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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

India and China opting to make positive impact in Ukraine

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Ukrainian troops ride atop an armoured vehicle on a road in the eastern Donetsk region

In what could be considered the most thought provoking development to date in the global politics growing out of the Russian invasion of Ukraine, China and India have called on Russia and Ukraine to go for a negotiated solution to the crisis. Of particular importance is Chinese Foreign Minister Wang Yi’s pronouncement to the effect that the parties need to ‘keep the crisis from spilling over and affecting developing countries.’

Elaborating on this policy position, Wang Yi was quoted saying: ‘China supports all efforts conducive to a peaceful resolution of the Ukraine crisis. The fundamental solution is to address the legitimate security concerns of all parties and build a balanced, effective and sustainable security architecture.’

As pointed out by some commentators, this stance by China is indeed a far cry from the unconditional support extended to Russia by China in all matters of vital importance to the former. In other words, it is a comedown of sorts from the ‘all weather friendship’ that was seen as binding the countries.

As explicit as the Chinese Foreign Minister on this question was India’s Foreign Minister Subrahmanyam Jaishankar. He said: ‘As the Ukraine conflict continues to rage, we are often asked whose side we are on. Our answer, each time, is straight and honest – India is on the side of peace and will remain firmly there. We are on the side that calls for dialogue and diplomacy as the only way out.’

Hard ground realities and economic pressures that are extending well beyond the Eastern European theatre could be considered as compelling China and India to adopt this policy stance on the Ukraine crisis. It is plain to see, for instance, that the Russian invasion is meeting stubborn Ukrainian military resistance which is rendering the invasion a highly costly exercise for Moscow.

Despite the initiation of some desperate measures by the Putin regime, such as the partial mobilization of Russia’s citizenry for the war effort and the holding of ‘referendums’ in territory seized from Ukraine in an effort to legitimize Russia’s hold on it, the invasion could be considered as having all but stalled. On the other hand, the Ukrainian resistance seems to be having ample resolve and morale. Bolstered by recently supplied sophisticated Western weaponry, it has more than taken the fight back to the Russian invaders.

Evidently, then, Russia’s war effort is not going according to plan. However, the human costs, in particular, for both main sides to the conflict are prohibitive. Ukraine civilians are being subjected to a bloodletting that civilized sections the world over are recoiling from in horror. They could be said to be at the receiving end of state-inspired barbarism.

On the other hand, the majority of Russian civilians ought to be seeing themselves as nothing less than cannon fodder in Russian strongman Putin’s efforts to resurrect the defunct Soviet empire, now that they are being forcibly conscripted into an apparently futile war effort.

All this and more, ‘on the ground’, is clearly evident to both the friends and foes of Russia. They are likely to be of the view that the senseless war ought to be brought to a close.

On the other hand, to a greater or lesser degree, all countries are currently experiencing the adverse economic effects of the war. As is known, the Ukraine invasion is a principal cause for the worldwide rise in food and energy prices. If stagflation is fast spreading in the world and the more vulnerable sections among citizenries are sinking further into poverty and disempowerment it is, to a considerable extent, due to the Russian invasion of Ukraine and its ill effects.

China and India, two of the foremost economic powers of the South, ought to be fully alert to these realities. Among other things, they know for certain that there could be no economic growth for them and the world amid mounting material hardships and the steady impoverishment of people.

To re-state a fundamental axiom in classical economics, there could be no demand for goods and services if people lack the power to purchase, which comes from money in hand. And without the exercising of demand the production of goods and services comes to a grinding halt. That is, economies crumble. This is happening in the South right now.

The inference is inescapable from the foregoing that the invasion of Ukraine must end and that needs to be achieved by political means since a continuation of armed hostilities would only beget more war and its ill-consequences. Accordingly, China and India would prefer to have a negotiated solution to the Ukraine crisis.

A peek at recent growth trends in India and China would disclose the extent to which these economies have been dependent on the growing prosperity of their upper and middle classes to nourish their material fortunes. A report published in this newspaper on September 21, 2022 said, among other things, that by 2026, India’s dollar millionaires are expected to double. During the 2021- 2026 period China’s dollar millionaires are expected to grow by 97 per cent. It is these classes that have been keeping their economies ticking in recent decades by virtue of their growing purchasing power. Their purchasing power has steadily translated into a strong indigenous manufacturing base, among other things.

It does not follow from the foregoing that economic equity is a very strong point of India and China. That would necessitate a steady trickling down of wealth to the economically lower classes but we would certainly be having growth and that has been happening markedly in India and China.

Likewise, the prosperity of their neighbours as well as that of the rest of the world contributes positively towards the growth stories of India and China. While India and China have been interacting positively in the economic field over the decades on the basis of their increasing economic power and thereby gaining mutually, it will be to their advantage to ensure that their neighbours too advance towards economic wellbeing.

