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Solution or another problem?

27 May 2019

By Maheesha Mudugamuwa A month after the Easter Sunday terror attacks, a majority of Sri Lankan lawmakers are pushing for reform of the existing personal laws and urging to bring the entire legal system into a uniform system of law to curb the extremism arising in the country – one country, one law is the newest concept being mooted. Sri Lanka is a secular country – every citizen is equal in the eyes of law. However, due to different personal laws, they are treated differently based on their religion. Therefore, lawmakers argue that there is an ambiguity amongst people which leads to differentiation between them on the basis of their religion and ethnicity. Leading the campaign “One Country One Law”, the Sri Lanka Freedom Party (SLFP) has formulated 11 proposals last week to prevent extremism in the country and promote a Sri Lankan identity across all ethnic and religious groups. The proposal which was put forward in a letter by a group of SLFP Parliamentarians to the Parliament’s Sectoral Oversight Committee on National Security included the inclusion of an article to the Constitution to set-up a common ministry for religious affairs instead of a ministry each for different faiths. Common educational institutions to cater to the educational needs of students belonging to all communities and all educational institutions should thereby function under the complete supervision of the Education Ministry; the syllabus and methodologies of higher education institutions must function under the directives of the Higher Education Ministry; and all vocational training and tertiary training courses must be brought under the Ministry of Vocational Training. Speaking to The Sunday Morning, SLFP General Secretary MP Dayasiri Jayasekara said new laws should be introduced to curb the extremism being faced in the country and to avoid future attacks based on religious or ethnic extremism. “Two percent of the Muslim community in Sri Lanka has been radicalised, and therefore, we must have a de-radicalised system in place. We should have a common system of law, including for marriages and divorces, which will ultimately eradicate the differentiations between the religions and the different ethnic groups,” he said. Jayasekara added: “The major problem the country has at present is the reason for violence to come up. Actually, in the last few years, Wahhabism came to Sri Lanka. We had the traditional Muslim laws. But when some people went to Mecca, they followed Wahhabism. The burqa, niqab, and all these practices came to Sri Lanka with Wahhabism.” “We can’t have political parties based on religions, and the mixed school system should be re-enforced in Sri Lanka,” he added. While the SLFP formulated new proposals to the existing legal system, United National Front (UNF) MP Dr. Jayampathy Wickramaratne, a constitutional law expert, argued that to some extent, some personal laws go against the underlying principles of the Sri Lankan Constitution. Highlighting the importance of preserving the fundamental rights (FR) of all citizens in the country, he said: “I have always taken the position that all laws in this country should be subjected to the Constitution. One big mistake in the 1972 and 1978 constitutions was that pre-existing laws continue to be valid even if they eroded the FR factor.” Responding to the SLFP’s One Country One Law campaign, Dr. Wickramaratne said: “The question is what this one law means. The most sensitive areas are the personal laws. In Sri Lanka, we have Kandyan law which is actually called the Sinhala law for Kandyans, Muslim law for Muslims, and Thesawalamai law – a territorial law which not only applies to Tamils but to all citizens of the Jaffna peninsula.” Fundamental rights vs. personal laws Elaborating further, Dr. Wickramaratne said: “All these laws must be made subjected to the FR chapter. I don’t think we should throw the baby in the bath water, in the sense that these laws may have. There is no clamour even in their own communities for the complete abolition of all laws.” “If you take the Kandyan law, a widow gets life interest over the property of her husband, which is good. Divorce laws are easier. In general marriages law which was given to us by our former colonial masters, some aspects are very good. For example, property equality between a man and a woman in the matter of marriage, succession, etc. But the divorce is very difficult to get. In Muslim law also, there are a number of provisions which are plainly discriminatory, including the problems of age in marriage. They violate the FR chapter,” he added. “But, getting a single law for all the cultures, I don’t agree with. It will never happen through Parliament. Subject all the laws to the FR chapter. Then, it will be a matter for the Supreme Court to decide which provisions of the various laws violates the FR and which provisions do not,” Dr. Wickramaratne explained. “There is no reason to change the provisions of personal laws which are consistent with the FR and therefore, what we must do is not to impose single cultural standards across all cultures, but impose a legal standard across all the cultures,” he said, adding that abolishing personal laws might need a referendum because Muslim law is partly