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‘One Country and One Law’ A Misunderstood Concept?

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by M. A. M. H. Barry

PhD, LLM, MA, LLB. BA

Attorney-at-Law

The worst form of inequality is to try to make unequal things equal (Aristotle)

Although much is spoken about ‘one country and one law’ in Sri Lanka, it is not a new phrase as all the countries in the world have one legal system. But this does not denote that there must be only one law for each and every aspect which everyone should follow. If this contention is correct, then no country will have different laws at the different levels or for different segments of people. For instance, if we take Sri Lanka, we have different laws in different provinces in some prescribed areas by virtue of the Thirteenth Amendment and Provincial Council Act No. 42 of 1987, and further we have different bylaws in various local councils.

Furthermore, we have several different laws which govern the administration and functions of the different religious places or institutions. For examples, we have Buddhist Temporalities Ordinance No. 19 of 1931 (as amended) governing the administration of temples, The Hindu Cultural Fund Act No. 31 of 1985, The Church of Ceylon (Incorporation) act (No. 43 of 1998), and Muslim Mosques and Charitable Trusts or Wakfs Act (No. 51 of 1956). These acts clearly indicate that different laws are necessary for the functioning and administration of different religious places/institutions.

No sensible person would argue that there should be one law to manage all these religious places because the diversity of the faiths and cultures demand such different laws. These laws exist because this diversity was recognized. It is not possible or correct to demand the people to give up their diverse faiths and to accept one law which could govern all religious places or institutions on the argument that all Sri Lankans should have only one law.

Equality and Equity

One of the fundamental elements of the notion of equality is equity, which requires that justice should be distributed according to the needs of the people as not all people are equal in all aspects, whether they are political, economic or social and they are not identical in strength, resources, means and practice.

The basic concept of equality signifies that the persons who are similarly categorized must be treated equally. To treat equals as unequals or unequals as equals, is equally unjust or violative of the principle of equality (State Bank of India v. State of West Bengal, 1979, 1 Ch LJ 363). All human beings are born equal and they should be treated equally. However, the unequals are identified and recognized not only due to political, economic and social disparities, but also more importantly due to the diversities of religions, cultures and languages. The concept of equality demands recognition of diversities and permits the manifestation of the rights of diverse communities according to the fundamental norms of the constitution or guiding principles of the state, without affecting the substantial laws of the country. In application of indigenous laws, the recognition is given only in a limited areas which are very personal like marriage, divorce and inheritance. For all other purposes general law is equally applicable to all.

The Indian Supreme Court in many decided cases interpreted the art 14(equality clause) by reading it with the art. 15 which prohibits discrimination on the grounds of religion, race, caste, sex, place of birth etc. The section 15 though fosters national identity does not deny pluralism of Indian culture but rather it preserves it (MR Jois, Equal Treatment, Jspui, bitstream).

Many leading states where they are federal, semi federal or unitary have either parallel or sub-legal systems, but they are still regarded as the part of one legal system which accommodates the unity of their people.

The sub-legal systems are accommodated in several states in order to recognize the religious or cultural practices of segments of the people in a few selected areas like personal law which deals with the matters related to marriage, divorces, inheritance etc. Several non-Muslim countries including India, Thailand, Singapore, Philippine and notably Israel which is known as the world only Jewish state where the Qadi courts are functioning under the jurisdiction of the Ministry of Justice or Cultural Affairs. The Qadi courts in Israel have jurisdiction to adjudicate matters relating to marriages, divorce, financial maintenance, legal capacity and guardianship, custody of children, paternity and inheritance, among others. The rights of the Muslims to practice their personal law are being protected in Israel despite the fact that there has been a historical animosity between the Arab Muslims and Israeli Jews due to Israel/Palestine land dispute. In Sri Lanka we have a pluralistic legal system which has been accommodated to realize the diverse aspirations and give respect to different communities of whom our constitution acknowledges as equal citizens of the country.

The reasons for recognizing and protecting the ethnic, religious, linguistic and cultural rights of the citizens in multi religious/cultural and linguistic states could be realistically, legally and politically attributed to the following indispensable factors (1) social contract (2) protecting religious rights and (3) protecting universal rights. The states by definition and nature are obliged to respect and enforce their duties originate from the above factors.

