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Excerpts from the Gandhi Memorial oration 2003 delivered by Justice Mark Fernando on 2000 October and organised by the Sri Lankan - India Society.

Justice Mark Fernando

Let me first sincerely thank the Sri Lanka-India Society for honouring me this evening, by inviting me to deliver the Gandhi Memorial Oration for 2003. Mahatma Gandhi is undoubtedly modern India's greatest son, as well as one of the world's leading apostles of peace and non-violence. Sri Lankans can claim a share in Gandhi's legacy to the world because the vast majority of Sri Lankans are, ultimately, of Indian origin, however remote, and remain linked to India by ties of ancestry, religion, culture and friendship. The intensity of Gandhi's struggle for Indian independence enabled Sri Lanka to gain her independence almost effortlessly.

Peace and non-violence are of great concern in Sri Lanka now, and I have therefore chosen as my topic for today, "Non-violence and the Quest for Peace in Sri Lanka". How can Gandhian non-violence advance the search for peace?

I do not have a deep knowledge of Gandhi's life, work and ideals. Perhaps like many others, I have some indelible impressions of him: a man with a relatively privileged background and upbringing; an educated lawyer with good prospects of material success; one who suffered such insults and humiliation whilst living and working in South Africa that he became a change person who simply would not accept injustice as the norm, and led him to give up his privileges and his prospects, and ultimately to carry on the struggle on three fronts in his own homeland, armed only with the weapon of non-violence.

He fought against colonial rule, demanding a prompt transfer of power to the people of India. He campaigned for an end to discrimination, injustice, and the oppression of the poor and the underprivileged of India. At the same time, he had to overcome disunity and strife among various factions and communities within India.

Gandhi's success

Gandhi had his successes and his failures. According to the Encyclopedia Britannica, Gandhi was the catalyst, if not the initiator, of three of the major revolutions of the 20th century - the revolutions against colonialism, racism and violence; and his greatest disappointment was that Indian freedom was based on the partition of India, rather than the unity of India.

He raised the status of the so-called "untouchables", by identifying them as Harijans, or "children of God" - thereby acknowledging a common parentage and the brotherhood of all Indians. He sought to build the nation from the bottom up. Nevertheless, religion, and not politics, was always the mainspring of his life. He drew inspiration from all the great religions of the world, pining and striving "to see God face to face". He was able to find truth in all religions.

His life was an example of religious tolerance and respect for the freedom of conscience, in perfect compliance with what Judge Weeramantry has described as "one of the greatest human rights documents of all times" - the Edict of Toleration issued by the emperor Asoka of India:

"... the sects of other people all deserve reverence for one reason or another. By thus acting a man exalts his own sect, and at the same time does honour to the sects of other people. By acting contrariwise, a man hurts his own sect, and does disservice to the sects of other people".

While Gandhi did not achieve all his goals, he nevertheless won notable victories for peace, harmony, justice and non-violence. To Gandhi, the victories of peace were more precious than those of war - as the poet says, "Peace hath her victories, no less renowned than war". However, he did not receive due recognition. He was not awarded the Noble Prize for Peace. Paradoxically, many years before, the Noble Prize for Peace had been awarded to Theodore Roosevelt, who had once asserted that "No triumph of peace is quite as great as the supreme triumph of war".

Learning from Gandhi

Sri Lanka today faces problems which have similarities to those which confronted Gandhi. We can learn from his experience in finding non-violent solutions; in regard to matters such as the equitable sharing of power as between Centre and regions in order to avert the dangers of separatism; eliminating discrimination and the denial of equal treatment, whether real or perceived, especially to the under-privileged; arresting the deterioration in the maintenance of law and order, and in the administration of justice; and preserving ethnic and religious harmony and toleration.

Every Sri Lankan desires a resolution of the armed conflict which has raged for twenty years, and a lasting peace. Some regard a military solution as the best. Most others prefer a just, democratic and peaceful solution, through discussion, negotiation, and compromise. There is, however, considerable disagreement as to whether the present "peace process" is satisfactory or not.

I offer no contribution to that debate. However, the constitution enjoins all the organs of government, of which the judiciary is one, to secure and advance fundamental rights, and imposes a fundamental duty on all citizens to further the national interest and to foster national unity. In the discharge of those obligations I will attempt to identify some important issues, relating to the law and the administration of the law.

I believe that the initial cause of the prevailing conflict was the widespread conviction, long prevalent to varying extents among members of all communities, that their human rights were being infringed or denied. (particularly the right to equal treatment). Those grievances were most acute in respect of language, education, university admission, land, citizenship and public employment.

Unfavourable economic conditions, serious unemployment, and the scarcity of land aggravated those grievances. It is futile now, in the midst of a quest for peace, to argue to what extent those grievances were real, to what extent they were mere perceptions, and who was to blame. It is enough to acknowledge that even if those grievances were not real, nevertheless those perceptions were so strongly ingrained as to lead to armed conflict.

Resolution of conflict

Clearly, the resolution of that conflict must ensure not only that human rights are respected and protected, but must also remove any perception that they are being infringed. Justice must not only be done, but must be seen to be done.

Hence a peaceful solution must guarantee that the human rights presently recognised will be broadly construed, on par with international standards, and effectively implemented. The judiciary is required to secure and advance fundamental rights. I must mention, in particular, Article 12 of the Constitution which guarantees equality before the law and the equal protection of the law. That provision has been liberally interpreted in several decisions as providing sweeping protection against arbitrary governmental action, as in India.

