By Ruwan Laknath Jayakody –

Ruwan Jayakody

History is the problem child of memory.

For the American poet Walt Whitman, “multitudes” are contained within the singular “I”. Perhaps one of these “multitudes” is the affinity for plurality, a fact well borne out since the pre-historical origin of our species as demonstrated by how societies have arranged themselves and civilizations have evolved, with community as the totem and culture as its core. Hence, the idea of being a part of a group (or possessing ingrained chromosomes containing ‘communal and social genes’), is, the Polish sociologist Ludwig Gumplowicz claims, one to which each individual gains membership to, upon entry to the world. The American biologist E.O. Wilson going a step further describes the “bloody and ingrained nature” of the “group versus group” dynamic as constituting a “principal driving force that made us who we are”.

But is the idea of the group as being integral to identity as innate a genetic predisposition as it is made out to be or is it a sublimated condition?

The Janusian aspect of this dilemma is articulated through the prism of morality. What if morality, that “danger of dangers” per the German philosopher Friedrich Nietzsche, renders Sri Lankans, “herd animals”, which are “eager to please, sickly and mediocre”, instead of being great by being “noble”, desirous of solitude, “able to be different”, “standalone” and “live independent”?

It is in this context that the recently and controversially established Presidential Task Force (PTF) which enters the stage set for the battle of the ‘One Country, One Law’ – with its protagonists and bit players with their stock characters of tragic and anti-heroism and arch-villainy forming the mise-en-scene together with a menagerie of zero-sum props including race, ethnicity, religion, culture, and majority and minority statuses, as crutches for their collective and mutual antagonism, ready to enact a morality play for the ages for public stagehands, with the Constitution as the proscenium and the media as the fourth wall – must be viewed.

The target of the PTF is the special laws enacted on the basis of race, ethnicity, and religion.

In the cabinet of curiosities that forms the convoluted legal landscape of Sri Lanka, three customary, personal and territorial laws – the Thesawalamai or the Customs of the Malabar Inhabitants of the Jaffna Province (formerly Province, presently District) of 1706 as amended (with Regulation, No. 18 of 1806 as amended, Ordinance, No. 05 of 1869 as amended, the Thesawalamai Pre-emption Ordinance, No. 59 of 1947 as amended, and the Jaffna Matrimonial Rights and Inheritance Ordinance, No. 01 of 1911 as amended, also being applicable to the debate); the Muslim Marriage and Divorce Act, No. 13 of 1951 as amended (with the Mohammedan Code of 1806 as amended, the Mohammedan Marriage Registration Ordinance of 1886 as amended, and the Muslim Intestate Succession Ordinance, No. 10 of 1931 as amended, also being applicable to the debate); and the Kandyan Marriage and Divorce Act, No. 41 of 1975 as amended (with the Kandyan Law Declaration and Amendment Ordinance, No. 39 of 1938 as amended, and the Kandyan Succession Ordinance, No. 23 of 1917 as amended, also being applicable to be the debate; with the Matrimonial Rights and Inheritance Ordinance, No. 15 of 1876 as amended, also being applicable to the debate) – all of which deal with aspects pertaining to property including land, and inheritance including intestate succession, and marriage and divorce and related matters – take centre stage in this discourse, even though other similar laws such as the Mukkuva Law which per advocate C. Brito, governed the fisher caste Tamils in the East, specifically in Batticaloa, have also been in existence. This “many” hued “mosaic”, as international jurist Christopher Gregory Weeramantry would have it, represents the “coexistence of diverse elements than their fusion into one”.

It is however not ideal to legislate in this fashion. The flipside of legislating on the basis of identity is that such affirmative action of a positive discrimination kind eventually comes to, with the vicissitudes of time, reveal their true nature, that of negative discrimination with all the perniciousness that accompanies such, turning what were once perhaps tools of intra communal harmony into objects of majoritarian paranoia and intra communal oppression. Now these laws have riven a nation.

