02 June 2016

One country, one law!

Here’s a challenge: name a country that is mono-ethnic, mono-religious and monolithic in terms of political beliefs.  There are none.  In Sri Lanka we have Sinhalese, Tamils, Muslims, Burghers and other communities.  Some are Buddhists, some are Hindus, some are Christians of various denominations, and some are Muslims.  There are atheists other than Buddhists and there are those who do not belong to any of the aforementioned religious communities.  So yes, we are ‘multi-ethnic’ and ‘multi-religious’. 

Does this mean that the fact should be enshrined in a Constitution? Not necessarily.   

One does not state the obvious in such documents.  One does not say, for example, ‘Sri Lanka is an island’, ‘there are men and women living in Sri Lanka’ or ‘Sri Lanka has a population stratified along multiple lines such as class, gender, caste, affiliation to the ruling party’ etc.   

However, if one is fanatical about ‘fact’ and proposes a multiethnic and/or multi-religious interjection, then the numbers and percentages should be included too, just for purposes of clarity.  Multi-ethnic and multi-religious without percentage-note can after all imply a population equally divided into various ethnic and religious communities.  That’s misleading and mischievous. 

The above is mere preamble to the issue that is to be discussed: the issue of multiple systems of law in a single country.  It appears that people have been more fascinated by the trivial (for example, the national flag and associated politics, and whether or not there should be constitutional provision for the national anthem to be sung in multiple languages).  Flag and anthems did not share birthdays with the emergence of a coherent state (whenever you want to date that particular birthing).  

Laws also change, but a coherent, consistent corpus of rules and regulations governing all public engagements in the main is a non-negotiable for political stability and social well-being.   

It is the absence that is problematic and it is the abuse of the relevant lacuna that makes for and exacerbates inter-communal tension. 

In these days of ‘reconciliation’ we see some disturbing trends.  First, there is the fascination with the blame game.  Thrown in the totally out of proportion and scandalously selective efforts to pick and choose which parties to name, shame, incarcerate and more, yields not reconciliation but further entrenchment of antipathies.  Then there is, again in the name of reconciliation, a tendency to sweep under the carpet various chauvinistic moves by extreme elements in particular communities, either by deliberate squashing of news (censorship by authorities plus self-censorship by well-meaning media personnel) or downright spin.  ‘Wilpattu’ comes to mind and more recently, ‘Madawala’. 

So we have ‘reconciliation’ now?  No.   

What we have is one kind of extremism ‘untouched’ [මුස්ලිම් අන්තවාදය නොසැලී පෙරට  -- Muslim extremism (and even fundamentalism) ever forward undeterred] and another kind [let’s say ‘Sinhala Extremism’] going underground.  This is the argument that anti-Sinhala, anti-Buddhist commentators often use when explaining/justifying Tamil extremism/terrorism, isn’t it?  Now what if some Sinhala extremists wrote to Muslim teachers in schools where the majority of students are Sinhalese saying ‘leave right now!’?  Wouldn’t the same people who rant and rave against ‘Sinhala Buddhist extremism’ and who are conspicuously silent on Wilpattu and Madawala call for the මඩුවලිගේ (maduvaligaya or the stingray tail)?  Wouldn’t the argument be ‘this is scuttling reconciliation and must be nipped at the bud!’? 

What has all this got to do with the notion ‘one country, one law’ though?  Everything.   

In short those who make the ‘multi-ethnic, multi-religious’ claim must also endorse the notion of equality before the law.  If you have different rules for different people, you don’t get ‘equality’ do you?   

Identity assertion in culture-specific ways is all fine and indeed should be encouraged and celebrated.  No one says ‘don’t fast on Fridays’ or ‘don’t observe sil on Poya).   What is pertinent is the classic limitation of freedom: ends where the other person’s nose begins.  That limiting point has to be agreed upon and scripted into the rule book.  This is why countries have both the freedom of association and also an overarching corpus of laws.  You can have you club and club rules but these never supersede state and the law. 

In other words we cannot have reconciliation that means anything if we have different systems of law for different communities.  If Thesavalamai Law is accepted, as is Sharia (or some diluted form of it) and also Kandyan law, what’s to stop any random gathering of people (say, undergraduates who justify ragging by calling it ‘subculture’) demanding that they be governed only by rules they make for themselves?  They can all say ‘these are customs’ so let us be protected by the premises on which customary laws have been enacted. 

A few years ago, C.V. Vigneswaran (then Justice), delivering the inaugural Kanthiah Sivanantham Memorial Oration vociferously defended the Thesawalamai law and even argued, following Dr H.W. Thambiah that it protects non-Tamils who purchase property in the Northern Province.  If such laws help strengthen community-integrity and if community-integrity is held sacrosanct by the champions of multi-ethnic-multi-religious in the reconciliation mafia (shall we call it?), then a case could be made for the entire country to be covered by the Thesawalamai law with respect to preemption in property acquisition.  Similarly, we can theoretically envisage a country that is governed by Sharia.  That however, should come from agreement obtained through available democratic means.
 
Of course the argument to defer to laws based on cultural specificity, the much-celebrated customary laws, will not be wished away.  However there is celebration of specificity and there is the abuse of specificity, for example treating it as a refuge or an alibi to get away with much mischief.   Being multi-ethnic and multi-religious does not mean we live in tightly contained ethnic or religious enclaves.  We don’t, period.  We live in a capitalist system.  It’s all about ‘free markets’ officially (only some can both demand and supply and therefore have an undisputed comparative edge when it comes to determining price, for instance).  Identity-barriers are unceremoniously pushed aside by the operations of markets. 

If inter-community harmony is what is desired then most certainly sensitivity to what’s held sacrosanct by each community is important.  On the other hand, you cannot demand sensitivity in the name of reconciliation and that hide behind sensitivity when you go around chopping other people’s noses so you can more room to throw your arms around more 'freely'.  

 If, for example, fundamental rights pertaining to the notion of equality are contradicted by the ‘customary laws’ of a particular community, what do you do?  Do you say ‘let’s ignore it because we want to affirm religious and ethnic cultural specificity’?  Are you saying ‘equal rights for people of all communities is fine, but equal right for women vis-à-vis men takes us to no-no territory’?   

These are no doubt sensitive issues.  They need to be debated and not shoved into footnote or, worse, ignored.  Right now are in Ignorance Land. That’s a convenience.  It doesn’t yield reconciliation but produces and exacerbates antipathy and downright idiocy. 

In the end if it is all about forging a common national identity (‘common’, remember the word and say it again and again, ‘common, common, common’) then we have to revisit specificity and difference on all counts and obtain a commonality for the overall ‘common’ rule book: The Law.  If we are too embarrassed or nervous or downright wimpy about it, then let’s drop this whole multi-ethnic, multi-religious circus.  We either do that or we become serious about it.  Otherwise we are playing lowest-common-denominator politics and that’s hardly celebratory when you consider what’s being talked about is national integration, reconciliation, peace and wellbeing for everyone now and forevermore!

Malinda Seneviratne is a freelance writer.  Email: malindasenevi@gmail.com.  Twitter: malindasene.  This article was first published in the Daily Mirror (June 2, 2016).
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