In a fundamental rights application challenging the postponement of elections the respondents argued that the Court could give no relief because the right to vote was not expressly enumerated as a fundamental right in the Constitution. It was held that voting was a recognised form of "expression", and was therefore included in the freedom of speech and expression.

Going a step further, in another case it was held that the exercise of the right to vote was a collective right. In another decision it was held that although there was no express Constitutional recognition of the right to life, that right is implicit in Articles 11 and 13 (4). That process must continue. However, there will remain other omissions and shortcomings which cannot be cured by judicial interpretation, and those will have to be remedied by legislative intervention. But laws are not enough.

Sustained effort

There must be a sustained effort to prevent infringements of human rights. When infringements do occur, remedies must be more effective and expeditious. There must be national institutions to ensure that human rights are fully, effectively, and speedily respected and enforced by all organs of government. Such institutions must enjoy the full confidence of the nation in respect of their competence, independence, impartiality and integrity. The lack of such guarantees for the protection of human rights will make other issues more difficult to resolve. One challenge facing those who believe in the non-violent path to peace is to ensure that human rights are fully recognised, and duly respected, and that infringements are adequately remedied.

Solid guarantees

It is principally by the exercise of governmental powers that human rights are either secured or violated. It was the real or perceived denial of human rights and the inadequacy of remedies which led, inevitably, to demands for a greater share of governmental powers. Although the need for such sharing is generally accepted, there is a serious political controversy as to whether such sharing should be in the form of federalism, or devolution, decentralization, or otherwise.

Whatever the system finally adopted for sharing governmental powers, there is no doubt that complex legal arrangements will be needed. Besides, as the experience of other nations shows, even the most bona fide and careful demarcation of powers will not prevent disputes arising in regard to interpretation and implementation. A peaceful solution must therefore offer solid guarantees that all such disputes will be resolved fairly, swiftly and effectively. That, too, requires a national institution, enjoying the full confidence of all concerned in respect of its competence, independence, impartiality and integrity.

Sharing powers

The sharing of governmental powers leads naturally to another issue: the manner of selecting the persons who will actually exercise governmental powers under the new system. A peaceful solution in this context means a democratic solution, namely, a reliable guarantee of free, fair and equal elections, conducted by an independent person or institution, with effective and swift remedies and penalties for electoral misconduct.

A peaceful solution must ensure the democratic rights of all citizens of Sri Lanka, including those in the "conflict" areas, who must without exception be governed by their duly elected representatives. Recent elections have created serious misgivings as to the electoral process - and not only in Jaffna in 1981 or in Batticaloa in 2001. Early this year I had to decide a fundamental rights application relating to the 2001 general election in Batticaloa, at which 55,000 voters were prevented from voting. I concluded:

"The proved infringements were in themselves serious. The number of voters affected was so large that the elections in the Batticaloa and Vanni districts were neither free nor fair. The decision-making processes which resulted in those infringements were shrouded in secrecy, haste and bad faith.

The infringements took place at a time when there was a serious erosion of public confidence in the integrity of the electoral process, and when it was extremely important to ensure that elections were free and fair, particularly in the "uncleared" areas because citizens living in those areas needed reassurance, if peace and national reconciliation were to become realities, that elections would be truly democratic, that fundamental rights would be respected and protected, and that judicial remedies, would be available for wrongdoing. In that context, the infringements were a national disaster".

To make matters worse, at that same general election, while checkpoints were being suddenly closed in the Eastern Province, thus wrongfully preventing voters from reaching their polling booths, extraordinary arrangements were made in the Western Province for five voters to cast their vote in the security of their homes.

Free and fair election

A free and fair election conducted in exemplary fashion, without fraud, violence and intimidation, would have gone far to demonstrate adherence to democratic principles, and would have enhanced the trust and confidence necessary to facilitate negotiations aimed at a peaceful settlement.

Notwithstanding a peaceful settlement, there will continue to be the day-do-day problems of law and order throughout Sri Lanka - in relation to the reporting of offences; the investigation of offences; the arrest and remand of suspects; the institution of criminal proceedings; the prosecution of offenders and the hearing and determination of cases.

There has been, unquestionably, a deterioration and a consequential loss of public confidence in regard to the maintenance of law and order, and the administration of justice. That is probably the reason why, increasingly, victims of crime and their families take the law into their own hands. The breakdown of law and order in any part of the country will hardly inspire confidence that law and order can be maintained in other parts of the country, and that has serious implications for peace.

I have referred to four issues connected with the law and its administration. There may be others as well. I wish to stress that peace is not an event, or a moment in time, or signing a document. A compromise or a settlement is by no means the end, but only a new beginning. The implementation, the consolidation, and the preservation, of peace are even more arduous tasks. Mistakes, misunderstandings and disputes can undermine mutual trust and confidence. As I have mentioned, the establishment of institutions to deal with such issues is therefore vital, and the success of those institutions will depend on continuing public confidence in their competence, independence, impartiality and integrity.

Legal issues

Here, too, some legal issues arise which deserve serious thought, now rather than later. Are our existing institutions sufficient, or are new institutions necessary? Do we need one or many? How representative should they be? Should they be entirely local? Should they be permanent or ad hoc? What safeguards are needed to ensure public confidence? How will their performance be reviewed?

Let me conclude by saying that peace is a very great prize for us, and for our children; it is not easily won, and once own, it is even more difficult to retain. All citizens have a right and a duty to make their constructive contribution to the ongoing debate about peace, in order to create a better understanding of the issues, and to build mutual trust and confidence. If peace is won by non-violence, it will certainly be more enduring than if it is imposed by war.

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