14 December, 2019

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The Cabinet Decision To Ban Women From Purchasing Liquor Is Unconstitutional: Verité Research

“The Cabinet Decision to ban women from purchasing liquor is unconstitutional,” says Colombo-based interdisciplinary think-tank Verité Research.

We publish below the note issued by Verité Research in full:

Mangala Samaraweera, Minister of Finance and Media

Women are permitted to purchase liquor: On 10 January 2018, the Minister of Finance and Mass Media issued Excise Notification No. 02/2018 under the Excise Ordinance, No. 8 of 1912 (as amended). The new Notification amends Excise Notification No. 666 of 31 December 1979, and removes the ban on the sale of liquor to women ‘within the premises of a tavern’.[1] A tavern is usually defined as ‘a place of entertainment…[or] a house for the retailing of liquors to be drunk on the spot’.[2] Women are therefore entitled to purchase liquor under Sri Lankan law as at 10 January 2018. Moreover, Excise Notification No.666 does not appear to prohibit women from purchasing alcohol in premises that do not constitute a tavern (e.g. supermarkets).

Equality before the law: Article 12(1) of the Constitution states that ‘all persons are equal before the law, and are entitled to the equal protection of the law’. Moreover, article 12(2) states that ‘no citizen shall be discriminated against on the grounds of…sex.’ Therefore, acts that discriminate against women on the grounds of their sex violate their fundamental rights, and are thereby unconstitutional.

Article 16(1) of the Constitution states that ‘all existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter’ (emphasis added). Article 16(1) only applies to written and unwritten law enacted prior to 1978. Thus any law that is enacted today must be compliant with the fundamental rights chapter of the Constitution, and cannot discriminate on the grounds of sex.

Cabinet decision is unconstitutional: On 16 January 2018 the Cabinet of Ministers unanimously decided to withdraw the above Excise Notification No. 02/2018, which removed the prohibition on the sale of liquor to women within the premises of a tavern.[3] This decision serves to prohibit women from purchasing liquor in the premises of a tavern by reinstating the previous ban under Excise Notification No.666 of 1979. The Cabinet’s decision therefore discriminates against women on the grounds of their sex. The new decision dated 16 January 2018, is not protected under article 16(1) of the Constitution, as it does not fall within the category of ‘existing written law or unwritten law’ at the time of promulgating the Sri Lankan Constitution of 1978.

There is an imminent infringement of a fundamental right: Article 126(1) affords the Supreme Court the sole and exclusive jurisdiction to ‘hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right’ (emphasis added). The Cabinet decision dated 16 January 2018 falls within the category of ‘executive’ action.[4] Moreover, the decision to withdraw Excise Notification No. 02/2018 amounts to an imminent infringement of article 12(2) of the Constitution, as the decision will directly result in the Minister of Finance and Mass Media withdrawing the said Notification. Such withdrawal will constitute an infringement of women’s rights to equality and non-discrimination guaranteed by articles 12(1) and (2) of the Constitution. Therefore, interested parties anticipating an imminent infringement of their fundamental rights have valid grounds to petition the Supreme Court under article 17 (read with article 126) of the Constitution.

[1] Previous clause 11(c) of Excise Notification No. 666 of 31 December 1979.

[2] Black’s Law Dictionary, Revised 4th Edition, 1968. Available at: http://heimatundrecht.de/sites/default/files/dokumente/Black%27sLaw4th.pdf [Accessed on: 17 January 2018].

[3] ‘Cabinet decides to withdraw Gazettes on liquor’, Ada Derana, 16 January 2018, Available at: http://www.adaderana.lk/news/45440/cabinet-decides-to-withdraw-gazettes-on-liquor [Accessed on: 16 January 2018].

[4] Sugathapala Mendis and Another v Chandrika Kumaratunga and Others (Waters Edge Case) [2008] 2 SLR 339; Perera v University Grants Commission [1978-79-80] 1 SLR 128 at 137-138, per Sharvananda J, ‘The expression ‘executive or administrative action’ embraces executive action of the State or its agencies or instrumentalities exercising Governmental functions. It refers to exertion of State power in all its forms’.

Related posts:

Eleven Women File FR Petition To Retain Right To Purchase Alcohol And Work In Liquor-Selling Establishments

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Latest comments

  • 2
    2

    Can somebody tell me where the Magnificent, World Famous Opposition Leader Sampanthar Aiya sleeping? Is he selling the women’s rights too, for his mirage, the Secret Solution? Or are Puttu Katties in the mouth of TNA MPs? (TNA MPs might be too busy in selling their Buddhism only Constitution to the Northern Tamils convincing them that they will get Pari Nirvana once the New Constitution implements two provinces wide World Largest Rapist Army Camp. Vaarai Nee Vaarai .. Puliyinai Thodarnthu Puthumaan Nee. Or is this the message of TNA has for Women: https://www.youtube.com/watch?v=T32rZg8M4xs

    Can the JVP and TNA take parliament this daylight robbery of women rights by the Buddhist Jihadi cabinet.

