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The proposed Equal Opportunity Bill — an analysis
Prof. Peiris’s ‘Pus Vedilla’

Not content with the problems created in the country with his devolution package with which the government has been grappling for the greater part of its term of office, Professor Peiris has now produced another piece of legislation that will certainly ensure that the Government will be embroiled in controversy for the rest of its term. This is the proposed "Equal opportunity Bill". The importance that Prof. Peiris assigns to this Bill is shown by his interview recorded in the Island Sunday Edition of 12.9.99. He says, ‘I have no doubt that the Equal opportunity Bill is one of the most important pieces of legislation ever to have been prepared by a government in our country for presentation to Parliament."

In view of Prof. Peiris’s statement of the importance of this Bill it behoves every citizen to examine carefully its implications especially as it will be found that, under the guise of ending "discrimination" it will result, inter alia, in wide inroads, by Government appointed bodies as well as, by Ministers into the functioning not only of public institutions but even of private organizations.

Examination of the provisions of the Bill

The wide extent of the areas covered by the Bill is shown by its preamble which reads as follows:

"An Act to make unlawful, discrimination on the grounds of ethnicity, gender, religious or political opinion, language, caste, age or disability, in employment, education, access to public places and means of transportation and in the provision of accommodation, goods and services; to provide for the formulation of equal opportunity programmes by employers; to provide for the establishment of an Equal Opportunity Commission and an Equal opportunity Tribunal; and to provide for matters connected therewith or incidental thereto."

It will be seen that this Act will be all-encompassing. It will cover all spheres of activity not only in the public sector but even in the private sphere-employment, education, access to public places and means of transportation and in the provision of all types of goods and services, that is in all spheres of economic activity. One’s first reaction is to wonder whether the nightmare of George Orwell’s 1984 is about to be unleashed on this country with Big Brother in full control. For what Professor Peiris proposes to do by this piece of legislation is not take this country forward into the 21st Century but backward into 1984 with Government able to interfere in all important activities in the country, as we will show.

The Bill deals with the following of subjects:

Sexual harassment, discrimination at work, discrimination in education, discrimination in access to places and means of transportation, discrimination in accommodation, discrimination in the provision of goods and services.

Before considering the provisions of this Bill it is necessary to ask why this Bill is necessary in view of the provisions of Article 12(2) of the Constitution which states:

"No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds."

In his interview appearing in the Sunday Island of 12.9.99, Prof. Pieris states that this legislation is necessary because "the principle of equality although it is given great prominence is restricted to the institutions in the public domain. It has no application to the private sector. That is a great anomaly". We do not know on what grounds Professor Peiris maintains that the "Right to equality" provided in Article 12 refers only to the public domain, as there is no such restriction specified in Article 12(2). Moreover, the fact that Article 12(3) forbids discrimination in regard to "access to shops, public restaurants, hotels, places of public entertainment and places of public worship of his own religion", all of which are places outside the government sector, clearly shows that Article 12 was not meant to cover only the public domain. However, if Professor Peiris’s argument is to be accepted and this Bill is intended to go beyond the provisions of Article 12(2), then it will constitute an amendment to the Constitution and thus require a 2/3rd majority in Parliament, since Article 12(4) permits legislation going beyond the ambit of Article 12 only where provision is to be made "for the advancement of women, children and disabled persons’’.

We will now proceed to consider the implications of the more important provisions of this Bill.

(A) Sexual harassment

Even though "sexual harassment" is not mentioned in the preamble which we quoted above, the Bill commences with this subject. Section 3 (1) states:

"It shall be unlawful for a person to sexually harass another person, or by use of word or actions, to cause sexual annoyance to such other person".

In addition section 3(2) specifies various areas in which "sexual harassment" is forbidden, namely in employment in educational institutions, letting of accommodation, provision of food, medicine or other goods and services and transport.

Section 3(4) states that for the purposes of the Act’ "sexual harassment" includes:

(a) physical contact and physical advances:
(b) a demand or request for sexual favours:
(c) the making of sexually coloured jokes or comments.
(d) the showing of pornography;
(e) any other unwelcome conduct, physical or verbal, of a sexual nature.

The first comment we have to make in regard to these provisions is the vagueness of some of the terms. What, for instance, is meant by the term "physical advances" in item (a)? If a man "advances" towards a woman, would he be guilty of the offence of "sexual harassment". According to ProŁ Peiris he may, indeed, well be guilty! Again item (e) refers to "unwelcome conduct, physical or verbal, of a sexual nature". What would constitute "unwelcome conduct" of a sexual nature? The term is so vague that it may mean anything, even remotely connected with sex.

According to item (c) "the making of sexually coloured jokes or comments" will constitute sexual harassment. This is certainly going to be a grey world, if Prof. Peiris has his way, where even the so-called "bar-room jokes" are forbidden. "The showing of pornography" is also forbidden- item (d). This means, for instance, that the sexually explicit bill-boards we find lining the streets advertising the so-called "adults only" films may have to be removed. Some may think this would be a good thing, but what would it do to the cinema industry? For this provision may result in all "adults only" films having to be withdrawn with dire effects on that industry - depending of course, on the legal definition of pornography.

However, all those who may have become alarmed by all this can set their minds at rest. For Prof. Peiris, in his wisdom (?) realizing no doubt the impracticable and far-reaching nature of these proposals has taken care to ensure that there should be no penal sanctions for such "unlawful" acts. For nowhere in the Bill can we find provision for the imposition of any punishment for what ProŁ Peiris has called "unlawful" acts. The only provision for any action to be taken in the case of a complaint of sexual harassment is in section 4(2), which states that where an employer receives a complaint of sexual harassment in a work place, he has to make inquiries and "where necessary, to refer the complaint for investigation by the police". What the police are expected to do after investigation, seeing that there are no penalties provided, we do not know. The two institutions proposed to be set up under this legislation. Namely the "Equal Opportunity Commission" and the "Equal opportunity Tribunal" are meant to deal only with the subject of "discrimination" and have no functions to perform in regard to "sexual harassment"

From the above it is clear that in so far as provisions relating to "sexual harassment" in the Bill are concerned, what Prof. Peiris has been engaged in, is not a legislative exercise but a political exercise under the guise of legislation. With elections in the offing the purpose of this exercise is to enable government speakers to proclaim from every election platform that the Government has enacted special legislation to stop the sexual harassment of women and thus woo the female voters who comprise half the population concealing the fact that what the Government has actually produced is legislation which is completely ineffective, or, in the expressive Sinhala phrase, a "pus vedilla".

(B) Discrimination in Education

Section 6 of the Bill deals with discrimination in education. This is a most far-reaching provision with wide implications but we propose to deal here only with the question of admission of students to schools. According to the Interpretation Section a "school", includes, "a Government school or an assisted school or an unaided school, within the meaning of the Education ordinance (Chapter 185) " Section 65 (h) . Section 6(1) states that it is unlawful to discriminate on the grounds inter alia of a person’s ethnicity or religion in the admission to any of the schools referred to above. However? certain exceptions are made by section 6(2) which states:

"Nothing in this section shall apply to, or in relation to, an application for admission as a student of an educational institution that -

(a) is conducted by a religious body;
(b) conducted by established practice or declared to be conducted, solely or mainly for students professing a particular religion;
(c) conducted solely for students of the opposite sex to the sex of the applicant

These exceptions will have the following effects.

i. Under item (a) all non-governmental schools conducted by the Catholic and other Christian Churches and other Christian Organisations will be exempted from the provisions of this Bill. Thus the refusal, for instance, by St. Joseph’s College, Colombo to admit a Buddhist boy on the ground of his religion will not amount to discrimination under these provisions, even though this school receives a large grant from the State, the major part of the taxpayers of which are Buddhists.

ii. Under item (b) all government and private Muslims Schools will be exempted.

iii. In the case of the former Buddhist schools such as Ananda, Nalanda, Vishaka etc. taken over by the Government at the time of the schools take-over, a guarantee was given at that time that the proportion of Buddhist students at the time of take-over would be maintained and this provision has continued to be observed as evidenced by Education Ministry circulars issued to school principals every year. This provision however has never been embodied in a law. The question is whether item (b) would cover such cases. If there is any doubt, and if it is intended to proceed with this Bill, all doubts should be removed by making specific legal provision for continuing the assurance given in respect of former Buddhist schools.