The social contract is a contract between the state and its citizens. No modern state could exist or function without the social contract and it is the people who give authority to the state or to its agent (government) to manage their affairs. Under the social contract, the people surrender or delegate certain rights to the state and retained or reserved their fundamental rights to themselves.

Furthermore, under the social contract the rights that are not delegated or retained by the people, the state undertakes to protect them (both individual and collective rights). In modern times the people do not give authority to states to establish absolute or totalitarian rule, but they wanted states to protect their basic rights as the primary duty of the state. The terms of the social contract (rights/duties of the state and rights/duties of the people) are normally enshrined and reflected in a country’s constitution and other respective laws

For instance, the tenth amendment to the US Constitution expressly reserves the powers not delegated under the Constitution or prohibited by it to the respective states, or to the people. The US courts have affirmed this position in several leading cases. In Butchers’ Union case (1884-111 U.S. 746) Field J observed “…all men are endowed, not by the edicts of Emperors or decrees of Parliament or Acts of Congress, but by their Creator, with certain inalienable rights’ that is, rights which cannot be bartered away or give away except the punishment of crime, and among these are life, liberty and pursuit of happiness, and to secure these, not grant them but secure them, governments are instituted among men, deriving their just powers from the consent of the governed.”

Although under the Indian Constitution, there is no similar provision like the tenth amendment to the US Constitution, in Gopalan case (1950-SCR 88) Sastri J. stated “It is true to say that, in a sense, the people delegated to the legislative, executive and the judicial organs of the State their respective powers while reserving to themselves the fundamental rights which they made paramount by providing that, the State shall not make any law which takes away or abridges the rights conferred by that Part (of the Constitution) …”

Hence it is a duty of any state to secure these rights since they are the core values of a constitution. As the part of its primary duty a state should protect its peoples’ rights and ensure the justice to everyone by applying equality and equity in addressing or resolving any problems of the people.

“Justice, Equality and Equity” are the cardinal principles and fundamental requirements not only for successful resolutions of any dispute among the people, but also to unite the diverse people under the one national banner. These cardinal principles are the fundamental values which cannot be subordinated to any other claimed values.

The state duty under the social contract does not change according to the electoral changes as the people vote to different parties at the different elections but this does not provide permission to change or negatively amend the core values or guiding principles of the state. The social contract does not imply that it is a contract only with the majority who voted for any political party but it is a contract with all citizens (different segments). In this context, the state has to protect the interest and rights of all citizens who participated in the electoral process and also who do not participate in the process (who did not vote or do not use their franchise), because the protection of the core values are guiding principle of the state or constitution which could not be politically or morally or even legally be abrogated.

In the US, the constitutional provisions and amendments which protect the rights of the people, especially its Fourteenth Amendment which enshrines the equality clause are regarded as the core values or guiding principles of the state. No debate takes place in the US to negate or weaken these core values or guiding principles as these protective provisions are well entrenched and no one think about their abrogation as these principles are synonymous with the primary objective of the state.

 

Protecting Right to Freedom of Religion

The right to freedom of religion is not only a collective or community right, but it also an individual right. In modern history, it was regarded as one of the first recognized human rights. The Code of Rhode Island of 1647 and Westphalia Peace Treaty 1648 recognized religious freedom. It was regarded as one of the foundations of Human Rights ideology. The basic elements of freedom of religion and belief have the status of jus cogens or international customary law (Forum 18). It is also a part of Ius Gentium (law of nations) and a part of Lingua Franca (universal language) because the language of human rights has become the moral lingua franca (Micheal H. Perry).

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Integration or Assimilation?

In a multi-cultural, religious and linguistic state like Sri Lanka the national integration is a condition precedent for the nation building. The national integration signifies that the diverse people in a state are incorporated into the society as equals while their diversity is respected and recognized as the part of the state’s polity. On the other hand, the assimilation may be defined as the process whereby all the cultures within a state are assimilated into one dominant culture and thereby, depriving other cultures to exist. The assimilation is not politically, socially, morally and legally possible in a multi-cultural, religious and linguistic state like Sri Lanka as all communities are entitled to their fundamental rights of practicing and preserving the religious, cultural and linguistic rights. Hence, the very definition of the state should reflect the ethnic diversity and aggregation of distinct communities.

