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A Muslim response to ‘One Country, One Law’

02 Dec 2021

By Hilmy Ahamed The Muslim Civil Society Alliance issued a letter in response to the Government’s call for written representations to be submitted to the “One Country, One Law” Task Force appointed by President Gotabaya Rajapaksa, under Gazette Extraordinary notifications No. 2251/30 dated 26 October 2021 and No. 2252/56 dated 6 November 2021. Following are excerpts from the letter: At the very outset, we wish to emphatically and unequivocally state that we have no confidence in the impartiality and competence of the Chairman of the Task Force to examine the issues involved and the relevant laws. The Venerable Chairman is notorious for his anti-Islamic and anti-Muslim rhetoric. The adverse findings against him by the Presidential Commission of Inquiry (COI) to investigate and inquire into and report or take necessary action on the bomb attacks on 21 April 2019 appears to have escaped the attention of the Advisors of Your Excellency. The finding is in the following terms: “The speeches of Rev. Galagoda Aththe Gnansara Thero contained comments aimed at the Muslim community in general and fuelled anti-Muslim fervor. They contained without any doubt hate speech. In particular, the COI examined the speeches Rev. Galagoda Aththe Gnansara thero made on 17 February 2013 at Maharagama and speech made at Aluthgama on the day after the poya day in June 2014. The COI is of the view that part of the speeches made can form the basis for a prosecution in terms of International Covenant on Civil and Political Rights (ICCPR) Act No. 56 of 2007 and recommends that the Attorney General consider filing charges against Rev. Galagoda Aththe Gnanasara Thero. Such hate speech no doubt ignited extremist groups within the Buddhist community to target Muslims and their business establishments.” Furthermore, we are dismayed and hurt by the blasphemous and derogatory statements made by the Venerable Chairman recently in regard to Almighty Allah. In these circumstances, the Muslim community can hardly be expected to repose any confidence in him. We, therefore, explicitly reject the choice of the Government in appointing Venerable Galagodatthe Gnanasara Thero to undertake a task of such magnitude and far-reaching consequences, and call upon the President to dissolve the Task Force in the interest of the nation. Historically, our island had attracted traders, travellers, and invaders. Thus, Sri Lanka has been a fertile field for the cross-pollination of cultures. It is an established fact that Arabs were in Sri Lanka even before the advent of Islam. Reports indicate that when the Portuguese arrived in Sri Lanka in 1505, the Muslims in “Ceylan” were practising their religion and dealt with issues using Islamic Jurisprudence. When the Dutch followed, they introduced portions of the statutes of Bativia into Sri Lanka in 1776. The British respected the personal laws practised by the Muslims and codified it as the Mohammedan code of 1806. The colonisers did not interfere with the personal laws of the Muslims. In the same way, Thesavalamai and Kandyan law also survived. Sri Lanka is a multi-cultural, multi-ethnic, and multi-religious country. This diversity is reflected in the personal laws. Whilst there is no question that there must be uniformity in the application of the general, civil, and criminal law, personal matters such as matrimonial disputes, intestate succession, temporalities are matters that properly fall within the province of personal laws. This is particularly so in regard to Muslim law which has a religious underpinning. On the eve of Independence, misgivings arose as to whether the departure of the British would result in discrimination against minorities. These fears were perceived by the British as an impediment to the grant of Independence. Dr. T.B. Jayah, speaking for the Muslims in the State Council, had the full support of all the Muslim leaders when he unequivocally stated that Muslims had confidence in the majority community and were not looking for constitutional guarantees. This was a manifestation of the confidence that Muslims then had and the cordiality that prevailed amongst Muslims and the major community. However, there were others who were strident in their demand for protection and in fact suggested the infamous “50-50 formula”. The solution to this problem provided by the British was Article 29(2) of the Constitution, which stated that: No law passed by Parliament shall;
  1.   Prohibit or restrict the free exercise of any religion; or
  2.   Make a person of any community or religion liable to disabilities or restrictions to which persons of other communities or religion are not made liable; or
  3.   Confer on persons of any community or religion any privilege of advantage which is not conferred on persons of other communities or religion; or
  4.   Alter the Constitution of any religious body except with the consent of the governing authority of that body, so however that in any case where a religious body is incorporated by law, no such alteration shall be made except at the request of the governing authority of that body
