As a litigant who has become almost insolvent due to his ignorance of the hazards of seeking justice, in our courts of law, it warmed my heart to read about the judge referred to under the headline 'Niceties of a judge - a rare phenomenon' in the letters column of a Sunday newspaper recently.
Over the years, various people have described their woes. The list ranges from unconscionable fees charged by lawyers and their clerks, to the macabre fun the court staff derives by humiliating the poor simple litigant. The court mudliyar is the chief 'jester'.
Further, ring of persons, are able to manipulate calling dates by postponing cases for the most trivial reasons with the connivance of others involved to fatten the pockets of lawyers. The litigant in the meantime suffers untold hardships trying to find lawyers' fees and shuttling back and forth from his distant village to attend Courts the numerous times the case is postponed.
There is such abject loathing for this system, that the public, however civic conscious will not come forward on their own to give evidence even in a simple motor accident.
In this scenario, the letter under reference shows a rare phenomenon indeed. The government should recognize this judge who guides and encourages litigants to settle their disputes amicably whenever possible. The government should hold him up as an example for other judges to follow. His ability to muzzle lawyers and others who harass litigants is particularly praiseworthy.
Your excerpts from an interview under the headline 'Rahula hits back'-an assessment revelatory. Ven. Dr. Rahula Thero has by giving his imprimatur to the communiqué of the National Joint Committee on the devolution package (31st March), confirmed that opposition to it is because it would undermine the rights and privileges of the Buddhist Sinhala majority (70%). It is not, as we had been given to believe, the unity and integrity of the nation that is perceived as threatened. This raises several issues.
It brings into focus the need for re-valuing the term "national". It is now clear that to influential sections of the Sinhala leadership 'national' is synonymous with 'Buddhist Sinhala'. However, to most of the rest of the population it has meant 'Sri Lankan.' In fact, these same forces also use the term in the latter sense when it suits them. This dichotomy of usage in one sense meaning 'Sri Lankan' and in another "Buddhist Sinhala" has had far-reaching consequences.
It has confused the minority groups in matters concerning their group interests. Any claims by them in furtherance of these interests could not, by definition, be "national". Then what were they? "Communal" was the term applied. But this was a disqualification in itself and thus shut them out at initio. It has been a no-win situation, where what was "national" for the Buddhist Sinhala people, and hence, "Sri Lankan", was "communal" when it came to the minority groups, and therefore "anti-national."
The effect on the minority groups has been catastrophic. It has clouded the issue for their leaders for generations. They have never quite succeeded in extricating themselves from this semantic trap. In the case of the Tamil people we can trace from the time this linguistic hoax was launched, a progressive peroration of their standing to a point where today "Demala" is a swear word.
If, however, 'nation' really means "Buddhist Sinhala" only, there is no room under that definition for the minorities, and Prabakaran is right, in so far as the Tamil people are concerned. If the National Joint Committee's request of the select Committee "to reject the amendments in toto and the proposals in their entirety" is complied with, Mr. Kadirgamar could not, with self-respect remain in the government, and the Tamil parties presently supportive of the government would have no alternative but to withdraw. Further the rest of the world will wake up to the fact that it has been led up the garden path by this linguistic legerdemain, with profound consequences.
The concept of the priority of "majority rights" over "minority claims" is the leitmotif of Ven. Dr. Rahula Thero's utterances at the above interview. It is vitally important to clear our minds and get our bearings straight in this matter as the denial of the "claims and aspirations" of the minority groups by influential section of the Sinhala leadership has, strictly, not been articulated by any methodological disproof of their validity. Instead it has been held that, even if these claims were theoretically sustainable, they could not be reconciled with the fact that these groups are a "minority" and by implication "immigrants". The rationale seems to be, if they were not a "minority" and "immigrants", they would be legitimatized.
Who is an "immigrant" and who a "minority" is a question that is relative to time and place. The English speaking whites in New Zealand are relative to the Maori, immigrants, but a majority. The Celtic Irish are relative to the English, indigenous, but a minority in the British Isles. In Ireland, however, they are a majority. The position in Cyprus, between the Greeks and Turks, is more complex. Before the Turkish conquest (Circa 1468) the Greeks were a majority. However, not being aboriginal, they were immigrants. Under the Turkish occupation, the Turks became the majority, by immigration. After British occupation (1870) the Greeks became the majority again, as immigrants. Neither under Turkish nor British rule was there any state colonization by either Turks or Greeks. However, in Ireland there was state colonization of Ulster by English Protestants. Unlike in New Zealand where the whites and the Maori are interspersed, the Celtic Irish and Turkish Cypriots inhabit a contiguous territory, where they are the majority similar to the Sri Lanka Tamils.
