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| Sunday, 20 November 2005 |
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Book reviews A critical evaluation of devolution Balaya bedeema - Kumakda? Kumakatada? Keseda? Prof. Malani Endagama's book on devolution of power with the above title is a book that could be read without an effort. She has been successful in explaining the complex concept of devolution in lucid Sinhala. Her style of writing is both simple and logical. She not only explains what is devolution but also shows its indispensability in a democratic society. Neither does she forget to point out who should be the principal beneficiary of devolution. "Power should be devolved to the people", she says. She correctly explains different approaches to and means of devolving power bringing examples not only from different countries of the world but also from the history of Sri Lanka. One essential factor she emphasises is the need to find a means of devolving power that is in harmony with the society's socio-cultural traditions. She also crtiticises attempts by politicians and intellectuals to blindly follow the West in seeking a model for devolving power in Sri Lanka. She rightly points out the need to find a model of our own that suits our society. She also makes a critical analysis of various proposals on devolution based on the concept of federalism. In her opinion power could be best devolved in Sri Lanka in a unitary state structure. However, her arguments for the rejection of a federal solution are not convincing enough. Though she reiterates the need to take account of the historical developments and traditions of governance she has failed to take into account the development of ethnic relations during recent history. This in my opinion is a result of her apriori assumption that there is no ethnic question in Sri Lanka. She considers the militant movement in the northeast only as a subversive anti-state rebellion. However, she says that the devolution model suitable for Sri Lanka should be a result of broad consensus. Thereby she does not absolutely exclude a solution with federal features. Further, she rightly points out that at present states have both federal and unitary features. That means federal states have unitary features, as in India or unitary states have federal features as in the United Kingdom. Thus it is clear that we should not dogmatically cling on to nomenclature but instead focus our attention more on the substance of devolution and its suitability in the present geo-political context. (JV) Who inherits what? Muslim Law of Succession Text of the review made by Justice Saleem Marsoof P.C. (Judge of the Supreme court,) at the book launch of Al Haj A. H. G. Ameen's 'Muslim Law of Succession - A Guide.' Title : 'Muslim law of succession - A Guide' Al Haj Ameen has divided his book into 12 chapters, but he provides a useful introduction to the subject in a preliminary chapter. In his introduction, quoting certain verses of the Holy Quran, Al Haj Ameen observes that succession or 'Mirath' is something that belongs to Allah and that when one inherits he does so in the path of Allah. The science of 'Mirath' in the sharia' at provides rules for determining who inherits and who is to be inherited, and what shares go to the heirs. The death of a person brings about a transfer of most of his rights and obligation to persons who survive him and are called 'wuratha' in Arabic, which means heirs and representatives. In his introduction Al Haj Ameen notes that before the advent of Islam, women were treated as chattels without any freedom extended to them. Female babies were buried alive in Arabia during the period of 'jahiliya', the darkest period on earth. During this period, the rules of inheritance excluded women from the inheritance of the estates left by their deceased relatives, because according to them only those who could go to the battle field to defend the clan were allowed to inherit. Al Haj Ameen observes that the Holy Quran brought in reforms through the messenger of Allah, the Holy Prophet, by way of amendments to the pre-Islamic laws which were not abrogated altogether. The law of inheritance or succession in the Islamic jurisprudence is the most complex subject, and it is comprehensive and covers a very wide area of relations and provides for even remote members of the family. The sharia' at rules relating to succession are a fusion of the ancient customary laws of Arabia with the amendments brought in by the Holy Quran and Hadith. Al Haj Ameen has stressed that one of the most important changes brought about by Islam related to the status of women. The amendments effected by the Holy Quran are summarized by the author as follows:- (a) Husband and wife were made heirs of each other; (b) Female agnates were made competent to inherit; (c)Parents and ascendants were given the right to inherit even where there are male descendants; (d) A female was given one half of the share assigned to each male. The general rule of sharia' at that a female takes only half of what is taken by a male through intestate succession has been criticized on the basis that the sharia' at discriminates against women. This is a most unjust criticism in the context that this general rule is applicable only in regard to residuary heirs, and in fact it is the sharers who have the prior right to intestate succession. It is necessary to stress that out of the 12 categories of sharers who are entitled to specific Quranic shares, only 4 are males, namely the husband of