11 August 2021
Muslim Law or Secular Law?
The Daily Mirror report headed ‘Justice Nawaz declines to hear Azath Salley’s petition’ caught my attention. The report by Lakmal Sooriyagoda concluded as follows:
[President’s Counsel Faiz Musthapha with Counsel Rushdhie Habeeb instructed by Senior Attorney-at-law Gowry Shangary Thavarasha appeared for the petitioner.]
That meant that this team representing the Petitioner was made up of ethnic minority. The report states about the bench :
[Justice Nawaz who was a member of yesterday's bench declined to hear this petition.
Accordingly, the Fundamental Rights petition filed by Azath Salley seeking an order to release him from CID custody was yesterday re-fixed for August 27 by Supreme Court three-judge-bench comprising Justice Murdu Fernando, Justice S. Thurairaja and Judge A.H.M.D. Nawaz.]
As per my discovery – theory used needs to be at the same level as ‘facts’ – to ensure equilibrium of justice. Lawyers play an important role in bringing about this equilibrium in a court of law. This invokes the minds of Judicial elders to also hear both sides.
At the apparent level – Justice Thurairaja and Justice Nawaz balanced the ethic equation. This was needed especially because in this instance a Buddhist monk contributed to the manifestation of the ‘charge’. We need to travel in the opposite direction to the manifestation / charge to experience the cause. The law provides the boundaries within which we travel.
The charge is presented as follows:
[Deputy Solicitor General Dileepa Pieris informed Court that indictments have been filed in Colombo High Court against Azath Salley in connection with the controversial statement he made on March 9 this year.
The indictments have been filed against Salley for committing offences to come under the Prevention of Terrorism Act (PTA)and the International Covenant on Civil and Political Rights (ICCPR) Act.]
The path of manifestation is presented by Wikipedia as follows:
[On 3 January 2019 he was sworn in as the eighth Governor of the Western Province. However, as a result of the 2019 Easter Bomb attacks by radical thowheed jamath Islamists, Azath Salley along with all the Muslim politicians were forced to resign after a Monk named Athuraliye Rathana protested against Salley's alleged ties to extremists.
In 2021 March Salley claimed that he does not accept the law of the government but only Sharia law outlined in Islam. CID opened investigations against him and Minister of Public Security Sarath Weerasekara called for his arrest and asked him to go to Saudi Arabia if he wants Sharia law. The opposition Samagi Jana Balawegaya also condemned Sally's claims. The Attorney General ordered Salley to be arrested under Prevention of Terrorism.]
Justice Nawaz ought to know that Sri Lankan Judiciary recognizes belief based land ownership above titles acquired through purchase. On that basis – given that a Buddhist monk was the apparent manifestation of the law one has the duty to conclude that such application was as per article 9 of the Sri Lankan constitution which states:
[9. The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e). ]
Articles 10 and 14 (1) (e ) confirm as follows:
10. Every person is entitled to freedom of thought conscience and religion, including the freedom to have or to adopt a religion or belief of his choice.
14. (1) (e) Every citizen is entitled to - the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice and teaching;Monk Athuraliye Rathana Thero, MP and Minister of Public Security Sarath Weerasekara – both had the duty to abide by article 9 and assure that the actions of Mr Azath Salley were in breach of the above articles 10 & 14 (1) (e ). They therefore needed a Muslim officer to find fault and craft the charges accordingly. If this was not done – it is essential for a Muslim judge to judge this part of the case. Judges of all religions have the duty to ensure due process and protection as per the constitution. They have no jurisdiction to mark right and wrongs in terms of these two articles. If they did judge – that would be in breach of the fundamental rights assured by the constitution and disrespectful of the makers of the constitution