The cases of the Celtic Irish and Turkish Cypriots are analogous to that of the Sri Lanka Tamils. Minority groups have a greater difficulty in gaining recognition as individual entities where they live in islands which are single states than in single mainland states. This has been a shared experience of all three of them.
The British who were quite prepared to concede dominion status to the white colonies, including South Africa, with its difficult Boers, could not reconcile themselves to self government for the Irish, which they regarded as the first step in the dismemberment of the "unity and integrity of the United Kingdom." Since this belief had no basis in fact or logic but was a mere emotional reflex deriving from a mis-perception, it admitted of no argument or reasoning and, hence, placed the liberal and democratic Irish leadership in a quandary. It took a World War and enormous losses and bloodshed on both sides, before Irish independence was grudgingly realized in 1922, leaving a trail of bitter memories. More relevantly, it gave rise to "terrorism" which we see around us and all over the world.
The Greek Cypriots, being the majority, took control of the state with independence in 1960. Disregarding the lessons of history and geopolitical realities, they identified the Turkish Cypriots as an "immigrant minority group" and proceeded to deal with them accordingly, applying the "solution of the majority," referred by Ven. Dr. Rahula Thero. The Turkish Cypriots, as a proud people, mindful of their heritage, resisted and appealed to Turkey which possessing a greater military capability than Greece, and availing of U.S. neutrality, entered Cyprus in support of its co-linguists and co-religionists, resulting in the setting up of the Turkish Republic of Northern Cyprus (TRNC) in 1983.
There are lessons to be learned from these experiences. The Celtic Irish were not a minority in Eire, nor were they immigrants. The Turkish Cypriots were not a minority in the TRNC, nor were they any more migrant than the Greek Cypriots. Likewise, the Sri Lankan Tamils are not a minority in the North and East. They are not immigrants in those areas any more than all groups, other than the aboriginal population, are in other parts of the island. As such, even within the parameters stipulated by those who deny the claims of the Sri Lankan Tamils, it must be conceded that these claims are admissible.
The trend now appears to be that our Trade Unions are more interested in National Policy matters like privatization than their terms and conditions of employment.
In this connection it is apposite here to refer to the definition of a Trade Union as found in the Trade Union Ordinance. "Trade Union" means any association or combination of workmen or employees whether temporary or permanent having among its objects one or more of the following:
a) The regulation of relations between workmen and employers or between workmen and workmen or between employers and employers or
b) The imposing of restrictive conditions on the conduct of any trade or business or
c) The representation of either workmen or employers in trade disputes or
d) The promotion or organizing or financing of strikes or lock-outs in any trade or industry or the provision of pay or other benefits for its members during a strike or lock-out.
The above are objects of a Trade Union as spelt out in our Trade Union Ordinance. One may wonder whether if the objects of forming a Trade Union are as enumerated above by statute, can trade unions have as their objects, issues such as privatization or any other matter such as the foreign policy of the Government. In other words can a trade union have a dispute with the employers on policy matters of the state?
Here the interpretation of a trade dispute, as given in the Trade Union Ordinance becomes relevant. The definition "Trade Dispute" means any dispute or difference between employers and workmen or between workmen and workmen connected with employment or non-employment or the terms of employment or with conditions of labour of any person.
In defining what an industrial dispute is, in our Industrial Disputes Act, the following addition is found after the last line of the above para as follows: "Or the termination of the services of any person or the reinstatement in service of any person and for the purpose of this definition workmen includes a Trade Union consisting of workmen.
In the proposed National Workers' charter as to what a trade dispute has not been defined, but it ensures the right to form a Trade Union by everyone and the right of joining a Trade Union for the protection of one's interests.
Going by the above provisions a trade union can have the following objects in order to fight for their rights including strike action on any matters connected with their employment or non-employment and terms and conditions of employment. These matters would be
(1) Termination of service of an employee
(2) Request for reinstatement of a dismissed employee
(3) Terms and conditions of service such as salary, promotion, transfers, retirement benefits, bonus, allowances, leave benefits, welfare measures
(4) Recognition of a Trade Union
(5) Settlement of grievances.
The Trade Unions have every right on the above matters to take direct Trade Union action to stage a strike as a last resort after failing in all their attempts to resolve the deadlock with their employers.
Now the question arises whether a trade union can call out a strike on other matters such as matters of state policy like privatisation. Although such a strike does not offend the laws of the country, it amounts to unions traversing on prohibited territories. Trade Union action of this nature is unethical or immoral.
This does not mean that the members of Trade Unions should be barred from making their protest, if they do not see eye to eye with the Government privatisation programme. They are at liberty to organize protest meetings if they feel that the family silver is to be disposed of for a song but surely not as members of a trade union with the threat of strike action. They can exercise their democratic right of condemning any policy of the Government without holding the country to ransom.
D.P. Gankanda,
Polgasowita.
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