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Wednesday, April 21, 2021

One Country, One Law’: Leave it to the judicial process – Dr Jayampathy Wickramaratne, PC

One country, one law’ was one of the central planks of Gotabaya Rajapaksa’s election platform. The slogan was initially crafted and marketed by the Viyathmaga professionals’ group and found expression in Rajapaksa’s Presidential election manifesto ‘Vistas of Prosperity and Splendour’.

Although not explicitly so stated in the manifesto, some Viyathmaga members claimed during the campaign that all personal laws would be abolished and one general law would apply to all communities. There is no doubt that this was aimed at the Muslims and the Tamils and the slogan did appeal to Sinhala voters. No reference was made to Kandyan Law, also a personal law. Thesavalamai Law is a customary law that has both a personal and territorial character and applies to Tamils of the Northern Province. The Muslim Law applies to adherents of Islam.

Another aspect of the ‘one country, one law’ slogan that no doubt appealed to many was that the law would be applied equally to all. People are naturally frustrated that the law has not been applied across the board under successive governments. That the trend continues under the present government led by President Gotabaya Rajapaksa is for all to see.

Laws inconsistent with fundamental rights

Article 168 (1) of the Constitution provides that all existing law would be read subject to the new Constitution. However, Article 16 (1) provides that all existing law shall be valid and operative, notwithstanding any inconsistency with the chapter on fundamental rights. The 1972 Constitution provided similarly.

Not only personal laws but many other pre-1978 laws also have provisions that are inconsistent with fundamental rights, especially provisions discriminatory of women. For example, women Divisional Secretaries cannot vote at the election of the Diyawadana Nilame of the Dalada Maligawa.

Existing law and ICCPR

A rare opportunity arose for the Supreme Court to identify pre-1978 legislation violative of fundamental rights when, by a reference dated 04 March 2008 made under Article 129 (1) of the Constitution, President Mahinda Rajapakse wished to receive the opinion of the Court on whether the Sri Lankan body of law was consistent with the International Covenant on Civil and Political Rights (ICCPR).

The matter, Centre for Policy Alternatives (Re Presidential Reference on the ICCPR), reported at [2009] 2 Sri LR 389, was taken up by a five-member Bench comprising S.N. Silva CJ and Amaratunga, Marsoof, Somawansa and Balapatabendi JJ on 17 March 2008 and the hearing concluded the same day. Parties were required to file written submissions the following day. The opinion of the Court was transmitted to the President on 28 March 2008.

Several intervenient petitioners submitted that one effect of Article 16 (1) is that a person whose fundamental rights comparable with the ICCPR are violated by existing law has no remedy. Article 16 (1) ensures the continued validity of specific provisions of personal as well as other laws that discriminate, especially against women. A note setting out several such laws as examples was annexed to the written submissions that the writer submitted as counsel for petitioner Lal Wijenayake. The laws referred to were the Land Development Ordinance, Land Grants (Special Provisions) Act, Kandyan Law Declaration and Amendment Ordinance and Muslim Intestate Succession Ordinance.

The Court stated that customary and special laws are deeply seated in the social milieu of the country. Article 27 of the ICCPR makes a specific reservation that ‘in states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right in community with other members of their group to enjoy their own culture, to profess and practice their own religion or to use their own language.’ Article 16 (1) cannot be considered to be inconsistent with the Covenant only on the ground that certain aspects of personal laws may discriminate against women. The matter of personal laws is one of great sensitivity. The Covenant should not be considered as an instrument which warrants the amendment of such laws. Any request for amendment should emerge from the sector governed by the particular personal law.

The contentions of the petitioners were not merely narrowly restricted to personal laws. It was on the broader question of whether Article 16 (1), which permitted laws inconsistent with fundamental rights, one manner of the exercise of sovereignty, was inconsistent with the ICCPR. That question was not answered.

An opportunity missed

Personal laws, of course, are a sensitive issue. The issue of personal laws discriminatory of women has been raised by many, including activists of the respective communities, but continues to be swept under the carpet by politicians as well as conservative groups within the communities. Considering the importance of the issue, the Court could have recommended that the government set up a suitable mechanism to address it.

The Supreme Court concluded that provisions of the Constitution and of other law, including decisions of the superior courts of Sri Lanka, give adequate recognition to ICCPR rights which are justiciable through the medium of the legal and constitutional process prevailing in Sri Lanka.