(C) Discrimination in other spheres.

In addition to the sphere of education, the Bill deals with discrimination in work places, discrimination in access to places and means of transportation, discrimination in the provision of accommodation and discrimination in the provision of goods and services. We do not intend to examine the implications of all these provisions, as this will add considerably to the length of this article, but to consider certain important aspects.

(i) In so far as access to places in concerned, there is, as we have already pointed out provision in Article 12(3) of the Constitution to deal with such cases. The intention appears to be to widen the scope of Article 12(3). This would involve an amendment to the Constitution and will require a 2/3rd majority in Parliament.

(ii) The most important provisions in this Bill in so far as its potentiality for intervention in the functioning of the private sector is concerned lie in those relating to discrimination in places of work and in the provision of goods and services. The comprehensive nature of these provisions will become evident when we see the definition of "services".

According to the Interpretation Section 65 "services’’ includes:

(a) services relating to banking, insurance and the provision of grants, loans, credit or finance;
(b) services relating to entertainment, recreation or refreshment;
(c) services relating to transport or travel;
(d) services of the kind provided by members of any legally recognized profession or the members of any trade; and
(e) services of the kind provided by a government department, public corporation or a Provincial or local authority.

It will be seen that, leaving aside the public sphere, in the private sphere this legislation will cover every area not only of economic activity but of the professions. Clearly Prof. Peiris’s hawk eye has not missed any sphere of activity in this country and he can thus may be justifiably, boast that this is "one of the most important pieces of legislation ever to have been prepared by a government in our country " But what will be the effect of this legislation? It will enable the institutions set up under this legislation, namely the Equal Opportunity Commission and the Equal Opportunity Tribunal to probe into the functioning of every private sector organisation, including professional organizations. And a complaint need not be only by a person who alleges discrimination against him. For the Equal opportunity Commission is authorised by Section 29(1)(c) to investigate a complaint against a private organization by "a member of the public stating that no significant attempts are being made to improve diversity in the workplace" The extent to which this legislation will enable a Government appointed body, namely the Equal Opportunity Commission to interfere in the administration of private sector organizations is made perfectly clear in Prof. Peiris’s interview with the Sunday Island of 12.9.99 He says:

"Discrimination at work is one of the main areas which the law seeks to deal with. No form of discrimination will be allowed with regard to recruitment of people, the criteria for promotions, the yardstick that is to be applied in deciding whether an increment or some other benefit is to be made available to the employee."

Even the grant of an increment to an employee can be made the subject of an inquiry by the Equal Opportunity Commission. It is clear that George Orwell has found an apt disciple in Prof. Peiris.

(D) Equal opportunity Proprammes

Part II of the Bill deals with Equal Opportunity Programmes.

Under section 11 (1)

"Every Institution employing one hundred or more persons shall formulate and implement equal support unity programmes and where necessary affirmative action programmes to ensure equality of opportunity in such Institution."

"Institution" is defined as " a government department, public corporation or a company incorporated under the Companies Act. No. 17 of 1982." (Section 17)

This means that, as far as the private sector is concerned the provisions of this Bill will apply to every company incorporated under the Companies Act which has one hundred or more persons employed.

Before we proceed to consider what these companies are expected to do, it is necessary to examine briefly the implications of Prof. Peiris’s exclusion of institutions employing less than 1OO persons.

The first point to note is that in a law ostensibly designed to outlaw discrimination, Prof Peiris has introduced discrimination, namely between companies with less than one hundred persons and those with one hundred and above. The former are not caught up in this legislation while the latter are subject to it. We do not know on what basis Prof. Peiris has chosen the magic figure of one hundred to divide the commercial world in this way. Has it some esoteric significance or any connection with the new millennium? Only Prof. Peiris will know. However ,be that as it may, this division has certain repercussions. For, a company with 99 employees is excluded from the operation of this law, but if it seeks to expand by recruiting even one more employee it will become subject to the provisions of this law which can have severe consequences as we will show. This provision can therefore be a disincentive to the expansion of small companies. We do not know whether Prof: Peiris subscribes to the philosophy that "small is beautiful" and that small companies should remain small, but this will be the probable effect of these provisions.

As for companies employing one hundred or more persons, they will find that they are called upon to do things that did not figure in their wildest dreams when the companies were formed or as they have been operating so far. To show what these companies will be called upon to do under this legislation it would be best to quote the relevant provisions.

Section 11(1) which we quoted above states that every company employing one hundred or more persons "shall formulate and implement equal opportunity programmes and where necessary affirmative action programmes to ensure equality of opportunity in such institutions."

Section 11(2) specifies what such programmes should comprise:

It states: "The programmes formulated under sub section (1) in respect of an Institution shall -

(a) be designed to identify, in a systemic way, and remove, any discriminatory barriers-

i. based on ethnicity, sex, gender, religious or political opinion, language, caste, age or disability, and

ii. relating to recruitment, promotion, training and conditions of employment in such Institution; and

(b) set out such policies and procedures as are designed to create an environment free from discrimination and harassment in such Institution."

Section 12 sets out the "Issues to be addressed in every programme" It states:

12(I) Every programme formulated under section 11 in respect of an Institution shall address the following issues -

(a) training programmes on equal opportunity for employees in that Institution;
(b) pay equity for such employees;
(c) elimination of sexual harassment in such Institution;
(d) recruitment and promotion in such Institution,
(e) occupational segregation in such Institution;

(2) In formulating a programme under section 11, an employer shall -

(a) develop a policy statement;
(b) collate and analyse employment statistics in such Institution;
(c) review human resources policies and practices in such Institution;
(d) establish a strategic plan that incorporates the employer’s objectives and strategies and time tables for achieving those objectives; and
(e) monitor and evaluate the success of the implementation of that strategic plan

It will be seen that the above provisions go into the very heart of the working of a company, for they relate to pay, recruitment and promotion and, as Prof. Peiris has stated even the granting of increments. Probably, even seating arrangements in an office will come under this scrutiny of the Equal Opportunity Commission if this is what meant by "occupational segregation" in item 12(1)(e). A Company may have to set up a special unit in order to comply with these requirements, and even employ specialists or experts. The Boards of Directors of such companies may find that much of their time and energy has to be spent in trying to comply with item 12(2) above namely, developing policy statements, collating and analysing employment statistics, reviewing human resources policies and practices, establishing a strategic plan, establishing time tables and monitoring and evaluating the success of the implementation of that strategic plan!

Failure to formulate such a programme will lead to dire consequences for section 16 states:

"The Equal Opportunity Commission may impose a penalty of not less than one hundred thousand rupees on an employer who fails after two or more warnings in writing, to formulate or implement an equal opportunity or affirmative action programme in respect of his Institution."

It should be noted that the penalty that the Commission is empowered to impose is not less than one hundred rupees. This means that while the lower limit has been laid down, there is no upper limit. The Commission thus has the power to impose a penalty of, say, ten million rupees or even more. If this should result in bankrupting the Company, it would be of no concern to the Commission. - or apparently to Prof. Peiris.

