August 22, 2020

What does it mean by “One country and one law “policy..?

by Dr SLM RIFAI : UK 

            In his policy statement  at the opening session of the 9th Sri Lankan parliament, His excellency the president Gotabaya Rajapaksa declared a policy of “ one country and one law”. This is part of new constitutional change he has proposed in his policy statement.  Although president’s policy statement was hailed by many politicians in Sri Lanka, the minority communities have been outraged by this statement. There is no doubt that his policy statement includes some excellent socio-economic policies at this crucial time in Sri Lankan politics. It includes a policy of inclusiveness of all communities and yet, “one country and one law” policy is nothing but an utter political rhetoric. This policy statement is nothing but a thank giving for his Sinhalese voters. It looks that he wanted to appease them for voting for his party in this general election. This looks same as late PM Bandaranayke’s statement on “ Sinhala only official language policy”. 

           People  do not expect such a policy statement from a president who is trained and educated in the US. He knows well how western countries adopt a policy of multiculturalism and plurality. He knows well how western countries follow a policy of inclusiveness to bring in all minority communities. In fact, there is no country today to follow  a policy of “ one country and one law” even the tiny state of Vatican can not do it in this modern digital world.  Moreover, there is a self-contradiction in his policy statement to claim that the constitution guarantees the protection of minority communities and their  right to have a religious and cultural freedom and yet, to declare a policy of “one country and one law”. It looks that he is playing politics with this policy statement to fool the public. This is nothing but an eye wash to gain a political millage. I would like to make some clarification on this policy of “ one country and one law”.  

First, we must make a clear-cut distinction between the  public law that is applicable to all Sri Lankan citizens without any discrimination and the religious or personal laws of each community in Sri Lanka. The Sri Lankan communities have different sets of customary and religious laws. The application of these personal laws or religious laws do not have any impacts or implication on the application of public law in Sri Lanka. There is no clash between the application of religious and public laws in Sri Lankan history. If Kandyan laws are applied by Sinhalese in their personal lives, does it have any impact or implication on  the application of public law in Sri Lanka ? if Muslim marriage and divorce laws are applied in the personal lives of Muslims does it have any impact or implication on the application of public laws in Sri Lanka? if Theshavalama customs and traditions are applied in Jaffna by Tamils in their personal lives does it have any impact and implications on the application of public law in Sri Lanka? We have failed to make this distinction between public and personal laws or religious laws in Sri Lanka. The confusion comes when we do not make this distinction. Public laws are common to all communities. if someone breaks public laws in Sri Lanka, they must be punished without any discrimination. Yet, personal, or religious laws are applied by each community in accordance with their religious and customary traditions. This clarification is much needed to clear out this confusion in this policy statement. 

English legal methodology, for example, distinguishes between public law with its rules relating to the affairs of the state with man and the religious laws. Today, many countries apply common law or western laws. Sri Lanka too applies these common laws or western laws that were introduced by our colonial rulers in public administration. Tracing the origin and antiquity of common law,  A.J. Makdisi. (1999) argues that some aspects of common law were influenced by the Islamic law. “Henry II created the common law in the twelfth century, which resulted in revolutionary changes in the English legal system, chief among which were the action of debt, the assize of novel disseisin, and trial by jury. A.J. Makdisi has uncovered new evidence which suggests that these institutions may trace their origins directly to Islamic legal institutions. The evidence lies in the unique identity of characteristics of these three institutions with those of their Islamic counterparts, the similarity of function and structure between Islamic and common law, and the historic opportunity for transplants from Islam through Sicily”. (A.J Makdasi,1999,p.1635).

Makdisi identifies some unique characteristics and similarities between some aspects of Islamic law and English common law. He argues that some elements of common law are taken from Islamic law. He contends that “The origins of the common law are shrouded in mystery created over seven centuries ago during the reign of King Henry II of England, to this day we do not know how some of its most distinctive institutions arose. For example, where did we get the idea that contract transfers property ownership by words and not by delivery or that possession is a form of property ownership? Even more importantly, where did we get the idea that every person is entitled to trial by jury?  (Ibid. p1636) He goes against some historical conventions that maintained that common law is taken from Roman law. J. Makdisi makes a comparison between these three elements of law. “Royal English contract protected by the action of debt” and the “Islamic Aqd”, the “English assize of novel disseisin” and the “Islamic Istihqaq”, and the “English jury” and the “Islamic Lafif” in classical Maliki jurisprudence. 

                   His  contention is that these institutions were transported to England by the Normans. This was done “through the close connection between the Norman kingdoms of Roger II in Sicily — ruling over a conquered Islamic administration — and Henry II in England.” (Ibid,1640). It has been historically established that Norman Sicily and England had maintained close ties and the  Islamic influence on Sicily was well documented. Therefore, the Islamic influence on common law is an undeniable historical fact as Makdisi has already claimed with substantial evidence. Zia H. Shah argues that many other oriental scholars have argued that “ The English trust and agency institutions in common law, which were introduced by crusaders, may have been adapted from Islamic waqf and hawala institutions  they came across in the Middle East”. So, the western legal scholarship  does not have any monopoly over the many legal concept and principles of common law. 

 


         It looks that we too in Sri Lanka have been following some aspects of common law elements which were incorporated from Islamic legal traditions as it had been claimed by this great historian. It would be wrong to divide communities on the basis of their personal or religious laws. Public law is common to all communities in the world. What Sri Lanka needs today is not this kind of political rhetoric rather politicians must have a leadership skill to unite all minorities to develop this nation. Since Sri Lanka gained the  independence in 1948, we have failed to apply some comprehensive policies of inclusiveness. The Sinhalese politicians must have big hearts to include minority communities in  public affairs and decision-making process. Minorities must become true partners in government making and economic development. We see this inclusive approach in many countries in the world. Sinhalese politicians must know how to win the hearts and minds of minority communities if they want to develop this country. There is no sympathy and empathy towards minority communities among some Sinhalese politicians. If they want to see rapid development and progress in Sri Lanka, they badly need support and cooperation of all communities. Therefore, there is no need to come up with this kind of contradictory policy statement to alienate minority communities further.  

REFERENCE: 

scholarship.law.unc.edu › cgi › view content: The Islamic Origins of the Common Law - Carolina Law ...

 muslimlink.ca › Islamic Finance: 

Prof. John Makdisi traces the Islamic Origins of the Common ...

themuslimtimes.info › 2019/11/29 › prof-john-makdisi...

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