Ethnic identities under threat: Implementation of “One Country, One Law” concept in Sri Lanka
Author: Sarah Thanawala
On October 26, 2021, President Gotabaya Rajapaksa, under the mandate of an extraordinary gazette, issued a statement on the establishment of a task force to present proposals for a framework of the “One Country, One Law” concept (Ratnayake, 2021). Rajapaksa’s manifesto of “One Country, One Law” is a move to implement uniform laws or a legal blanket system for all communities throughout the country. Subsequently, the manifestation of such a legal system will result in repealing all personal laws and regional laws in force in Sri Lanka since antiquity (Economy Next, 2021).
The 13-member task force is tasked by the president to study draft Acts and amendments and submit its proposals by February 28, 2022 (Ratnayake, 2021). Much to the dismay of human rights defenders and ethnic minorities, Galagoda Aththe Gnanasara Thero, Secretary-General of Bodu Bala Sena (a Buddhist Power Force), a radical Buddhist monk and ex-convict is appointed to lead the task-force (The Hindu, 2021). Gnanasara Thero is known to have provoked anti-Muslim violence over the last decade (Economy Next, 2021). In 2018, he was convicted on charges of contempt of court with six years imprisonment, and released in 2019 on presidential pardon (The Hindu, 2021). Previously, the task force did not include representation from the Tamil community, and the non-nomination has been widely criticised (Waravita, 2021). On November 10, 2021, the mandate was amended to include three Tamil representatives in addition to the initially appointed four Muslim representatives (Waravita, 2021; The Hindu, 2021).
CONTEXT: WHY A LEGAL BLANKET SYSTEM?
While the Sinhalese-Buddhists represent the majority population in Sri Lanka, Sri Lanka also houses several minority groups – the Tamil, the Muslim, and the Christian community (UK Home Office, 2021). The need for uniform laws that would apply to all communities in Sri Lanka stems from the diversity of ethnicities, the discriminatory nature of the personal laws, and the history of ethnic tensions present in the country.
Background of personal laws
The Roman-Dutch law is applicable as general law throughout Sri Lanka – with the exception of personal laws such as the Muslim special laws applicable to all Muslims in matters related to family law, the Tesawalamai law applicable to property rights of Tamils from Northern Sri Lanka, and the Kandyan laws applicable to certain Sinhalese in the Central Hill districts (Tambimuttu, 2009; Ratnayake, 2021). Certain provisions of such personal laws are discriminatory against women and contravene the principles of international human rights law (Equality Now, 2021; Mahadiya, 2021). For instance, Section 17(2)(b) of the Marriage and Divorce (Muslim) Act 1951 provides that, except under certain circumstances, the bride’s wali or a male guardian, instead of the Muslim bride, is authorized to sign the marriage contract. It was only in July 2021 that the cabinet of ministers approved a proposal to permit the Muslim parties to marry under the general law of the Marriage Registration Act 1907 (Mahadiya, 2021). Furthermore, Section 6 of the Matrimonial Rights and Inheritance Ordinance 1911 (under the customary Tesawalamai law) restricts a married woman from dealing with her immovable property without the written consent of her husband (Equality Now, 2021). The discriminations under the personal laws necessitate the need to scrutinize and revise the discriminatory provisions of the personal laws.
“It must be ensured that the personal laws of minorities
(such as Kandyan, Tesawalamai or Muslim law) comply with international human rights standards.”
Rita Izsák-Ndiaye, United Special Rapporteur on minority issues, 2016.
Ethnic tensions in Sri Lanka
Sri Lanka has a long history of ethnic and religious tensions. The devastating Civil War that lasted for 25 years (1983-2009), between the Sinhalese-majority Sri Lankan government and the separatist group of Liberation Tigers of Tamil Eelam (LTTE), ended with the Tamils displaced and the Government claiming victory (Anandakugan, 2020). Following the Easter Sunday Blasts in 2019, the Muslim community has been consistently and systematically harassed (UK Home Office, 2021). These underlying tensions have escalated discrimination against minorities in Sri Lanka in recent times.
RECENT EVENTS MARGINALISING MINORITIES
“One Country, One Law” was a slogan for the election campaign of President Gotabaya Rajapaksa in 2019 (The New Indian Express, 2021). On declaring the mandate for the constitution of a task force, the President quoted “no citizen should be discriminated against in the eyes of the law” as the motive behind implementing a general set of laws in Sri Lanka (Ratnayake, 2021). Although there’s an urgent need to revisit, amend and repeal certain discriminatory personal laws, the recent events targeting minorities raise serious concerns over the apparent intention of the head of the State to end discrimination.
