By Austin I Pullé –

Austin I Pullé

The first matter to be discussed is the deplorable plight of Muslim females in Sri Lanka. As winter breaks in the Northern Hemisphere, health authorities of various European countries and American states have sounded the alarm over the dangers of Vitamin D deficiency, the “sunshine vitamin”, which, if it cannot be obtained naturally or through expensive foods, requires Vitamin D supplementation. No doctor would deny that Vitamin D is essential for good health. Returning from the East Coast, the writer saw hundreds of Muslim schoolgirls and adult females clothed head to toe with a slit in the garment for their eyes. The health authorities, when not involved in collaborating in making fake immunoglobulin and cancer drugs, should surely know of the health risk posed by shutting off with the abaya the sunshine on the skin of these females. A responsible state that is concerned with the health and welfare of all its citizens would have started a publicity campaign to promote the ingestion of Vitamin D tablets by this vulnerable sector of the population. It would be too optimistic to expect most the menfolk in the community to be aware of the importance of Vitamin D and buy this vitamin, especially if there are justifiable concerns that what is on offer are soy or talcum powder tablets produced by the counterfeit medicine conglomerate that appears to be the dominant supplier in public health field. The government should step into the breach by providing this vitamin for free distribution in schools and in community centres to such women and children.

Bleaker still is the plight of Muslim females under the unconstitutional, and therefore void, MMDA. When enacted in the fifties, the MMDA was in blatant violation of Section 29(2) of the 1948 Constitution. How a statute that  permits the marriage of a Muslim female child a little over 12 years, while other laws provide for a higher age limit for females of other faiths, could not be seen and as an obvious breach of section 29(2) of the first constitution remains a mystery. At the time of the MMDA’s enactment, the courts had not recognized their power to declare legislation unconstitutional and void. Be that it may, the MMDA is still an unconstitutional and by definition a void statue. It operates as the law in the country solely because it would be politically perilous to flush this foul illegality off from the statute books. The “One Country, One Law” crowd have lost sight of this fundamental reality in attacking the MMDA.

International conventions binding on Sri Lanka make it clear that the practices under the MMDA and the practice of entrusting young males to temples violate key provisions of these conventions.

Article 16 1 of CEDAW states that: States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (a) The same right to enter into marriage; (b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent; (c) The same rights and responsibilities during marriage and at its dissolution; (d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount; (e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights; (f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount; (g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;

No rational person could agree that the right which the MMDA grants a father to give a thirteen year old girl from Katankudy in marriage to a seventy year old Arab is even remotely compatible with the list of rights enumerated in Article 16.1.

Article 3 of the Convention on the Rights of the Child states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

The practices under discussion ex facie violate the “best interests of the child” criterion.

The Adoption Ordinance does not recognize the practice relating to entrusting young males to temples and the Sri Lankan constitution forbids both sets of practices.

Section 2.1 of the Adoption of Children Ordinance forbids two or more persons adopting the same child. But this is precisely what in fact occurs when a child is entrusted to the care of a community of monks. Section 4.c states: that the order if made, will be for the welfare of the child, due consideration for this purpose being given to the wishes of the child having regard to the age and understanding of the child. If the entrusting of a young male to a temple is processed under the Adoption Ordinance, the court has to summarily reject the application.

12. (1) of the Constitution states that “All persons are equal before the law and are entitled to the equal protection of the law.” A child of well to do parents has its welfare protected as required by the Adoption Ordinance.  But does the child entrusted by its poor parents to a temple so that it will live the rest of its life deprived of a secular education and the possibility of choosing a lifestyle and a career get the same concern from the state?

A young male child may become a brilliant sportsman, a physician or a surgeon, or a winner of the Fields Medal. By what measure of fairness a can one justify the surrender of a male from an impoverished family to a temple to live out his life as a monk, while a child from an affluent family has the option of choosing the future path of his life in a posh international school which opens the way to entry to Harvard, Princeton of Oxbridge? Karma or astrology is not an acceptable answer!

The uncomfortable truth is that, by turning a blind eye to these practices, the Sri Lankan state abets child trafficking. Foreign embassies and international organizations know this but choose to ignore this truth because, as the slaughter in Gaza has dramatically shown, the lives of all children, of whatever colour in practice are never considered equally valuable by some of the strongest preachers of human rights.

The above discussion shows that state institutions, the political class, and many elites treat international treaties, the constitution, and local law in the same way that a street dog treats a lamppost. The theme of social media postings on the death of the state minister is that in this lawless society, justice can only be expected not from local enforcement but for a benign universe. When the red line between legality and illegality is effectively erased in a society, that society becomes a failed state. It is not Muslim females and young Buddhist males that are injured when this happens, the whole of society suffers.

If the assertion in Article 3 of the Constitution that sovereignty vests in the People and is inalienable is to be given a meaning, enforcement would depend on a Sri Lankan society that requires ethics/morality in public life, an adherence to conventions that lubricate the proper functioning of the Constitution. An alert and proactive judiciary must enforce the rule of law as the judiciary as well as the rest of society know, the rule of law is just a slogan in the country. Absent these, the grundnorm of Sri Lankan society is as secure as a foundation built on tofu.

Conventions are critical lubricants in making a constitution work. A speaker who also functions as a party organizer and a COPE chairman credibly alleged by the opposition to be coaching witnesses, by means of crude hand signals, show that conventions and integrity are extinct in Sri Lanka’s  constitutional ecosystem. Singapore recently arrested a cabinet minister charged with corruption. In Sri Lanka, a person convicted of corruption remains in the cabinet while another who should be arrested for corruption remains in the cabinet. This should not be surprising. Decades ago the cultural limelight shifted from urbane, philosophically enlightened men such as Dr. Colvin R de Silva, Ronnie de Mel, Dudley Senanayake, Pieter Keuneman, EMV Naganathan, and Sir Razeek Fareed to a class of criminal scum destroying public property in Parliament, spouting obscenities, and engaging in thuggery  with impunity. This is the clearest proof one could want of the irrational folly and catastrophic decline of Sri Lankan society. The disappearance of conventions signals the urgent need for a strict application of the law by the courts and the defence of the rule of law by those who care for the country.

*To be continued..