religion. “There is a debate within the Muslim community that some parts of the Muslim law are not necessarily part of the true Islamic teachings. So how can the Parliament decide these things? It should be decided by the Supreme Court. Then, the Supreme Court will strike down those provisions of the law which are against the FR chapter,” he added. Pointing out similar facts to what Dr. Wickramaratne highlighted, Bar Association of Sri Lanka (BASL) Former President U.R. De Silva said that in this current Parliament, the people couldn’t expect to have justice for the community, and therefore, there should be no arbitrary decisions taken on behalf of different communities. “We have personal laws. It is how we should interpret them and what the restrictions are. You can’t have extreme laws as far as personal laws are concerned. Those you can’t decide in an arbitrary manner. But Sharia law of course, is totally different. We know that they are going on separate paths. “The Muslim law has the Taalaq system. That is exclusive for them. Totally prohibiting such personal laws and introducing one common law won’t be sufficient. As far as a community is concerned, they should be able to practice their personal laws to whatever extent they wish. It is high time to not go for arbitrary decisions and listen to the majority. The religious leaders should express their views and get a common law,” De Silva said. Asked whether the Parliament or the Supreme Court should decide on the reforms of personal laws, De Silva said: “The Parliament is the law-making body. If there are any errors with the laws made, such as FR concerns or inconsistencies with the Constitution, those can be interpreted by the Supreme Court. After the legislation is passed in Parliament, people should be given an opportunity to go before the Supreme Court.” Unified education system Not only the personal laws which basically govern marriage, divorce, and succession of properties, the laws which control the education system of the country also came into closer focus after the attacks on Easter Sunday. The word "madrasa” – also spelled madrassah or madrasah – is Arabic for “school”. The word is commonly used throughout the Arab and Islamic world to refer to any place of learning in the same sense that, in Sri Lanka, the word "school" is used. In general however, madrasas offer religion-based instruction focusing on the Quran and Islamic texts at both primary and secondary levels. Many politicians, educationists, and civil society activists suspected that madrasa schools in Sri Lanka foster hatred towards non-Islamic people. Therefore, there was a huge opposition against madrasas, and the society urged the Government to immediately bring all madrasas under the control of the Education Ministry. As a result, the Government last week stated that a new act would be introduced to curtail the spread of extremism via Islamic educational institutions in the country. As stated by the Muslim Religious and Cultural Affairs Director M.R.M. Malik, in Sri Lanka, there are 1,669 madrasas and 317 Arabic schools registered under the Department of Muslim Religious and Cultural Affairs. In addition, Prime Minister Ranil Wickremesinghe said that the Government would establish a new public school system that was not based on language or religion, within next two years. Furthermore, the PM promised that all religious education institutes will be regulated under the purview of the Ministry of Education. The 1978 Constitution of Sri Lanka guarantees the right to equality before the law and the equal protection of the law in Article 12(1), and along with it paragraph (2), prohibits discrimination on the ground of race, religion, language, caste, gender, etc. There was, however, an express provision in Article 12(4) enabling a type of affirmative action, albeit in very narrow terms couched as follows: ‘(4) Nothing in this Article shall prevent special provision being made by law, subordinate legislation or executive action, for the advancement of women, children, or disabled persons’. The other proposals of the SLFP included that laws be formulated:
  •  To consider acts of violence and communal hatred as a criminal offence.
  •  To conduct a special examination on foreign lecturers who arrive in the country to deliver lectures on national, religious, and cultural matters, for research studies, and to conduct workshops.
  •  Consultation with religious leaders and intellectuals regarding dresses and other conducts (such as full-face helmets and burqas) which are “detrimental to national security and peaceful existence".
  •  To prevent the registration of political parties based on race, religion, caste, and regions.
  •  On the establishment of common rules for religious places and prayer centres.
  •  To monitor and control the objectives of projects where foreign funding granted by different countries, organisations, and individuals is utilised.
  •  To control the dissemination of information containing harmful influence through the internet and social media platforms.
  •  To teach Sri Lankan students studying overseas on the cultural and social patterns of this country.
  •  On national and religious co-existence as well as national security as far as immigration and emigration laws are concerned.

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