• Report highlights community’s continued marginalisation and vulnerability due to State non-intervention to facilitate basic rights

BY Sumudu Chamara Despite being granted formal citizenship, the previously State-less hill country Tamil community continues to be one of the most socio-economically and politically marginalised communities in Sri Lanka, because as a community that was previously State-less, the granting of citizenship has not been able to eliminate the structural disadvantages and discriminations that were intrinsic to this State-lessness. In addition, their former State-less status has led to systematic marginalisation well into the present day. This situation of the hill country Tamil community was explained in a recent study titled “Hill Country Tamils of Sri Lanka: Analysis of the Legal and Policy Issues Affecting the Labour and Governance Structure”, which was conducted by the think tank Verité Research. The study – which was primarily based on desk-based, qualitative research – focused on the hill country Tamil community in the Badulla, Nuwara Eliya, and Matale districts when sourcing primary research, and used previously gathered information from the Nuwara Eliya and Badulla districts, and interviews conducted in the Matale District. The plight of the hill country Tamil community The report pointed out that despite being an important segment of the population, the hill country Tamil community is facing a plethora of diverse issues ranging from challenges that hinder them from earning a reasonable income for their labour and accessing basic facilities in order to maintain a satisfactory life, to the lack of legal and policy protection that have affected their lives in the long run. The report noted that the marginalisation of the hill country Tami community can be traced back to the pre-Independence era, when the majority of the community worked as the plantation labour force. It added that the Citizenship Act No. 18 of 1948 provided that citizenship could only be acquired by descent or registration subject to condition, and that regulations issued under the Act outlined other rigid requirements for registration. The study emphasised that many of the socioeconomic issues faced by the hill country Tamil community are largely owing to the inadequate involvement of the State within the tea estate sector, and that the tea sector and the hill country Tamil community are currently on an unequal footing in terms of access to State services and guarantees of basic human rights such as housing, access to land, and workers’ rights when compared to other parts of the country. With regard to labour-related issues, it was noted that gender segregation has somewhat constrained female workers’ pathways to better employment opportunities in terms of holding managerial positions and access to increased pay, and that as has been reported, the average labour opportunities in the plantation sector have shrunk due to the dwindling number of tea estates in the country. Regarding access to health services, the report noted that the existing hybrid health care system in the sector – i.e., the collaboration between the Ministry of Health offices and the estate management – limits the preventive health programmes of the Ministry fully reaching the estate community regularly, and that the health indicators for this community demonstrate that the living standards of the hill country Tamil community are at a significantly lower rate in comparison to the rest of the country. When it comes to education, it was noted that the quality of education in the plantation sector has been dwindling over the past few decades, and that the Covid-19 pandemic has exacerbated the existing inequalities in providing access to quality education to hill country Tamil community children. The lack of facilities to facilitate online education after school closures due to the pandemic, was also highlighted. It was also noted that a study conducted by Verité Research in 2019 had identified three key reasons that have led to inequalities experienced by the hill country Tamil community when compared to the rest of the country’s population with regard to access to basic rights. These reasons are termed as the “structural drivers of disadvantage” geared by three actors, it was said, adding that these structural drivers of disadvantage are the distancing of the State, dependency on the plantation companies, and the brokerage of trade unions. Regarding legal and policy issues, the report pointed out the disproportionate delimitation of administrative units, inadequate access to housing and property ownership, and the poor implementation of the language policy, as some of the main issues faced by the hill country Tamil community. It also extensively discussed how deficiencies in the labour laws have exacerbated the legal and policy protection that the hill country Tamil community should receive. The report identified three key legal issues and a policy concern that should be addressed in order to ensure that the rights of this community are upheld and they are, the use of archaic terms in the laws that apply to the estate sector, the inability of the hill country Tamil community to meaningfully access State services, and the deprivation of housing rights. It noted that much of the community’s rights, including labour rights, have been sidelined by the continuation of archaic laws, and that these laws contain outdated and ambiguous terminology in reference to the community such as “immigrant labourer” and “kangany” (overseer of labour). The issues pertaining to labour law were categorised into three issues – namely, laws that have reference to Indian labour immigrants, operations, and labour practices that are archaic and currently not applicable in the sector, the dissolution of the collective agreement that challenges the collective bargaining power of workers, and incompatibility with International Labour Organisation (ILO) conventions raising ambiguities in terms of the applicability of laws. “Overall, the socioeconomic issues faced by the hill country Tamil community have been exacerbated by the uncertainties surrounding the laws and the absence of a cohesive legal framework to protect this community,” the report stated. Recommendations The report presented a number of recommendations to address the identified policy and legal issues, i.e. the delimitation of administrative units, housing and land issues, language issues, and issues about labour laws. With regard to the introduction of delimitation criteria, the report noted that in terms of the delimitation process, the population size, and the geographical area should ideally be manageable by a single Grama Niladhari (GN) or the Divisional Secretary responsible for the area, and that residents in a particular area should be able to easily