by M. A. M. H. Barry
PhD, LLM, MA, LLB. BA ,Attorney-at-Law
The worst form of inequality is to try to make unequal things equal (Aristotle)
Although much is spoken about ‘one country and one law’ in Sri Lanka, it is not a new phrase as all the countries in the world have one legal system. But this does not denote that there must be only one law for each and every aspect which everyone should follow. If this contention is correct, then no country will have different laws at the different levels or for different segments of people. For instance, if we take Sri Lanka, we have different laws in different provinces in some prescribed areas by virtue of the Thirteenth Amendment and Provincial Council Act No. 42 of 1987, and further we have different bylaws in various local councils.
Furthermore, we have several different laws which govern the administration and functions of the different religious places or institutions. For examples, we have Buddhist Temporalities Ordinance No. 19 of 1931 (as amended) governing the administration of temples, The Hindu Cultural Fund Act No. 31 of 1985, The Church of Ceylon (Incorporation) act (No. 43 of 1998), and Muslim Mosques and Charitable Trusts or Wakfs Act (No. 51 of 1956). These acts clearly indicate that different laws are necessary for the functioning and administration of different religious places/institutions.
No sensible person would argue that there should be one law to manage all these religious places because the diversity of the faiths and cultures demand such different laws. These laws exist because this diversity was recognized. It is not possible or correct to demand the people to give up their diverse faiths and to accept one law which could govern all religious places or institutions on the argument that all Sri Lankans should have only one law.
Equality and Equity
One of the fundamental elements of the notion of equality is equity, which requires that justice should be distributed according to the needs of the people as not all people are equal in all aspects, whether they are political, economic or social and they are not identical in strength, resources, means and practice.
The basic concept of equality signifies that the persons who are similarly categorized must be treated equally. To treat equals as unequals or unequals as equals, is equally unjust or violative of the principle of equality (State Bank of India v. State of West Bengal, 1979, 1 Ch LJ 363). All human beings are born equal and they should be treated equally. However, the unequals are identified and recognized not only due to political, economic and social disparities, but also more importantly due to the diversities of religions, cultures and languages. The concept of equality demands recognition of diversities and permits the manifestation of the rights of diverse communities according to the fundamental norms of the constitution or guiding principles of the state, without affecting the substantial laws of the country. In application of indigenous laws, the recognition is given only in a limited areas which are very personal like marriage, divorce and inheritance. For all other purposes general law is equally applicable to all.
The Indian Supreme Court in many decided cases interpreted the art 14(equality clause) by reading it with the art. 15 which prohibits discrimination on the grounds of religion, race, caste, sex, place of birth etc. The section 15 though fosters national identity does not deny pluralism of Indian culture but rather it preserves it (MR Jois, Equal Treatment, Jspui, bitstream).
Many leading states where they are federal, semi federal or unitary have either parallel or sub-legal systems, but they are still regarded as the part of one legal system which accommodates the unity of their people.
The sub-legal systems are accommodated in several states in order to recognize the religious or cultural practices of segments of the people in a few selected areas like personal law which deals with the matters related to marriage, divorces, inheritance etc. Several non-Muslim countries including India, Thailand, Singapore, Philippine and notably Israel which is known as the world only Jewish state where the Qadi courts are functioning under the jurisdiction of the Ministry of Justice or Cultural Affairs. The Qadi courts in Israel have jurisdiction to adjudicate matters relating to marriages, divorce, financial maintenance, legal capacity and guardianship, custody of children, paternity and inheritance, among others. The rights of the Muslims to practice their personal law are being protected in Israel despite the fact that there has been a historical animosity between the Arab Muslims and Israeli Jews due to Israel/Palestine land dispute. In Sri Lanka we have a pluralistic legal system which has been accommodated to realize the diverse aspirations and give respect to different communities of whom our constitution acknowledges as equal citizens of the country.
The reasons for recognizing and protecting the ethnic, religious, linguistic and cultural rights of the citizens in multi religious/cultural and linguistic states could be realistically, legally and politically attributed to the following indispensable factors (1) social contract (2) protecting religious rights and (3) protecting universal rights. The states by definition and nature are obliged to respect and enforce their duties originate from the above factors.
The social contract is a contract between the state and its citizens. No modern state could exist or function without the social contract and it is the people who give authority to the state or to its agent (government) to manage their affairs. Under the social contract, the people surrender or delegate certain rights to the state and retained or reserved their fundamental rights to themselves.
