25th January 1998


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Antiquity case ends in just two minutes

By Imran Vittachi

Two Europeans, arrested by Matara police on suspicion of illegally acquiring four Buddha statues, were wrongly charged and never committed an offence, the Attorney-General's Office has ruled.

In a trial that lasted two minutes on Monday, the Matara Magistrate's Court formally dropped charges against a Frenchman and Swede who stood accused in the case. They were discharged after the AG's office ruled there was no legal grounds to prosecute them for antiquity trafficking.

"It appears the police were misdirected on this case," additional Solicitor-General C.R. De Silva told 'The Sunday Times'. They were operating on suspicion that these statues were stolen."

The Attorney-General''s Office in Colombo moved that Walter Lang and Gunnar Pedersen be released unconditionally and their statues returned to them immediately, sources confirmed.

According to legal sources, Mr. Lang and Mr. Pedersen eventually produced receipts, which were cross-checked with local art dealers, proving they were the legitimate owners of the statues; that these were not Sri Lankan but of Burmese, Thai, or Cambodian origin; and that, technically, these weren't old enough to be classified as Sri Lankan antiquities, which are normally dated pre-1815.

"The law only states that antiquities cannot be exported," Mr. De Silva added. "In this case, the accused were neither possessing antiquities illegally or attempting to smuggle them abroad.

There was no evidence found to substantiate those charges."

Mr Lang and Mr Pedersen were taken into custody when police raided their residences, west of Matara, on Jan. 7.

The two men were booked on suspicion of "illegally possessing" Sri Lankan antiquities, and were kept in police cell overnight when they failed to produce sureties needed to post bail, according to the chief inspector who handled the case.

Police moved in after apparently being tipped off by a local man Mr. Lang's former gardener whom he had recently sacked.

"It was probably a case of vilification by the servant," said Aelian Nanayakkara, the lawyer for the defence.

It appears that the police may have acted solely on the tip-off by the informant, without gathering other evidence to pin on Lang and Pedersen before carrying out the raid and arrest.

According to the Archaeological Department's Director-General, the police reacted harshly by cracking down on the Europeans in this way.

It is generally not a crime for people to buy and own antiquities in Sri Lanka, noted Dr. S.U. Deraniyagala, but the actions of law enforcers in this case could be justified, given the rampant trafficking of antiquities in and out of Sri Lanka.

Rice exports amidst imports

The Agricultural Ministry is preparing to export 300,000 metric tonns of locally produced rice this year, despite, the Trade Ministry's claim that there is a rice shortage in the country.

Agriculture Minister D.M. Jayaratne claimed that this is the first time in recent history that Sri Lanka will export rice since the times of the ancient King Parakramabahu.

But Trade Secretary N. Leelaratne said that the duty on rice has been waived to allow more imports."Despite the import of 200,000 mt. of rice, the prices have still not gone down," said Mr. Leelaratne.

Mr Jayaratne said that he is confident of getting a bumper harvest this year, and that his ministry will go ahead with the export of 300,000 mt. of rice.

However Mr Leelaratne said that the shortage of rice will continue until mid-February, when the Maha harvest is due.

Unions tell President, don't sell Eppawala

By Chamintha Thilakarathna

Six trade unions have written to the president giving their objections to the sale of Eppawala phosphate deposits.

At the same time, thousands of trade unionists, villagers of Eppawala and monks of the area will be protesting from February 3 followed by a Sathyagrahaya at the Sri Maha Bodiya.

"We want Eppawala to be under the state. This is because of the environmental problems the sale will create, and the American company having full authority over it.

Moreover 11,000 farmer families will lose their livelihood; Jaya Ganga will be dug up 56 square kilometres and farmers will lose access to water, said M. R. Shah, spokesman for the unions.

He said that such properties should be made use of for the development of the country by its people and not for the benefit of foreigners.

They also charged that it was false to state that Sri Lanka was not in any position to develop it.

"We beg of her not to take the country further downhill economically by selling this national asset to to a foreign company," he said.

Affirmative action and ethnic discrimination

By H. L. De Silva

A significant in novation in the Government's proposals for Constitutional Reform, published in November 1997, is a proviso to the fundamental right to equality before the law and equal protection of the law found in Article 11 which reads as follows:

(4) Anything in this Article shall not prevent special measures being taken by law, subordinate legislation or executive action where necessary for the sole purpose of the protection or advancement of disadvantaged or underprivileged individuals or groups including those that are disadvantaged or underprivileged because of ethnicity, gender, sex, age or mental or physical disability".

H. L. De Silva

H. L. De Silva

The word "ethnicity" is apparently preferred by the draftsman to the word "race", used in a cognate context in the 1978 Constitution because the latter though intelligible is considered an unscientific category. Etymologically however, ethnicity is not confined to racial categories but includes religious, linguistic and cultural groupings as well. In view of the use of the word "including" the categories of beneficiaries are not closed and even caste groups may be encompassed.

The scope of this paragraph is wide-ranging. It contemplates the supersession of the substantive right to equality, granted to all by Article 11(1) which says that all persons are equal before the law and are entitled to the equal protection of the law. Likewise, action under this provision can override the prohibition of discrimination against citizens on the grounds of, inter alia, ethnicity, religion, language, caste now secured by Art 11(2) (a) - ( first order discrimination) which may be a natural or inevitable consequence of such "special measures" or (b) grant any such individual or group exemption from the requirement as to competence in any national language for employment in the public sector. The cautionary phrase "for the sole purpose" is but a gossamer thread against potential abuse, since such socio-economic measures are often multi-faceted and a single purpose is seldom discernible.

