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One country, one law, countless questions

a year ago

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  • The need for balance between genders, ethnicities, and religions in the law reforms process
BY Sumudu Chamara The citizens’ right to be treated equally before the law and not being subjected to any form of discrimination are rights recognised globally, and are considered the most rudimentary norms recognised by almost all nations with a democratic governing system. Sri Lanka’s Constitution too guarantees these rights and acknowledges the State’s obligation to protect the same. However, in reality, there has been an astronomical number of occasions where the upholding of these rights has been questioned. To see to it that the country has laws that treat people equally, President Gotabaya Rajapaksa, last week, appointed a Task Force to support the concept of “One Country, One Law”. Although ensuring a legal system that does not leave any room for any form of discrimination against any ethnic or religious community has been a promise the present Government has given on many occasions after coming to power, the establishment of the Task Force, which was announced through an extraordinary gazette notification dated 26 October, attracted more criticism than praise, due to its composition, leadership, and objectives. ‘One Country, One Law’ The Task Force, headed by Bodu Bala Sena (BBS) General Secretary Ven. Galagodaaththe Gnanasara Thera, comprises Prof. Dayananda Banda, Prof. Shanti Nandana Wijesinghe, Prof. Sumedha Siriwardena, N.G. Sujeewa Panditharathna, Attorney-At-Law (AAL) Iresh Seneviratne, AAL Sanjaya Marambe, Eranda Navaratna, Pani Wewala, Moulavi Mohamed of the Galle Ulama Council, Mohamed Inthikab, Kaleel Rahman, and Azeez Nizardeen as members, and Senior Assistant Secretary to the President Jeevanthie Senanayake as the Secretary. The objectives of the Task Force include making a study of the implementation of the “One Country, One Law” concept within Sri Lanka and to prepare a draft Act for the said purpose, and to study the draft Acts and amendments that have already been prepared by the Justice Ministry in relation to this subject and their appropriateness, and if there are suitable amendments, to submit proposals for the same purpose and to include them in such relevant drafts as is deemed appropriate. These goals, according to the extraordinary gazette notification should be achieved with a focus on the fact that the administration of justice, its implementation, and protection under the law is fair by all in accordance with the Constitution, as well as the fundamental rights specified in the Constitution, while further ensuring that all citizens are treated alike in the eye of the law.  The President further directed the Task Force to submit reports to him at least once a month, and to submit the final report on or before 28 February 2022. “I require and direct all public officers and other persons to whom the said Task Force may issue instructions to or from whom assistance for the provision of services may be requested, to comply with all such instructions, render all such assistance, and furnish all such information as may be properly complied with, rendered, and furnished on that behalf, and the Task Force is to report to me all instances where any government employee or an officer in any ministry, government department, state corporation, or any such institution who delay the performance of duties and the fulfilment of responsibilities or fail to perform such duties and responsibilities to be entrusted by the Task Force,” the extraordinary gazette notification further read.  The Chair of the much-discussed Task Force, Ven. Gnanasara Thera, on 1 October, shed some light on the duties of the Task Force, while also responding to some of the concerns raised by the media. Speaking at the Presidential Media Centre (PMC), Ven. Gnanasara Thera said that even though the Task Force chaired by him cannot make laws, it will expedite the process of paving the way for legal reforms that have been delayed due to various unscientific processes and political influences in the past. He highlighted that this expediting process includes laws and regulations pertaining to issues that are being widely discussed in the society, but have not been passed despite laws and regulations having already been drafted in this regard. Tamil representation It was not only Gnanasara Thera’s appointment as the Chairman of the Task Force that attracted criticism. Following the announcement of the establishment of the Task Force, several parties expressed concerns about its composition, including the fact that it does not have a single member who represents the country’s Tamil and Hindu communities. This imbalance, according to certain Tamil politicians, could not only hinder the objectives the Task Force is planning to achieve, but can also convey a negative message to the Tamil community. Illankai Tamil Arasu Kachchi (ITAK) Parliamentarian Shanakiyan Rajaputhiran Rasamanickam, who spoke with The Morning about the importance of Tamil representation in the said Task Force, said that the country’s Tamil community, despite being one of the communities that were greatly affected due to ethnic religious conflicts might see this zero Tamil representation as a move to push them further away from national-level plans aimed at achieving legal changes that affect them. He noted that this is not the first time the Tamil community has been alienated in this manner, and that they have experienced similar incidents in the recent past as well.  