The indigenous laws of Sri Lanka were recognized in the context of integrating diverse religious and cultural practice in very rare and exceptional areas which are related to the personal or private life. If the Muslim Marriage and Divorce Act (MMDA) necessitate any amendment to mend any deficiency, it could be addressed by making necessary amendments. Already, the committee appointed for recommending reforms on MMDA, headed by former Supreme Court Judge Hon. Justice Saleem Marsoof has completed its report. Hence, the amendment could be worked out on the basis of these recommendation to address any concern or deficiency.

In this context, the notion of one country and one law’ should be seen as a unifier of all communities in the nation building process by respecting and recognizing their rights and consolidating a legal system which could accommodate the aspirations of all the people. Furthermore, the notion of one law also signifies that all people are equal before the law and they are entitled to equal protection of law, and specifically no one is above the law.

Sri Lanka needs unity among the people, which requires every community respects others and everyone community regard other communities as brothers and sisters of one family of the nation without perceiving others in suspicious, apprehensive and mistrustful manner. The law should be actively applicable to prevent hate speeches against each other and to ensure dignity to every community.



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Features

Credibility in governance through elections and not security forces

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Ranil Wickremesinghe

By Jehan Perera

President Ranil Wickremesinghe’s warning that he is prepared to declare a state of national emergency and use the military to suppress any public protests for change of government would reflect the pressures he is under. The manner in which he has used the security forces to deal with the protest movement has been unexpected. His words and deeds are contradictory to what he has previously stood for as a five-time former prime minister. This is especially true in the case of the ethnic and religious minorities who have consistently voted for him and his party at elections. They have felt safer and more secure under his governments which always sought to reduce the heavy hand of state oppression in which national security is given pride of place. He has always promised them much though he has been unable to deliver on much of what he promised.

Notwithstanding the unfortunate rhetoric and actions of the present time the belief still persists that President Wickremesinghe is the best of the available options. Recent pronouncements of the president have reignited hope that he will address the problems of the religious and ethnic minorities. He has stated that he does not want to leave this problem to the next generation. He has said that he wants to resolve this intractable national problem by the country’s 75th independence anniversary on February 4 next year. The hope that the president will make a fresh effort to resolve their problems has led the main Tamil party, the TNA, to desist from voting against the budget which passed with a relatively small majority. Their spokesperson, M A Sumanthiran said in Parliament that due to the president reaching out to them, stretching out his hand, they did not vote against the budget although they disagreed with it.

It is not only in words that the president has reached out to the ethnic and religious minorities. Reports from the north and east indicate that the Maveer (Heroes) Day commemorations this year took place without incident. During the past two years scores of people were arrested and a massive presence of security forces blocked the people from participating in public events. On this occasion the security forces did not get involved in any attempt to stop the commemorations. University students distributed sweets and even cut a birthday cake to celebrate slain LTTE leader Velupillai Prabhakaran’s birthday. The analogy that the president drew to himself being seen as a Hitler who exterminated ethnic and religious minorities is misplaced. The release of those held under the Prevention of Terrorism Act for engaging in similar acts in the past would further contribute to the reconciliation process.

WORSENING CRISIS

In this context, the president’s use of militaristic rhetoric can only be understood in relation to the growing economic crisis that shows no sign of abating. The anticipated IMF bailout package is at risk of getting indefinitely delayed. It was initially anticipated to come in September then in November but now January is being targeted. Japan’s top brokerage and investment bank, Nomura Holdings Inc, has warned that seven countries – Egypt, Romania, Sri Lanka, Turkey, Czech Republic, Pakistan and Hungary – are now at a high risk of currency crises. Sri Lanka is in third place on the table of risk. The next devaluation of the rupee could see another spike in inflation that will make the cost of living even more unbearable to the masses of people.

The president is on record as having said that the economic crisis will get worse before it improves. Both anecdotal and statistical evidence indicates that it is indeed worsening. University teachers at the University of Sabaragamuwa reported that attendance in their classes was down by at least a quarter. Students who come from other parts of the country are unable to afford the cost of meals and so they stay at home. A study by the Institute of Policy Studies has shown that about four percent of primary, 20 percent of secondary and 26 percent of collegiate students had dropped out of school in the estate sector, which is the worst affected. The future costs to the country of a less well educated population is incalculable and inhumane.

