• Court to hear views from Registrar General on race in birth certificates
• Race does have an administrative role to play: SD Registrar General 

By Skandha Gunasekara In February 2022, the Court of Appeal will hear from the State on whether a citizen can decide to omit their race or use “Sri Lankan” in its place on their children’s birth certificates. This comes following legal action by a father who wanted to let his child decide how he and the world viewed him. Racism, racial divide, and segregation have long been a bane upon human cohesion for centuries, with Sri Lanka not being spared its ugly and violent effects. Identity politics and racial discord have played a key role in the advancement of our nation. Why then are we labelled part of one race or ethnicity, as early in our life as birth, especially in this day and age? In the aforementioned case, a father has refused to insert his race on his child’s birth certificate upon these very grounds, and this week The Sunday Morning looks at how Sri Lanka can move forward from such outdated practises, established during the 1800’s by our colonial masters, whose modus operandi was divide and concur. Currently, when registering a child’s birth in Sri Lanka, it is a mandatory requirement to provide the information of the father’s race. In 2018, Attorney-at-Law Nuwan Bopage was able to register his first son’s birth by not filling in the row which required him to mention the race.  However, this year, he was not allowed to do the same for his second son, with the Registrar of Births writing to him, pointing out that it is a mandatory requirement to fill that space and that he may not use “Sri Lankan” or “human” instead. The registrar had pointed out that according to their guidelines, it must be Sinhala, Tamil, Muslim, or Burgher. “So, then I questioned why they left that column blank in my eldest son’s birth certificate, to which I was told that it was a mistake and that it cannot be done again,” Bopage told The Sunday Morning. Subsequently, the action taken by the registrar had compelled Bopage to seek the intervention of the court as he explained that his reasons were based on his principles and any individual’s right to choose to either insert their nationality or, failing which, leave that box blank in the application. “I decided to go to the Court of Appeal. I filed a writ application at the Court of Appeal to direct the Registrar to fill the column of the father’s race as Sri Lankan, or at the least leave it blank like the previous occasion. I’m fighting this on principle. Our Births and Deaths Registration Act and Marriage Registration Ordinance are very old, and the relevant regulations are also very old. According to the guidelines, which were formulated during the colonial era, the Sri Lankan races are Sinhala, Tamil, Indian Tamil, Malay, Burgher, and so on. Interestingly, if a citizen is a westerner, or had been a foreign citizen, they are allowed to use French, Italian, or whatever their nationality. So, my argument is that this is highly irrational. The Government cannot insist that the citizen put something that that person is not willing to,” he explained. He also said that he did not believe race or religion should define or identify an individual, and that by putting his race on his son’s birth certificate, he was branding him as one ethnicity through the existing state mechanism and depriving his son of the choice to choose. “My argument is that I don’t believe that races or religions identify us, and that we are all Sri Lankans. There must be a Sri Lankan identity/nationality. We all live in Sri Lanka and we need not divide into races, so why are we putting this into the birth certificate and trying to divide the people? That is the rationale behind my principal argument,” he further explained. According to the father, the Court of Appeal had taken up his case and instructed the State to determine if it could be allowed to insert nationality or leave the box blank when it is required to provide information of father’s race. “So, depending on the instructions of the Registrar General, it will be taken up for argument or settlement on the following court date on 17 February 2022,” he stated. Commenting on the matter, the Registrar General’s Department pointed out that mentioning the nationality as human was insufficient for official purposes.  “Speaking from my experience and knowledge of the issue; there are several officially identified races in Sri Lanka – Sinhala, Tamil, Burgher, Malay etc. and so one of these types must be put as the father’s race for the birth certificate. Sri Lankan is a nationality, and the document doesn’t require a nationality at any point. He (the father) has also asked to put ‘human’ if not mentioning race wasn’t permitted, but then the problem arises that only humans are given such a birth certificate. So that fact in itself is a given,” Senior Deputy Registrar General (Civil Registration) and Attorney-at-Law G.A.A.L.D. Ganepola explained. When The Sunday Morning inquired as to why Bopage’s eldest son’s birth certificate had been allowed to have a blank space where the father’s race was required, Ganepola also said it may have been an error, but was unsure of the exact reason. “It could have been because sometimes when the parent hands over the details for the birth certificate and some information is unknown to the parent, such as the grandfather’s details, then it is entered in the birth certificate as ‘unknown’. So, in this instance when the father had refused to give his race, the Registrar may have wanted to put ‘unknown’ but the father may have made a fuss and thus it may have been left blank. However, I am not sure of what happened there,” she said. She noted that the requirement for father’s race had been introduced in the 1800’s and served a number of official purposes. “The requirement for race has been there since the 1800’s. The Births and Deaths Registration Act No. 17 of 1951 has the format for the current birth certificate. There are several purposes for the requirement of race in the birth certificate. One is to determine the ratio of ethnicities in the national university system. Another purpose is for the admission to grade one in schools, where the Education Ministry requires this information. The requirement of the child’s race is mainly for the purposes of the national education sector. It is also used when calculating the national consensus and statistical data.” Ganepola also said that the Department’s attempts to amend these regulations had been hindered by the Buddhist clergy. “Earlier there was a similar discourse where we recommended that the requirement of race be removed because it could possibly cause racial divisions, but the Sinhala-Buddhist clergy objected profusely over this and thus the matter was dropped,” Ganepola explained.  