Buddhism and the Law

Buddhism and the Law, a Practical Solution to Some Social Problems in Sri Lanka

Dr. Wedage Dantha Rodrigo, President’s Counsel, B. A. (Sri Jayewardenepura);

LLB; LLM (Colombo); PhD (Queensland, Australia);

Dip. F. E. (Leeds, UK); Dip. I. P. R. (Sri Lanka);

Principal, Sri Lanka Law College, Commissioner,

Legal Aid Commission of Sri Lanka, Consultant,

Sinhala Dictionary

1 Introduction

A well-organized economic, legal and social infrastructure base is a prerequisite of socioeconomic development and social justice. This is particularly important for a country like Sri Lanka where successive governments have attempted to achieve this goal by introducing legal reforms which were thought to be appropriate. Although these attempts have produced some progress, it is arguable that legal measures alone are inadequate to address the issues in the modern society. The main reason for this situation appears to be the selfishness among individuals and their ignorance of and/or disregard for their social obligations.

The central focus of this work is on the law relating to maintenance and the duty of support that has not been able to find a complete solution to the problems which it was intended to solve despite judicial and legislative efforts. Every member of the society has a status with a role attached to it. The status and role determines the rights and duties of each person and every right has a corresponding duty. These are basically moral duties that have been given a legal shape.

Therefore, the best approach is to interpret them in the light of the religious teachings on which they are based. A good example of this method is the Supreme Court case Gaffoor v Wilson and another one where Hon Justice A. R. B. Amerasinghe has successfully made use of the Parabhava Sutta, Vasala Sutta and the Dhammika Sutta in support of his argument that the moral duty to support one's parents is also a part of our own oriental traditions.

Similarly, the present author argues that the Sigalovada Sutta provides useful guidance in establishing a righteous society in Sri Lanka where members of all ethnic and religious groups will trust and respect one another and live in peace and harmony.

This work analyses the efforts made by both the judiciary and the legislature to address the issues relating to the law of maintenance and the duty of support.

This analysis reveals that Hon Justice A. R. B. Amerasinghe’s approach in Gaffoor v Wilson and another is more efficacious than a pure legalistic approach. Thus it is crucial to analyse how the law and public policy in Sri Lanka should be crafted so as to cater for the needs of its citizens. The author’s proposition is that the Sigalovada Sutta may usefully be used for this purpose.

As the Principal of Sri Lanka Law College, which is one of the oldest and most prestigious educational institutions in our country, the author recognizes his and his institution’s responsibility to educate and advise the general public on matters of law and morality. In order to achieve this objective an action plan is also proposed under the conclusions of this work.

2 The law of maintenance

The law of maintenance in Sri Lanka is primarily incorporated in statute law but judges have resorted to the common law as well as established moral principles to bridge the gaps in the statute law. Legal principles were narrower than moral principles as they imposed a duty to support only where a personal relationship such as family relations existed. One of the most important consequences of the union of marriage is the duty of support. The Roman Dutch law, which is the common law of Sri Lanka, recognizes a reciprocal duty of support but the primary obligation of support was on the husband.

The first piece of legislation to recognize the husband’s duty of support in Sri Lanka was the Vagrancy Ordinance No. 4 of 1841 which was based on the English Vagrancy Act of 1824.

The Vagrancy Ordinance No. 4 of 1841 was repealed by the Maintenance Ordinance of 1889 which declares that, “If any person having sufficient means neglects or refuses to maintain his wife, or his legitimate or illegitimate child unable to maintain itself, the Magistrate may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child…” (Section 2 of the Maintenance Ordinance of 1889)

Until it was repealed by the Maintenance Act No. 37 of 1999 the duty of support in Sri Lanka was governed by the Maintenance Ordinance of 1889. However, as it was not a comprehensive enactment, common law continued to be relevant. For instance the Ordinance was silent about the right of action by needy parents against their children for support. But this was an instance where a civil action for maintenance was available.

Thus, in Ambalavanar v Navaratnam 56 NLR 422 the issue was the reciprocal obligation of a child to support indigent parents. Despite the fact that the Maintenance Ordinance, had no provision on this matter the Supreme Court held that The Roman Dutch Law rule that children are liable to support their parents who are in indigent circumstances obtains in Ceylon (Sri Lanka).

