Mass L. Usuf
LL. B (Hons.) U.K., ACIS (U.K.)
Attorney at Law
(Ex-Advisor to the former Private Department of the President of U.A.E.)
Civilized societies seek to ensure that social, cultural and religious priorities of a community are based on a broad consensus of that community. Decisions taken affecting the civil liberties and religious sentiments of a people should be more open, transparent and accountable to avoid passing the ball of responsibility. It is the constitutional duty of the Minister in Charge to guide the Cabinet as part of effective governance and collective responsibility. He must be judicious and ensure that quality policy-making process is followed especially, when the matter relates to the sensitivities of a people in a democratic set up. They should be heard in decision-making.
On the issue of collective responsibility, the Supreme Court of India stated: “it ensures that Cabinet decisions are based on principles and not on personalities.” (Common Cause, A Registered Society vs Union Of India & Ors, 3 August, 1999).
A few from the Muslim community banded together does not represent and, morally should not be acknowledged as representing the interest of the entire Muslim community. Similarly, a few from the Sinhala community does not and, morally should not, represent the entire Sinhala community. The majority of the people among these communities cannot allow a few to dominate the rest of the people in their respective communities. To allow this to happen would mean literally surrendering themselves to forces who will manipulate the divergent majority will without consultation. Such manipulation may even go against certain fundamental principles or basic beliefs of the others. On the broader canvas may challenge the peaceful coexistence of a people and, thereby, create chaos in society.
According to legal theory, the evolution of law which includes reform is not a new phenomenon. Law reforms are neither magic nor a unique exercise to be excited about. In this exercise consultations of an independent nature are initiated by the Minister of Justice. A conscientious and honorable person will ensure that the principles of good governance in the law-making process is meticulously adhered to. These are moral and ethical values. However, with regard to the matter of reforms of Muslim marital laws, there are at least two areas where without proper consultation arbitrary decision making has taken place. It is understood that the Cabinet had decided on 8th March to abolish the Quazi Court system and to prohibit polygamous marriages under the Muslim Marriage and Divorce Act (MMDA).
Reflecting on the Indian Supreme Court observation quoted above, the Muslim community may think whether the Cabinet decisions reflect pampering to the interests of personalities or is a reflection of principles. If it was the former, then it is totally prejudicial, immoral and against the conscience of an entire community; Leave alone the conscience of right-minded general public who will make a judgement of their own.
Nominated Or Elected
The growing trend of marginalization of the Muslims is becoming very visible day by day. This is causing a lot of uneasiness within the community. Both the President and the Prime Minister must fully recognize the seriousness of this challenge. Lest they be misled into the arena of Islamophobia – by design or in ignorance. A careful observation of the turn of events clearly points towards this trajectory. Common sense dictates that the President and the Prime Minister would never want to be part of this damning trend.
In any event, the Minister of Justice whether he is nominated or elected must realize that the people are exercising their constitutional right of sovereignty through him. In other words, he is a part of the legislature and the executive.
“Thus, the Cabinet stands or falls together. Where the policy of a particular minister is under attack, it is the government as whole which is being attacked.” (British Constitution & Politics 5th Edition by J. Harvey and L. Bather).
These observations should not be viewed as a criticism of the Minister of Justice but should be taken in the correct spirit of intellectual engagement. A deeper understanding of another important phenomenon and the systematic manipulation by the sinister multi-million-dollar commerce requires study. That is the Islamophobic industry.
More than $200m was spent towards promoting “fear and hatred” of Muslims in the United States by various organizations between 2008 and 2013, according to a fresh joint report by the Council on American-Islamic Relations (CAIR) and the University of California, Berkeley. Unsuspecting governments like ours are beguiled to fall in line in perpetuating same. The Minister needs to inform himself of this global trend. Having a superfluous idea of the hackneyed word, ‘Islamophobia’ or the ability to utter some words about this, is gravely insufficient. Contextually, he must evaluate the potential pitfalls of tinkering with the established rights and privileges of a community, from a socio-cultural, legal and religious standpoint.
The Minister of Justice, regrettably, one of the few intellectuals in the Cabinet, has the huge responsibility of advising the President and Prime Minister accordingly. Moreover, with the broader and best interest of the nation must also guide his fellow policy makers. Reciprocatively, it becomes incumbent on the Prime Minister and President to give a fair and reasonable hearing to the Minister in the greater interest of the country.
What is being marketed as a Muslim issue will become a fully blown national issue. Then, extend into a regional and international issue. The duty of the State as internationally recognized is to protect the vulnerable minority.
Only a very few of Sri Lankan academia, intellectuals, journalists and professionals have some understanding and knowledge of this global phenomenon. Most of our people are absolutely unaware. Therefore, the Islamophobic script is swallowed hook, line, and sinker by our politicians and monks. Most of the monks who dabble with politics lack exposure of international trends. Their articulation of viewpoints demonizing Islam and Muslims are rather narrow and does not take into consideration the correlation between what is happening globally and its possible impact on our country.
The government must work to promote and protect minority rights and freedoms. Recognise and permit the continuation of rights which they have been enjoying for centuries. The deficiency in human security will indirectly have a heavy impact on the already weakened national economy and our fragmented social structure. We have been through a thirty- year war, the 1983 violence against the Tamil people, the several instances of premeditated arson, killing and the destruction of properties of the Muslims. In this background, our society cannot take any more burden.
The total effect of marginalizing the Muslim community will contribute to a volatile, unpredictable, dangerous and an unstable set of people living together. I mean everyone irrespective of race, religion or ethnicity. We must admit that the Sri Lankan population is polarized and deeply divided. We all will be sitting on a time bomb.
If You Are Loyal
It must be mentioned that the principles of Islamic equality and human rights inspired the Western thought and not vice versa. Even then there are deficiencies in the Western extraction of Islamic human rights concepts. The learned Justice and scholar, late Professor Weeramantry wrote: “Indeed some of the inadequacies of current human rights doctrine results from overemphasis on unbridled individualism, which Islamic law has sought to avoid. All values are set in the context of the community.” (Page 133, Islam and Human Rights: Islamic Jurisprudence.) Mr. Minister, be advised that “All values are set in the context of the community.”
There is a duty to boldly, bravely and courageously advise the President and Prime Minister on what is correct and to stand by it. After all, it is for the good of the country. Loyalty is not acquiescing to what is not correct. It is the duty of such to advise them of the ramifications of touching on the religious feelings of a deeply rooted community in this land of the Dhamma whose philosophy embraces tolerance.
It is fervently hoped that the President and Prime Minister would recognize the serious implications of making unwise moves. The plea is to lift the ban. In the best interest of the country, it is suggested to adopt what is called the ‘governmentality’ approach in dealing with the Muslim law reform issues. We love our country and would like to see it stable and prospering.
Let us unite and work to uphold racial harmony, shared national identity, tolerance towards other religions and ethnicities. Champion the cause of spreading love and understanding. Importantly, to accept and live in the context of a plural society.