Gajalakshmi Paramasivam

23 January  2020

RELIGION & COMMON LAW

Yesterday I was invited by the Hindu Council of Australia to participate in a survey on Chanting conducted by Macquarie University’s Department of Psychology. I found that to me the two – religious order and psychology were not different to each other except in outer form. To my mind they were about the order of the mind. Indigenous pathways rely strongly on our belief in our ancestors. Religion is usually a strong part of our ancestry. In my case – I find myself being supported by one in the other. I believe that many of our problems are due to disorder of the mind.

Sri Lanka which is strongly religious has chanting in all its religions. By filling our mind with the same sound over and over again, we fill our mind. The power is in the original mind which with time becomes are root Energy. When we discover something and give it form – it is our mind. If someone else discovered something we need to not vary the form that they gave us. When we do – it amounts to plagiarism. When we plagiarise the power of the origin is lost and we carry the dead  material. Due processes by the original discoverer should therefore not be changed – to possess and claim ownership. We may transcend and lose consciousness of the form but not change the form of the original.

When we lose consciousness of current benefits by chanting a mantra / using a formula, we acquire the original power as heritage. There is a saying in Tamil  - ‘Guru Illaa Viththai Paal’ / ‘Skill without Guru is wasted’. Whether it is the Vertical system of Autocracy or the Lateral system of democracy – we have both – heritage and current value which may or may not become heritage. To the extent we use current value system – we have to have separation between producers and users/suppliers and customers. The common temporary link is money.

Sri Lanka suffers from Polarization disorder of various forms due to taking the outer value without recognising this need for separation between those who use different structures to think logically. When one produces and the other uses without paying the due costs, the two stay separate. In terms of emotions, when we get excited and express that excitement as emotions – but fail to think of and attribute to the makers of the produce that excited us and/or the architects of the structure that  facilitated us to ‘see’ and get excited – we are assured of the Equal Opposite of Excitement – Depression. Even though we do not see it -  the Depression happens at the same time as excitement and is in waiting. If we neglect it – it becomes the controlling power. Bipolar disorder happens due to this gap. Many diseases happen due to overindulgence in physical pleasures which ages the physical medium quickly.

The gap is narrowed by paying our respects to the origin and / or by the intellectual pathway of one outcome with right side and wrong side – as in law or One Parliament with two faiths – one as government and the other as Opposition – with the latter  effectively showing the Effects of Government policies of current times. When we survive that One outcome with two sides – and continue to travel deeper – we become Truth known also as Root Cause. If by then we divide irreconcilably – our Roots are different and we would need permanent separations – with each group being taken as sovereign until proven otherwise. In the objective pathway, the point at which we ‘show’ outcomes is the end of our pathway and when this is produced at the early stages – we do not get to the root that sustains the whole. This is a serious risk with Freedom Fighters.

In his Daily FT article ‘Our heritage is Kandyan law; not Roman Dutch law as Rathana Thero thinks’ Mr Harsha highlights separation within Buddhist community that confirms the serious flaw in the Constitution which presents Buddhism as being foremost but without outlining common Buddhist laws and rules in Public Administration – including in Parliament where majority are Buddhists. Harsha whose contributions are to my mind, of high value, presents the current picture as follows:

[There were four bills presented by private members to the Parliament on 8 January (one bill is to be presented) which were already advertised in the gazette. They were to repeal the Kandyan Marriage and Divorce Act No. 44 of 1952; to repeal the Muslim Marriage and Divorce Act No. 13 of 1951; to amend the Marriages (General) Ordinance No. 19 of 1907; to amend the Marriages Registration Ordinance; and to introduce a minimum age of marriage in Sri Lanka. The first three were/will be presented to the Parliament by Ven. Athuraliye Rathana Thero MP and the other two were presented by MP Dr. Thusitha Wijemanna.

In Sri Lanka the Common law applicable to marriage and divorce is based on the Roman Dutch law. This Common law is in the Marriages (General) Ordinance No. 19 of 1907. In addition to that there is Kandyan Marriage and Divorce Act No. 44 of 1952 applicable for the people living in the Kandyan Districts. For the Muslims in Sri Lanka the applicable law is Muslim Marriage and Divorce Act No. 13 of 1951 (MMDA). The intention of the proposed amendments is to make Roman Dutch law the only law applicable to marriage and divorce in Sri Lanka and to make the minimum age for marriage 18 years. ]

In terms of marriage – the above bills recognize  Kandyan Community and  Muslim Community as Indigenous groups. Even though not mentioned we have the Jaffna Matrimonial Rights and Inheritance Ordinance that covers Northern Tamils to whom Thesawalamai is applicable. By now Kandyan Law, Muslim Law and Thesawalamai Law ought to have become of Heritage value and therefore should not be used transparently to current problems of a democratic society. So long as Muslim Law and Thesawalamai Law are currently applicable  in regards to marriage – Kandyan Law needs to prevail. This is needed by majority rural folks who do not have ancestral connections with Common Law or intellectual knowledge of Common Law.