    If a male dictator can bring single handedly this type of changes, why the 15% representation for women in Local Councils? What a dupe by giving a penny by right hand and robbing a pound by left hand!

    Soon this Jihadi Guy is going to introduced Wahabi Buddhism dress code for women and going propose 72 virgin for the Buddhist Jihadist.

    • 4
      0

      THis Cabinet is a shame on all of us. It is plain MAD!

      How does this decision sit with a progressive, free and a modern world where everyone is considered equal?

      What does these paragons of virtue in the Cabinet think we are? Saudi Arabia?

      The lack of education and awareness among our rulers is becoming embarrassingly evident with each passing day.

  • 0
    0

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

  • 3
    0

    “Sigh no more, ladies, sigh no more,
    Men were deceivers ever,-
    One foot in sea and one on shore,
    To one thing constant never.”
    ― William Shakespeare, Much Ado About Nothing

  • 1
    7

    Banning selling/buying right of alcohol for women is vital for them for their protection.

    However alcohol must be banned for both men & women. Those who go abroad and come back with dirty habits must be banished from the country

    • 10
      1

      Real Revolutionist

      Absolutely.. ! Agree with you 100%

      Women must also be stopped from learning to read and write, being educated, going to school and university, driving and finding jobs. They should not be permitted to travel abroad and in the future, even to leave the house. – These are dirty Western things.

      All Sri Lankan women abroad must be brought back to Sri Lanka.

      They should also not have sex. Instead, they should be confined to the kitchen

      Now, are you going to be the one to enforce these things in your own home ?

      Let us know how it goes

      • 0
        2

        Malumiris

        Sorry that’s not my idea;
        you’ve mistaken my comment

    • 3
      0

      Your ‘Revolution’ proposes that we go back to the Stone Age.

    • 1
      1

      Real Revolutionist

      “However alcohol must be banned for both men & women.”

      It want work. Kassippu production will increase, more people could die/injured from illicit drinks and loss of revenue to the state coffers.

      “Those who go abroad and come back with dirty habits must be banished from the country”

      Are you blaming the maids who go to middle east medieval kingdom to earn few dollars so that you men could have a jolly good life style at home when women folks are away from your drinking jaunt. Aren’t you a card carrying member of House of Hypocrites?

      • 0
        0

        Native Vedda

        Good to have a scientific approach for this issue. Doctors participation is a must.

        What are the advantages of & disadvantages of alcohol to the human body.

        Take geographical factors too

        Filling govt. coffers @ the expense to human health & to their economy?

        May be my comment was too heavy but instead of promoting liquor strongly,encouraging people to have moderate approach will be fruitful.

        To the best of my knowledge alcohol isn’t essential for our existence unless you’re an addict.

  • 0
    0

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

    • 1
      0

      No one else’s comments are removed by the moderator as frequently as those emanating from Jim Softy’s brilliant mind. What can we make of it?

  • 3
    8

    Under the present constitution, the particular prohibition was valid until recently. Then this prohibition was removed by Mangala. Then the President asks to enforce the prohibition again. Now how one can argue that reinforcement of the prohibition unconstitutional? Whether it is a think tank or some other tank (maybe alcohol), I can not understand their rationality. We support the president in this instance.

    • 0
      0

      FM seems to have accepted a contract to double the alcohol consumption in SL; thus sell more of it & collect more tax + unknown things

      Sure, in the near future there’ll be cry for same sex marriage.

  • 8
    0

    I still support My3. He has a decent sense of values.

    However, he’s been talking through his hat in this instance. What is sauce for the goose must also be sauce for the gander.


    If men are allowed to purchase and consume alcohol, you cannot prevent women from doing the same. I do not touch the stuff – that is a choice that I made long ago, and I don’t even think about it now. That should not be anybody else’s business.

  • 5
    0

    Sri Lanka is a Sinhala Buddhist country. Only country in the world where full moon is a holiday. Full moon day AKA Poya Day is a dry day. No Alcohol permitted to be sold or consumed, but it’s hard to police the consumption at home. However that’s what happens. Meat curry and arrack.

    So the Govt is talking double standards here.If alcohol is not allowed on a full moon day …then In Fact the Govt should ban alcohol altogether for all Sri Lankan Sinhala Budhhist.

    • 3
      0

      GG has already established its Policy in this matter – see https://drive.google.com/file/d/0B-ax1cltXnLTaWpZQl9lOGlsV3c/view (pages 35-69 in Sinhala)

      MS, as usual, has double-standards and political antics.