Section 29(3) declared that laws made in contravention of the above rights were to the extent of such contravention void. The most notable feature of the above rights is that they were negative liberties (i.e. freedom from interference or an absence of obstacles, barriers, or constrains). Later, there was a growing demand for a nationalist and homespun Constitution. The then Parliament took on the role of being a Constituent Assembly and went on to create Sri Lanka’s first autochthonous Constitution. The then Prime Minister Sirimavo Bandaranayake in a radio broadcast stated: “A constitution which a nation such as ours gives itself must be adequate for a twofold task. In a multiracial and multi-religious nation such as ours it has to be the instrument of the development of the nation itself. It must serve to build the diversity imposed on it by history. Though there are among us several races such as Sinhalese, Tamils, Moors, Burghers, Malays, and others; and several religious groups, such as the Buddhists, Hindus, Christians, and Muslims, we are one nation.”  These statements reveal that in developing its first autochthonous constitution, Sri Lanka began with the intention of developing the nation and to build on its diversity. Furthermore, the statement acknowledged that the Constitution would be created according to the mandate of the people. This intention was given adherence in drafting Article 12 of the Republican Constitution which gave personal laws a constitutional lease of life. The 1972 Constitution was replaced by the 1978 Constitution. The validity of the personal laws as “existing law” was once again provided in the form present Article 16(1). Hence, it would be seen that these constitutional provisions represent the solemn balance of rights amongst the citizens of Sri Lanka and operate to protect personal laws. The diverse nature of our society is reflected in the SVASTI of our Constitution. This preamble while referring to the mandate given by the People of Sri Lanka states in the following terms: “To constitute SRI LANKA into a DEMOCRATIC SOCIALIST REPUBLIC whilst ratifying the immutable republican principles of REPRESENTATIVE DEMOCRACY and assuring to all Peoples FREEDOM, EQUALITY, JUSTICE, FUNDAMENTAL HUMAN RIGHTS, and the INDEPENDENCE OF THE JUDICIARY as the intangible heritage that guarantees the dignity and wellbeing of succeeding generations of the people of SRI LANKA and of all the people of the world, who come to share with those generations the effort of working for the creation and preservation of a JUST AND FREE SOCIETY.” The use of the terms “the people of Sri Lanka” and the “peoples of Sri Lanka” is a recognition of the multi-cultural character of our nation. This is reinforced by Article 27(5), which states that “the state shall strengthen nationality by promoting corporation and mutual confidence among all sections of the people of Sri Lanka including the racial religious linguistic and other groups…” This commitment to diversity was re-affirmed in the Sri Lanka Accord which was signed by India and Sri Lanka on 29 July 1987. In the Accord, there is an acknowledgement that Sri Lanka “is a multi-ethnic and a multilingual plural society consisting inter-alia Sinhalese, Tamils, Muslims (Moors), and Burghers”. As much as the Muslim law quintessentially binds the ethno-social and religio-cultural imperatives of the Muslim social psyche, so do the laws relating to those subject to Thesavalamai and Kandyan law. To undermine their foundation by diluting its authority, scope, and application will have negative consequences of seismic proportion. The theory of “One Country, One Law” is a mere slogan and is neither desirable nor feasible. It humiliates the “Society of Highest Order”, which, as civilised nations, accept minority special laws. Through this parochialism, the supporters of one country one law want to transform society into the old Austinian sovereignty: “A determinate human superior, not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society…” (Austin – Lectures on Jurisprudence). Thereby, degrading and departing from the modern trend of legal pluralism and legal sociology. Luke Ehrlich propounded; the facts of law existed before any positive law arose. These facts of the law are social structures to be found wherever human beings are living together. Thus: “The family is older than the order of the family; possession ante-cedes ownership; there were contracts before there was a law of contracts.” (Ehrlich’s Sociological Theory of Law). All personal laws are a manifestation of a collective social consciousness of a community of people having intrinsic religious, customary, and traditional relevance. Such laws have been inherited by intergenerational transmission over several centuries and are deeply rooted. There is a growing recognition of legal pluralism as a global reality. “Legal pluralism exists everywhere and comparative research, therefore, needs to assess degrees of legal pluralism rather than questioning its existence.” (Woodman [199:54]). The way forward is, therefore, for a plural and diverse legal system and not the regressive “One Country, One Law”. We, therefore, reiterate that His Excellency dissolve the Task Force headed by the Venerable Galagodathe Gnanasara Thero and desist from attempting to implement the one country, one law concept which goes against the grain of global thinking.  Pursuing the “One Country, One Law” concept will not only alienate sections of the Sri Lankan nation, but also be detrimental to national unity and reconciliation. The country must move forward and not backward. (The writer is the Convenor of the Muslim Civil Society Alliance, which comprises the All Ceylon Jamiyyathul Ulema, the Muslim Council of Sri Lanka, the National Shoora Council, and the All Ceylon YMMA Conference) The views and opinions expressed in this column are those of the author, and do not necessarily reflect those of this publication.

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