that the Sri Lankan Tamil community enjoyed a position of privilege in the colonial period and that the inevitable transformation brought on by democratization followed by demands from a larger segment, would have been traumatic for the Tamil community. But this is not unique to the Tamil community. Privileged communities in other countries too have undergone transformation but it has not resulted in violence. Why in Sri Lanka?

CONSEQUENCES OF

DEMOCRATIZATION

For instance, 9% of the white community in South Africa ruled the country oppressively for decades under Apartheid. "… But while advocates say most Afrikaners accepted the sudden reversal of their political fortunes in 1994, some contend the changed nation has caused that identity to fray…the ANC government has closed or made bilingual, 90 percent of the Afrikaans-language schools that existed in 1990…Affirmative-action laws have squeezed Afrikaners out of work…" (Washington Post, April 14, 2009). Despite the transformation in South Africa having been much more traumatic than in Sri Lanka, there is no violence today. Why the difference? The transformation means black South African majoritarianism has come to stay.

Rwanda too underwent a similar transformation with independence and democracy. The Tutsi minority of ~15% that had ruled and were privileged was replaced by the Hutu majority. The reversal led to one of the worst humanitarian disasters where nearly 800,000 were killed. The violence in Kenya could be explained in similar terms. In Iraq, also a reversal occurred with democratization when the Sunni minority that had ruled the country under a dictatorship was replaced by the Shia majority. In Sri Lanka such reversals did not take place suddenly. The reversal process started as far back as 1921 when election to the Legislative Council was based on territorial representation albeit on limited franchise. Thus the transformation in Sri Lanka was spread out over decades. Yet, there has been acceptance in South Africa, but not in Sri Lanka. What explains the difference?

A feature of these reversals is majoritarian politics. In any democratic country political power would be in the hands of the majority whether it is characterized by race as in the US and the West or ethnicity and religion or any of their permutations in other parts of the world. It is an inevitable feature of democracy. Since it is vital that non-majority communities enjoy equal rights as majorities, arrangements need to be explored as to how this could be achieved. The inability to work out acceptable arrangements has been the cause for instability in most societies and in some instances as in Sri Lanka it has led to decades of violent conflict.

ARRANGEMENTS FOR SHARING

POLITICAL POWER

Many arrangements have been proposed and tried for sharing political power. Often, political power is shared on the basis of group identities. Most conflicts in Africa are identified as the inability to share political power between tribes, while in other countries it is by religion or ethnicity or a combination of both as in the case of Sri Lanka where some in the West wrongfully perceive the conflict as between Sinhala Buddhists and Tamil Hindus. Geographic distribution of the groups also has a direct bearing on the type of arrangement sought for sharing political power.

Concentrations of groups in defined territories tempt groups to seek territorially based arrangements such as devolution or federalism. When tensions exacerbate under such arrangements the tendency is to seek separation. On the other hand, if the groups are not territorially based but are more dispersed, the arrangements sought for sharing political power are different. Thus while territorially based groups seek structural arrangements such as devolution/federalism, non-territorially based groups seek distributive arrangements such as equitable distribution of resources and equality of rights.

However, no group strictly falls neatly into one or the other category. Most groups are a combination of territorially based and dispersed. This is so regardless of whether the group is a majority or a minority in the country or in a defined region. For instance, the Sinhalese are a majority in Sri Lanka but is a minority in the Northern Province while the Tamils are a minority in Sri Lanka but a majority in the Northern Province. Therefore, structural arrangements for the Tamil in the Northern Province and distributive arrangements for the rest make no sense. This would be equally so for the Sinhalese in regions of concentration and for those in regions where they are a minority.

DEVOLUTION TO COUNTER

MAJORITARIANISM

Even though devolution to areas of Tamil concentration was introduced under the 13th Amendment to counter Sinhala majoritarianism it would result in Tamil majoritarianism in the Northern Province. However, granting political power only to that segment of the Tamil community in the Northern Province would deny political power to the larger segment dispersed in the other provinces. In the background of what has been discussed, it would be appropriate to have a structural arrangement like devolution for the Northern Province and distributive arrangements for those dispersed in the other provinces. However, since the latter in reality represent the larger segment of the Tamil community, devolution makes little sense because devolution was specifically advocated as a power sharing mechanism for the Tamil community as a whole.

Furthermore, a dual arrangement where some enjoy devolved powers and the rest enjoy distributive rights would give rise to two serious issues. One, it would solidify distinctions within the same ethnic group be it Sinhala or Tamil, where some would have political power and others would not. Such distinctions could cause inequalities before the law. Second, the Tamils in the Northern Province would want to retain their majority status by restricting freedom of movement for only non-Tamil communities in Sri Lanka thereby violating Article 14(h) of the Constitution which states: "Every citizen is entitled to the freedom of movement and of choosing his residence within Sri Lanka…".

GROUP RIGHTS vs. INDIVIDUAL RIGHTS

Members of the International Community continually advise Sri Lanka that the rights of Tamils should be addressed through devolution. By doing so they endorse group rights and recognize Tamils as a group distinct from the rest. Except for the Eastern Province, the remaining seven provinces are distinctly Sinhala in identity. Therefore, devolving political power under such conditions would pit Sinhala interests/rights against Tamil interests/rights causing tensions to simmer indefinitely, reflected in the statement "we want what Colombo has". Advocacy of political arrangements that foster tensions between groups is conducive to external exploitation and therefore favourable for pursuing geopolitical and strategic interests of the advocates.

Devolution to the Northern Province however extensive would address only the rights of a smaller segment of the Tamil community, while the larger segment of the Tamil community resident elsewhere in the country would benefit from distributive arrangements. Since natural justice calls for effectively protecting and safeguarding the distributive arrangements of the larger segment of the Tamil community, the emphasis should be on individual rights. By shifting the focus from group rights to individual rights every individual whatever the ethnic identity and wherever domiciled would be protected and rights assured.

The focus therefore should be on individual rights.

CONCLUSION

Sri Lanka is being encouraged by the International Community to implement the 13th Amendment to the "fullest" as a mechanism to grant rights to the Tamil community. This arrangement recognizes group rights and in the context of Sri Lanka, of entities with distinct identities in territorially defined regions. This is not only unstable but also unjust because it would grant political power only to the smaller segment of the Tamil community in the Northern Province. The larger segment would be outside the pale of devolved powers. Thus devolution does not address the rights of the Tamil community as a whole.

While the International Community advocates group rights for Sri Lanka, the emphasis in their own Western countries is individual rights. The need for this was recognized by the drafters of the US Constitution. Following the drafting of the Constitution, the Founding Fathers realized the need to safeguard the individual from the excesses of the state and from each other. This gave rise to the first ten Amendments outlined in the Bill of Rights. This focus on individual rights has contributed immeasurably to stability in Western societies because the interests of one group are not pitted against the interests of another. Individual rights enable the empowerment of an entire group, whereas the reverse is not automatically possible.

At this defining moment in Sri Lanka’s history the combined energies of all communities should be devoted towards the rights of the individual because it is only as individuals that we can truly be equal before the law with the freedom to exercise rights within limits circumscribed by the rights of other individuals. When individuals transgress or when the state fails and an injustice occurs, Constitutional provisions should be available for redress. If Sri Lanka continues on the path of devolution and group rights, it would have to deal forever with competing group tensions while neglecting growth and development as a nation.

The focus today should be to evolve a comprehensive Bill of Rights where Sri Lankans see themselves as a community of individuals united in common endeavour with equal rights for all, and not as a collection of communities with distinct identities.

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