access Government services without it being prohibitive. “Thus, a delimitation criterion established by law and/or policy is essential in order to minimise the disparities in the delimitation process,” it said, adding that it will establish uniformity and better enforcement. The report noted that in the process of formulating a delimitation criterion, it is apt for Sri Lanka to consider international examples to draw a comparative analysis. It was noted that New Zealand took into consideration factors such as the interests of various communities (for example, the tribal affiliations of the Maori electorates), the facilitation of communication, and topographical features when determining the electorates’ delimitation process, while South Africa took into account factors such as the existing and expected patterns of human settlement and migration, employment, commuting and dominant transport movements, spending, and the use of amenities, recreational facilities and infrastructure, when demarcating municipal boundaries. Another recommendation was establishing minimum standards when providing alternative housing for the hill country Tamil community, while also highlighting the Sri Lankan Government’s obligations to ensure adequate housing in accordance with international covenants and declarations. Adding that there does not seem to be criteria for the minimum standards for housing based on available public information, the report said that Sri Lanka can use the standards adopted by the United Nations Committee on Economic, Social and Cultural Rights’ Comments Number Four of 1991 as a yardstick. It recommended that the following can be used by the State to meet the adequate needs in setting up new housing projects. The report described these standards: “Security of tenure (protection against eviction as housing is inadequate if its occupants lack a degree of tenure security, which ensures legal protection from eviction, harassment, and other dangers), the availability of services, materials, facilities, and infrastructure (housing is insufficient if the occupants lack access to safe drinking water, proper sanitation, and energy sources for cooking, heating, lighting; food availability or waste disposal), affordability (housing is not adequate if its cost endangers or impedes the enjoyment of other human rights of the occupants), habitability (housing is inadequate if it does not provide physical safety or sufficient space as well as protection from the cold, moisture, heat, rain, wind and other health and structural dangers), accessibility (housing is inadequate if the special needs of the underprivileged and marginalised populations are not acknowledged), location (housing is inadequate if it is separated from employment possibilities, health care services, schools, day care centres and other social facilities or if it is in polluted or dangerous locations), and cultural adequacy (housing is not adequate if it does not respect and consider cultural expression).” In addition, the report explained that the effective implementation of the official language policy is also crucial, and that there are several ways to achieve it. Among them are, the State recruiting and deploying Tamil-speaking officials at the GN and District Secretariat Division levels of administration, particularly in all majority Tamil-speaking areas such as the hill country, implementing circulars to regularly conduct language audits in all Government departments, and ensuring the proactive disclosure of information. Improving the existing legal framework was also discussed as an area that needs to be focused, and the report stated that in terms of the labour law framework, the laws relating to the plantation sector need to undergo significant changes. One way it can be achieved is by amending the existing laws to reflect the current operations and the nature of the industry. In this regard, the report said: “Sri Lankan laws relating to the plantation sector are still governed by Legislation that has very limited application to the current practices and context. Although some of the provisions in the legislation such as the Minimum Wages (Indian Labour) Ordinance, the Indian Immigrant Labour Ordinance and the Service Contracts Ordinance have been replaced by general labour laws, the old legislation has not been formally repealed.  “These laws could be amended to recognise the plantation sector workers instead of carrying terminology that refers to the community as ‘Indian immigrants’. The amendments could therefore be introduced to align with Sri Lanka’s international obligations under ratified Conventions, specifically eliminating the reservations made in terms of Articles II, III, V, VI, X and XII of the Plantations Convention.” Another way of achieving it is introducing a new comprehensive law based on international standards. The report explained: “Given the complexities in the legal framework relating to the plantation sector and the vulnerabilities faced by the workers, amendments to the existing laws might not provide comprehensive protection to the workers. For example, in terms of the housing provided to the workers, the existing law only recognises the employer’s responsibility to provide housing. But there is currently no legislation that ensures that the provided housing meets basic living conditions.” In this regard, it was recommended to collate all the relevant aspects of the existing legislation – regarding which the report said that while eliminating the older provisions that do not match the present day, the new law should also be mindful to retain the relevant labour aspects that are still relevant in the current context so as to ensure that the community’s rights are protected – and to address the discriminatory provisions within the existing law – regarding which the report said that the new law should also recognise the nuances of labour that have gone unnoticed in the sector, and that in terms of occupational safety and precautions at the workplace, Sri Lanka can take guidance from international Conventions such as C184 – Safety and Health in Agriculture Convention, 2001 (No. 184), and C155 – Occupational Safety and Health Convention, 1981 (No. 155). The plight of the hill country Tamil community, or estate sector employees in general, have been discussed for a long time. The fact that they have had to struggle for a mere daily wage of Rs. 1,000 until last year shows how far the country has come as far as ensuring fair working and living conditions for them, and emphasises not only the legal and policy recognition of their rights, but also the social recognition of fair treatment and acceptance for them. As this study pointed out, Sri Lanka can begin with the necessary legal and policy changes, which will pave the way for the improvement of their working and living conditions.