    • 1
      0

      R.
      I agree it’s funny; it’s only politically Buddhist, I guess; and full of double standards.

  • 7
    2

    Lets see how independent the Judiciary is going to be on this! Every person in SL, let it be a Women or a Man has equal rights. The law banning Women buying liquor is an illegal law and has to be changed. At the end the Courts may say that banning is the law of the country as per the act. If the Courts make this decision, the Courts are also duty bound to request the Parliament to change the law as it violates FUNDAMENTAL RIGHTS.

    • 0
      0

      and islamic marriage law?

  • 0
    3

    Morality before the Law!!!!!!!!!!!!!! That’s how it should be.

    According to these idiots’ logic, If banning women from purchasing is unconstitutional, then not letting women ware ‘Amudé ‘ is unconstitutional, holding separate sports events for men and women is unconstitutional (e.g; Roger Federa vs Serrina Williams) etc, etc.

    The constitution is a political decoration in Sri Lanka . Sri Lankans still live by/abide by CULTURE and RELIGION.

  • 2
    0

    The legal interpretation of the sequence of events is a matter for the courts. On principle women should not be discriminated from men. If women can go to “Night Clubs” or “Karaoke Clubs” and dance, sing etc. and in the process sip a drink served on them (of course they cannot be free but perhaps purchased by women themselves but in most cases a man may purchase it for them) what is then wrong in permitting a woman entering a “Tavern” to buy liquor and perhaps have it there itself when the so called clubs are themselves in effect “Taverns”? Socially speaking from a conservative point of view one can say that this is the beginning of the end of “decent” woman-hood in Sri Lanka. But the reality of the matter is that stage has long past. The existing social fabric is such that those women who want to go to “Taverns” have already gone to “Taverns” in the form of clubs. Hence, the original permission granted by the Minister of Finance in my view is really not going to make a significant change in the landscape of women’s behavior in Sri Lanka. HE knows that. But HE is creating a rumpus in the guise of a champion of conservatism (His children are no where near that) for the political purpose establishing his supremacy. Even if the courts strike it down HE is going to say “Under me the judiciary is independent unlike the past and I have done my best to protect the decency of women” and take political mileage from that just as much as in the Tobacco advertisement case. HE knows that the average men in Sri Lanka like to have a fling with women before marriage but want a “decent” girl to marry.

    • 0
      0

      G S.
      The problem here is, we have kangaroo courts and corrupt to the core politicians with double standards.

  • 0
    2

    mangalas decision was correct but the timing was wrong
    he should have waited till after the elections

  • 0
    0

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

  • 0
    0

    Doctors should intervene in this matter.

    SL is a tropical country so alcohol is not basic/essential requirement for anybody.

    However the argument that if men can buy it we are also entitled for that. Well as far as rights are concerned it is right.

    But wise to see the negative impact of it to people & the country, family income may not be enough to cope with expensive but empty result giving alcohol

    In case dad is non-alcoholic mom is alcoholic?

    In case both are alcoholics?

    In case dad is alcoholic & mom not? ( the present situation)

    In case no money left for nutritious food?

    In case no money left for kid’s studies? etc..etc

    Instead of saying if men have it we also want, women can say if we’re not given men also should not be given.

    So the dream of alcohol dealers to expand market can be thwarted..

  • 1
    0

    We lesser folks are beating about the bush in a society changing every minute.According to Buddha everything in life is impermanent. Einstein said that” change is the only thing that is not changing.” Very soon in developed countries you will be able to order a bottle and have it delivered by a Drone without any human intervention. President J R Jayawardena had the best policy on alcohol when he said ” You cannot legislate morals.”

    • 0
      0

      Upali, That is one place I agree with JRJ – who tom fooled the country.

      From time far away, from the day the Scriptures were written down, the Buddhist priests taught us to up our petard.What MS is doing is the same.Did he open the road in front of the Temple at kandy- (note I do not use the exprewssion Temple of the Tooth.) as he promised during the election campaign? No why.

      A sel lipi was found recently which exposed the fact that in the olden days the men had to leave their women at the temple in the morning and pay a ransome to collect the in the evening. Nice for the Priest-Sex food and money. the material for the food also came from the villagers.

  • 0
    1

    This confrontation would not have taken place if only Mangala had consulted MS.
    This needs a fundamental answer to “Should every minister consult the President on every issue?”. This is totally unworkable.
    It was made worse by the cabinet unanimously agreeing to rescind the Mangala directive. They are eating drinking people but not a single thinking person!

    • 0
      0

      Mr. Pillai, you must in your dreams.Mangala is the Minister who has to form the policies.MS is the team leader, who should enure that the Ministers work and discipline themselves. Has MS done that.

      How can one accept the story that he came to know it through the papers.

      If MS was a good administrato / manager, these confrontation in public with his caninet will not take place.

  • 1
    0

    Let the women work behind the bars and even consume as guests,after all there’s a gender equality.

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