As it is the situation is a dire one for large swathes of the population. Research from the University of Peradeniya has revealed that close to half of Sri Lanka’s population, 42 percent (up from 14 percent in 2019) are living under the poverty line. Professor of Economics Wasantha Athukorala has said there is a dramatic increase in the poverty level of over three-hold across the past three years. In 2019, nearly 3 million people lived below the poverty line, but that number has increased to 9.6 million in October 2022. In these adverse circumstances stability in a polity can be ensured either through legitimacy or through force. It would be tragic if the latter is the choice that is made.

ELECTORAL SOLUTION

President Wickremesinghe has been stressing the importance of political stability to achieve economic development. His recent statement that the security forces will be used to negate any unauthorised protest is a sign that the government expects the conditions of economic hardship to escalate. The general public who are experiencing extreme economic hardship are appalled at the manner in which those who committed acts of corruption and violence in the past are being overlooked because they belong to the ruling party and its cliques. The IMF has made anti-corruption a prerequisite to qualify for a bailout, calling for “Reducing corruption vulnerabilities through improving fiscal transparency and public financial management, introducing a stronger anti-corruption legal framework, and conducting an in-depth governance diagnostic, supported by IMF technical assistance.”

It is morally unacceptable even if politically pragmatic that the president is failing to take action against the wrongdoers because he needs their votes in parliament. As a start, the president needs to appoint a credible and independent national procurement committee to ensure that major economic contracts are undertaken without corruption. Second, the president needs to bite the bullet on elections. The country’s burning issues would be better accepted by the country and world at large if they are being dealt with by a statesman than by a dictator. Government that is based on the people’s consent constitutes the sum and substance of democracy. This consent is manifested through free and fair elections that are regularly held. Local government elections have been postponed for a year and are reaching their legal maximum in terms of postponement. These elections need to be held before March next year.

Elections will enable the people to express their views in a democratic manner to elect their representatives for the present. This would provide the government with guidance in terms of the decisions it is being called to take to revive the economy and place the burden in a manner that will be acceptable to the people. The provincial council elections have been postponed since 2018. Democratically elected provincial councils share in the burdens of governance. The devolution of power that took place under the 13th Amendment was meant to promote ethnic harmony in the country. The president who has taken the position that he is for a solution to the ethnic conflict should seriously consider conducting the provincial council elections together with the local government elections se their financial costs. By doing so he will also gain legitimacy as a democratic statesman and not a dictator.

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WEDNESDAY – Movie Review

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The Addams Family is back with a new tale to tell! Originally created by Charles Addams as a comic strip published in The New Yorker, it offered readers a sarcastic take on the ‘typical nuclear family’ by substituting it with a more macabre bunch of strange and eerie individuals. Since then the titular family has been adapted on to the big screen many times, from live action movies to animated versions, the Addams Family has gained many fans throughout the years. Created by Alfred Gough and Miles Millar, with Tim Burton working on four episodes of the eight-part series, Wednesday is a welcoming tale for young fans, but unfortunately fails to think outside the box and remains anchored to the floor with a messy storyline.

Dead-eyed Wednesday Addams (Jenna Ortega) is a stubborn, independent and intelligent teenager in this new series. Her penchant for attracting trouble wherever she goes alarms her parents, Morticia (Catherine Zeta-Jones) and Gomez (Luis Guzmán). With an already strained relationship with her parents (specifically her mother), Wednesday is enrolled at Nevermore, an academy for outcasts like herself. Having attended the academy themselves, Morticia and Gomez are hopeful that their daughter will ‘fit right in’. Caught between trying to build her own identity and other teenage complexities, Wednesday soon finds herself in the middle of a twisted mystery.

This is the first time audiences are introduced to a teenage Wednesday, which allowed the creators to build a new world on their own terms, but while keeping true to the original nature of the character. The creators do a fair amount of world building by introducing other outcasts like the Fangs (vampires), Stoners (Gorgons), Scales (sirens) and Furs (werewolves), among others. Nevermore Academy itself is beautiful and comes with the classic package of creepy crypts, hidden rooms and secret societies. The series also offers a decent amount of gore, although they could have added more given Wednesday’s proclivity for gore-related activities. The series deals with classic young-adult tropes which includes teenage crushes, bullies, relationships and even prom, among other things. The series navigates through Wednesday’s journey of self-discovery, which is a new avenue for both the character and the fans. From understanding and displaying her emotions to discovering her identity and understanding her peers, the series takes a deep dive into heavy material.

