There should be a common law inclusive of communities: Ermiza Tegal

By Skandha Gunasekara

Human Rights Lawyer Ermiza Tegal opined that Sri Lanka must strive to introduce a legal system where an individual could choose between personal laws and common law with regard to how people live their lives and conduct personal relationships.

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

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

That’s a very broad question and I think it’s difficult to say yes or no to that. Personal laws have been recognised for the longest time and an advantage is that it does mean that individual communities or the respective communities have had the opportunity to express themselves as they wanted to – whether under Thesavalamai, Muslim law, or Kandyan law.

They have been able to live their lives and personal relationships in terms and rules they have been most comfortable with. The negative side of this is that these personal laws have not been reviewed and revised to reflect human rights standards and basic standards and those conversations have not moved within the scope of personal.

There have been a lot of issues related to discrimination, abuse, and violence which is caused as a result of these laws not reforming.

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

When you say above, at the moment, all laws are equal. Whatever the law is, it is enacted by a statute, whether it is a common law in terms of the General Marriage Ordinance or Thesavalamai law, or the Muslim Marriage and Divorce Act – they are all laws of Sri Lanka and have equal status.

What would be good is for people to have options and a choice that if they do want to marry under common law, it is accessible for all people.

The only group that does not have access to the General Law Ordinance is the Muslim community. So I think restricting choice in that way causes difficulties because when you are forced to do things you don’t choose, you have more options of recourse in common law. Common law, should, as the name suggests, be commonly accessible to all.

Should personal laws be scrapped altogether?

I would really question the motives behind scrapping personal laws altogether. At this point in time, this conversation is being raised not in terms of bringing about an equal system but more in terms of almost retaliation to their communities having personal laws for themselves, and I think that is not the right motivation to have a conversation on whether or not there should be personal laws.

Personal laws have reflected diversity in our country and that has been something that we should have appreciated, but we should have also at the same time reviewed them and reformed them so that those communities have access to the best possible version of how they wanted to live their lives.

So I think the question of scrapping those altogether has to be very carefully responded to and debated with much thought and care, because at the end of the day, if it is done to remove a realm of laws and ways of living for a particular community and deny that community that way of life, then that is the wrong motivation and is not in the pursuit of diversity, equality, and plurality – the accepted plurality of this country.

Earlier you said all laws, including common law, have equal status but shouldn’t common law be more prominent than personal?

Common law should be more accessible to everybody. When you say prominence, there is no prominence in laws – all laws have equal status. One of the main difficulties that Sri Lanka currently faces with regard to the laws is that none of the laws, whether it’s the common law or the personal laws, can be challenged in terms of fundamental rights violations. We have no judicial review in our country for any individual to go before court and say “this particular law is violating my rights and needs to be changed”. That is where the focus should be.

People should have access to inform courts and say that whatever the law – whether its common law or personal law – that this law is infringing upon their rights and therefore that law should be reformed so it protects rights.

I don’t think that the conversation about one law being above other laws has any value. All laws are equal and that is the way we have functioned and that is the way we recognise all laws whether they come from before or they are new laws. They all have the same status. It’s just that common law by virtue of being common law has to be accessible to all so that anyone has the choice of living under common law.

Should we have a common law that is inclusive of all communities?

Certainly. A common law should be reflective and inclusive of communities and I think the conversation about how we move in terms of law reforms, whether we think about laws that are very much more inclusive, is one that needs to happen, or whether personal laws move in a direction where they reform to be within human rights standards.

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

That is not something that I have researched well into. I know that there are countries that have tried to create uniformed courts that take into account individual community practices but don’t think there are that many.

So their system is either to create a general common law that has a standard practice and then you allow all the other religious or ethnic groups to practice their cultural rights and for legal purposes you have the common law. Alternatively, you create a common law that accommodates all of the characteristics of each of the communities that they want to have in that common law and be respectful of their customs and ways of life or you create a system where there is personal laws that is personal to the various communities and you have a common law and so that people who want to choose common law can do so and those who want to live under personal law can do so, but no one is disadvantaged by either.