Section 13 requires every company to furnish to the Equal opportunity Commission within one year of the coming into operation of this Act "a preliminary report on the composition and diversity of the Institution." This means that companies will be compelled to furnish information that may reveal all the inner workings of the company.

Section 13 also gives the Equal opportunity Commission the power to compel companies to furnish certain reports.

13(2) The Commission may, by notice in writing, require am employer to furnish a progress report providing for the matters referred to in sub section (3) and it shall be the duty of such employer to comply with such requirements.

(3) A progress report furnished under subsection (2) shall provide a review of the recruitment, training and promotion practices in the Institution to which the report relates, and the action taken to promote equality of opportunity in that Institution."

What all this means is that under the guise of providing for equality of opportunity the Equal opportunity Commission can obtain information that would enable it to come to know the inner working of every company in Sri Lanka employing one hundred or more persons.

And what happens to companies that refuse to "lay bare their assets" so to speak and fail to furnish the reports called for by the Commission? According to section 14 the Commission will issue a notice requiring the company to furnish the report within twenty eight days. If the company still fails to furnish the report the Commission "shall issue a notice to that employer informing that employer that it intends to include the name of that employer in the list of non-complying employers to be furnished to the Minister in charge of the subject of Justice for placing before Parliament "What Parliament is expected to do with this list we do not know. It is a dark secret known only to Prof. Peiris, since he has not revealed it in this Bill.

In addition, as we have already pointed out, under section 16, a penalty of not less than one hundred thousand rupees can be imposed on such companies.

(E) Equal Opportunity Commission and Equal opportunity Tribunal

The Bill makes provision for the setting up of an "Equal opportunity Commission" consisting of the "Chairman of the National Women’s Commission" and four other members appointed by the President in consultation with the Prime Minister, Leader of the opposition and Speaker. It has power under section 27 to investigate complaints of discrimination in respect of all spheres of activity referred to in Part I of the Act namely in the spheres of employment education, access to public places and means of transportation and in the provision of accommodation and goods and services. As we have already pointed out this covers all spheres of economic and even professional activity in the country. It means that every employer and institution in the country included in the Bill can be investigated by the Equal Opportunity Commission for alleged acts of discrimination. As far as companies are concerned every company, and not merely companies employing one hundred or more persons, can be subject to investigation.

Section 27 also confers numerous other powers on the Commission in relation to the subject of discrimination including the power to "impose penalties, under section 16, on employers who fail, after two or more warnings in writing, to either formulate or implement equal opportunity and affirmative action programmes." We have already pointed out that such penalty has to be "not less than one hundred thousand rupees" and has no upper limit.

In regard to inquiries conducted by the Commission under section 31, the Commission can compel the attendance not only of the person against whom the complaint of discrimination has been made but of "any other person who, in the opinion of the Commission, is likely to be able to provide information relevant to the investigation or whose presence at the conference is, in the opinion of the Commission, likely to be conducive to the resolution of the complaint by conciliation " (Section 31(2) (c) (The meeting called to resolve the complaint is called a "conference" ) . Failure to attend when required to do so by the Commission will render the person "guilty of an offence under this Act and shall on conviction after summary trial before a Magistrate be liable to a fine not exceeding one hundred thousand rupees" (Section 38). Mercifully, in this case, Prof. Peiris has, unlike under Section 16, provided a maximum limit to the fine that can be imposed even though that is by no means a trifling amount.

The Commission also has wide powers in regard to the obtaining of information and documents. Under section 33(1) "where the Commission has reason to believe that a person is capable of furnishing information or producing documents relevant to an investigation being made by it", the Commission can compel the furnishing of such information or provision of such documents. A company, for instance, may not be able to refuse to furnish the information or documents called for on the ground that these are confidential for section 38(b) states that every person who without reasonable cause, "fails to furnish any relevant information or to produce any relevant document in compliance with the requirements of a notice given under Section 33" will suffer the same fate as those who fail to appear, namely a fine not exceeding one hundred thousand rupees imposed after summary trial before a Magistrate. What is "reasonable cause" will, of course be determined by the Commission.

After the Commission has gone through this elaborate procedure it can take one of three courses of action, namely, dismiss the complaint, resolve it by conciliation or refer it to the "Equal opportunities Tribunal" which will also be set up under this legislation. (Sections 35 and 36).

But dismissal of the complaint will not end the matter as the complainant has the right to request that the matter be referred to the Tribunal (Section 35 (2) (b). ProŁ Peiris has taken steps to ensure that a matter that is not resolved by conciliation will be a long, drawn out process for, when a matter is referred to the Tribunal, it will go through the same process of inquiry once again with summoning of witnesses’ calling for the production of documents, taking evidence under oath or affirmation. But even this may not end the matter since anyone dissatisfied with the order of the Tribunal can appeal to the Supreme Court on a matter of law, with leave from the Supreme Court.

The Tribunal has been given extensive punitive powers. Under section 5O (b) the Tribunal may’ "if it finds that there has been contravention of a provision of Part I of this Act by any person as alleged in the complaint -

i. order that person to pay compensation in a sum not less than fifty thousand rupees to the complainant for any loss or damage suffered by the complainant as a result of such contravention;

ii. make order enjoining that person from continuing or repeating such contravention; or

iii. order that person to do any act to redress any loss or damage suffered by the complainant as a result of such contravention; or

iv. make order declaring void, in whole or any part or modifying any contract or agreement made, or practice followed, in contravention of any provision of Part I of this Act"

[Note, once again the minimum limit for penalties under item (i)]

(F) Interfere by Ministers

Before we close it is necessary to comment on a provision in this Bill which would give wide powers to every Cabinet Minister. It is section 28 which reads as follows:

‘’28(1) Any Minister of the Cabinet of Ministers may request the Commission to examine and report to that Minister. -

(a) whether any law or proposed law contravenes, or is likely to contravene any provision of this Act;

(b) whether any practice’ alleged practice or proposed practice of any person or class of persons contravenes, or will give rise to a contravention of, any provision of this Act".

(2) The Commission shall examine the matter it has been requested to examine under sub section (1) and shall report its findings to the Minister.

It will be noted that under this provision, a Minister is not confined to the subjects and functions assigned to him. He can, with his eagle eye, survey all the activities taking place in the country and call for a report. Cabinet Ministers may therefore be able to probe into any activity in the country (not only in government departments but of "any person or class of persons") on the ground that there is or even that there may be a contravention of the provisions of this Act. In the light of provisions such as this it will be evident that when we said that George Orwell had found an apt disciple in Professor Peiris, we were not exaggerating.

(G) Conclusion

We have, above, made a fairly detailed examination of the provisions of the "Equal opportunity Bill" which Professor Peiris has proclaimed to be "one of the most important pieces of legislation ever to have been prepared by a government in our country." We did this as we felt that the people of this country, and especially the private sector establishments should be made aware of the fate that awaited them if this legislation was ever to reach the statute book. As Prof. Peiris has quite rightly stated it is one of the most -far-reaching pieces of legislation ever produced in this country because, among other things, for the first time it enables government - appointed bodies to dictate to private organisations how they should conduct their affairs with penal provisions for failure to comply.

According to a report appearing in the Daily News of 17.9.99 certain representatives of the private sector "unanimously expressed their complete satisfaction with the proposed Equal opportunity Bill.". From this report it would appear that these private sector representatives clearly do not agree with our critique of this Bill. We have no quarrel with them if they approve of the Bill as it is they who will have to bear the brunt of the tasks imposed on companies and suffer the interference in their internal affairs which we have detailed above. We, for our part, think that this Bill should never have been put forward for the detailed reasons given above. This type of sophisticated legislation may be in order for developed countries like the U.S.A. or Germany which Professor Peiris has quoted as examples in the Sunday Island interview referred to. But it is the last thing required for a developing country like ours that is struggling to keep afloat in the stormy seas created by globalization.