In the writer’s view, the Presidential Reference was an excellent opportunity to review the body of Sri Lankan law in light of the ICCPR as well as fundamental rights, an opportunity that went astray. The period within which the President required the Supreme Court to report its opinion is not known. But the fact that the opinion was given within four weeks of the reference and that the hearing was limited to one day indicates that the period was probably about a month. It is impossible for any court to wade through such a wide array of laws in a few weeks. Perhaps, the Court should have requested more time and appointed several eminent lawyers to assist it as amici curiae.

Judicial process preferable to the political process

The sub-committee on fundamental rights of the Constitutional Assembly of the previous Parliament was divided on whether existing law should be read subject to fundamental rights in a new Constitution.

Three members of the sub-committee (Mahinda Samarasinghe, who chaired the committee, (Dr) Thusitha Wijemanne and the writer), proposed that all written and unwritten laws in force at the time of coming into force of a new Constitution shall be read subject to the Constitution including the chapter on fundamental rights and in the event of a court declaring that any such law is inconsistent with any such provision, such law shall be deemed to be void to the extent of such inconsistency. M.H.M. Salman took the view that personal laws should be exempted from being so read. Vasudeva Nanayakkara was of the view that Article 16 (1) should be retained and a Presidential Commission appointed to review personal laws and make proposals as to how they could be harmonised with fundamental rights provisions. The other six members, Pavithra Wanniarchchi, Vijtha Herath, Rev. Athureliye Rathana, Aravinda Kumar, Anuradha Jayaratne, S. Sritharan, did not take up a position.

The writer submits that attempts to abolish personal laws would only exacerbate the already worsened relations between ethnic groups. All the provisions in the Kandyan Law, Thesavalamai and Muslim Law are not necessarily inconsistent with fundamental rights. The general laws to which proponents of the ‘one country, one law’ claim all personal laws should be made subject were mostly given to us by our colonial masters. Some of them are based on archaic Western values which the West itself has since discarded.

The best way out is to delete Article 16 (1) and permit judicial review of all legislation. Thereafter, the decision as to what provisions of our body of law should be struck down as being inconsistent with the Constitution would be a matter for the Supreme Court. The judicial process, rather than the political process, would be acceptable to the people, including those to whom the respective personal laws apply. What is needed is a single legal standard of minimum protection necessary for the preservation of human dignity under all cultures and not the subjection of all cultures to a single cultural standard which is invariably the cultural standard of the majority.

One country, one law’ was one of the central planks of Gotabaya Rajapaksa’s election platform. The slogan was initially crafted and marketed by the Viyathmaga professionals’ group and found expression in Rajapaksa’s Presidential election manifesto ‘Vistas of Prosperity and Splendour’.

Although not explicitly so stated in the manifesto, some Viyathmaga members claimed during the campaign that all personal laws would be abolished and one general law would apply to all communities. There is no doubt that this was aimed at the Muslims and the Tamils and the slogan did appeal to Sinhala voters. No reference was made to Kandyan Law, also a personal law. Thesavalamai Law is a customary law that has both a personal and territorial character and applies to Tamils of the Northern Province. The Muslim Law applies to adherents of Islam.

Another aspect of the ‘one country, one law’ slogan that no doubt appealed to many was that the law would be applied equally to all. People are naturally frustrated that the law has not been applied across the board under successive governments. That the trend continues under the present government led by President Gotabaya Rajapaksa is for all to see.

Laws inconsistent with fundamental rights

Article 168 (1) of the Constitution provides that all existing law would be read subject to the new Constitution. However, Article 16 (1) provides that all existing law shall be valid and operative, notwithstanding any inconsistency with the chapter on fundamental rights. The 1972 Constitution provided similarly.

Not only personal laws but many other pre-1978 laws also have provisions that are inconsistent with fundamental rights, especially provisions discriminatory of women. For example, women Divisional Secretaries cannot vote at the election of the Diyawadana Nilame of the Dalada Maligawa.

Existing law and ICCPR

A rare opportunity arose for the Supreme Court to identify pre-1978 legislation violative of fundamental rights when, by a reference dated 04 March 2008 made under Article 129 (1) of the Constitution, President Mahinda Rajapakse wished to receive the opinion of the Court on whether the Sri Lankan body of law was consistent with the International Covenant on Civil and Political Rights (ICCPR).

The matter, Centre for Policy Alternatives (Re Presidential Reference on the ICCPR), reported at [2009] 2 Sri LR 389, was taken up by a five-member Bench comprising S.N. Silva CJ and Amaratunga, Marsoof, Somawansa and Balapatabendi JJ on 17 March 2008 and the hearing concluded the same day. Parties were required to file written submissions the following day. The opinion of the Court was transmitted to the President on 28 March 2008.