Furthermore, under the social contract the rights that are not delegated or retained by the people, the state undertakes to protect them (both individual and collective rights). In modern times the people do not give authority to states to establish absolute or totalitarian rule, but they wanted states to protect their basic rights as the primary duty of the state. The terms of the social contract (rights/duties of the state and rights/duties of the people) are normally enshrined and reflected in a country’s constitution and other respective laws
For instance, the tenth amendment to the US Constitution expressly reserves the powers not delegated under the Constitution or prohibited by it to the respective states, or to the people. The US courts have affirmed this position in several leading cases. In Butchers’ Union case (1884-111 U.S. 746) Field J observed “…all men are endowed, not by the edicts of Emperors or decrees of Parliament or Acts of Congress, but by their Creator, with certain inalienable rights’ that is, rights which cannot be bartered away or give away except the punishment of crime, and among these are life, liberty and pursuit of happiness, and to secure these, not grant them but secure them, governments are instituted among men, deriving their just powers from the consent of the governed.”
Although under the Indian Constitution, there is no similar provision like the tenth amendment to the US Constitution, in Gopalan case (1950-SCR 88) Sastri J. stated “It is true to say that, in a sense, the people delegated to the legislative, executive and the judicial organs of the State their respective powers while reserving to themselves the fundamental rights which they made paramount by providing that, the State shall not make any law which takes away or abridges the rights conferred by that Part (of the Constitution) …”
Hence it is a duty of any state to secure these rights since they are the core values of a constitution. As the part of its primary duty a state should protect its peoples’ rights and ensure the justice to everyone by applying equality and equity in addressing or resolving any problems of the people.
“Justice, Equality and Equity” are the cardinal principles and fundamental requirements not only for successful resolutions of any dispute among the people, but also to unite the diverse people under the one national banner. These cardinal principles are the fundamental values which cannot be subordinated to any other claimed values.
The state duty under the social contract does not change according to the electoral changes as the people vote to different parties at the different elections but this does not provide permission to change or negatively amend the core values or guiding principles of the state. The social contract does not imply that it is a contract only with the majority who voted for any political party but it is a contract with all citizens (different segments). In this context, the state has to protect the interest and rights of all citizens who participated in the electoral process and also who do not participate in the process (who did not vote or do not use their franchise), because the protection of the core values are guiding principle of the state or constitution which could not be politically or morally or even legally be abrogated.
In the US, the constitutional provisions and amendments which protect the rights of the people, especially its Fourteenth Amendment which enshrines the equality clause are regarded as the core values or guiding principles of the state. No debate takes place in the US to negate or weaken these core values or guiding principles as these protective provisions are well entrenched and no one think about their abrogation as these principles are synonymous with the primary objective of the state.
Protecting Right to Freedom of Religion
The right to freedom of religion is not only a collective or community right, but it also an individual right. In modern history, it was regarded as one of the first recognized human rights. The Code of Rhode Island of 1647 and Westphalia Peace Treaty 1648 recognized religious freedom. It was regarded as one of the foundations of Human Rights ideology. The basic elements of freedom of religion and belief have the status of jus cogens or international customary law (Forum 18). It is also a part of Ius Gentium (law of nations) and a part of Lingua Franca (universal language) because the language of human rights has become the moral lingua franca (Micheal H. Perry).
Integration or Assimilation?
In a multi-cultural, religious and linguistic state like Sri Lanka the national integration is a condition precedent for the nation building. The national integration signifies that the diverse people in a state are incorporated into the society as equals while their diversity is respected and recognized as the part of the state’s polity. On the other hand, the assimilation may be defined as the process whereby all the cultures within a state are assimilated into one dominant culture and thereby, depriving other cultures to exist. The assimilation is not politically, socially, morally and legally possible in a multi-cultural, religious and linguistic state like Sri Lanka as all communities are entitled to their fundamental rights of practicing and preserving the religious, cultural and linguistic rights. Hence, the very definition of the state should reflect the ethnic diversity and aggregation of distinct communities.
The indigenous laws of Sri Lanka were recognized in the context of integrating diverse religious and cultural practice in very rare and exceptional areas which are related to the personal or private life. If the Muslim Marriage and Divorce Act (MMDA) necessitate any amendment to mend any deficiency, it could be addressed by making necessary amendments. Already, the committee appointed for recommending reforms on MMDA, headed by former Supreme Court Judge Hon. Justice Saleem Marsoof has completed its report. Hence, the amendment could be worked out on the basis of these recommendation to address any concern or deficiency.
In this context, the notion of one country and one law’ should be seen as a unifier of all communities in the nation building process by respecting and recognizing their rights and consolidating a legal system which could accommodate the aspirations of all the people. Furthermore, the notion of one law also signifies that all people are equal before the law and they are entitled to equal protection of law, and specifically no one is above the law.
Sri Lanka needs unity among the people, which requires every community respects others and everyone community regard other communities as brothers and sisters of one family of the nation without perceiving others in suspicious, apprehensive and mistrustful manner. The law should be actively applicable to prevent hate speeches against each other and to ensure dignity to every community.