As far as we are aware no other developing country has ever attempted such legislation. Surely we have other priorities? But, despite what certain private sector representatives are stated to have said we will be surprised if this Bill does not raise a furious controversy in the country once its full implications are known, especially when the Sinhala people realise that the primary purpose of this elaborate piece of legislation is to compel both public sector institutions as well as private employers to employ Tamils and Muslims in preference to Sinhalese even if the Sinhalese are just as qualified or even better qualified, for this is what "prohibition of discrimination on the ground of ethnicity", "affirmative action" and ensuring "diversity in the work place" provided for in this Bill really mean.

This is Prof. Peiris’s substitute for his "package" which has had to be abandoned and the sop he is offering to the minorities in order to obtain there votes at the coming elections. As we stated at the beginning of this article, Prof. Peiris started this government’s teir of office by ensuring that it would be involved in confrontation and controversy throughout the country with his "package". He seems to be all set to ending the Government’s term of office with another bout of controversy through his "Equal opportunity Bill". We think the Government would be well advised to announce, and announce without delay that it will not proceed with this Bill - unless, as we said, it wishes to find itself embroiled in controversy with the Sinhala people on the eve of the elections.

Dr. Piyasena Dissanayake
Secretary,
National Joint Committee

L E G A L W A T C H
Seeking to create equal opportunity through law

by Nayana
The Government’s proposed Equal Opportunity Act has been praised in some quarters and has evoked fears in others. Before making our own comments, let us therefore summarize its provisions.

At the outset it should be said that the Bill has yet to be Gazetted and is thus still open to discussion and variation. The analysis that follows is based on the last draft to be circulated among NGOs and others before the proposal was presented to the Cabinet. It was reportedly not adopted by the Cabinet but was instead referred for further discussion.

The principal innovation contained in this proposal is to provide mechanisms for the enforcement of non-discrimination provisions against the private sector. Although there is nothing in law to exempt private individuals and institutions from compliance with the fundamental rights and language rights chapters of the Constitution, the mechanisms provided by the Constitution such as Article 126 are directed towards providing redress for infringements by "executive or administrative action" only.

Equality

The objects of the proposed legislation are stated to be the promotion of equality of opportunity and the elimination of discrimination on the ground of "ethnicity, gender, religious or political opinion, language, caste, age or disability".

It also devotes a prominent place to the elimination of sexual harassment which is given a wider definition than that found in the Penal Code (Amendment) Act No. 22 of l995 which introduced the concept into our law. Under the new law, employers and heads of educational institutions will be required to take preventive measures such as the display of notices expressly prohibiting such harassment.

The provisions against discrimination at work are framed so as to include not only direct discrimination between similarly placed individuals in matters of recruitment, transfer, promotion and dismissal, but also indirect discrimination through the manner in which offers of employment are formulated.

Exceptions to the non-discrimination rule are allowed in respect of private households and family businesses, employment of priests and ministers of religion, and teachers in schools run by religious bodies or conducted mainly for students professing a particular religion. Likewise the rule will not apply where proficiency in a particular language is a necessary requirement for the job.

The part of the Bill relating to educational institutions appears to be the area that has aroused the most fears, especially among those concerned with the administration of the large urban schools which pride themselves on their high academic and other standards, but also tend to cater largely (but seldom exclusively) to students of a particular religious orientation.

On their face, the provisions of the Bill seem to take these factors into account. Thus the requirement of non-discrimination in the admission of students will not apply to schools conducted by religious bodies or to those which are declared to be, or are by established practice, conducted solely or mainly for students professing a particular religion.

The gender discrimination provisions are not applicable to schools conducted solely for students of one sex, while the ability to provide instruction in a particular language medium can also be taken into account in determining admissions.

The sections relating to non-discrimination in access to public places and means of transportation and the provision of goods and services are probably redundant in today’s context and make Sri Lanka sound like an apartheid state in need of reform. Indeed, it is relevant to ask whether the whole tone of the proposed legislation contains an element of "overkill" which could create an undeserved negative image of this country in international eyes.

These clauses also raise the interesting question of whether Sri Lankans subjected to "reverse apartheid" at the hands of tourist-conscious restaurants and hotel staff will also have recourse to relief under this Bill.

Parallel with the anti-discrimination provisions is a separate chapter which requires institutions employing l00 or more persons to "formulate and implement equal opportunity programmes and, where necessary, affirmative action programmes to ensure equality of opportunity at such institutions". In doing so, employers are required systematically to identify and remove any discriminatory barriers based on ethnicity, sex, gender, religious or political opinion, language, caste, age or disability.

Herein lies one of the principal areas of ambiguity in the proposed legislation. The reference to affirmative action programmes "where necessary" begs the question as to where or when it is "necessary". Is the numerical under-representation of a particular segment of society in proportion to their population a matter that requires affirmative action?

In regard to ethnic representation the further question then arises, as to whether every institution must employ persons in proportion to the national population ratio, or whether the population figures of some smaller unit such as the District will be the determining factor. If the law were to insist on the national ethnic ratio being replicated everywhere, an employer in the Eastern Province, for instance, might be faced with the ridiculous task of having to import Sinhala workers from outside his District to reach the required ratio, while his counterpart in, say, Hambantota would have to do the same with Tamil and Muslim workers.

The more fundamental question, of course, is how this policy would accord with the equality of opportunity and non-discrimination clauses in the first part of the Bill. Since, in any event, an employer cannot be held morally responsible for the under-representation of any particular segment of society within his institution unless there is proof that sufficient numbers from that segment applied and were wrongfully turned away, the non-discrimination provisions of the Bill should be sufficient to deal with such a situation.

These are not mere semantic observations. Failure to formulate affirmative action programmes when directed to do so by the Equal opportunity Commission renders an employer liable to a fine of "not less than one hundred thousand rupees". If, as we are told, the business community has endorsed this piece of legislation, they have obviously not studied it closely enough, and would be well advised to get the meaning of Part II of the Bill clarified before it goes any further. So should Government Ministers, since the provisions of the Bill are intended to bind both public and private sector institutions.

It should be noted that the definition of "employer" in the Bill covers government departments, public corporations and companies incorporated under the Companies Act. It does not cover partnerships, however large, and thus leading firms of lawyers, accountants etc. appear to be exempt from these provisions.

The Bill seeks to create a two-tier enforcement system. At the first level there will be an Equal Opportunity Commission which will investigate complaints of discrimination with a view to finding a solution through conciliation. It is also required to collect and disseminate information, evaluate equal opportunity programmes and monitor their progress, and examine legislation referred to it by any Minister.

The Commission is intended as an avenue of first resort, because it is precluded from investigating complaints that have already been referred to a court or tribunal. The one month limitation period for the filing of fundamental rights applications in the Supreme Court will not run while a matter is pending before the Commission.

Compulsory

The Commission has power to require attendance of persons at a compulsory conference, and to call for information and documents. If conciliation is unsuccessful, the Commission is required to refer the matter to the Equal opportunity Tribunal which is the second level of the system.

The Tribunal which will comprise a retired Superior Court Judge and two Attorneys-at-Law has power to require sworn evidence to be given before it and will make a formal order, with reasons, as to whether there has been a contravention of the Act. Failure to comply with its order will be treated as contempt of the Tribunal and will be referred to the Supreme Court for appropriate measures.

