Law and tobacco control in Sri Lanka

Based on collectivist orientation:

In his groundbreaking book The Legal Heritage of Sri Lanka (1999) Justice A R B Amerasinghe, a former Judge of the Supreme Court felt impelled to declare: “...I deal with the destruction of the traditional techniques of dispute resolution at some length because it is necessary to understand why the adversarial system introduced by the British has progressively brought the administration of justice to near collapse. The indigenous system of the administration of justice ... flickered awhile under Dutch and British rule before it was ... virtually snuffed out by the Charter of Justice of 1833 and subsequent legislation ...”.

Prof Carlo FONSEKA

There is scholarly consensus that in contrast to the individualistic ethos of Western Law, a collectivist ethos underlay Sri Lanka’s system of the administration of justice from about 480 BCE to 1815. As it happened, it was in 1815 that for the first time in its recorded history of some 2500 years the entire country came under foreign (British) rule.

The Charter of Justice had been introduced to English Law in 1801 and it was incorporated into the Ceylon Law in 1833. That the individualistic orientation of Western Law smothered the collectivist orientation of traditional systems is the considered opinion of Judge S G Weeramanthry, a member of the World Court at the Hague from 1991 to 2000 and its Vice President from 1997 to 2000.

Collectivist ethos

What, it may be asked, is the justification for a collectivist orientation to the administration of justice. The human way of life is essentially social. No individual can do without society but for a society there is no indispensable individual. Therefore, the interests of society as a whole must take precedence over the interests of any individual. This implies that at some point, the special interests of the individual must give way to the general interests of society. There is no other basis on which a stable society can be built. The fundamental purpose of law is the creation of social stability based on some notion of justice. Self-evidently, therefore, the law should be based on a collectivist orientation. The history of tobacco control law in the world is the history of the struggle to transform it from an individualistic orientation, which favoured a small group of tobacco merchants to a collectivist one beneficial to the rest of society including those who willy-nilly consume tobacco.

In regard to tobacco control law, there is a cast-iron case against an individual who smokes in the presence of others. That ‘your cigarette is killing me’ is only an exaggeration of well-established scientific truth: while one cigarette will not kill even a baby, the accumulated effect of exposure can cause a fatal cancer in an adult. It does so by the secondhand smoke released by smokers into the environment. There being no such thing as a safe level of exposure to secondhand smoke to prevent insidious homicide, all public places must be made free of tobacco smoke by law. Axiomatically, salus populi suprema lex - the safety of the people is the supreme law. Perhaps it is pertinent in this context to rehearse an old question: What is law? According to legal philosopher John Austin (1790 - 1859), in its origin, law simply represented the will of the Sovereign. The historical record shows, however, that since the Sovereign could not rule single-handed, law gradually came to represent the codification of the interests of the dominant group in a society whose prime member was the Sovereign. At that stage the law was quite unrelated to any reasonable notion of social justice. It just represented the will of the powerful. It regularized the rule of the stronger.

Even in the hunter-gatherer stage of human social evolution, conflicts between individuals over resources must have been inevitable. Conflict appears to be intrinsic to the human condition. Gradually unwritten laws or customs developed to protect ownership of plots of land in the territory in which a tribe lived. Within a tribe the limited area where a particular man lived with his wife and children came to be regarded by common consent as belonging to him.

Custom made him the rightful owner of that plot of land on which he lived with his family. So property came to be protected by custom before it came to be protected by formal law. Therefore law originally represented the codified customs in a society and the customs that became codified were those of the stronger.

Feudal system

By virtue of their strength they had acquired the prime land in their territory. That no doubt was how the feudal system developed.

As society evolved, law while regularizing the rule of the stronger in a society, also came to regularize social relations among equals. To be continued