Personal laws not problematic as Constitution is supreme: Gehan Gunatilleke

By Skandha Gunasekara

Verite Research, Research Director Gehan Gunatilleke pointed out that personal laws and laws enacted for specific communities are not problematic in of itself but that issues arise when such laws violate fundamental rights and/or human rights.

Gunatilleke, referring to India’s legal system, noted that the Constitution must be supreme and that due to Article 16 of Sri Lanka’s Constitution, such supremacy was undermined and laws that existed before the Constitution was enacted were immune from challenge.

In addition, he said that Sri Lanka’s Supreme Court must be vested with some power to review legislation.

Below are excerpts of his interview with The Sunday Morning:

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

The specific communities that personal laws apply to often benefit from them because such laws enable those communities to govern their affairs in a particular manner and retain a unique identity in the process.

The general idea behind personal laws is not problematic in of itself. However, these laws must be compatible with constitutional norms, such as equality and non-discrimination. These laws become problematic when they undermine the fundamental rights recognised by the Sri Lankan Constitution.

Unfortunately, Article 16 of the Constitution makes all laws that came into existence prior to the enactment of the Constitution immune from challenge, even when they are inconsistent with the fundamental rights chapter of the Constitution.

Should common law be enforced above other personal laws for equality among communities?

The existence of personal laws does not automatically violate the principle of equality. The principle of equality is violated if one community is given some kind of unfair advantage over other communities through the application of personal law.

For example, if one community is exempted from paying taxes through the application of personal law, that community receives an unfair advantage over other communities. However, when personal laws govern specific areas of life that merely reflect a community’s preferences, and if persons can freely opt out of these laws (or opt in by becoming a part of that community), there is no real need to abolish such personal laws.

Should personal laws be scrapped altogether?

In my answer to your previous question I noted that there is no real need to abolish personal laws as they do not automatically violate the principle of equality. I stand by that position.

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

The Sri Lankan Constitution should always prevail over personal laws. Therefore, Article 16 of the Constitution must be repealed or revised to ensure that all personal laws are subject to scrutiny in terms of their consistency with the Constitution.

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

Other countries, including India, have legal systems where the Constitution of the country is supreme, and can override any ordinary statute.

Moreover, the Supreme Court of India is vested with the power to review all legislation and pronounce on their compatibility with the Constitution. This is called the power of judicial review of legislation.

Sri Lanka’s Supreme Court does not have this power with respect to existing laws, such as personal laws. It has a narrow window to review legislation in their bill stage. But once a law is enacted, the Court has no power to review it.

It is crucial that Sri Lanka vests the Supreme Court with some power to review legislation, including personal laws, to assess their compatibility with the Constitution. Where a particular law is incompatible with the Constitution – say with a fundamental rights provision – the Court ought to have the authority to strike the law down.