In terms of the Bill as last published, there is also one situation in which the Commission itself, though not a judicial or even quasi judicial body, is given direct power to impose punitive measures, namely where an employer fails, after due warning, to formulate or implement an equal opportunity or affirmative action programme as directed by the Commission. As mentioned above, the sanction is a minimum fine of Rs. l00,000.

There is serious doubt about the constitutionality of this provision which may well be challenged if and when the Bill is Gazetted. All other regulatory authorities such as the Central Environmental Authority, the Urban Development Authority etc. cannot impose penalties of this sort without first obtaining an order from a Magistrate’s Court.

(Continued next week)

The Week That Was
Equal Opportunities Bill
Disturbing a hornet’s nest

by Shan Wijetunga
While Prof. G. L. Peiris was explaining the provisions of the proposed Equal Opportunity Bill in the United States to officials of the White House and the Attorney-General’s Department the proposal to admit students of minority communities to Buddhist schools like Ananda, Nalanda, Visakha was opposed by several ministers at the cabinet meeting.

Later past students of these colleges, and representatives of the Young Men’s Buddhist Association, National Joint Committee, Veera Vidhanaya, National Anti-Terrorist Organisation etc. met at the Dharma Vijaya Foundation chaired by Rohan Abeywickrama to discuss the proposed Equal Opportunity Bill.

Mr. Gomin Dayasiri, a leading lawyer explained the dangers of the Cabinet Sub Committee delegating powers of admission of students to schools to the Minister of Education which would cause grave injustice to the Sinhala Buddhists. The meeting decided to oppose the bill and hold protest demonstrations islandwide.

Chief Justice

A protest against the appointment of former Attorney-General, Sarath Silva, as the Chief Justice led by MP Vasudeva Nanayakkara with Victor Ivan and Attorney-at-Law Hemantha Warnakulasuriya is being planned.

As a first step a discussion was held last Wednesday at the headquarters of the Organisation to Safeguard Democracy. Among those present were MPs Rajitha Senaratne, Sarath Kongahage, Vasudeva Nanayakkara, mediamen Victor Ivan, Sunanda Deshapriya, Rajpal Abeynayake, Waruna Karunatilake and Pakiasothy Saravanamuttu and lawyers Hemantha Warnakulasuriya, Percy Wickramasekera and P. Weliamuna. Air Marshall, Harry Gunatilake, EPRLF leader, Suresh Premachandra, former JVP General Secretary, Lionel Bopage, General Secretary, Eksath Samajavadi Peramuna, Siritunga Jayasuriya, P. Sivagurunadan, Nimalka Fernando and Kalyananda Thiranagama representing the Government Medical Officers Association

The meeting decided to discuss the issue with the Bar Association of Sri Lanka and obtain signatures for a petition.

Allegations Against Dinesh

MP, Dinesh dodangoda was alleged to have prevailed upon UNP MPs not to discuss in parliament a proposal to allocate land under the Sri Lanka Ports Authority to Tokyo Cement Company.

A weekend newspaper reported that Dodangoda had requested UNP MPs Dr. Rajitha Senaratne and R. A. D. Sirisena not to discuss the above issue.

Dinesh Dodangoda who met Opposition Leader, Ranil Wickremesinghe last Sunday at his residence at Cambridge Place rejected the allegations and had requested Ranil Wickremesinghe in writing to hold an inquiry over these allegations.

UNP’s Working Committee which met last Monday to discuss plans for a possible election in the near future appointed Karu Jayasuriya to hold an inquiry into the allegations against Dinesh Dodangoda.

Election propaganda was another matter that was considered. The party leader held a meeting on this issue with Media Consultant, Dr. Dammika Dissanayake, Media Co-ordination Officer, Irvin Weerakkody, Parliamentary Co-ordination Officer, Saman Athaudahetti and some others connected with the media.

Opposition Leader, Ranil Wickremesinghe travelling in the Ruhunu Kumari train last Wednesday from Galle to Colombo Fort was the result of a decision arrived at the meeting discussing election propaganda.

While inside the train the UNP leader walked from one carriage, to another discussing passengers, problems and answering their questions.

At the initial stage an organised group followed Ranil from one carriage to another asking questions to embarrass him but he answered them all without any problem.

As planned earlier MP. Imitiyas Bakeer boarded the Ruhunu Kumari at Alutgama Railway Station while MP. Dr. Rajitha Senaratne boarded at Kalutara Railway station.

At the Fort Railway station, Ranil accompanied by Bakeer Markar and Dr. Senaratne spoke to the railway guards and the drivers about their problems and then took the 138 route bus bound to Maharagama to alight at his office at Cambridge Place.

Illiyas’ Satyagraha

The pandemonium in the parliamentary Chambers due to MP, Dr. I. M. Illiyas performing Satyagraha carrying a poster resulted in the Muslim Congress Leader, M. H. M. Ashraff declaring that his party was prepared to leave the government and sit in the opposition.

Government backbenchers supporting Minister Richard Pathirana over this incident were not happy regarding the suspension of parliament and later proroguing it - instead of suspending the two MPs concerned from parliament.

Meanwhile SLMC MPs wanted Ashraff to take action over the some government party’s remarks that SLMC support was not necessary to carry on the government.

Later Minister Ashraff wrote to People’s Alliance, General Secretary, D. M. Jayaratne calling for a meeting of the PAs Working Committee to decide on the party’s support for the People’s Alliance. Thereafter several ministers made attempts to pacify Minister Ashraff.

Minister Jayaratne informed the SLMC leader that he would have to await the return of the President to the country to decide on the matter Minister Ashraff had stated that he was more interested in meeting the President than over the convening of the working committee.

Funeral

Ashraff visited the residence of Minister Moulana to pay his last respects to Moulana’s wife and there discussed the incident in Parliament with him. Others who visited Minister Moulana’s residence to pay their last respects were Opposition leader, Ranil Wickremesinghe, Minister Mangala Samaraweera, Bandula Gunawardena, Governor, Stanley Tillakaratne and MP, Lal Gunasekera.

Anura and Ratwatte

Anura Bandaranaike and Gen. Anuruddha Ratwatte close relatives were at logger heads for a considerable period.

Both Anura and Gen. Ratwatte were invitees at a dinner party hosted by the American Ambassador, Shan Donalee for some politicians at his official residence. Seats for Anura and Gen. Ratwatte were placed side by side and the two relatives sat together at the party.

Deputy Minister, Lakshman Kiriella who also was invitee for the dinner observing Anura and Gen. Ratwatte seated side by side quipped "Ah uncle and nephew seated together. It seems the host has purposely arranged so."

Gen. Anuruddha replied: "There is nothing wrong with relatives sitting together".

This reply took Anura by surprise.

A while later Gen. Ratwatte extended his hand towards Anura stating; "We are meeting after a long time. I have nothing against you."

Anura shaking the extended hand of Gen. Ratwatte said; "I don’t hold any grudge against you. We will forget the past."

Then they toasted wine for the best health of each other and to bury the hatchet.

p
Eppawala: The road to a mine field?

By D. G. B. de Silva
My last article (Sunday Island, Sept. 19, 1999) dealt with prospects of dangers to the eco-cultural heritage related to Jaya-ganga and called for an international appeal to safeguard the ancient hydraulic system. In the present article I propose to raise a few questions concerning certain aspects of the Eppawala apatite mining project itself which do not seem to have received public attention so far. Meanwhile, Dr. Elemantha Withanage, an environmental scientist has focused attention on a number of environmental issues connected with the proposed apatite processing plant in the Clappenberg Bay area in Trincomalee. One of the matters he has raised among number of others is the effects on the tourism development plan of 1967 identified in the areas of the Marble Bay, Sweet Bay and Deadman’s Cove for recreational tourism. (The Island, 20 Sept. 1999).

