Unjust Discrimination – myth and Truth

by Gaja Lakshmi Paramasivam

(February 18, Colombo, Sri Lanka Guardian) As per the article ‘UN Committee calls on prompt investigations and prosecutions in Sri Lanka’ published in today’s Sri Lanka Guardian, ‘The Committee on the Elimination of Discrimination against Women (CEDAW Committee) urges Sri Lanka to “promptly investigate, prosecute and punish all acts of violence including sexual violence” which have arisen during the last stages of the conflict and in the post conflict phase.”.

Reading the above, I recalled the essence of the recent messages from Mr. Basil Fernando, who is claimed to be an expert in Human Rights. The last one in this series, dated 11 February was headed ‘A response: Fighting together against unlawful acts of lawful authorities’. In that response, Mr. Basil Fernando says ‘In Hong Kong I enjoy legal protection, despite the fact that I belong to a tiny minority. In Sri Lanka citizens, whether they belong to the majority community or a minority, do not enjoy legal protection, as I have demonstrated in earlier articles’

To me, the UN’s call and Mr. Basil Fernando’s rhetoric contradict each other. Based on my true-self and what quality of mine would produce the above outcomes respectively, I conclude that they show also one commonness – that they are using the ethnic war towards their own ends. CEDAW is showing greater commitment to its parent than Mr. Fernando who is acting like a traditional Hindu wife who keeps going back to her parent’s home when she has problems in her new family. Mr. Fernando’s new family is the United Nations with its commitment to Democracy.

CEDAW on the other hand is behaving like a new bride in an extended family system, making unitary decisions. Discrimination against women is a smaller part than racial discrimination, of the total Unjust Discrimination in Sri Lanka. Once the latter is eliminated, a huge component of the former is also eliminated. This is more true of Sri Lanka than of Western countries, because Sri Lanka produced the first woman Prime Minister in the world. Even Australia lags far behind Sri Lanka in terms of the status of women in politics.

Mr. Basil Fernando gives as example, the following Hong Kong case:

‘A Sri Lankan domestic worker, a young girl who was asked to do more work than she could bear by her Chinese employer, wanted to resign. The vengeful employer fabricated a charge against her for stealing a shoe. She was arrested and she did not apply for legal aid due to her ignorance and at the trial she was convicted for three months. At the prison she was instructed of her right to appeal and to ask for legal did. She appealed and got lawyers paid by the state who won the case for her. She won a handsome compensation award, received more money than she would have earned for many years and returned home.

However, in Sri Lanka the thousands of people falsely charged in fabricated cases end up with a very different result. This can be illustrated by thousands of such cases. ‘

The above matter would be interpreted by me as the Hong Kong government pampering foreign workers. Dealing with such problems at cash level, often develops traits of ‘reverse discrimination’. The question here is why the young lady was not assisted to report the matter through the Human Rights Commission to record its decision through Anti Discrimination laws – on the basis of race and/or gender?

The basis of all anti discrimination laws is ‘Equal Opportunity’. Where it is widely believed that the government of a country and/or the United Nations and other global bodies that, habitual living-together and collusion due to common looks and other birth characteristics have led to unjust distribution of power and therefore benefits – the governments have the responsibility to take action to prevent such unjust distribution. The alternate system promoted by Global Governments is the system of Democracy with strong emphasis on Equal Opportunity.

Equal Opportunity system for it to work in our everyday life – needs the feeling of Equality by at least one side to the matter. If neither side has contributed to Equal Opportunity systems to feel Equal to the other, they are not entitled to the facilities of Equal Opportunity systems except as part of a community. The only Australian known to me other than myself who as an individual has contributed to establishing that sense of racial equality in Australia, is Eddie Mabo. Eddie proved himself through land ownership in real terms. I established that I practiced racial equality at the workplace.

