Connect with us

Features

One Country, One Law’: Leave it to the judicial process

Published

on

By Dr Jayampathy Wickramaratne,
President’s Counsel

‘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.



Continue Reading
Click to comment

Leave a Reply

Your email address will not be published. Required fields are marked *

Features

Strong on vocals

Published

on

The group Mirage is very much alive, and kicking, as one would say!

Their lineup did undergo a few changes and now they have decided to present themselves as an all male group – operating without a female vocalist.

At the helm is Donald Pieries (drums and vocals), Trevin Joseph (percussion and vocals), Dilipa Deshan (bass and vocals), Toosha Rajarathna (keyboards and vocals), and Sudam Nanayakkara (lead guitar and vocals).

The plus factor, where the new lineup is concerned, is that all five members sing.

However, leader Donald did mention that if it’s a function, where a female vocalist is required, they would then feature a guest performer.

Mirage is a very experience outfit and they now do the Friday night scene at the Irish Pub, in Colombo, as well as private gigs.

 

 

Continue Reading

Features

Dichotomy of an urban-suburban New Year

Published

on

Ushered in by the ‘coo-ee’ of the Koel and the swaying of Erabadu bunches, the Sinhala and Tamil New Year will dawn in the wee hours of April 14. With houses to clean, preparation of sweetmeats and last-minute shopping, times are hectic…. and the streets congested.

It is believed that New Year traditions predated the advent of Buddhism in the 3rd century BC. But Buddhism resulted in a re-interpretation of the existing New Year activities in a Buddhist light. Hinduism has co-existed with Buddhism over millennia and no serious contradiction in New Year rituals are observed among Buddhists and Hindus.

The local New Year is a complex mix of Indigenous, Astrological, Hindu, and Buddhist traditions. Hindu literature provides the New Year with its mythological backdrop. The Prince of Peace called Indradeva is said to descend upon the earth to ensure peace and happiness, in a white carriage wearing on his head a white floral crown seven cubits high. He first plunges, into a sea of milk, breaking earth’s gravity.

The timing of the Sinhala New Year coincides with the New Year celebrations of many traditional calendars of South and Southeast Asia. Astrologically, the New Year begins when the sun moves from the House of Pisces (Meena Rashiya) to the House of Aries (Mesha Rashiya) in the celestial sphere.

The New Year marks the end of the harvest season and spring. Consequently, for farming communities, the traditional New Year doubles as a harvest as well. It also coincides with one of two instances when the sun is directly above Sri Lanka. The month of Bak, which coincides with April, according to the Gregorian calendar, represents prosperity. Astrologers decide the modern day rituals based on auspicious times, which coincides with the transit of the Sun between ‘House of Pisces’ and ‘House of Aries’.

Consequently, the ending of the old year, and the beginning of the new year occur several hours apart, during the time of transit. This period is considered Nonegathe, which roughly translates to ‘neutral period’ or a period in which there are no auspicious times. During the Nonegathe, traditionally, people are encouraged to engage themselves in meritorious and religious activities, refraining from material pursuits. This year the Nonegathe begin at 8.09 pm on Tuesday, April 13, and continues till 8.57 am on 14. New Year dawns at the halfway point of the transit, ushered in bythe sound of fire crackers, to the woe of many a dog and cat of the neighbourhood. Cracker related accidents are a common occurrence during new year celebrations. Environmental and safety concerns aside, lighting crackers remain an integral part of the celebrations throughout Sri Lanka.

This year the Sinhala and Tamil New Year dawns on Wednesday, April 14, at 2.33 am. But ‘spring cleaning’ starts days before the dawn of the new year. Before the new year the floor of houses are washed clean, polished, walls are lime-washed or painted, drapes are washed, dried and rehang. The well of the house is drained either manually or using an electric water pump and would not be used until such time the water is drawn for first transaction. Sweetmeats are prepared, often at homes, although commercialization of the new year has encouraged most urbanites to buy such food items. Shopping is a big part of the new year. Crowds throng to clothing retailers by the thousands. Relatives, specially the kids, are bought clothes as presents.

Bathing for the old year takes place before the dawn of the new year. This year this particular auspicious time falls on April 12, to bathe in the essence of wood apple leaves. Abiding by the relevant auspicious times the hearth and an oil lamp are lit and pot of milk is set to boil upon the hearth. Milk rice, the first meal of the year, is prepared separate. Entering into the first business transaction and partaking of the first meal are also observed according to the given auspicious times. This year, the auspicious time for preparing of meals, milk rice and sweets using mung beans, falls on Wednesday, April 14 at 6.17 am, and is to be carried out dressed in light green, while facing east. Commencement of work, transactions and consumption of the first meal falls on Wednesday, April 14 at 7.41 am, to be observed while wearing light green and facing east.

The first transaction was traditionally done with the well. The woman of the house would draw water from the well and in exchange drop a few pieces of charcoal, flowers, coins, salt and dried chillies into the well, in certain regions a handful of paddy or rice is also thrown in for good measure. But this ritual is also dying out as few urban homes have wells within their premises. This is not a mere ritual and was traditionally carried out with the purification properties of charcoal in mind. The first water is preferably collected into an airtight container, and kept till the dawn of the next new year. It is believed that if the water in the container does not go down it would be a prosperous year. The rituals vary slightly based on the region. However, the essence of the celebrations remains the same.