This accounts for the ready extension by India and China of economic assistance to Sri Lanka in its current woes. Indeed, India and China would extend their largesse to other countries in the region in their hour of need as well because the growth successes of these economic giants are predicated upon the prosperity of their neighbours, among other factors. In the absence of a degree of economic prosperity, these smaller neighbours could not expect to interact effectively in the economic sphere with India and China and gain significantly by it.

Accordingly, it will be in the national interest of India and China to call on Russia and Ukraine to go for a negotiated settlement. If the conflict is thus ended it will not only benefit India and China but the rest of the world as well, considering that the conflict is exerting widespread economic ill-effects.

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‘Use heart for every heart’

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World Heart Day 2022

By Dr.Mohan Jayatilake
Consultant Cardiologist
Former President of Sri Lanka Heart Association

The theme of World Heart Day 2022 is “USE HEART FOR EVERY HEART”. The World Heart Federation has created this day to raise awareness about Cardiovascular Diseases (CVD).

Every year, on September 29th, people all over the world celebrate Heart Day as a way to draw attention to cardiovascular illnesses, their management as well as the worldwide toll they take on society. World Heart Day was created in the year 2000 to inform people around the globe that Heart diseases and Stroke are the world’s leading cause of death, claiming 17.9 million lives every year. According to WHO statistics, 82% of deaths occurring in low and middle-income countries are due to lack of resources.

Together with members of the World Heart Federation, we need to spread the news that at least 80% of premature deaths, from heart disease and stroke, could be avoided if the main risk factors, heavy smoking, unhealthy diet, reduced physical activity, and alcoholism, are controlled.

Increased high blood pressure, increased blood sugar levels, being obese, or overweight, are all side effects of living a bad lifestyle that may harm your heart.

The world was battling the Covid-19 pandemic for the last two years. Unfortunately, patients, with CVD, are more vulnerable and have become high risk groups. Heart patients are susceptible to get a more severe form of Covid-19 infection which could make matters worse.

National activities such as public talks, cardiovascular screening, walks, runs, concerts or sporting events are organised worldwide by members and partners of World Heart Federation.

Global leaders have recognised the urgency to give priority to prevention and control of heart diseases with other non-communicable diseases (NCD) which include cancer, diabetics and chronic lung diseases.

This year also, according to the theme, we ask people to take charge of their home’s heart health by taking steps to reduce the burden of the following risks:

Stop smoking

Stop smoking to improve your own and your children’s heart health.

Cigarette smokers are 2-4 times more prone to get heart disease and strokes, than non-smokers. Stopping smoking dramatically reduces the risk of heart disease, strokes and deaths.

A Few steps for successful cessation

Find your reason – strong motivation will help.

Line up support in advance – medical assistance

Lean on your loved ones

Find new ways to relax/unwind – stress can make a person fall back to smoking. Music, meditation, yoga or any other activity will help to alleviate stress.

Try and try again

– you only need to try again and again to achieve your target, even though you are unsuccessful in your first attempt.

Avoid alcohol and other triggers.

Physical exercise always helps to alleviate stress and avoid triggers of smoking.

Healthy diet at home

Unhealthy diet is at the root of many health issues, especially obesity, diabetics and CVD. Rapid urbanisation, changing lifestyles and easy accessibility of fast foods have made our dietary patterns unhealthy. Following are some healthy food patterns:

Limit saturated and trans fats

Limit salt

Limit sugar

Plenty of fruits and vegetables

At least five portions of fruits and vegetables per day should be a norm of your dietary habits. You should opt for low fat milk and dairy products.

Animal products, mainly beef, pork, poultry with skin, mutton, lard, butter, cheese carry a lot of saturated fat. Trans fats are contained in baked, processed and fried food items, certain margarines and spreads. In order to cut down saturated and trans fats, consume lean meats, poultry without skin, low fat dairy products, fish and nuts. Vegetable oils should be in moderation.

Regular Exercises

It is recommended that adults should do at least 150 minutes of moderate intensity physical activity or at least 75 minutes of high intensity physical activity per week.

Families should limit the amount of time spent in front of TV to less than two hours per day.

Exercise should be a regular part of your life. Due to the Covid pandemic, public exercise facilities are closed and most of the time movement of people is restricted. Therefore, home-based exercises were adopted to make exercises an enjoyable task.

Lose Weight

The world is now facing visible epidemic of obesity. It not only adversely affects your cardiovascular health, but also can affect your mental well-being.

The ways to lose weight effectively,

Do not skip meals – it will make you hungrier and go for more snacks.

Plenty of fruits and vegetables

Get active

– exercise burns off excess calories.

Use a smaller plate – eating smaller portions definitely reduces weight.

Do not ban foods

– you can enjoy an occasional treat otherwise you crave them more.

Cut down on alcohol

– it can make you gain weight.