Discrimination happens naturally through habit. Knowledge gained without experience, often contributes to quick decisions as per surface memory unconnected to common principles, values or people/persons. If for example, in the above case, the Chinese employer had knowledge of Sri Lanka being of lower status than Hong Kong at the global level and that the legal systems in Sri Lanka are weak, the employer is likely to have had a head start in the relationship – instead of a zero base start followed by the job requirements. The greater the distance between the two due to time and/or space – the more objective the measures of performance need to be. The statement by Mr. Fernando “The vengeful employer fabricated a charge against her for stealing a shoe” establishes the natural use of judgmental statements instead of facts. One may conclude and publish judgments about oneself and the group one believes and is accepted to be a part of. But with others, one needs to report facts – as they happened and as established by the other side. This is the fundamental value that every individual claiming facilities of democracy – including Doctrine of Separation of Powers – needs to practice.

What ‘happens’ would be interpreted differently by different persons. When the facilities to give – largely time and position - evidence are divided equally, the total picture that evolves from zero base gives the answer through majority picture. That answer again would be interpreted and used by others as per their own investments in the issue and their needs. Hence the form of our outcomes would differ as per time and space distances.

Where we are not able to achieve this equal distribution of costs – we need to use faith / belief based assessments. As per my assessment, Mr. Fernando is seeking this system above the democratic system of equal distribution of facilities. This often results in lawyers playing our game. The Legal Aid system of Hong Kong has done exactly that. Legal Aid is needed where citizens are not able to bring their cases to courts. The better way is to waive the application ‘fee’ for poorer citizens, in cases of fundamental rights. This is largely the case with Human Rights matters here in Australia. But then, the ‘other’ side hires expensive lawyers, as even Mr. Howard (our former Prime Minister) did – and that takes the value away from us. The more expensive the lawyer, the greater the effort needed by judges to keep the facilities Equal. One judge who did make some effort in this regard was Judge Moore of the Federal Courts of Australia. There was one other judge – a smart judge - who sought to use the merit path through which I established my claim – but when he delivered judgment after going into his chambers and in the environment of his legal ghetto - he delivered as one of his clan. The barrister who represented Mr. Howard represented also the respondent in this case, jumped up when the judge asked me the question through words to the effect ‘Was the discrimination conscious or subconscious?’. The barrister drew on their clannish connections and said to the Judge, words to the effect ‘My client is young and an adverse judgment would damage her career’. The real judgment was received by me in that chamber. The paper judgment did not include me but was part of their way of receiving benefits.

Given that according to Mr. Basil Fernando, the Sri Lankan legal system is even more autocratic than the Australian Legal system, if Mr. Fernando did succeed, we would continue with the same old system – except that there aren’t enough Tamils at the top to uphold the contribution that Tamils have made not only to the faith based autocratic legal system but also to democracy through their ongoing fights for Equal Opportunity to govern themselves. The assistance we provide our people in Sri Lanka as well as in the countries we have migrated to, is real Legal Aid. These articles that we publish are real Educational Aid.

The solution that I see through my wisdom in Australian Public Service, is for us to move away from program basis (which relies heavily on faith) in areas where objective evidence of unjust discrimination has surfaced through the efforts of the victims and their communities. This needs to be dealt with on project basis – which is also the way of democracy. There is an objective beginning and an end to projects. The essence of the project is then merged with the higher level programs which are usually to bring the minds of People through common values and Due Processes.

In terms of Unjust discrimination against women – if that is the project then it needs to be first merged with ethnicity based discrimination which in turn would need to be merged with national programs as appropriate. Treating these on ‘stand alone’ basis leads to long terms separations as happened through the caste system. Now the disenfranchised are comfortable in their own isolation. This contributed to the ethnic war being fought at their level in Sri Lanka.