He added: “Sri Lanka’s Tamil community is used to being omitted from matters that pertain to the Government, and the Tamil language not being included in certain signboards which were widely discussed in the recent past is one example. As the Tamil community in this country, what we are saying is that we want to live in one country, in one Sri Lanka, and we want to have a Sri Lankan identity. However, if the country’s leader is constantly ignoring the Tamils, which we think has been shown by this absence of Tamil representation in the Task Force, and if this trend continues, it is tantamount to almost pushing the Tamil community away and towards separatism. This Task Force has specifically excluded the Tamil and Hindu communities, even though it comprises the Muslim and Sinhala communities.” He noted that in a context where several recent incidents have shown how people of different social classes are treated differently before the law, having a Task Force of this nature to ensure equal treatment for all persons is of utmost importance. Pointing out incidents where certain minor offences attracted rightful treatment and punishment, while major offences, especially when powerful figures are implicated in them, were dealt with in a less stringent manner by the law enforcement authorities, he opined that the proper functioning of the said Task Force, however, is what will determine its results. Rasamanickam opined that in a context where the Tamil community is expressing willingness to live in one country, together with the other communities, the message that being ignored in this manner gives is that the country and the Government do not want the Tamil community to be a part of Sri Lanka. He noted that these concerns are not just about the Task Force’s composition, but also about other similar incidents which have given a similar negative message.  During the press briefing on 1 October, however, Ven. Gnanasara Thera spoke about the Task Force not having any member representing the country’s Tamil community. When questioned about the composition of the Task Force, including zero representation of the Tamil community, he stated that the Task Force should be appreciated if it is to function properly without any racial or religious differences. “It does not even need Muslim representation, but there were a lot of discussions about the madrasas (Islamic educational institutions), quazi courts, and the Sharia (Islamic religious law) banking system after the Easter Sunday terror attacks of April 2019. That is why several Muslim representatives were appointed as members of the Task Force.”  Adding that great care should be taken as far as selecting representatives for this purpose is concerned, Ven. Gnanasara Thera further said that, for example, the Tamil community in Jaffna may oppose the appointment of a Tamil representative to the Task Force from Kandy. “One must be extremely careful when appointing representatives for such a Task Force in a context where there is no consensus among their own communities,” he added.  Meanwhile, President’s Media Spokesman Kingsly Rathnayake had also said during a recent event at the Temple Trees that a certain group had questioned the absence of representation of the Tamil community in the Task Force, and that the President had expressed willingness to nominate one or more Tamil representatives in the future, if a need arises. Diversity and female representation Even though the popular opinion seems to support the appointment of the said Task Force, Women’s Action Network (WAN) Co-Founder and human rights activist Shreen Abdul Saroor, who is also advocating for the reform of the Muslim personal and customary law – the Muslim Marriage and Divorce Act (MMDA), is of the opinion that having diverse laws is not an issue, as it, in fact, shows the coexistence of diverse ideologies, noting also that what truly matters is laws being equally applied to those coming under those laws and the laws being in line with the country’s foremost law, the Constitution. Adding that it is the Constitution that guides all other laws and the country, Saroor told The Morning: “I don’t see why we need to get rid of the diversity that we have when it comes to laws. Also, what is meant by ‘One Country, One Law’ is vague. We have several forms of laws such as the Roman Dutch Law, the English Law, and also a few personal laws.” With regard to the enforcement of laws, she said that there is, however, a problematic situation when it comes to Article 16 of the Constitution (which comes under the Fundamental Rights [FR] Chapter). Article 16, which relates to existing written law and unwritten law to continue to be in force, states that all existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of the FR Chapter, and that the subjection of any person on the order of a competent court to any form of punishment recognised by any existing written law shall not be a contravention of the provisions of the same Chapter. “We have a problem with regard to Article 16, which actually safeguards a lot of discriminatory laws. What Sri Lanka actually wants is any law that is being developed or reformed to abide by the FR guaranteed through Article 12 of the Constitution which says that every person is equal before the law. However, I don’t think that the Task Force is going to abolish Article 16. The positive changes this Task Force can bring about as far as having one law is concerned are unclear. I doubt that they will make all religions equal in this country, or will make all languages equal. This is going to penalise the minorities further,” she opined. Saroor also pointed out the fact that the Task Force does not have a fair gender balance, and noted that in a context where women have been playing an important role in the law-making processes, this is unacceptable. She also questioned the competency of the Task Force to amend laws affecting women, if it does not include female representatives. Mentioning the MMDA, the reform of which has been under discussion for a while now, Saroor said that these forms of reforms demanded by women and which affect women significantly should be addressed with the involvement of women. Gnansara Thera as Chair The concerns, especially by the Opposition, expressed with regard to the Task Force mostly revolved around the appointment of Ven. Gnanasara Thera as the Task Force’s Chairman, especially due to his reputation as a Sinhala Buddhist nationalist monk, having been convicted for contempt of court, and allegations pertaining to his alleged role in certain ethnic religious conflicts.  Rasamanickam, expressing his opinion in this regard, said that the Task Force is being headed by a person who has violated the Constitution, and has been sentenced to prison but is out on a presidential pardon. He said that in that context, by appointing someone like him to the topmost position of this Task Force, there is a doubt as to whether it is possible to expect anything good from the Task Force. Meanwhile, Saroor also expressed similar sentiments, questioning the judiciousness of appointing a Buddhist monk who has been convicted of contempt of court and has threatened witnesses in cases, and has been sentenced to prison, to lead a Task Force aimed at looking into law reforms, especially those that might include laws pertaining to ethnic and/or religious minority communities. She added: “He is expected to look into amendments and new laws that are being considered or being made by the Justice Ministry. Law reforms are basically done by the Legal Draftsman’s Department, the Attorney General’s (AG’s) Department, and the Justice Ministry, and 90% of these reforms are done by legal professionals. We cannot ask a Buddhist monk to lead such a process. This decision comes at a time when the country is suffering from various forms of discrimination against the minority communities, and the Justice Ministry is looking into law reforms including laws that can be considered discriminatory laws. Appointing a Buddhist monk to oversee these processes, which require legal expertise, is questionable. Also, the legislative process is basically a parliamentary process, and this appointment goes against it. In fact, we are very scared of this development.” Although The Morning’s attempts to contact Ven. Gnanasara Thera to discuss these concerns were unsuccessful, at the abovementioned press briefing, the Thera also spoke about the concerns and opposition expressed by a large number of parties, especially the parliamentary Opposition, with regard to his appointment as the Chairman of the Task Force. He told the media: “There is nothing to say about the Government and Opposition parties that talk about me. They are the reason for all of this. The reason why President Rajapaksa appointed this Task Force is because they have not fulfilled their responsibilities properly.”  Even though the name of the said Task Force – “One Country, One Law” suggests establishing one law for all citizens, according to the Task Force Chair, the Task Force will mainly look at expediting the ongoing and/or necessary law reforms. However, as those who spoke with The Morning pointed out, the task of looking into such complex matters that affect an entire country should ideally be led by a legal expert, and/or have more legal experts in it. Most importantly, the Justice Ministry has commenced a number of crucial law reforms, which have shown some promising signs during the past few months, and the Government therefore has a responsibility to ensure that the establishment of this Task Force supports these legal reforms, not hinders them.
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