A strong national identity as American intellectual Jared Diamond points out, is an important factor when it comes to dealing with national crises. But such a strong national identity should not come at the cost of being rendered as ‘one people’ through a Frankensteinian process of cultural zombiefication. Diamond, who likens a national crisis to a personal crisis and himself, advocates a model of conflict resolution through restorative justice, notes that only certain “nations get help, use other nations as models, and are honest about their responsibility”.

Retaining the customary and personal laws in the statute books with continued force and ambit in the law, does not mean that their grievous and flagrant provisions that fly in the face of the notions of common sense and gender equality and the country’s legal undertakings and related obligations including in the international arena, should be permitted to be in flagrante delicto. If abrogation is not the answer, reform is however of the essence. Hence, comprehensive laws with limited areas of exceptions as recommended by jurists Ivor Jennings and H.W. Tambiah provide the remedy for the ills that stalk the jurisprudence of these specific laws. Only such reform can make diversity analogous to homogeneity and not antithetical to unity.

However, in the same way that a “law that is not just, is not actually”, as African philosopher Augustine of Hippo would have it, “a law”, the non-implementation of the laws sans fear and favour by the enforcement authorities, too poses the same problem.

In spite of the country’s legal systems being both “conflicting and overlapping” and the application of the law lacking both “coherence and consistency”, legal academic George Dana Cameron notes in “Sri Lanka’s Legal System: Museum of Antiquities or Melting Pot of Ideas?”, the “fact that the Ceylonese legal system has retained any unity at all in the face of imposing divisive tendencies, provides good evidence of its basic strength and of its ability to adapt to changing conditions” and points to the incomplete “blending process” that is underway with the passage of time rendering certain obnoxious customs obsolete, and the necessary process of statutory modification that takes place from time to time.

It is of note that the said Task Force is headed by a monk (Bodu Bala Sena General Secretary, Galagodaaththe Gnanasara) who perhaps rightly has nothing but disdain for the “Sudda’s (white man’s)”, “foreign” law, which usurped the indigenous laws in place at the time of colonization. However, Cameron warns against discarding a legal system made up of the Roman Dutch Law and the English Law which provides a “key to the storehouse of the world’s legal wisdom”, “in favour of some hastily drafted, emotionally inspired, untried and unproven ‘national’ law”.

Law is not morality and morality is not law and let the membership of the Task Force that is tasked with studying the implementation of the ‘One Country, One Law’ concept and preparing a draft Act for the implementation of such, be reminded thereof of, and also of the “prudence” required in such a process, a quality that the President himself has apparently recognized in the Task Force’s membership.

Tracing the “Origins of Genocide and Crimes Against Humanity”, academic and barrister Philippe Sands who has worked on such cases where genocide, deemed the “crime of crimes” that elevates the protection of groups above individuals, and crimes against humanity, the latter deemed the “lesser evil”, have been alleged, notes that ‘group-individual’ identity politics, have created “a race between victims”, “unhappy psychological consequences” and “a serious challenge to international law”. Sands notes that the term ‘genocide’ with its emphasis on the group and the “reinforcing of a sense of group identity”, “tends to heighten” the “us’ versus “them” binary, thus “burnishing feelings of group identity” and thereby “giving rise to the very conditions” – the possibility of inter-group conflicts – “it seeks to address”, “by pitting one group against another”, in turn “making reconciliation less likely”.

It would be remiss to not comment on the relationship of identity to the articulation of the ‘One Country, One Law’ concept; hence, a rejoinder is prescient:

‘Identity. An identity. The identity. Identity is plural. There are individual identities. There are collective identities. The question of identity is founded on climacterics, characterized in equal measure by dysphoria and subsequent rejection and passivity and consequent acceptance. Identity: annexed upon birth, articulated during life, extrapolated in death. Identity is amorphous. Identity is without form. Identity is only function. Identity is both assigned and performed. Identity is a consciousness to be transgressed and violated’.