Even after the civil war, Tamils are persecuted, rigorously surveyed and denied other civil and political rights (Anandakugan, 2020). The militarisation of Tamil-majority areas and the land-grab of Tamil homelands by government officials are on the rise (Satkunanathan, 2021; Mittal, 2021). Furthermore, the Muslim community is blatantly discriminated against. On April 27, 2021, the Cabinet approved the proposal to ban burqas and to shut down more than a thousand madrassas (The Guardian, 2021). The Prevention of Terrorism Act of 1979 (PTA) serves as a state-sanctioned mechanism to arbitrarily detain, prosecute, punish and disproportionately target the minority communities (PTA, 1979; DeVotta, 2021). Violations of basic human rights of the minorities coupled with the state’s inaction in ensuring accountability represent the systematic oppression of the state. The unequal representation of the Sri Lankan ethnic communities and the shrinking voice of minorities to the task force indicate the unconstitutionality of the task force’s composition. The reluctant addition of Tamils to the task force – headed by a “hard-line” Buddhist monk – is evidence for the lack of possibility of reconciliations and end of discrimination (The Hindu, 2021). Thus, the unique differences of minorities are threatened and it is feared that the uniform laws will serve the majority Buddhist community.
DOMESTIC AND INTERNATIONAL OBLIGATIONS
Sri Lanka has certain domestic and international obligations to ensure that its citizens, irrespective of their religion or ethnicity, are equally represented in policymaking. The composition of the presidential task force and the unequal representation of minorities contravene such obligations.
The Constitution of Sri Lanka protects the rights of minorities. It specifically protects the right to practice religion under Article 9 (affirms duty to ensure all religions are granted rights), Article 10 (freedom of religion), and Article 12 (the right to equality) (The Constitution of the Democratic Socialist Republic of Sri Lanka, 1978, Art. 9, 10, 12). However, Article 16 (1) supersedes the guarantees of equality and non-discrimination as it holds that all written and unwritten laws, although discriminatory, that was existent prior to the 1978 Constitution remain valid (The Constitution of the Democratic Socialist Republic of Sri Lanka, 1978, Art. 16(1); Edrisinha and Welikala, 2016).
The International Covenant on Civil and Political Rights (ICCPR) Act was enacted in 2007 to incorporate the international human rights protections guaranteed under the ICCPR in Sri Lanka’s domestic laws. Corresponding to Article 25 of the ICCPR, Article 6 of the Act protects every citizen’s right to “take part in the conduct of public affairs, either directly or through any representative” (ICCPR Act, 2007, Art.6). It further protects the right of the citizens to have access to public services (ICCPR Act, 2007, Art.6).
Sri Lanka has signed and ratified the ICCPR 1966, and is under an obligation to ensure protections guaranteed therein (ICCPR, 1966; Foreign Ministry Sri Lanka, 2021). Article 25 of the ICCPR recognizes the right and the opportunity to participate in public affairs and the right of access to public services (ICCPR, 1966, Art. 25). According to the General Comment No.25 of the Office of the High Commissioner for Human Rights (OHCHR), Article 25 covers the implementation of policy at all levels (UN OHCHR, 1996).
“Article 25 lies at the core of democratic government based on the consent of the people and conformity with the principles of the Covenant.”
General Comment No. 25, OHCHR.
Other provisions of International Conventions protecting the rights of minorities include Article 27 of the ICCPR, Articles 18 and 27 of the Universal Declaration of Human Rights (UDHR) 1948, International Convention on the Elimination of All Forms of Racial Discrimination 1965 (ICERD), and Article 2 International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) (ICCPR, 1966; UDHR, 1948; ICESCR, 1966). Sri Lanka has ratified the Conventions and is under an obligation to abide by its provisions (Foreign Ministry Sri Lanka, 2021). The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (RES/47/135 of 18 December 1992) aims to secure non-discrimination and guides the State Parties to attain equality in the participation of minorities (Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992).
Sri Lanka is an ethnically diverse state with distinct communities, where an integrating legal system like “One Country, One Law” can deprive other cultures of their unique religious practices. The composition of the presidential task force is a clear indication of the intent to favour the majoritarian population and of side-lining the concerns of the minorities in Sri Lanka. Recommendations by the UN to amend the contravening personal laws are used as a front by the Rajapaksa government to advocate and initiate the “One Country, One Law” approach. The implementation of such a legal blanket system entails repealing all personal laws and thereby threatening the loss of ethnic and religious identities. Instead, necessary amendments should be brought to such problematic provisions of personal laws to bring them in alignment with international human rights law. Where both the parties to the marriage are Muslims, they should be given an option to marry under the General Marriage Ordinance. Also, it is pertinent that Article 16 of the Constitution be repealed to protect the right to equality and non-discrimination of all citizens. While Sri Lanka has ratified Conventions that protect the equality of minorities, it is vital that the international community pressurizes their compliance.
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