Tourism

Tourism is one of Sri Lanka’s major industries generating income as well as large scale direct and indirect employment with a greater impact at the grass-root level. For understandable reasons, development plans in the Trincomalee area have ground to a halt, but this week the newspapers reported renewed foreign investment interest in tourism in this area and an existing hotel complex having changed hands. One also speaks these days of Sri Lanka’s bio-diversity sites and the Minister of Tourism and Civil Aviation, has reportedly agreed to declare the year 2000 as the "Year of Eco-tourism". A number of workshops on Eco-tourism Destination Planning and Development and others are programmed to take place in the island shortly with the participation of Megan Epler Wood, President of Eco-tourism Society based in U.S.A.

The Tourist Board now seems to be so destitute of ideas that it is even running after an idea floated by an Indian ‘master-mind’ (Is he only a fast-talker like many others who have duped us?) to build a Rama temple complex in Sita-Eliya where he has held the prospects of millions of Indians pilgrim tourists arriving and even prospects of sale of black (charred) earth from the place claimed to have resulted from the burning by mythical Hanuman. The last visitors from India for the ‘Puja’ he conducted there had scooped up the earth to be taken away as "holy earth". It is understandable, if some one has already commenced packaging Sita-Eliya black earth for sale to captive Indian pilgrims. At this rate, even the top soil of our chenas may be gone in a few years time!

Why go after such ideas? Who knows what hidden agenda there is? A Rama cult, we were told emphatically by Dr. Heinz Berchet of Gottingen University, is conspicuous by its absence in Sri Lanka. The introduction of the cult may be one of the Tourist Board’s new millennium ideas.

Dr. Withanage has reminded us about the tourism potential around Trincomalee, specially in the bays and the sea. The place has been named the "Whale Capital" of the world after sighting 16 blue whales, and other whales and over 125 dolphins by a tourist group, within a matter of a four hour tour on 23rd February 1983. "Whale watching" programmes were one attraction that the Tourist Board promoted some years ago. Why Not? That provides diversity and diversion in tourist itineraries and packages.

The Tourist Board had a development plan for 1000 rooms in the Tricomalee area. I recall it was very concerned when a second oil refinery was proposed to be established there in 1971. Mr. Thahir, then Director-General asked me for assistance to obtain an opinion from the Japanese on the environmental impact of the proposal. I submitted this report myself covering a few aspects about which I had acquired some knowledge through my professional exposure as no data was submitted to be given to the Japanese authorities. Dr. Withanage’s assessment of the damage that could be caused to the tourist potential and marine life of the region by the establishment of the D. Ammonium Phosphate factory (DAP) and the Sulphuric Acid factory at Snug Cove while a conveyor belt and jetty would be constructed at French Point is far more serious. He envisages that the area will be flooded with 3 million mt. of phosphate by-products excluding the dusty waste. He also refers to the probable effects on the elephant migration from Mahaweli area using the corridor between Kantalai forest and Sober islands using the Clappenberg jungles.

The potential of the Trincomalee area for recreational tourism and eco-tourism is virtually unlimited. The numerous deep bays, sandy beaches, marine life, potential for skin-diving, whale-watching are complemented by the presence of wild life and the proximity to ancient monuments. It is only the infrastructure such as road ways, an air port and accommodation that is awaiting development. This is a long term potential which may not exhaust itself like the apatite resource which will disappear in three decades time. As such, the destruction of this potential for the sake of immediate gain from the apatite resource, despite the latter’s attraction to a country undergoing enormous economic difficulties, cannot be considered rational long term planning. It is in respect of the development of the Trincomalee area which successive governaments, including the British government neglected that bold decisions are required and not in respect of the apatite project.

Why is the Tourist Board maintaining complete silence this time over these dangers when it was so concerned about the lesser evil of an oil refinery in 1970s and the 900mw coal power plant proposed in 1980s? The people of Kokadicholai backed by the Bishop are up in arms on the proposed coal power project there. Evidently, their voice is being heeded; but the peasants of Eppawala and the people of Trincomalee do not seem to posses such clout. In the latter case, the absence of a Provincial Council itself may account for the lack of any objection to the project, but this silence is deafening.

Responsibility

The second point I wish to raise is whether or not a responsibility lies with our rulers towards the future generations of this country. We are often reminded of such a responsibility in regard to the settlement of the pressing political issues of the country today. However, there is no evidence that such consideration is being applied to the issue of Eppawala phosphate mining. Here I would like to go back to the story of King Dhatusena whose enterprise in hydrological work I referred to in my last article; and to ask whether there is no lesson to be drawn from his story unless one does not pay heed now to such moral as contained in the old story. Every one knows that King Dhatusena was buried alive on the embankment of Kala-wewa on the orders of his son Kasyapa under the machination of the Commander-in-Chief, Migara who had a private grudge to settle with the king. The old king’s last wish was a request to be taken to Kala-wewa, where he purified himself and drank the water from the tank. These were symbolic acts. Gananath Obeysekera has interpreted that the king was getting ready for a sacrifice - a human sacrifice in which the old king was offering himself as the sacrifice. That was to ensure the stability of the reservoir going by local superstition connected with irrigation works, for which no sacrifice had been offered as the ritual demanded.

One may hesitate to accept Obeysekera’s idea that it was a human sacrifice by the old king, but a sacrifice certainly it was. Bathing and drinking the water of Kala-wewa, signified the care the king had shown for the welfare of the people - not just for one generation but for many generations to come - a demonstration that the water was pure and safe for the people to use. Had it not been for his enterprise people of the Anuradhapura area would have been using and drinking water from rain-fed ponds and pools, where animals wallow, as they do right at this moment in some parts of the island.

Kalawewa has provided water to the people of Rajarata for almost fifteen centuries to date. Even going by a modest estimate of population in the North Central Province in the last century under the very depleted state, over 150 million people would have benefited from the munificence of the king over the 15 centuries. The actual number would have far exceeded this figure. The moral of all this is that the ruler provided for the welfare not only of the contemporary generation but for all generations to come and he even made sure of the stability of the tank according to traditional superstition. The number has now exceeded 50 such generations.

Do we accept the moral of this story that the rulers should not look for immediate gains, but should have the interest of the future in mind. That is why a country needs rulers and leaders. Even from the contemporary international scene one could draw lessons. The rulers of U.S.A. in their policy speeches often speak of America of the future. It is this same reasoning that persuaded them to conserve their oil resources during the height of the oil crisis in the mid 1970s. America would go on while other societies would have fallen by the way side.

Future generations ignored

In Sri Lanka too one must admit that there has been futuristic concentration by successive governments on most of our major development projects-Mahaweli, Port development, Power and others. The Eppawala mining project seems to be a single exception. It cannot even be called a development project: it is a major programme for exploitation in every sense of the word, by a foreign company with the participation of the government of Sri Lanka.

From reports published in newspapers the apatite resources will last no more than three decades, i.e., down by one decade from earlier projections. That would roughly cover and confer benefits to a single generation. What would be left there for the coming generations, except, perhaps, a deep canyon where once the green paddy fields worked by their fore fathers thrived? What memory would they cherish of the rulers who were responsible for this?

We learn that phosphate mining has caused serious environmental damage to a much larger area than the confines of the mining area. In the last article we discussed the prospects of dessication of the land due to interference with the surface and subterranean drainage system. The spokesman of the U.S. Company. Mr. Pigg has spoken of spraying water to minimise dust pollution in the intermediate area. This emphasises the problem. Besides, where is the water for around 30 years for such mass scale spraying to come from? How many cubic metres per day? In seasons of drought like now when Mahaweli waters run low how could the spraying be maintained?