This provision is the very anti-thesis of the prohibition against racial discrimination that was enacted at the commencement of Independence, by the 1946 Constitution Order-in-Council

Section 29(4): which for many years was considered the corner-stone of protection for the minorities against hostile legislation by the dominant majority in Parliament. In fact it was considered so important that the Privy Council in Bribery Commissioner v. Ranasinghe observed in an obiter dictum, though incorrectly, that this provision was not capable of amendment through the normal process of constitutional amendment, on the assumption that it was the result of a compact between the communities as a pre- condition to the grant of greater autonomy. In fact there was no reliable historical evidence either in the Soulbury Commission Report on Constitutional Reform or in any other contemporaneous document to support such a conclusion. Section 29(4)(b) and (c) were in the following terms:

"No law of Parliament shall (b) make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not liable (c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions"

The word "community" though not defined, very probably included segmental cleavages of nationality, race or caste as "communalism" in that era signified racial solidarity or antagonism in differing contexts carrying pejorative connotations. Although there was no express provision in the 1946 Order in Council guaranteeing a broad based equality for all, there can be no argument that programmes of affirmative action or policies of preferential treatment of any ethnic group were barred by the aforesaid subsection. The first autochthonous Constitution of 1972 on the other hand expressly provided for equality before the law and the equal protection of the law (Article 18(1)(a). But there was no provision for affirmative action or benign discrimination in favour of an individual or ethnic group. It was however, under this legal regime that the controversial system of media-wise standardisation of marks of candidates for admission to the Universities was adopted. There was an outcry against this "special measure" because of the drastic reduction in the number of Tamils admitted to the more prestigious departments of study and this is sometimes claimed to be one of the predisposing causes, if not the proximate cause, for Tamil militancy that arose in the mid-seventies. Despite the absence of a special constitutional remedy for infractions of fundamental rights in the 1972 Constitution, this system of admission if argued to be inconsistent with equal treatment could have been challenged in the courts through an ordinary declaratory action and injunction or through the extraordinary remedy of a prerogative writ. Its constitutionality was however not impugned before it was abandoned in favour of the district basis for admissions, which withstood a challenge under the 1978 Constitution, notwithstanding the absence of any express provision authorising affirmative action outside certain narrow confines.

The 1978 Constitution guaranteed the right to equality before the law and the equal protection of the law in Article 12(1) and along with it in para (2) prohibited discrimination on the ground of race, religion, language, caste, sex etc. There was however an express provision Art: 12(4) enabling a type of affirmative action, but it was couched in very narrow terms which were as follows:

"(4) Nothing in this Article shall prevent special provisions being made by law, subordinate legislation or executive action, for the advancement of women, children or disabled persons."

From one point of view this was not a radical departure from the equality principle as this provision may be regarded as a specific instance of rational "classification" which is permissible under the equality principle. It is not a contradiction of the right of equality which only requires that persons similarly situated be treated equally and does not require it when there is manifest inequality between persons which justifies special treatment. It is plain that women, children and disabled persons in particular circumstances need special measures for their protection and advancement.

There can be little controversy on this but different considerations would apply in cases when men and women compete on equal terms as there would be no rational ground for treating them differently. But even if Art 12(4) did not exist, if there was gross under-representation of women in any sphere of activity which was anomalous in that it existed for extraneous reasons, and there was a legitimate public interest in ending the anomaly, under the general doctrine of classification, it is arguable that special measures to remedy it could be upheld as being valid. For the aforesaid reasons it is contended that in appropriate cases affirmative action is constitutionally permissible without the need for an express provision authorising it as it would be an exercise in redundancy .

The constitutional validity, the moral legitimacy and the utilitarian value of affirmative action has for many years been, and is even more so now, the subject of vibrant debate in the United States where the Constitution (the Fourteenth Amendment) does not contain express provisions authorising affirmative action. It is a particularly sensitive issue in that environment where equality of opportunity has been held up as a high value, whatever be the reality of its realisation in life-experience. The American way of life, where the right of unfettered competition is of paramount value, does not seek to ensure equality of condition. There are no express words in the US Constitution authorising preferential policies for "the disadvantaged or the underprivileged" and the constitutional validity of affirmative action has been subject to strict scrutiny by the US Supreme Court and cautiously upheld in particular cases. The consideration of affirmative action programmes by the Court reflects a high degree of sophistication and refinement of principle. They are cautiously applied upon a case by case basis. ln fact a retreat from an activist stance is currently observed in the US. Such an approach would be difficult, if not impossible, with the overly broad deviations from the norm of equality that seem permissible under the proposed draft of Article 11(4). The proposed draft is almost tantamount to " a licence to discriminate" and may lead to distortions by reason of its amorphous and uncertain terms.

Any language that broadly authorises deviations from the norm of equality in general terms on ethnic grounds would raise many problems, even crises of imponderable proportions, especially in a society already riven by deep cleavages, ethnic rivalry and a rampant ethnocentrism unabashedly proclaimed. Given this political background one would have expected a vigorous public debate on this innovation, now that the proposals are open to discussion. On their face the provisions of draft Article 11(4) seem excessively broad.

More next week

(The writer is a constitutional lawyer and Sri Lanka's Permanant Representative in the UN.)

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