Manage Stress

Psychological health and well-being can affect your cardiovascular health. Regular exercise, practising relaxation, being with your family and friends sometimes, adequate sleep, various hobbies, and maintaining positive attitudes towards life.

Know your numbers

Visit your doctor or healthcare professional.

Know your blood pressure which is one of the risk factors for CVD. Check regularly and take steps to control it including salt intake, exercises and medication.

Know your cholesterol – high cholesterol is another major risk factor for CVD. It should be checked regularly and controlled with dietary measures and medication.

Know your blood sugar – diabetics, conditions with high blood sugar levels multiply CVD risk. Diet control and medication required to control it.

Know your warning signs

Recognising symptoms of CVD can help you survive because earlier the treatment better the chances of survival.

Chest pain of tightening or burning in nature with pain radiating down the upper limbs or to the neck or back associated with sweating and nausea is the typical presentation of heart attacks. Sometimes heart burn or burning tummy pain could be due to a heart attack rather than gastritis or indigestion.

Sudden weakness of limbs, slurring of speech, mouth deviation or double vision could be due to a stroke. Knowing these symptoms and seeking medical assistance allow you to get treatment early and prevent complications which can be life threatening most of the time.

Take your medicine regularly and correctly

If you are already diagnosed with a heart disease or stroke, taking your medication, without fail, will reduce the chances of getting another attack of stroke or heart disease

Measures during pandemic

The Covid-19 pandemic has created havoc, globally. People with CVD fall into very high risk category.

Therefore it is important to,

Continue your medication uninterruptedly

Follow medical advice

Continue exercise and balance diet.

Maintain your social network and

Do not hesitate to take vaccination.

By doing the household steps, mentioned above, you and your family can reduce the burden of heart diseases.

Breastfeeding and lifelong health

Breastfeeding is the best form of nutrition for newborn and infants, according to WHO. Increasing public awareness is important. Infants who are breastfed tend to have lower cholesterol and blood pressure as well as lower rates of overweight and obesity all of which improve cardiac health.

Both undernourished and over nourished, early in life, can increase the risk for developing CVD. Evidence suggests that children who are undernourished while in the uterus and at childbirth bear a higher CVD risk later in life.

Maternal obesity during pregnancy has been associated with obesity in children which also increases the risk of developing CVD in life.

As always, our emphasis will be on improving heart health across all nations in adult male and female, as well as children.

By adopting lifestyle changes, people all over the world can have longer and better lives through the prevention and control of heart disease and strokes.

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Doctors…taking a break

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When we think of doctors, what comes to mind is medicine, patients, etc., and that’s only natural as doctors are our saviours…when we are ill.

We would hardly associate doctors with entertainment, and that’s where most of us are wrong.

I’ve been to a couple of concerts where these men of medicine have excelled, on stage, as entertainers, and some of them, I would say, are super-duper.

Yes, the Annual Sri Lanka Medical Association Doctors’ Concert is a much-looked-forward to musical extravaganza where the doctors, and their families, are provided the unique opportunity to showcase their talents, in performing arts.

It is usually held on the final day of the Annual Scientific Congress of the Sri Lanka Medical Association (SLMA), and it’s all happening this Saturday, October 1st, at the Lotus Room of the BMICH.

Says Dr. B.J.C.Perera, Senior Consultant Paediatrician:

“It is a common belief that medical doctors are a sombre set of people who are mainly involved in looking after people with illnesses. True enough, they do perform that ever so immensely important task in society, and such a mission is by no means to be taken lightly, in view of its tremendous significance. Healing the sick is certainly a noble task and many of them are renowned performers, as well as experts in their own chosen specialties of the profession.

“However, it may come as a surprise to many that several of these medical men, and women, have other talents – musical, acting, drama, etc. There are very many extremely gifted performers of real class amongst our medical men, and women. In recognition of this, the SLMA has provided an opportunity for these artistic men, and women, to showcase their talents, and flair, in the performing arts, at the glittering SLMA Doctors’ Concert.

“This is a much-anticipated opportunity for members of the medical profession, and their family members, to put their hair down and forget medicine, at least for an evening. The Doctors’ Concert was started many years ago as a rather informal event and it has a most proud tradition of being staged annually, for quite a few decades, in the history of the SLMA.

“A dedicated band, consisting mainly of doctors, first played at the concert, in 2014. This was in the Committee Room 1, currently the Lotus Room, of the BMICH. They performed on a small stage done for them on a side.

“The continuing progress of the event was due to the untiring efforts of that absolute virtuoso in music, a drummer himself, Dr. Christo Fernando. He left no stone unturned to make the event a resounding success, from 2014 onwards.”

This Saturday, October 1st, we will not see doctors, in their usual uniforms (Coats and Scrubs), stethoscopes, or anything connected with medicine, but entertainment, at its best…on stage!

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