Archives

Keynote address delivered by Professor Lakshman Marasinghe at the Conference of University Academics for Sustainable Peace held on July 28 at the Sri Lanka Foundation Institute.

Although I am not an alumnus of a university in Sri Lanka, my claim to membership in your distinguished community is based on the fact that I have been a visiting professor of law at the University of Colombo, since 1984, and will be performing in that capacity during the next academic year as well.

During the past forty years I have served in different capacities in several universities in Africa and in Asia and have revisited some of these countries in recent times. I have again noticed that the issues that had blocked their path to progress- some forty years ago- remain today like some ghosts from the past standing in their path.

In each of these countries the issues that have blocked the path to peace and development have been bottomed by concerns of human rights pertaining to minority rights. Concerns of human rights pertaining to ethnic rights. And concerns of human rights pertaining to religious (including social and cultural) rights.

The failure of national governments to provide meaningful protections to this trilogy of rights minority rights, ethnic rights, religious (including social and cultural) rights has to a large measure provided the reasons for massive social and political upheavals, leading to wars; that not only destroys life, limb and property, but also the social fabric, the socio-political infrastructures and the degradation of human societies.

It is important to stress that there is a general fallacy prevailing among national governments that there exists a recognizable distinction between minority rights and majority rights, and these may be weighed upon fine scales like weighing some precious metals in a jewellery shop.

So fine are these scales that the rights when translated into constitutional enactments become a meaningless jungle of incoherent rights, which are neither comprehensible nor enforceable by a minority or by a majority group. Constitutions of some of the developing countries today bear witness to this dreadful result.

It is therefore important that national governments must dispel the notion that rights are for weighing or measuring using fine scales along a notional social perpendicular drawn from a given social base, dividing a nation into minorities and majorities. Rights are meant to be provided equally to all who inhabit a country, without distinctions. It is also important to recognize that we have here a pluralistic society espousing a cultural mossaic in which we each have a birth right to an equal place with equal rights within this mossaic.

In the world as we may notice today, the problems arising out of the articulation and the protection of minority rights, ethnic rights, fundamental rights and human rights, have all become the concerns of nations across the world from China to Chilie and from Alaska to Australia.

Each nation has been using several approaches for solving these problems. First by military might and then by peace negotiations leading to constitutional reform. Last week the civil war in the Sudan was settled through negotiations after 19 years of battle between the Bantu Christians and Muslim Arabs.

Nations have found that military solutions to ethnic problems have often been short-lived. In the dialectical process of life it has been found that ethnic problems have a tendency to compound and elevate into higher levels of abstraction. This invariably occurs if the problem was attended by temporary solutions, left completely unattended or was attended exclusively by force.

In the course of human history, it has been shown, that nations gripped with ethnic conflicts have, even after many years of battle, chosen to negotiate a constitutional arrangement.

They have chosen to exchange bullets for ballots and to replace their posture of conflict with a consensual constitution. At such a juncture in a nation's history, when all else has failed, law takes a high road producing constitutions based on consensus. And not constitutions imposed by those who have the control over the organs of power, over those who have none.

It is axiomatic that neither Kings nor freedom fighters have any divine right to govern. Their rights must be derived from a compact between them and the subjects of their governance. That is why we need constitutions. The conditions that make constitutions necessary are based on mistrust. Constitutions are therefore a recipe for combating mistrust. They are meant to contain and deter the activities of miscreants. Constitutions never restrain the good.

They only provide them with a secure framework to continue in their pursuit of doing good to fellow- members of their society.

Constitutions free the good and restrain the bad. Constitutions must contain good principles. And constitutional principles are deemed to be good when they restrain those who may place rash hands on the arks of government.

They are also good principles when they liberate, protect and provide a fair and just society to all those who live under it. A good constitution helps to create a just society when fundamental rights embodying the vast array of human rights recognized by all civilized nations are protected, and secured, to be enjoyed by all, equally, without providing for any basis for any form of distinctions, resulting in discriminations. These indeed represent the most basic and minimum commitment that citizens of all nations have a birthright to demand.

In the absence of such a commitment by a national government, any conception of majority rights, minority rights, fundamental rights, human rights and constitutions embodying them shall always remain incoherent, ineffective and indeed illusory. There are several constitutional models that are available for providing a nation with equal rights, equal powers, equal privileges and equal immunities.

Some of these models have impressive historical underpinnings. In a land mark decision of the Indian Supreme Court where the 'equal application of rights without distinctions' ordained by the Indian constitution was at issue, the Judges traced the concept of human rights to ancient Greek, Roman and Indian civilizations Spinoza, Hobbes, Locke and Rousseau and to the ancient Indian Philosophers Manu and Parashara. This was in Kesavananda Bharati v The State of Kerala ( 1973, Vol. 60 All India Reports at page 1461).

At a given moment in a nation's history those combatants engaged in social conflicts might opt for the low road of militarism or the high road of constitutionalism. This may not be a decision arrived at through their own volition. Sometimes the conditions of the conflict at a particular point in history may not provide the circumstances conducive for a dialogue leading to a settlement outside the battle lines. In such circumstances the battle must be continued.

On the other hand new and supervening circumstance may bring about a ceasefire, commencing a new era of peace, calling for the establishment of conditions for peace. These may create the conditions necessary for a dialogue leading to peace talks and a constitutional settlement of the ethnic conflict founded on consensus. All responsible governments carry an obligation to seize such an opportunity, for the collective good of all those over whom they may govern.

A ceasefire is an inducement for the commencement of negotiations through which a process leading to a peaceful settlement of the disputes may be commenced. Through such a process, social, economic and humanitarian issues that had once plagued the nation may be resolved.

And such a settlement may then be placed within a broad political, constitutional, framework bottomed by principles of democratic governance. This meeting proposes to deal with these issues through workshops that are to follow.

It is at the conclusion of discussions between the one-time combatants, now under a ceasefire, that constitutions providing equal rights to all without discrimination must target at righting the wrongs of the past- both real and perceived.

Whether the battles of the past had been won or lost, the dust of past battles must first settle, and conditions of peace and tranquillity must arise. When these conditions arise it would then be possible for confrontations of the past to broaden into conciliation, resulting in consensual agreements. It is hoped that such agreements arising out of consensus between the combatants of the past, would now evoke mutual respect and trust among all communities in a spirit of national reconciliation.

Thank you for giving this opportunity to speak and honouring me with this invitation. An honour bestowed here in the country of my birth is invaluable.

Those received abroad has a value attached to it.

News | Business | Features | Editorial | Security
Politics | World | Letters | Sports | Obituaries |

Produced by Lake House
Copyright 2001 The Associated Newspapers of Ceylon Ltd.
Comments and suggestions to :Web Manager