Furthermore, a wife in indigent circumstances could enforce her husband’s obligation of support by virtue of the Maintenance Ordinance as well as by pledging her husband’s credit for necessaries (Lalchand v Saravanamuttu 36 NLR 273).

In addition, the law of support in modern Sri Lanka has been greatly improved by statute law.

The best examples are the Maintenance Act No. 37 of 1999 and the Protection of the Rights of Elders Act No. 9 of 2000.

The long title of the Maintenance Act No. 37 of 1999 declares that it is an Act to provide for the maintenance of children, adult offspring, disabled offspring and spouses unable to maintain themselves; to ensure compliance of the law relating to maintenance with the provisions of the United Nations Convention on the Rights of the Child, and for matters connected therewith or incidental thereto.

Unlike the repealed Maintenance Ordinance of 1889 which dealt only with the duty of a husband to maintain his wife and children, the current Maintenance Act No. 37 of 1999 is a comprehensive one. Under section 2 (1) a Magistrate may make orders for the maintenance of a spouse or child or adult offspring or disabled offspring.

However, section 17 does not deprive persons including children, adult offspring, disabled, offspring, spouses or parents of the right to maintain a civil action for maintenance.

Hence, cases such as Ambalavanar v Navaratnam and Lalchand v Saravanamuttu will continue to be important authorities. The Protection of the Rights of Elders Act No. 9 of 2000 further strengthens the position of elders. Sections 15 provides for the protection of the rights of elders by making it theduty and responsibility of children to provide care for, and look into the needs of, their parents. The same section imposes a duty on the state to provide appropriate residential facilities to destitute elders who are without children or are abandoned by their children.

Thus, it is clear that the current concept of duty of support in Sri Lanka is a comprehensive one that has moved from the father to the mother and in reciprocity in a family and also to the state. The following cases illustrate the judicial attitude towards maintenance.

MAMMADU NACHCHI v. MAMMATU KASSIM 11 NLR 287

The offer by a husband to maintain his wife if she will come and live with him must be an offer to maintain her with the dignity and consideration which befits a wife. In this case the respondent's invitation to his wife was to come and live in his mistress's house.

He had no house of his own, and was living in a house which his mistress had taken on mortgage with her own money. Hence, it was considered that the respondent's offer was not such as is contemplated by section 4 of the maintenance Ordinance. It was decided that the wife was not bound to go and live there and the respondent was ordered to pay maintenance for his wife, as well as for his child.

GUNAWARDENE v. ABEYEWICKREME 17 NLR 450

A married woman who is living apart from her husband through no fault of her own is not debarred from claiming maintenance (under Ordinance No. 19 of 1889) by the fact that she has a personal income sufficient for her maintenance.

Far back as 1863, it was held by Sir Edward Creasy C.J. and Thompson J., in the case of Ukku v. Tambaya (1863) Ram. 1863-1878, 71 that, by the law of this country, the husband by the marriage contract takes upon himself the duty of supporting and maintaining his wife so long as she remains faithful to her marriage vow. The principle laid down in the case of Ukku v. Tambaya was recognized by the Supreme Court in Ranasinghe v. Peris 13 N. L. R. 21. The Roman-Dutch texts support the view expressed by Middleton A.C.J. and Pereira J. in Ranasinghe v. Peris that under Roman-Dutch law, the husband was bound to maintain his wife so long as she remained faithful to him. For instance, Maasdorp says that the husband is bound to maintain his wife in a manner suitable to her rank and position, so much so that he will even be liable for necessaries supplied to her, whilst living apart from him, whenever she has been obliged to leave him on account of his misconduct.

FERNANDO v. FERNANDO 31 NLR 113

Section 26 of the Married Women's Property Ordinance, No. 18 of 1923 deals with the liability of a married woman having sufficient separate property to maintain her husband, who, through illness or otherwise, is unable to maintain himself. However, courts do not permit a husband who makes no attempt to find employment, to get a pension from his wife's property to enable him to live in idleness. Hence, in Fernando v. Fernando 31NLR 113 where the husband of a married woman was unable to secure employment owing to the suspension of his certificate of conformity as an insolvent, it was held that he was not entitled to apply for maintenance from his wife under section 26 of the Married Women's Property Ordinance.