Ortega’s performance as the titular character plays a major role in keeping audiences glued to the screen. This is also the first time viewers are shown a teenage Wednesday Addams, which works to Ortega’s benefit as she depicts more dimensions to the ghoulish, morose character many are associated with based on previous renditions. Her facial expressions and ability to deliver on seriously emotional moments strengthens her role as the lead. The rest of the Addams Family, even with limited screen time, lack the eccentricities their characters should have. Hopeless romantics Morticia and Gomez seem incompatible in this version and Uncle Fester is far less crazy than he ought to be. The only member worth mentioning is the Thing—a severed hand— who brought more character and spirit to the series acting alongside Ortega. With barely any room to develop a majority of the characters are prosaic and tedious, even though they remain vital to the plot.

Apart from Ortega, Gwendoline Christie and Emma Myers deserve honorable mentions for their roles as Nevermore’s head teacher, Larissa Weems and the peppy Enid Sinclair respectively. Enid quickly became a fan favorite as the character was the polar opposite to Wednesday. Her character is vital to Wednesday’s character development and their journey to find common ground as mismatched individuals is amusing.

Christina Ricci who played Wednesday in the 90s returns as ‘normie’ teacher, Miss Thornhill and unfortunately barely stands out and this in large part due to the messy storyline. The series is bogged down with numerous subplots and overlapping tropes and the characters with potential for growth are completely overlooked. With love triangles, bullies and killer monsters on the loose, the series self-destructs and the climax sinks into disappointment.

At the end of the day, Wednesday plays to the beat of the new generation and touches on new themes, which is welcoming seeing as the character should grow up at some point. While not everyone may relate to Wednesday’s teenage perils, it is interesting to witness her growth and her journey as an ‘outcast’ or ‘weirdo’. And while Wednesday doesn’t exactly offer a distinctly unique story, it gives audiences a small taste of what Jenna Ortega’s Wednesday is capable of. Creating a story around a well-established franchise is a difficult task, and in this case the creators fail to add value to their visions. If the series continues, the creators will have the opportunity to think further outside the box and push the limits to Wednesday’s character and give audiences a bone-chilling experience. Wednesday is currently streaming on Netflix.

 

 

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Stage set for… AWESOME FRIDAY

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The past few weeks have been a very busy period for the new-look Mirage outfit…preparing themselves for their big night – Friday, December 2nd – when they would perform, on stage, for the very first time, as Donald Pieries (leader/vocals/drums), Benjy (bass), Niro Wattaladeniya (guitar), Viraj Cooray (guitar/vocals), Asangi Wickramasinghe (keyboard/vocals), along with their two frontline female vocalist, Sharon (Lulu) and Christine.

They have thoroughly immersed themselves in their practice sessions as they are very keen to surprise their fans, music lovers, and well-wishers, on opening night…at the Peacock, Berjaya Hotel, in Mount Lavinia.

Action starts at 8.00 pm and, thereafter, it will be five hours of great music, along with EFFEX DJs Widhara and Damien, interspersed with fun and excitement…for the whole family!

Yes, opening night is for the whole family, so you don’t need to keep some of your family members at home – kids, especially.

Working on their repertoire for Friday, bassist Benjy says “what we will dish out will be extra special, with lots of action on stage.”

It would be interesting to see Sharon (Lulu) doing her thing with Mirage, after her early days with the Gypsies, and, I’m told, a dynamic performance from Sharon is what is in store for all those who make it to the Peacock this Friday

Edward (Eddy) Joseph (centre) with Donald and Benjy

While the band was at one of their practice sessions, last week, they had a surprise visitor – Edward (Eddy) Joseph, a former member of the group Steelers, who is now based in Germany.

Eddy is here on a short visit and is scheduled to return to Germany, tomorrow (30).

He spent an hour with Mirage, at their practice session, and says he is disappointed that he would not be around for the group’s opening night.

However, there is a possibility of several well-known personalities, in the showbiz scene, turning up, on Friday night, to experience the sounds of the new-look Mirage, including Sohan Weerasinghe and Joey Lewis (from London).

Rajiv Sebastian, too, says he is keen to be a part of the fun-filled evening.

You could contact Benjy, on 0777356356, if you need to double check…their plans for AWESOME FRIDAY!

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