Or, will the water be pumped from the sea, with side effects that would follow? The guess is that the water has to be obtained from existing sources in the area and not from outside. That would be at the expense of irrigation water for agriculture. That would also be bringing in an additional problem to the people of the area, - a recipe for disaster, to make the ancient rice bowl into a non-yielding or low-yielding area. We are all very familiar with promises given by companies when they enter into agreements. As a former member of the National Environmental Council, and its pro-tem Chairman at times, I recalled having examined several such promises made by companies and found the record to be unconvincing.

No consultations with people

Earlier, I referred to the absence of an opportunity for people in Trincomalee to express their views as a Provincial Council is non-existent but there are other ways of articulating people’s concern. The silence is deafening if not ominous. One has also to look into ramifications of the proposed phosphate processing factories in Trincomalee area on the proposed Regional Councils under the new constitution proposed. Land, employment, health, tourism and coastal fishing are matters that come under the Regional Councils. Mining ports environment are subjects for the Centre. If the mining and processing projects are rushed through now, could one expect the relations between the (proposed) Regional Councils of the N.C.P. and the N.E. on one hand, and the Centre on the other hand, to work smoothly? Or, does the urgency shown in the execution of the contract self-explanatory?

It is a matter for great regret that in a project like Eppawala which concerns a region where people have lived continuously for nearly two millennia cultivating the traditional land with water provided to them by the munificence of ancient kings, and where a magnificent hydraulic system exists, that the people affected have not been taken into confidence and the bureaucrats are pushing their way through in the most undemocratic way with total disregard to the peoples’ concerns. Even a project like the Southern Port Development was presented to the people in several pages of newspaper advertisements though the project did not demand consultations.

Employment

On the question of employment generation which the spokesman of the U.S. Company referred to, one may ask who gets the jobs in the Trincomalee processing plants. Certainly, they will not be the peasants of Eppawala who are to be evacuated from their homes.

Serious security question

Finally to the question of security. Even if the constitutional reforms go through can there be an absolute guarantee that the security situation would improve as long as the LTTE is not a party to it? What is the option then? Would the government be called upon under the terms of the agreement, to provide security to the mines, railway line, the processing plants and shipping? If this is the case, can the government provide the men and material to protect another front - a new one altogether? What would be the cost, and the resulting cost - benefit ratio of the whole transaction? This possibility could be excluded given the situation today. The other option is for the company to provide its own security, but this is unimaginable.

One is not unfamiliar with situations where foreign interests have resorted to other "unconventional" ways to ensure security of their enterprises. We are familiar in history with many instances where peace was bought through unconventional methods. Even the British imperialist government "purchased" security in the North-West frontier of India. It is an aspect that could be most disturbing if ever resorted to in Sri Lanka. It is an aspect which cannot be overlooked in the light of present day security concerns in the country and the continuing threat to its territorial integrity.

Recently questions have been raised on a secret agreement under which the Queen Elizabeth Quay (QEQ) had been handed over to SAGT under a BOT arrangement, and even of the possibility of LTTE ships registered on Honduras and Belize berthing at QEQ in the future and the Harbour Master or the Navy or any one in authority not being able to refuse entry to a suspect vessel. (Island 20, Sept. 1999). If this is correct there seems to be a serious lapse in agreements entered into with foreign companies which put the country’s security and territorial integrity at grave risk. Imagine such a situation arising with regard to the agreement on phosphate processing and the use of the harbour and the quay at French Point.

These issues may be seen as reactions of prophets of doom. Let it be so; but the people must take every opportunity to keep themselves informed. Have we not faltered on matters of security before and continue to do so?

Is there also an answer to the question of ignoring the interests of future generations? That is not a prediction, but a conclusion that could be drawn from the facts before us. The only possible answer to it seems to lie in the refrain of the familiar Sinhalese drinking song!

Kapalla, Beepalla Joli-karapalla,
Heta merunath hithata sepai adha joli karala!

The writer was formally the Director-General Policy Planning and Economic Affairs of the Foreign Ministry and former Sri Lankan Ambassador to France.

Q and A at cabinet news conference

By Suresh Perera
At last Thursday’s Cabinet news conference, Posts, Telecommunications and Media Minister Mangala Samaraweera described the threatening of Colombo-based BBC Correspondent Suzy Price as the ‘work of imbeciles to discredit the government.’

A message threatening Price had been left in her cellular answering machine by a ‘movement’ which had warned that it was checking on her movements, he said.

‘If Suzy Price wants any form of protection, the government is prepared to give it. These threats are infantile acts of simply imbeciles’, the Minister noted.

He said that any journalist, whether local or foreign, will be given government protection in case there is a looming threat. ‘We have recommended to the police that Lasantha Wickrematunga also be given protection, if he needs it.’

Q: What’s the outcome of the CID probe into the killing of ‘Satana’ editor Rohana Kumara?

A: I couldn’t get the report this week as the CID was busy with the Interpol conference. I will have it ready next week.

Q: Minister, is the regulation on the publication of hideous photographs still in force?

A: The Director, Information can answer that.

Mr. Ariya Rubasinghe: It’s in force.

Q: But such photographs were published....

Rubasinghe: They were not referred to me. I will take appropriate action..

Q: What do you mean by ‘appropriate action’?

Rubasinghe: I have warned all the editors and asked them not to publish such photographs in the future.

Minister Samaraweera: This rule was violated even by the government media. I have warned the Director Information!!

Q: The Foreign Minister has given the UN a dressing down in New York. What are your comments, Minister?

A: I can’t comment on that. Keep that question to Mr. Kadirgamar to be answered when he returns.

Military spokesman, Brigadier Sunil Tennakoon said the Defence Secretary summoned all field commanders for a meeting in the wake of the Gonagala massacre. It has been ensured that there is no shortfall of resources, manpower or weapons in mapping out a 24-hour security network which is now in place. For the first time, home guard wardens have also been appointed to beef up security.

Q: Brigadier, what’s the position regarding the aerial bombing of civilians at Mullaitivu?

A: A target was taken by the Air Force. There is an investigation by the Defence Ministry, but as there is no access to that area, there is a difficulty in ascertaining the facts.

Q: The Foreign Minister had said in New York that it was an accident?

A: I cannot comment on that. It was not a deliberate attack on civilians.

Q: Two weeks ago you said the targets have always been accurate.....

A: I didn’t say that....

Minister Samaraweer A: There are accidents by the best Air Forces in the world.

Q: If the area is inaccessible to ascertain the facts, how are you investigating?

Brig. Tennakoon: There are other means of ascertaining the facts.

Q: The ICRC?

A: Not only the ICRC. There are other people.

Q: Are you banking on the same intelligence which told you about the ‘enemy target’ which killed all those civilians?

A: Not only intelligence, there are other sources.

Q: When will the probe be over?

A: I can’t give a time-frame.

Minister: There is access to Gonagala, but unfortunately Mullaitivu is still not accessible.

Q: Is the Mannar GA still under investigation?

A: Yes.

Q: The Wildlife Conservation Department is to be converted into an Authority. Can the draft bill be made available for public discussion as there is provision for the sale of fauna and flora?

Minister: I am not aware of it.

Q: There is such a move. A public discussion on this is vital.

A: I will bring this to the notice of the relevant Minister.

Q: Brigadier, earlier in the situation report you referred to the killing of a terrorist by the army at Kaluwankerni, Batticaloa. Are you aware that a mother and her daughter were also killed in that incident?

A: The information we have is the killing of the terrorist.

Q: The Tamil newspapers have gone to town with the killing of those two civilians...

A: I will check on it.