the deceased the father of the deceased, the true grandfather of the deceased, and the uterine brother of the deceased. It is significant that there are 8 categories of female sharers, namely, the wife or wives, the mother, the daughter, the son's daughter, the full sister, the consanguine sister, the true grandmother and the uterine sister of the deceased, who will have priority in the distribution of the estate vis-a-vis the residuaries. This very clearly explodes the theory that there is discrimination against women in Islam in matters of succession. Al Haj Ameen deals with the subject of succession in 12 lucid chapter. In chapter 1, he observes that succession could be either testate, where the last will left by the deceased determines the manner in which the estate has to be distributed, or intestate, where the deceased has died leaving no last will and his or her heirs will have to be determined by Court. Section 2 of the Muslim Intestate Succession Ordinance of 1931 simply declares 'that the law applicable to the intestacy of any deceased Muslim who at the time of his death was domiciled in Sri Lanka or was the owner of any immovable property in Sri Lanka shall be the Muslim law governing the sect to which deceased Muslim belonged'. It is a fundamental principle of the sharia' at that a person may not give away by last will more than a third of his estate to outsiders, or in other words at least two-thirds of the estate of a deceased person should be available for distribution among his intestate heirs. However in Sri Lanka the Wills Ordinance confers on any person the freedom to dispose even his entire estate by last will leaving nothing to the close relations like the spouse and children. The question arose in Shariffa Umma v. Rahumathu Umma 14 N. L. R. 464, whether the Wills Ordinance has the effect of shutting out the principles of sharia' at law, and unfortunately it has been held in that case that it is so, and that a person professing Islam may deprive his intestate heirs of share in his estate by the simple expedience of a last will. This is shocking, considering the importance placed on the protection of the family by sharia' at law. This is also not a very satisfactory state of affairs because the law permits an application of sharia' at principles to deal with intestate successions while precluding an application of these very principles with respect to testate succession. In chapter 2 of this important work, Al-Haj Ameen deals with the Quaranic sharers in great detail. Quranic Sharers (Asab al-Fard) are those sharers who have been allotted a specific share in the Holly Quran. He explains the circumstances in which these sharers will be entitled to the specific shares allotted by the Holy Quran. In chapter 3 he deals with residuaries (Al Sabah), that is the heirs who take the residue of what is remaining after the Quranic sharers take their prescribed shares or where a particular person dies leaving no heirs coming within the categories of Quranic sharers. He classifies the residuaries in to 4 classes, namely descendents, ascendants, descendents of the father and descendents of the father's father. In chapter 4 Al Haj Ameen deals with exclusion from inheritance, as for example the rule that a person cannot benefit from his crime, crystallized in the prophetic tradition 'a murderer does not inherit'. In chapter 5 he deals with the administration of the estate of a deceased person. Chapter 6 is devoted to a discussion of the doctrine of increase (Al-Aul) and the doctrine of return (Al-Rudd). The first of these doctrines, namely Al-Awl, applies where the Quranic shares of the sharers add up to more than unity, as for example, where a person dies leaving the surviving husband with no children who takes one half, the mother who takes 1/6th, and two sisters who together take 2/3rd which add up to 6/8th. Although 'Al-Aul' literally means increase, an application of the principles results in the proportionate reduction of the shares so that the total will be equal to one. The other principles Al-Radd is applied where the shares of the various sharers add up to less than unity, and it is necessary to increase the share of the sharers proportionately. It is the need to make such complicated mathematical calculations that helped to develop the science of algebras, the name of which exact science had been coined from the name of the famous Arab mathematician Al-Jabrain. In chapter 7, Al-Haj Ameen describes the concept of Umariyathani which was utilized in the era of Caliph Umar to provide certain exceptions to the general principles in deciding the shares of the mother in certain special circumstances. In chapter 8, Al-Haj Ameen deals with the right of missing persons to inheritance. In fact, after the devastation caused by the Tsunami, missing persons have given rise to several important legal problems, some of which yet to be resolved. Al-Haj Ameen points out that the rule lay down by Imam Shafie is that a person is presumed to be dead if he has not been heard of for 7 years, which is the period adopted by our evidence ordinance. However he also refers to Minhaj-ut-Thalibin in which it stated that the property of 'the person of whom there has been no news, should be sequestrated, until death has been legally established or until the lapse of such time as may justify its presumption'. It is noteworthy that even in Sri Lanka the period for the application for the presumption of death has now been brought down to one year in the wake of the Tsunami. In chapter 9 the author