Giving further evidence to the fact that religious establishments were holding back any progressive moves to amend these archaic regulations, Constitutional Rights and Human Rights Lawyer Lakshan Dias said there was clear pushback from a large segment of society who were opposed to this change. “I have mixed feelings. The final decision will be taken by the court, so I don’t want to give any assumptions about what the court decision should be. Let the court decide on it. The petitioner has come out with a clear story and said that he doesn’t want race or any ethnic group to be mentioned. My understanding is that whether it is part of your birth certificate or not, mainstream politics play a significant role here. Mainstream politics will not be eliminated unless it is politically dealt with. So, this issue is still to be addressed politically. In a country such as ours which is diverse and of plurality; it must be ensured by the Constitution. There were efforts during the 1995 Chandrika Kumaratunga-led Government to name us as the nation of Sri Lanka, but for some reason that did not work. So I think there is a clear resistance within society against this understanding. While a good number of people are not supportive of identifying with any one ethnic or religious group, the majority would like to maintain this practice.” Dias pointed out that an individual should be allowed to choose his identity – whatever it may be – not limited to a few choices predetermined by the State, and that a similar requirement in the birth certificate of providing the parents’ marital status has now been removed. “My view is that I have no problem mentioning one’s race, but I must have the opportunity to identify myself. I must not have a box to tick. If you ask what is my identity, I must be able to tell what is my identity – I should not be asked to tick a box. What is happening now is we have to tick a box. Also, why not just eliminate that entire column? Why are we worrying about such things? But regardless of whatever identity one has chosen – you must be equally treated. That is what’s most important. The individual must have the freedom to decide,” Dias commented. He asserted that similar arguments are being made over gender identity as well, and that many developed countries had already legally accepted transgender rights. “This is the same with gender as well. All these years there was either male or female. If you have a male organ, you are called a male, and if you have female organs, you are considered a woman. But there are people who have male organs but identify as a woman, and vice versa. That right is also now given in many countries around the world – the transgender rights. So, the individual should be given the choice to decide who you are – whether it’s ethnicity, religion, gender, everything. So, my humble request with regard to this issue is to allow it to be left blank, or remove the entire row.”  On the legal process, Dias elaborated that it was not up to the court to decide if the Registrar General had discretionary powers to decide whether regulations could be changed by the officer within the ambit of the law or not. “Legally, the Registrar General has his own discretion. He or she is an administrative officer who has discretionary powers within the ambit of law and if he violates the law anybody can go to courts and challenge him so that is what is happening at the moment. So here the parties have to argue and see if there is a clearly stipulated law where the administrative officer is limited to the ambit of the law or whether he has discretionary powers to insert something into the law. So it is before court now to interpret whether this administrative officer has those rights as well. We don’t know how the court will look at the whole issue. If the court decides that the officer has the right to decide then it will be a new arrival to Sri Lankan law and it can expand the limits of law. If the court says no, then it will remain as it is.” The International Centre for Ethnic Studies (ICES) opined that while ethnicity was important to formulate national census, a person’s ethnic group was not important for the purposes of registering a birth and could “stigmatise a person later in life”. “For a national census it would be important to obtain information on the ethnicity of the person. However, a person’s ethnic group (or race) is not important for the purposes of registering a birth. I cannot think of any benefit of having the father’s race in the birth certificate. Information on whether the parents were married or not should also be removed and I believe this change has now been made.  Ethnicity and the marital status of the parents have the potential to stigmatise a person later in life,” ICES Executive Director and Constitutional Rights Lawyer Mario Gomez, told The Sunday Morning. When questioned about what the Government could do to resolve this issue, Gomez recommended that all official documents should also be in all three languages in addition to omitting the requirement to state one’s race.  “Remove the need to state one’s ethnicity or race when registering a birth. Instead ensure that all official documents; birth certificates, national identity cards, driving licences, and passports, are written in Sinhala, Tamil, and English.” When contacted, the Justice Ministry acknowledged that it was ready to draw up any legislation to make amendments to the regulation if the court deemed so or if the relevant Ministry made such a request. “This is not coming under the purview of the Ministry of Justice. However, if the relevant Ministry asks to prepare new legislation we will do so. After the judgement, I think it should be done immediately, because if the court is of that view, it is the duty of the Registrar General to amend the Act according to the father’s request. Then of course we have to bring specific laws. At the moment  it is silent, so the Registrar General has taken the decision not to include any amendments. So, whether it is correct or not is what the court should get into, so we’ll see,” Advisor to the Ministry of Justice, U.R. De Silva said.