China’s 50th Anniversary – From dynastic rule to a communist state

by Dr. Stanley Kalpage
Fifty years ago, on 1 October 1949, Mao Tse-tung gathered his comrades near Tiananmen Square at the Gate of Heavenly Peace. At the entrance to the Forbidden City - the living quarters of China’s emperors - dressed in his severe grey tunic and in the presence of an audience of some 100,000 people, Mao proclaimed the victory of the Red Army over the forces of Chiang Kai Shek’s Nationalist forces. He declared: "Today begins an era in Chinese history. We the 475 million people of China have stood up." A bugle flourish and roll of drums kicked off Communist China’s new anthem, "The March of the Volunteers."

Mao Tse-Tung’s words signified China’s reunification as a nation and the emergence of a strong central authority after a century of internal strife, foreign humiliation and civil war. China was once more engaged in the continuing struggle to reclaim its historical greatness. It would be useful to recount the events which preceded October 1, 1949.

The Qing dynasty

Chinese civilisation, dating back to more than five thousand years, had its ups and downs, its tumultuous times, its great catastrophes and natural disasters under a series of feudal dynasties. As dynasties waxed and waned, a striking continuity and independence has marked Chinese civilisation.

At the end of several such dynasties and as the Ming period was drawing to a close, the Manchus came down from Manchuria in 1644, to found the Qing dynasty - the last of the feudal dynasties to rule over China. The cost of the Manchu conquest was high; some twenty-five million people perished.

Yet recovery was rapid. In the early days of the Qing dynasty which lasted from 1644 to 1911, culture blossomed and the arts flowered. Subsequently, with the passage of time, and especially from 1840 onwards. Rampant corruption, the steady decentralisation of power and the loss of control on many fronts led gradually to the downfall of the Qing dynasty.

The Opium Wars took place in the middle 1880s; the First from 1840-1842 and the Second from 1856, to 1860. The tumultuous Taiping Rebellion (1851-64) spread across half of China and further undermined the decaying Qing dynasty. Then came the first Sino-Japanese War (1894-95).

Other rebellions followed, one of the best known of which was the Boxer Uprising, in which a Chinese secret society known as the ‘Boxers’ attempted to destroy all Chinese Christian converts and the missionaries who preached to them. In 1900 the imperial authorities crushed the Boxer Rebellion with the help of foreign troops. And so China entered the twentieth century on a wave of reactionary terror.

By 1911, sporadic uprisings against the Qing regime were common all over China and, in October of that year, the regents for the child emperor Puyi abdicated the throne, ending the period of centralised Chinese imperial rule that had endured in largely unbroken succession since 221 BC.

The Republic of China

A group of provincial assembly delegates selected Sun Yat Sen as the first provisional president of the Republic. Born to a poor South China family, Sun was a symbol of the new and restless ‘modern age’. He had been an impassioned spokesman for the values of Chinese republic for more than fifteen years.

During the First World War (1914-18), the Republican Chinese government sided with the Allies and were promised that the concessions granted to the Germans in Shandong province would be handed over. But this did not happen and, to add insult to injury, the Treaty of Versailles gave these concessions over to the Japanese.

Defeated by the Western Powers, China was forced to cede Hong Kong to the British and to pay indemnities covering the UK’s war costs. Thereafter it became the practice for China to pay the military expense of whichever country that defeated her. Parts of imperial China were not only dominated but also humiliated by the West.

On 4 May 1919 the students of Beijing University gathered in Tiananmen Square to protest this abject surrender to foreign domination. This ignited the 4 May Movement, the first true nationalist movement in China.

Chiang Kai-shek and the KMT

In 1920, Dr. Sun Yat-sen, the leader of the National Peoples’ Party, or Kuomintang (KMT), obtained Soviet aid and allied his party with the fledgling Chinese Communist Party (CCP). He began unifying China which was then controlled by a number of warlords. Unfortunately, Sun died of cancer in 1925 and one of his able young soldiers, Chiang Kai-shek, took over the leadership of the National Peoples’ Party.

Chiang Kai-shek started his "Northern Expedition" moving all the way from Guangshou to Shanghai with the objective of unifying these parts of China. On reaching Shanghai, he started massacring the communists whom he disliked anyway. One of those escaped was a young leader named Mao Tse-tung.

Mao saw a tremendous potential in the Chinese peasants who, he felt, embodied Chinese reality. In the early 1920s he turned his attention away from the cities to the countryside and began an unprecedented effort to win over the rural masses to communism. A great success followed, particularly marked in Hunan province.

The Long March

The Communists fled to the countryside with Chiang’s forces in pursuit. When these forces were closing in on the communists to eliminate what Chiang Kai-shek called "the cancer of communism", and were about to pounce on them under cover of night, the communists escaped and fled. They did not stop for about a year.

The famous Long March had started. At the beginning the communists had 100,000 troops but at the end of one year and after travelling 6000 miles, their numbers had been reduced to between 4000 and 8000. They did not know where they were going and, after moving from place to place, eventually ended in the north at Shaanxi near Yan’an. To have been a Long Marcher was a badge of the aristocracy in the Chinese Communist Party. Deng Xiaoping was a Long Marcher and there are very few left.

Japanese Occupation

While these events were taking place, the Japanese, in keeping with their expansionist ideas. Were busy occupying Manchuria. This helped the Communists because Chiang’s troops got involved in fighting against the Japanese. In late 1936, Chiang’s own generals kidnapped him and held him captive until he agreed to fight the Japanese before fighting the communists.’

China’s weakness was Japan’s opportunity. The Japanese had been in Manchuria since 1905. In 1937, using their bases in Manchuria, the Japanese invaded China proper. It did not take the Japanese long to occupy the major coastal cities. They presented the Chinese government with a list of twenty-one demands, following them up with an ultimatum, which was virtually a proposal for a Japanese protectorate over China. Despite the diplomatic efforts of the West to assist the Chinese, the Japanese got much of what they asked for.

Japanese rule was repressive and many atrocities were committed. By the time Japanese occupation ended, nearly 20 million Chinese had died at their hands. The Chiang Kai-shek government moved from Nanking to Chugking.

With the advent of World War II in 1939, the Japanese occupation of China was not much affected as the Japanese were not involved in the war in Europe. But in 1941, after Pearl Harbour, when the United States entered the war, Japanese war effort was turned from fighting the Chinese towards fighting the Americans.

Civil war

The Communists consolidated their hold on northern China and prepared for the civil war which they realised was inevitable when the World War ended. The Nationalists, on the other hand, were disorganised and corrupt. When the World War was over, fighting resumed between the Nationalists and the Communists. The Japanese were under orders to surrender only to the Nationalists and not the Communists. But that did not make a difference.

Much of China saw the Nationalists, under Chiang Kai-shek, as being tyrannical and corrupt. The Americans cut off the military, financial and moral support which had supported the KMT for decades. The KMT had piled up huge debts, which they tried to pay off by printing more money. This led to hyperinflation. Japanese attacks had further weakened the KMT. It was evident that the Chiang Kai-shek government was moving downhill.

Meanwhile in the large areas of China occupied by them, the Communists, made a deliberate attempt to enlist the support of as wide a spectrum of interests as possible. The Communist field armies advanced south from Manchuria. Finally, the Nationalists fled to Taiwan and set up a government there. Mao Tse-tung proclaimed the Peoples Republic of China on 1 October 1949.

The Chinese believe that their emperors ruled under "The Mandate of Heaven" - the heaven-ordained right to rule, similar to the Western concept of the "divine right of kings" to rule. On 1 October 1949, the "Mandate of Heaven" had fallen on the Chinese Communist Party. On October 1, 1999, the Chinese people and government celebrated the first fifty years of that rule. But that is another story.

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