deals with the representation of the estate of the deceased, and in chapter 10 he goes on to provide numerous illustrations of distribution of the estate in specific cases. In chapter 11 he deals with decided cases and goes on to provide a step by step guide for the purpose of determining the heirs as well as their shares. The book also contains a useful bibliography and index. Al-Haj Ameen's Muslim 'Law of succession-A guide' is indeed an essential guide to the principles of law governing succession which can be of immense benefit to the law students, legal practitioners, law teachers and judges in Sri Lanka as well as abroad. Blending the wealth of experience gained through a long and distinguished career as an Attorney-at-Law, a member of the Board of Quazis and a member of the Wakfs Tribunal, with the immense knowledge of Muslim law acquired in the process of teaching the subject at the Sri Lankan College for a number of years, Al-Haj Ameen has presented in a very simple manner extremely complex concepts relating to the Muslim law of succession. His presentation is scholarly but has the depth can only be acquired through experience. I am sure that this valuable contribution he has made to legal literature will provide an impetus to the study and development of the law in this field and will encourage others to engage in similar research for the benefit of society. Bold, intelligent introduction to 'Heart of Darkness' Joseph Conrad: Heart of Darkness Edited by D.C.R.A Goonetilleke. The story of Marlow travelling upriver in central Africa to find Kurtz, an ivory agent as consumed by the horror of human life as he is by physical illness, has long been considered a classic, and continues to be enormously widely read and studied. In recent years a fierce debate has waged, however, about the social/political context in which Conrad's tale should be treated. To what extent does Heart of Darkness imply criticism of the racist and imperialist attitudes of the time; to what extent does it reflect them, or indeed promulgate them (as Chinua Achebe and others have argued it does)? Even if it does embody attitudes of which we may not approve, some have argued that "Heart of Darkness" merits continued study and appreciation for its literary qualities, while others see no proper place for it in any English Literature curriculum. This edition, edited by one of the leading figures in "The Conrad Controversy" includes an introduction and explanatory notes, as well as a fascinating variety of contemporary documents that help to set this extraordinary work in the context of the period from which it emerged. "Professor Goonetilleke provides a rich, contextual background, embracing literature, biography, history, and geopolitics, that will help readers evaluate this controversial novella". Eugene Benson, Co-Editor, Encyclopedia of Post-Colonial Literatures in English. Out of Print Lunuganga - Geoffrey Bawa, Christopher Bon, Dominic Sansoni Someone was looking for this book some time ago and that was when. I first heard of Lunuganga. Curiosity aroused I set about to find it. There had to be something special in it, if there were people looking for it. And it certainly is special, for me. Published in 1990 by Times Editions Pte. Ltd, this book is about the Lunuganga estate which was created by Geoffrey Bawa. Wait a minute... create? an estate? Twenty-five acres of land by a lake may have been seen as 'unproductive' by the last owner, but Geoffrey Bawa saw such spirit in it. Indeed, in his introduction to the book he says "The jungle vegetation of the southern hills seemed almost impenetrable, porcupine, mongoose and an occasional cobra lived in it - but one preferred to imagine leopards and centaurs (page 9). Imaginative and creative the estate had finally found an owner who could understand it. Going through the photographs in this book I got the impression that Bawa had managed to instill his individual style and preference without having had invaded the natural beauty of the place. There is no clear line of separation between nature and man. At Lunuganga both have merged harmoniously. There are 150 black and white illustrations in this book and they all carry a sensitive message. The jars, urns, murals, sculptures and the house itself portray Bawa's style and taste and so do the trees, plants and foliage which were allowed to exist unspoilt. There are photographs of pattered bark where you can see figures and faces and of twisting plants where their very existence is art itself. There was another thing which fascinated me about the photograph. They seemed to echo what Bawa had written in the epilogue about water and the play of light and shade giving him most pleasure. He also goes on to say that colour is secondary to him "almost intrusive in the larger composition". Maybe that was reason for black and white illustrations. However, several photographs caught my special attention. The one is page 69 is probably my favourite sunlight is streaming through windows into the main bedroom and it's almost as if sunlight has been sprinkled everywhere with a paintbrush. Then there is the photograph on page 175 titled 'reflections in the pond". The water in pond reflects the sky and trees that you can't see on the photograph. Also, the photographs of the vast expanse of the estate are simply beautiful to look at. This is certainly an inspirational book. Soon you'll be looking out for your Lunuganga yourself. (Lunuganga Courtesy: Archt. Errol D. Siriwardene) |
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