Anointing of oil is another major ritual of the New Year celebrations. It falls on Saturday, April 17 at 7.16 am, and is done wearing blue, facing south, with nuga leaves placed on the head and Karada leaves at the feet. Oil is to be applied mixed with extracts of Nuga leaves. The auspicious time for setting out for professional occupations falls on Monday, April 19 at 6.39 am, while dressed in white, by consuming a meal of milk rice mixed with ghee, while facing South.

Traditionally, women played Raban during this time, but such practices are slowly being weaned out by urbanization and commercialisation of the New Year. Neighbours are visited with platters of sweetmeats, bananas, Kevum (oil cake) and Kokis (a crispy sweetmeat) usually delivered by children. The dichotomy of the urban and village life is obvious here too, where in the suburbs and the village outdoor celebrations are preferred and the city opts for more private parties.

 

 

Continue Reading

Features

New Year games: Integral part of New Year Celebrations

Published

on

Food, games and rituals make a better part of New Year celebrations. One major perk of Avurudu is the festivals that are organised in each neighbourhood in its celebration. Observing all the rituals, like boiling milk, partaking of the first meal, anointing of oil, setting off to work, are, no doubt exciting, but much looked-forward-to is the local Avurudu Uthsawaya.

Avurudu Krida or New Year games are categorised as indoor and outdoor games. All indoor games are played on the floor and outdoor games played during the Avurudu Uthsava or New Year festival, with the whole neighbourhood taking part. Some of the indoor games are Pancha Dameema, Olinda Keliya and Cadju Dameema. Outdoor games include Kotta pora, Onchili pedeema, Raban geseema, Kana mutti bindeema, Placing the eye on the elephant, Coconut grating competition, Bun-eating competition, Lime-on-spoon race, Kamba adeema (Tug-o-War) and Lissana gaha nageema (climbing the greased pole). And what’s an Avurudhu Uthsava sans an Avurudu Kumari pageant, minus the usual drama that high profile beauty pageants of the day entail, of course.

A salient point of New Year games is that there are no age categories. Although there are games reserved for children such as blowing of balloons, races and soft drinks drinking contests, most other games are not age based.

Kotta pora aka pillow fights are not the kind the average teenagers fight out with their siblings, on plush beds. This is a serious game, wherein players have to balance themselves on a horizontal log in a seated position. With one hand tied behind their back and wielding the pillow with the other, players have to knock the opponent off balance. Whoever knocks the opponent off the log first, wins. The game is usually played over a muddy pit, so the loser goes home with a mud bath.

Climbing the greased pole is fun to watch, but cannot be fun to take part in. A flag is tied to the end of a timber pole-fixed to the ground and greased along the whole length. The objective of the players is to climb the pole, referred to as the ‘tree’, and bring down the flag. Retrieving the flag is never achieved on the first climb. It takes multiple climbers removing some of the grease at a time, so someone could finally retrieve the flag.

Who knew that scraping coconut could be made into an interesting game? During the Avurudu coconut scraping competition, women sit on coconut scraper stools and try to scrape a coconut as fast as possible. The one who finishes first wins. These maybe Avurudu games, but they are taken quite seriously. The grated coconut is inspected for clumps and those with ungrated clumps are disqualified.

Coconut palm weaving is another interesting contest that is exclusive to women. However men are by no means discouraged from entering such contests and, in fact, few men do. Participants are given equally measured coconut fronds and the one who finishes first wins.

Kana Mutti Bindima involves breaking one of many water filled clay pots hung overhead, using a long wooden beam. Placing the eye on the elephant is another game played while blindfolded. An elephant is drawn on a black or white board and the blindfolded person has to spot the eye of the elephant. Another competition involves feeding the partner yoghurt or curd while blindfolded.

The Banis-eating contest involves eating tea buns tied to a string. Contestants run to the buns with their hands tied behind their backs and have to eat buns hanging from a string, on their knees. The one who finishes his or her bun first, wins. Kamba adeema or Tug-o-War pits two teams against each other in a test of strength. Teams pull on opposite ends of a rope, with the goal being to bring the rope a certain distance in one direction against the force of the opposing team’s pull.

Participants of the lime-on-spoon race have to run a certain distance while balancing a lime on a spoon, with the handle in their mouths. The first person to cross the finish line without dropping the lime wins. The sack race and the three-legged race are equally fun to watch and to take part in. In the sack race, participants get into jute sacks and hop for the finish line. The first one over, wins. In the three-legged race one leg of each pair of participants are tied together and the duo must reach the finish line by synchronising their running, else they would trip over their own feet.

Pancha Dameema is an indoor game played in two groups, using five small shells, a coconut shell and a game board. Olinda is another indoor board game, normally played by two players. The board has nine holes, four beads each. The player who collects the most number of seeds win.

This is the verse sung while playing the game:

“Olinda thibenne koi koi dese,

Olinda thibenne bangali dese…

Genath hadanne koi koi dese,

Genath hadanne Sinhala dese…”

Continue Reading

Trending