The article ‘Remembering RR Sivalingam And Thiruchanduran of the Indian Tamil Community’ highlighted the plight of Indian Tamils. The question is whether majority Tamils of Indian origin invested in the National systems – as Jaffna Tamils did or whether they invested in their ‘Indian village’ – systems as they knew them? Likewise Sri Lankan refugees in countries such as Australia – are they investing in Australian and/or global systems of democracy or are they continuing to invest in their own community systems – as was practiced in their villages all over Sri Lanka? The case of the Sri Lankan maid in Hong Kong strongly indicates that Sri Lankan workers driven by money, tend to expect as per their local culture rather than as per the global system. Indian Tamils are comfortable in their ghettoes as are toddy tappers of Northern Sri Lanka. What is required is to pro actively promote employment based systems for those who come out of their ghettoes or are likely to come out in their near future. For the rest who seek to remain, our path is the Spiritual path through which we help them realize themselves in their natural environments. Once this ‘freedom’ is enjoyed, no amount of money would tempt them for pleasures or fights.

Those who are driven by winning rather than remaining at break-even positions of Peace – are likely to reduce the status of the opposition anyway they can. Unless one feels bound by faith to the other, one needs to consciously use merit basis – especially when addressing someone who seems more mature as well as talented. Following is an example of the ‘education’ provided to our youth – through ‘personal’ examples.:
“About ten days back at the wedding of the daughter of a friend of ours from our school days, my friend MP said much to me in appreciation of Miss JD and her family - a bit like my emails to you. I could not identify with much of what MP said but listened anyway - as it being MP need to share. I could not identify because of my own experience with the family back in Papua New Guinea – primarily due to them 'judging' without investing more than I in the system of marriage. Later, their children demonstrated that they continued to carry the 'certificates' their parents issue about our status. Between my husband and I - they awarded lower marks for me than for my husband Param - demonstrating this strong tendency for bilateral coups over a community issue. Today, the fact that I help/ed many Australian Tamil families in the issue of marriage and divorce, confirms to me that there was a need at community level to protect young ones from 'oldies' including oldies in young bodies. With all that, I allowed a special margin to Miss JD due to her presence at Sai Bhajans. I felt I owed that to Swami due to His support for me when I stood alone at the University of New South Wales when I challenged their Central Administration on the basis of unlawful racial discrimination. To me, those Tamils who do not identify with my pain do not actually feel any racial discrimination pain as Sri Lankans. What they say is from their heads. When we know our Truth - we identify the Truth in others.”
To me these are far more valuable than individual examples of ‘others’ – such as the Sri Lankan maid in Hong Kong. To the extent Mr. Basil Fernando demoted my work on the basis of my land in Colombo but picked up the example of a maid – he failed to value my education. If the maid is Sinhalese, then I would conclude that the discrimination is racial as well as gender-based. Until Mr. Fernando explains through merit basis and/or declares his belief of a particular base outside merit – why the lesser value was given to my experience, in comparison with the experience of the maid – the reason would be declared by this victim as being race and/or gender based. Mine here in Australia was also work based and I fought on the basis of racial discrimination AFTER I was upheld as a high performer on merit basis. I also went to prison – not once but four times. I would have expected a fellow Sri Lankan professional to give my work and pain far more credit than the work and pain of a maid who did not know her rights and who did not have the capacity to stand up for herself but needed ‘charity’ from a foreign government. If Mr. Basil Fernando or one of his Sri Lankan colleagues had represented her, that would have been an act of faith and therefore would not have been ‘charity’.

Discrimination happens, when there is a status difference without faith. If we have faith in the person/s who discriminated against us without faith or merit – that faith of ours rights the wrongs to the extent of our faith in them. To that extent we would have pooled our work into the common system. That is ownership. Even in discrimination issues there is a component of faith. One who has pooled most if the real leader. If that is Mr. Fernando or the UN – they need to educate those of us who claim to have suffered pain and / or loss due to unjust discrimination. Until then, to the extent of our objectively measurable loss – we have just claim to call the actions that led to such losses – the names as per our inner beliefs. That is our sovereign right.