By Jayampathy Wickramaratne –

Dr Jayampathy Wickramaratne PC

‘One country, one law’ was one of the main planks of Gotabaya Rajapaksa’s election platform. The slogan was initially crafted and marketed by the Viyathmaga professionals’ group that was founded and nurtured with the active support of Rajapaksa. The slogan found expression in Rajapaksa’s Presidential election manifesto ‘Vistas of Prosperity and Splendour’ as follows:

‘Only one set of laws should be applicable to the entire country and the ruler as well as all citizens should abide by the rule of law. All should be equal before the law and as long as they abide by the rule of law, citizens need not be afraid of law enforcement agencies or of law enforcement officers. An environment will be created where law enforcement agencies and law enforcement officers shall also be subjected to the rule of law.’

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.

Existing law and fundamental rights

The fundamental rights declared by Chapter III of the Sri Lankan Constitution have no effect on laws that existed at the commencement of the present Constitution. Article 16(1) declares that all existing written and unwritten law shall be valid and operative, notwithstanding any inconsistency with fundamental rights. The 1972 Constitution provided similarly in section 18(3).

The continuation of existing law without being read subject to fundamental rights, one manner of the exercise of the sovereignty of the People, raises a serious question regarding the supremacy of the Constitution.

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.

One of the issues raised by the petitioners who intervened was the effect of Article 16(1) of the Constitution, namely that a person whose fundamental rights under the Constitution comparable with rights under the ICCPR are violated by existing law has no remedy. The petitioners contended that Article 16(1) is inconsistent with Article 2(3) of the ICCPR which requires that each state party undertakes to ensure that there are effective remedies for persons whose rights or freedoms under the ICCPR are violated.  It was also submitted that Article 16(1) ensures the continued validity of certain provisions of personal laws that discriminate, especially against women. A note setting out several such laws as examples was annexed to the written submissions of the writer who appeared 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.

SC Reference, an opportunity missed

The Court stated in its opinion that customary and special laws are deeply seated in the social milieu of the country. Article 27 of the Covenant 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 there are certain aspects of personal laws which 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. If at all there should be any amendment such request should emerge from the particular 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.

Personal laws, of course, are a sensitive issue. At the same time, 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 Court did not consider the submissions made in respect of the Land Development Ordinance and the Land Grants (Special Provisions) Act, which apply to all communities.  Under the former, the owner of a holding granted to him by the state or a person who holds a permit in respect of state land may nominate a successor who must be a close relative listed in a schedule namely, sons, daughters, grandsons, granddaughters, father, mother, brothers, sisters, aunts, uncles, nephews and nieces. Such nominee may be a female. Where an owner or permit holder dies without nominating a successor, the land devolves among the relatives of the deceased in the order provided in a schedule. But in a particular group, males are preferred to females, and the older is preferred to the younger. For example, where a permit holder dies leaving two sons and a daughter, it is the elder son and not the eldest child who is entitled to succeed to the land. The order of succession discriminates against women, as a younger son is preferred as against the eldest female child. The Land Grants (Special Provisions) Act also contains provisions similar to the Land Development Ordinance. Where a nomination has not been made, the rights of the deceased grantee of state land devolve on the surviving spouse. Failing such spouse, they devolve on one of the relatives of the grantee in the order specified therein, which is identical to that under the Land Development Ordinance. Here too, sons are preferred to daughters, and the oldest is preferred to the others. The respective provisions are in violation of Articles 12(1) and 12(2) of the Constitution and inconsistent with Article 26 of the ICCPR.

The Supreme Court concluded that the legislative measures referred to in the communication of the President and the provisions of the Constitution and of other law, including decisions of the superior courts of Sri Lanka give adequate recognition to the civil and political rights contained in the ICCPR. They adhere to the general premise of the Covenant that individuals within the territory of Sri Lanka derive the benefit and guarantee of rights as contained in the Covenant and that the rights recognised in the Covenant 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 the light of the ICCPR as well as the chapter on 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 for more time and appointed several eminent lawyers to assist it as amici curiae.

Universality or cultural relativism?

A word to those who resist any change in personal laws. Those who support the theory of ‘cultural relativism’ assert that human values vary according to cultural perspectives. It is necessary to underscore the fact that universal human rights do not impose one cultural standard on all cultures but a single legal standard of minimum protection necessary for the preservation of human dignity under any culture. Universal human rights represent the hard-won consensus of the whole international community. Contrary to claims that international human rights standards were ‘imposed’ by Western countries, it is important to remember that developing countries like India, Chile, Lebanon, and Panama played an active and highly influential part in the drafting the Universal Declaration of Human Rights. Developing countries such as Ghana and Nigeria made important contributions to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Social, Economic and Cultural Rights (ICESCR).

Can domestic violence against women and forced marriages be permitted in the name of culture? Isn’t the practice of female genital mutilation practice in many societies inhuman? ‘Sati’ in India, now criminalized and almost non-existent, forced a widow to jump into the funeral pyre of her husband. Under the ‘culture’ of honour killings in Pakistan, a woman alleged to have committed adultery would be killed by her husband, women subjected to rape would be killed and women belonging to the family of a criminal would be raped and/or killed.

Universality does not presuppose uniformity. Human rights reflect our common universal humanity, from which no human being must be excluded; they derive from the mere fact of being human. The challenge is to work towards the indigenization of human rights and their assertion within each culture’s traditions and history.

Judicial process preferred

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. Athuraliye 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 not the imposition of one law on all cultural communities but a single legal standard applicable to all cultures so that the different personal laws as well as all other laws would all be consistent with the Constitution.