Alcohol Ban and Feminist Conundrums

By Faizer Shaheid-2018-01-30

The recent move to revoke Excise Notification No. 02/2018, under the Excise Ordinance, has sparked quite a conundrum in respect of the human rights law in the country. The strong human rights movement has been up in arms following the botch and has strongly criticised President Maithripala Sirisena for it. However, there have been various angles to this debate each of which have emanated from the masses.

As a backdrop, it is worthwhile considering that President Sirisena has done a world of good to the women of this country together with Minister of Provincial Councils and Local Government, Faiszer Musthapha, by allocating a 25% mandatory quota for women in the Local Government Elections. While this collective good has been largely disregarded by the feminist movement, the reinstatement of the alcohol ban has sparked outrage.

The quota system and collective good

Fielding women at the Local Government Election will enhance the voice of women nationally and help women raise their voices through the democratic process. Perhaps the results may not be witnessed immediately, but in the long run, their struggles will have national leaders at the helm to champion their cause.

Women constitute 52% of the Sri Lankan population, and yet they have been underrepresented at national, provincial, and local government levels. A total of 60 women have managed to enter Parliament since universal franchise was introduced. An explicitly under whelming figure indeed.

The Mahinda Rajapaksa Government attempted to rectify this by enacting Local Authorities Election (Amendment) Act, No. 22 of 2012. The legislation used the word 'may' in its attempt to guarantee 25% quota for women and youth.

The incumbent government introduced further amendments, not only to make the 25% quota mandatory, but sought to ensure that all loopholes were covered.

The quota system has been met with outrage too, although conveniently dismissed by the feminist movement. The arguments against the quota system are based on the right of equality too, the 'equality of opportunity' to be precise. The concept of equality of opportunity requires that each person nominated as a candidate must be formally open and allocated through meritocratic ideals.

However, a quota system would mean that unworthy candidates may be fielded while deserving candidates may be left out.

The most common question heard in respect of the quota system has been, "Why vote for women, when 52% of women do not vote for women?"

The other issue concerns the future. If and when a day comes where women outperform men at a given election, there will be no provision in law to guarantee a mandatory representation of men at an election. Kenya has enforced the quota system through its law with due consideration of these questions. What Kenya possesses is a provision in the Constitution which has been popularly referred to as the 'gender principle.' Under this quota system, the majority gender in Parliament can be no more than two-thirds of Parliament. Sri Lanka should have considered Kenya's example so as to prevent the principle of equality.

The issues are valid indeed. However, the feminist movement has remained strangely mum in respect of these questions. They remain silent, unable to find an answer, and yet choose to absorb the wholesome benefit they derive from it.

The alcohol ban

The revocation of the Excise Notification has acquired far more publicity than the far more important electoral quota system. It has received a plethora of conjectures and even managed to conceal the Bond Scam Report.

A popular social media activist had posed the question, why raise such tantrums for alcohol? Many had suggested that it would have been more meaningful to ban alcohol as a whole. However, banning alcohol would have been bad for business, and even worse for tourism. The alcohol industry has lured many tourists who would bask in the golden sunshine and drown in the holiness of the enchanting bottle.

The law is indeed discriminatory without a doubt. It was a result of an Excise Notification which precedes the Constitution, but had never been enforced strictly. Not many were aware of these prohibitions until Minister of Finance and Mass Media, Mangala Samaraweera sought to rectify the discrepancies that existed. This happened on 10 January this year.

The new Excise Notification removed the ban on the sale of liquor 'within the premises of a tavern.' The Oxford Dictionary defines a 'tavern' as 'an establishment for the sale of beer and other drinks to be consumed on the premises, sometimes also serving food.' Other definitions are of similar nature. Therefore, the prohibition does not cover places that do not constitute a tavern.

However, only six days following Excise Notification No. 02/2018, the Cabinet of Ministers decided to revoke it and once again enforce the ban that existed prior to the Excise Notification.

