Reformed Constitution to guarantee equality vital- Sakuntala Kadirgamar

By Skandha Gunasekara

Law and Trust Society Executive Director Sakuntala Kadirgamar asserted that constitutional reform must take place to ensure equality to all communities in the country.

Below are excerpts of Kadirgamar’s interview with The Sunday Morning:

Have the individual laws for different communities in Sri Lanka benefited the country?

I think the idea of allowing personal laws or recognising personal laws has been important in recognising minority identities in the areas of marriage, inheritance, and succession, but I think what has been problematic is when minority or personal laws are in violation of fundamental rights in the Constitution or in terms of human rights standards. The original reason for personal laws was to show the minorities that the state recognises the pluralist identity.

Shouldn’t common law be enforced above other personal laws for equality among communities?

The Constitution I think should be above other laws because common law is a mix of other laws and is also influenced by the British system, etc. but the Constitution guarantees equality to people, so that should be above the personal laws.

Should personal laws be scrapped altogether?

This is a very loaded question in the context of which it is being asked. What I would say is not a question of scrapping personal laws but I think it is important to engage with the communities that have adhered to these personal laws and engaging with them to see what their role is in this context and what has been the advantages and disadvantages of having personal laws.

When the British were managing affairs in Sri Lanka and India, they felt the only way to get community buy-in was to recognise personal laws, but they gave people the option of coming into the general law. So I think if there is time for people to engage with the minority community, they must find out from them to what extent personal laws have been disadvantageous and how it has held back communities, especially in relation to women’s rights.

The reason why that has been most problematic is – and I feel very strongly about this – people are in a bind because they want to hold on to their ethno-religious identities which is very personal to them, but at the same time, many in these communities want equality – especially the women.

So you have to really balance these and I think laws can be brought into compliance with modernisation as well.

Having said that, since I know the context of this issue, I would suggest personal laws are revised in accordance to human rights standards, and if they’re revising personal laws in accordance with such standards, the State also has an obligation to honour human rights standards – that should be the highest standard.

How could we go about making common law supreme to personal laws, in your view?

The Constitution should be supreme and I think if it is enshrined in the Constitution that certain provisions such as equality and non-discrimination are supreme you will find that personal laws are going to be revised or applied in accordance to that.

One of the very strange aspects of Sri Lanka’s Constitution is that people are considered equal but then it goes on to say that it doesn’t apply to personal laws. So if personal laws treat one group within their personal laws unequally, then the Constitution won’t look at that.

Then the Constitution also says that laws that are not in compliance of these provisions of the Constitution continue to be valid. I think it is a lazy way of looking at law reform that they allow all the pre-existing laws to apply even if they contravene the Constitution. I think a really long, hard rethink of our Constitution and providing equality to all through the Constitution is a very necessary first step.

What examples can we take from other countries when introducing an inclusive common law?

I think we’ll start from the basis of the Constitution. Countries that have reformed their constitutions to guarantee equality has been a first step.

You’re using common law like it’s common to everybody, but in Sri Lanka, common law has a slightly different connotation. I would say, look at the Constitution – what does the Constitution guarantee in terms of equality to all individuals and all individuals within communities? Because if you really prioritise that, then you have taken the first step of ensuring proper equality among all communities.