Several intervenient petitioners submitted that one effect of Article 16 (1) is that a person whose fundamental rights comparable with the ICCPR are violated by existing law has no remedy. Article 16 (1) ensures the continued validity of specific provisions of personal as well as other laws that discriminate, especially against women. A note setting out several such laws as examples was annexed to the written submissions that the writer submitted as counsel for petitioner Lal Wijenayake. The laws referred to were the Land Development Ordinance, Land Grants (Special Provisions) Act, Kandyan Law Declaration and Amendment Ordinance and Muslim Intestate Succession Ordinance.

The Court stated that customary and special laws are deeply seated in the social milieu of the country. Article 27 of the ICCPR makes a specific reservation that ‘in states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right in community with other members of their group to enjoy their own culture, to profess and practice their own religion or to use their own language.’ Article 16 (1) cannot be considered to be inconsistent with the Covenant only on the ground that certain aspects of personal laws may discriminate against women. The matter of personal laws is one of great sensitivity. The Covenant should not be considered as an instrument which warrants the amendment of such laws. Any request for amendment should emerge from the sector governed by the particular personal law.

The contentions of the petitioners were not merely narrowly restricted to personal laws. It was on the broader question of whether Article 16 (1), which permitted laws inconsistent with fundamental rights, one manner of the exercise of sovereignty, was inconsistent with the ICCPR. That question was not answered.

An opportunity missed

Personal laws, of course, are a sensitive issue. The issue of personal laws discriminatory of women has been raised by many, including activists of the respective communities, but continues to be swept under the carpet by politicians as well as conservative groups within the communities. Considering the importance of the issue, the Court could have recommended that the government set up a suitable mechanism to address it.

The Supreme Court concluded that provisions of the Constitution and of other law, including decisions of the superior courts of Sri Lanka, give adequate recognition to ICCPR rights which are justiciable through the medium of the legal and constitutional process prevailing in Sri Lanka.

In the writer’s view, the Presidential Reference was an excellent opportunity to review the body of Sri Lankan law in light of the ICCPR as well as fundamental rights, an opportunity that went astray. The period within which the President required the Supreme Court to report its opinion is not known. But the fact that the opinion was given within four weeks of the reference and that the hearing was limited to one day indicates that the period was probably about a month. It is impossible for any court to wade through such a wide array of laws in a few weeks. Perhaps, the Court should have requested more time and appointed several eminent lawyers to assist it as amici curiae.

Judicial process preferable to the political process

The sub-committee on fundamental rights of the Constitutional Assembly of the previous Parliament was divided on whether existing law should be read subject to fundamental rights in a new Constitution.

Three members of the sub-committee (Mahinda Samarasinghe, who chaired the committee, (Dr) Thusitha Wijemanne and the writer), proposed that all written and unwritten laws in force at the time of coming into force of a new Constitution shall be read subject to the Constitution including the chapter on fundamental rights and in the event of a court declaring that any such law is inconsistent with any such provision, such law shall be deemed to be void to the extent of such inconsistency. M.H.M. Salman took the view that personal laws should be exempted from being so read. Vasudeva Nanayakkara was of the view that Article 16 (1) should be retained and a Presidential Commission appointed to review personal laws and make proposals as to how they could be harmonised with fundamental rights provisions. The other six members, Pavithra Wanniarchchi, Vijtha Herath, Rev. Athureliye Rathana, Aravinda Kumar, Anuradha Jayaratne, S. Sritharan, did not take up a position.

The writer submits that attempts to abolish personal laws would only exacerbate the already worsened relations between ethnic groups. All the provisions in the Kandyan Law, Thesavalamai and Muslim Law are not necessarily inconsistent with fundamental rights. The general laws to which proponents of the ‘one country, one law’ claim all personal laws should be made subject were mostly given to us by our colonial masters. Some of them are based on archaic Western values which the West itself has since discarded.

The best way out is to delete Article 16 (1) and permit judicial review of all legislation. Thereafter, the decision as to what provisions of our body of law should be struck down as being inconsistent with the Constitution would be a matter for the Supreme Court. The judicial process, rather than the political process, would be acceptable to the people, including those to whom the respective personal laws apply. What is needed is a single legal standard of minimum protection necessary for the preservation of human dignity under all cultures and not the subjection of all cultures to a single cultural standard which is invariably the cultural standard of the majority.

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