The standing of the Cabinet decision

The Cabinet decision has been up for debate, with many persons calling it unconstitutional. Eleven women filed a Fundamental Rights Petition in the Supreme Court on the grounds of equality. Article 126 of the Constitution gives the Supreme Court sole and exclusive jurisdiction to hear and determine any case relating to fundamental rights in respect of executive or administrative action.

While a lot is left for the Supreme Court to determine, it is in my humble opinion that the case is likely to succeed.

The position prior to the 10 January Excise Notification was valid in law as it preceded the Constitution of 1978. Article 16 permits all written laws that were enforced prior to the Constitution to continue as law regardless of any discriminatory provisions.However, any subsequent bill can be challenged in the Supreme Court up to one week after publishing in the Order Paper according to Article 121 (1) of the Constitution.

The revocation could not be contested under Article 121, as an Excise Notification is not a bill that is presented in the Order Paper.

However, the issuance of Excise Notifications is the responsibility of those in Government. Each member of the Cabinet of Ministers falls under the Executive Wing. Therefore, the issuance of the Excise Notification and revocation of it form part of the responsibilities of the Executive.

Being so, the Excise Notification issued on 10 January had amended the previous position making it current. Therefore, any revocation on the basis of returning to the previous position can be construed as being in the form of fresh executive action. Hence, the revocation can be subjected to a fundamental rights review.

The problem however, is whether nullifying the Excise Notification does indeed constitute an executive action violating the fundamental rights. To be clearer, there does not appear to be any action on the part of the executive, except to nullify the Excise Notification which would then expose people to a pre-existing Excise Notification.

It is therefore left to the Supreme Court to determine whether the nullification of an Excise Notification is to be construed as a fresh amendment.

The equality principle

While the argument of most feminists in respect of this case has been on the grounds of equality, the issue is only trivial when compared to many others. Feminists have tried to project the issue as an issue of prohibition of women to purchase a commodity. Even drugs are commodities, yet they remain prohibited. Alcohol remains a commodity, just like cigarettes, which possess attributes that are harmful to human health.

Feminists have raised the issue as one that affects the right to equality. The right to equality according to Article 12 (4) of the Constitution suggests that all persons are equal before the law and that no discrimination shall be inflicted on the grounds of race, religion, language, caste, sex, political opinion, place of birth, or any similar grounds.

Article 12 (4) goes on to state that the right to equality cannot prevent any law, subordinate legislation or executive action for the advancement of women, children and disabled persons. This exception can be invoked by the government as a defence should it choose to. President Sirisena has already spoken about the harmful elements should women be permitted to purchase alcohol.

Regardless of how justifiable or ridiculous he may have sounded, the exception is valid in this situation.

A lot remains for the Supreme Court to consider and determine. The Supreme Court determination may also prove to be a landmark judgement in respect of the interpretation of Article 12 (4) of the Constitution. It will have to weigh the odds and issue its verdict within the span of two months as required by Article 126 (5).

Conclusion

Discriminatory practices are abundant, whether it is in government or in day to day life. Gender based discrimination is as serious as class based discrimination and discrimination on every other ground. However, feminists have had a strong voice echoing from every corner. The problem, however, arises when feminists only try to project their voice for trivial and negligible matters such as this alcohol ban. Even if the ban persists, it will only affect those consuming in a tavern. Even still, the Supreme Court has plenty to determine in respect of this case.

Feminists in Sri Lanka have in general ignored their male counterparts when considering the right of equality. They have conveniently chosen to ignore how the laws on rape, sexual harassment, and domestic violence have been drafted in favour of women, while ignoring some of the predicaments faced by men. This is understandable, because feminism advocates only women's rights and not necessarily the right of equality. However, raising trivial matters while undermining the more important matters such as the quota system for women raises the question whether feminism is heading in the right direction.

The writer is a Political Analyst and an independent researcher of laws. He holds a postgraduate degree in the field of Human Rights and Democratization from the University of Colombo and an undergraduate degree in Law from the University of Northumbria, United Kingdom.
(faizer@live.com)