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Fundamental Rights should be prevailed over the Customary Law Principles.


Fundamental Rights should be prevailed over the Customary Law Principles.

Jayampathi Wikramrathne,

“It has been a duty of the judiciary to find out the customary law principles which are against the Fundamental Rights provisions when matters are brought before it. However if the changes and alterations are made by the judiciary the whole country will be bound by it and there will be an absolute level of acceptance. This is how this issue should be addressed. It is easy to say that the customary principles should be totally abolished. Since the outcomes will directly attack the particular communities there are more chances that the members of that community will stand against the changes.

Mr. Jayampathi Wikramrathne, Presidential Council, Member of Parliament.

When speaking about the matter of Burqua (the face cover) I would rather call it as an inhuman dress for women. Face covering dresses should not be allowed in the society; it is a matter of security. Now under the Emergency Law Regulations the face cover has banded but it should impose as a General Law as soon as possible. According to fundamental rights chapter of Sri Lankan Constitution the freedom of manifestation of religion is granted but it should be under the fair boundaries of national security. 

  

Customary laws are the most debatable topic of these days. Some say Muslim customary law should be completely abolished. I accept the fact that there are several aspects of Muslim law which overlap with our fundamental rights. Especially under age marriages, marriages taking place without considering the girls consent are some examples for the overlap and also appointing as a member of a Quazi Courts are prohibited for Muslim women.

There are effective customary laws whether we like or not. Kandian Law is considered as the oldest Sinhalese law which exists until now has both good and bad aspects in it. When it comes to succession law; it discriminates women. But as a plus point a widow has a right to claim life interest of the properties which belongs to her husband. And also Kandian Law allows mutual consent as a ground for a divorce which is considered to be a remarkable development of that law.

But there are better aspects of laws which were introduced by the British. Especially equal rights have been granted when it comes to succession despite of the gender. But General Law does not allow mutual consent as a ground for a divorce, which makes divorcing bit inconvenient. And also according to Thesawalamei women cannot take their own decisions with regard to their properties. Thesawalamei is not a personal law which based on a religion or cast rather purely a territorial law.

Abolishing customary laws is not the ideal solution at the moment. It’s not that easy to abolish customary laws, as my personal opinion there should be a referendum to get public opinion because such matters are not been discussed in the parliament. But it’s important to abolish the parts which contradict with the fundamental rights provisions in the constitution. Fundamental Rights should be prevailed over the customary law principles. Under both 1972 and 1978 Constitutions we figured a common mistake; where the existing laws were not been abolished whether it suits or not.        

Unfortunately only 2 amongst the 11 members of the Subcommittee of Constitutional Council stood with me, when I suggested that the existing laws should be subjected to the new constitutional provisions. The others were in the opinion that these are to deal within the parliament. But for sure parliament will never find a solution for this. It has been duty of the judiciary to find out the customary law principles which are against the FR provisions when matters are brought before it. In my opinion this is how this issue to be addressed. It is easy to say that the customary principles should be totally abolished. But not an easy task to be attained. Since the outcomes will directly attack the particular communities there are more chances that the members of that community will stand against the changes.

However if the changes and alterations are made by the judiciary the whole country will be bound by it and there will be an absolute level of acceptance.

 




2019-05-24
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