SIVAPAKIAM v. SIVAPAKIAM 36 NLR 295

The expression “having sufficient means “in section 3 of the Maintenance Ordinance was interpreted by the Supreme Court in Sivapakiam v Sivapakiam 36 NLR 295 to denote a person who has a source of income or who has willfully abstained from earning an income.

PERERA v. PERERA 43 NLR 215

It was held in Perera v Perera 43 NLR 215 that in an application by a husband for maintenance against his wife under section 26 of the Married Women's Property

Ordinance the burden is on the applicant to establish that through illness or otherwise heis unable to maintain him.

AMBALAVANAR v NAVARATNAM 56 NLR 422

The Roman Dutch Law rule that children are liable to support their parents who are in indigent circumstances obtains in Ceylon (Sri Lanka).

ABEYSEKERA v BISSO MENIKA 64 NLR 260

When an order of maintenance entered in favour of a wife is cancelled under sections 5 or 10 of the Maintenance Ordinance on the ground that she is living in adultery, the order of cancellation may be made to take effect retrospectively so as to cover the period during which she has been living in adultery.

3 Sigalovada Sutta as a code of ethics for the lay society

It is evident from the foregoing analysis of the statute law and case law that the legislature and the judiciary have endeavoured to strike a balance between the rights and duties of the parties to maintenance cases. However, it is no secret that a considerable proportion of the persons who are entitled to be supported by their relatives live in orphanages and elders’ homes because they do not wish or have no resources to resort to legal action. As stated above the deficiencies and omissions of the current legal regime on maintenance become more perceptible when studying the teachings on social obligations enshrined in the Sigalovada Sutta. Such a study will prove that the Buddhist way of life can play a major role in facilitating the prime function of law in Sri Lanka.

Sigalovada Sutta is also known as the Laypersons’ Code of Discipline as it has set out the guidelines necessary to lead a happy life. The six directions represent the six relationshipsin social life as follows:

(a) The mother and father are the East,

(b) The Teachers are the South,

(c) Wife and Children is the West,

(d) The friends and associates are the North,

(e) Servants and employees are the Nadir,

(f) The ascetics and Brahmins are the Zenith.

A child should care for his parents as the East in the following five ways:

(i) Having supported me I shall support them,

(ii) I shall do their duties,

(iii) I shall keep the family tradition,

(iv) I shall make myself worthy of my inheritance,

(v) Furthermore I shall offer alms in honour of my departed relatives.

The parents thus ministered to as the East by their children; show their compassion in five ways:

(i) They restrain them from evil,

(ii) they encourage them to do good,

(iii) they train them for a profession,

(iv) they arrange a suitable marriage,

(v) at the proper time they hand over their inheritance to them.

A pupil should care for his teacher as the South in five ways:

(i) By rising from the seat in salutation,

(ii) by attending on him,

(iii) by eagerness to learn,

(iv) by personal service,

(v) by respectful attention while receiving instructions.

Teachers thus ministered to as the South by their pupils, show their compassion in five ways:

(i) they train them in the best discipline,

(ii) they see that they grasp their lessons well,

(iii) they instruct them in the arts and sciences,

(iv) they introduce them to their friends and associates,

(v) they provide for their safety in every quarter.

A wife as the West should be looked after by a husband in five ways:

(i) by being courteous to her,

(ii) by not despising her,

(iii) by being faithful to her,

(iv) by handing over authority to her,

(v) by providing her with adornments.

The wife thus looked after as the West by her husband shows her compassion to her husband in five ways:

(i) she performs her duties well,

(ii) she is hospitable to relations and attendants

(iii) she is faithful,

(iv) she protects what he brings,

(v) she is skilled and industrious in discharging her duties.

A person should care for his friends and associates as the North in five ways:

(i) by liberality,

(ii) by courteous speech,

(iii) by being helpful,

(iv) by being impartial,

(v) by sincerity.

The friends and associates thus cared for as the North show their compassion to him in five ways:

(i) they protect him when he is heedless,

(ii) they protect his property when he is heedless,

(iii) they become a refuge when he is in danger,

(iv) they do not forsake him in his troubles,

(v) they show consideration for his family.

A master should look after his servants and employees as the Nadir in five ways:

(i) by assigning them work according to their ability,

(ii) by supplying them with food and with wages,

(iii) by tending them in sickness,

(iv) by sharing with them any delicacies,

(v) by granting them leave at times.