Harsha presents the following conclusion:

[Law makers should never interfere with Muslim law which is based on their cultural heritage. People should oppose the Muslim law if there are any violations of human rights or any discrimination against the weak in the name of such culture and laws. If Rathana Thero wants to have a one law for marriage and divorce, he should draft a new law applicable to current society eliminating the destructive aspects of Roman Dutch law]

Any law based on belief will naturally bring the believers under one structure. If there is no such law and the community laws are not strongly monitored by their respective religious leaders there is high risk of disorder in marital relationships resulting in abuse by the apparently powerful of the apparent juniors in their custody who are really orphans if the seniors do not feel that the juniors are part of themselves. To my mind, the West has used Democracy to expose Church leaders who treated the children in their custody as orphans. The West has also legalized de facto marriages.

Christianity was a temptation to many rural communities in Northern Sri Lanka due to the affluence that came with it. The ‘Buddhism foremost’ article in the Constitution strongly indicates plagiarism by Buddhist Politicians who copied the British while claiming ‘Independent status’ for the outcomes. Thus Buddhism was made a commodity  / quid – in exchange for favours. Mr C V Wigneswaran who chants Hindu mantra in North – has done likewise. One with belief does not need to ‘show’ and v.v. By manifesting the status of Buddhism in relative form – the Constitution of Sri Lanka has prevented Buddhist practitioners of the Constitution from going beyond to the root – where Nirvana – the Ultimate Reality through the Buddhist pathway. There is no relativity at that final goal.

In disenfranchised communities marriage laws are often too difficult to practice because there are no returns in terms of status and ownership. They have their own versions to ‘show’ for the purposes of status but the rest is on de facto basis. Some who are not exposed at all, to well-structured religious laws of marriage – would tend to use the corporate memory of the community – which could include marriage between blood relations and between partners with wide age gap so the relationship becomes parent-child relationship – as in Muslim marriages. In 2018, Ms Vijayakala Maheswaran invoked the LTTE which was rigid / strict with marriage relationships for combatants and the lady got into trouble with the law. This happened when there was rape of young ones in rural North where like Aborigines in Australia folks had their own systems and standards in marriage. Those with least structure produced more children.

The arranged marriage system seems to be a common one between the Aborigines and Tamils of Northern Sri Lanka. The Australian Law Reform Commission presents the following :

[Perhaps the most important difference between Aboriginal marriage patterns and those of white Australia is that the marriage is not seen as a contract between individuals but rather as one which implicates both kin and country men of the parties involved. If we explore the web of relations which surround an arranged marriage entered into at the time of initiation of a young male, we find that at least three generations are implicated

 Arranging Marriages. One important way in which marriages were arranged was infant betrothal. Usually this was between a young girl and an older man. A man’s first marriage would not necessarily fall into this category: his first wife might well be an older widow. A girl could be betrothed either as a potential mother-in-law or as a wife. Indeed it was possible for a girl to be betrothed before she was born and to grow up knowing who her future husband was likely to be. The promised relationship created a series of lifelong responsibilities and obligations between the young man and his promised wife’s relations. For example, the young man might be required to provide food for his future mother-in-law. While the girl was growing up she would normally have regular contact with her promised husband, so that when the marriage eventually took place he was no stranger to her. However, the fact that negotiations had taken place and promises made was no guarantee that a marriage would take place, or that a girl would consider herself obligated to remain married to her promised husband. Refusal to marry, or to perform obligations to family associated with marriage arrangements, would usually give rise to arguments, but if the prospective husband or wife persisted in refusal, renegotiation was possible. This might involve arranging a substitute or agreeing to compensate the aggrieved person in some way.]

There are many common areas between the above and my parents’ generation during which time the age gap was significant. When more and more daughters got educated, we came of out this and young ones made their own choices. Such are bound to happen in all communities where common education is a uniting factor.

To my mind, where de facto system is not law there needs to be separation of Powers between various systems. Separation of Powers is needed between the Judiciary and the Executive due to different faith systems. The Judiciary’s ancestors would include makers and interpreters of  laws discovered by non-Sri Lankan rulers and / or other Judicial systems. Sri Lankan politicians have to use local experiences and not imports. That is essential limitation in Democracy.

Burghers also need the Roman Dutch Law which is their heritage and hence many of us who have British mentors need English law which is our heritage. It is not so much the actual wording and its logical meaning – but more the sacrifices made to develop and maintain the system under difficult circumstances. After Independence, communities that have Roman Dutch and British heritages are under serious threats from Law makers who prefer their own cultural laws. This was a huge reason for the problem between immediate past President Sirisena and then PM Wickremesinghe due to their respective heritages. My mind connected more easily with that of Mr Wickremesinghe’s than with Mr Sirisena’s due to Roman Dutch Law and English law. One way out is to use de facto systems as parallels – as per the choice of the citizens concerned.

Until  our faith in the Common system is stronger than our faith in the local system – we do not have the moral authority to make One law for all.  Mr Rathana Thero is a Buddhist monk and does not have the moral authority to make marriage laws even for the Buddhist community. One needs the experience – especially the pain of sacrifice – to develop reliable systems that work naturally and are close to the system of Natural Justice.