The servants and employees thus cared for as the Nadir by their master show their compassion to him in five ways:

(i) They rise before him,

(ii) They go to sleep after him,

(iii) They take only what is given,

(iv) They perform their duties well,

(v) They uphold his good name and fame.

A householder should minister to ascetics and Brahmins as the Zenith in five ways:

(i) By lovable deeds,

(ii) By lovable words,

(iii) By lovable thoughts,

(iv) By keeping open house to them,

(v) By supplying their material needs.

The ascetics and Brahmins thus ministered to as the Zenith by a householder show their compassion towards him in six ways:

(i) They restrain him from evil,

(ii) They persuade him to do good,

(iii) They love him with a kind heart,

(iv) They make him hear what he has not heard,

(v) They clarify what he has already heard,

(vi) They point out the path to a heavenly state.

4 Conclusions

It is evident from the foregoing discussion that the development of moral conduct is not beyond the scope or abilities of a layperson. The Buddha’s message of morality and ethics contained in the Sigalovada Sutta is meant to guide the members of the society so that they will learn about their commitments and reciprocal activities necessary to live a happy life with the six types of persons whom they depend upon during their lives. This teaching of the Buddha can help us reconcile the confused nature of our relationships through mutual respect and understanding.

Exponents of Western jurisprudence and systems of law seek to detach law from any moral or ethical dimension, and to insulate the law in a neutral state.6

However, with the increasing complexities of society created by advancing technology, globalization, and contending ideologies, courts are confronted with issues that are laden with moral and ethical dimensions. Morally neutral law is increasingly being found inadequate to decide issues involving the sustainability of the human society.

In a landmark judgment of the International Court of Justice, Judge C.G.Weeramantry adopted the principle enunciated by Arahat Mahinda in his admonition to King Devanampiya Tissa:

“O great king, the birds of the air and the beasts have as equal a right to live and move about in any part of the land as thou. The land belongs to the people and all living beings; thou art only the guardian of it.”

This sermon effectively conveys the message that since the King is not the owner of the land but only its trustee his duty is to protect and preserve it for the benefit of all living beings. The author’s view is that we should draw from this sermon enshrined in the vast experience of our history in addressing the issues in the Sri Lankan society.

Although methods of alternative dispute resolution have been introduced into our country, people seem to consider it as an add-on to the adversarial system which still continues to be the main method of dispute resolution. While the adversarial system of adjudication may be suitable for commercial transactions, it should be the last resort in disputes involving personal relations such as maintenance. The major drawback in the existing system of dispute settlement in our country is that it seeks to settle disputes mainly by judicial intervention using an adversarial system. This method of adjudication is a battle between two contending parties and in the end it brings victory to the party which is able to defeat the other. Considering the cost of litigation and the time factor it is no exaggeration to say that in fact no party benefits from this kind of lawsuits.

We may now pose the question as to what role should the Sigalovada Sutta play in the context of current events and the socio-economic background? We live in a society that has undergone a vast transformation in the recent past. Man’s thirst for material development has become unappeasable and intense rivalry among some sections of the society has led to the deterioration of values and neglect of duties. For these reasons it is not surprising if such people are concerned only about their rights and grudgingly look upon their duties as a burden imposed on them. When we enter the arena of social obligations rather than those between individuals, rules based on individual fairness and procedural compliance are inadequate. Hence, moral values must be used as much as possible as Justice A. R. B. Amerasinghe did in Gaffoor v Wilson and Another.

This work seeks to explore the values, concepts and principles underlying the Buddha’s doctrine which have similarity with modern systems of law, and/or which can be assimilated into existing legal systems for their improvement and to meet new developments.

Sigalovada Sutta reminds us that a viable social organization contains rules of conduct that allow for its continued existence. The principles underlying the Buddhist doctrine contained in the Sigalovada Sutta for the conduct of laymen, and society contain many analogies with modern principles of law such as the duty of support, and in some instances, foreshadow modern legal principles.

Unlike the maintenance law the value system contained in the Sigalovada Sutta is not binding and there is no legal mechanism to enforce such moral obligations. Hence, even the existing legal mechanism may be used in an effective way to encourage the performance of one’s duties by the use of appropriate methods of settlement. This is achievable by adopting wherever possible in maintenance cases an inquisitorial system which takes the form of a fact finding inquiry rather that a legal battle. Furthermore, knowledge of these values and their importance in the society may be disseminated to the general public including school children as part of the Sri Sambudda Jayanthi 2600 programme.

Sri Lanka Law College is willing to conduct awareness programmes for school children and adults with the assistance of the Ministry of Education, Provincial Ministries of Education and the Media. These programmes, particularly those for school children, will impart knowledge about their rights and obligations and enable them to question, think and understand what is right and wrong from an early stage in life. Once Law College has laid the foundation on the younger generation, and developed a group of people who are passionate on legal/moral education and its impact on the society, the next step would be to engage this force on the rest of the country and community. Comprehensive studies and awareness programmes will be conducted from village to village throughout the country. It is possible to incorporate this awareness programme into the practical training programme of the Sri Lanka Law College. Since there are apprenticeship students from all provinces of the country, it is possible to impart basic legal/moral knowledge to every school child in our country in the medium of their choice. We may also develop the necessary literature for this purpose.

Theruwan saranai!

BIBLIOGRAPHY

Statutes

1. Maintenance Act No. 37 of 1999

2. Maintenance Ordinance No. 19 of 1889

3. Married Women's Property Ordinance, No. 18 of 1923

4. Protection of the Rights of Elders Act No. 9 of 2000

5. Vagrancy Ordinance No. 4 of 1841

Cases

1. Abeysekera v Bisso Menika 64 NLR260

2. Ambalavanar v Navaratnam 56 NLR 422

3. Fernando v. Fernando 31 NLR 113

4. Gaffoor v Wilson and Another (1990) 1 Sri. L. R. 142

5. Gunawardene v Abeyewickreme 17 NLR 450

6. Lalchand v Saravanamuttu 36 NLR 273

7. Mammadu Nachchi v Mammatu Kassim 11 NLR 287

8. Perera v Perera 43 NLR 215

9. Ranasinghe v. Peris 13 N. L. R. 21

10. Sivapakiam v Sivapakiam 36 NLR 295

11. The case concerning the Gabc?íkovo-Nagymaros project (Hungary/Slovakia),

Separate opinion of Judge C. G. Weeramantry (Vice President of the International

Court of Justice) http://www.icj-cij.org

12. Ukku v. Tambaya (1863) Ram. 1863-1878

Books

1. Savitri Goonesekere, The Sri Lanka Law on Parent and Child, (1987, M. D.

Gunasena & Co. Ltd., Colombo)

2. Sharya Scharenguivel, Parental and State Responsibility for Children: the

Development of South African and Sri Lankan Law, (2005, Stamford Lake (Pvt)

Ltd., Pannipitiya)

3. Shirani Ponnambalam, Law and the Marriage Relationship in Sri Lanka, (1987,

Lake House Investments Ltd., Colombo)

Articles

1. E.P. Wickremasekera, Aspects of Buddhist Jurisprudence, A paper presented at the Conference of the Commonwealth Legal Education Association (CLEA) in

Colombo in June 2008

2. Venerable Narada Thera, Sigalovada Sutta, The Discourse to Sigala, The

Layperson's Code of discipline, http://www.buddhasutra.com/files/sig_sutra.htm11

Websites

1. United Nations Convention on the rights of the child, www.unicef.org/crc

2. Website of the International Court of Justice http://www.icj-cij.org

End Notes

1. Gaffoor v Wilson and Another (1990) 1 Sri. L. R. 142.

2. Ibid, at page 146. 2

3. Savitri Goonesekere, The Sri Lanka Law on Parent and Child, 1987, p. 411. 3

4. www.unicef.org/crc4

5. Venerable Narada Thera, Sigalovada Sutta, The Discourse to Sigala, The Layperson's Code of discipline, http://www.buddhasutra.com/files/sig_sutra.htm

6. E.P. Wickremasekera, Aspects of Buddhist Jurisprudence, A paper presented at the Conference of the Commonwealth Legal Education Association (CLEA) in Colombo in June 2008

7. The case concerning the Gabc?íkovo-Nagymaros project (Hungary/Slovakia) http://www.icj-cij.org

8.  Ibid, Separate opinion of Judge C. G. Weeramantry (Vice President of the International Court of Justice), at page 102, http://www.icj-cij.org9

9. (1990) 1 Sri. L. R. 142. 10