A candid proposal to New Constitution Makers: Grant Constitutional Protection to Fetal Rights”
Dr. C. G. Ilangakon International Law (Daily News)
There are things, which must be understood not with intellect, but with intelligence. We should never misunderstand the phenomenon of intellect with the faculty of intelligence. They are polar opposites. Intellect is of the head. It is taught by others. It is imposed on you. One has to cultivate intellect. It is burrowed. It is something foreign. It is not inborn. But intelligence is inborn. It is one’s own being, the very nature.
It is intelligence that has the propensity to wisdom, with the help of which, as the Buddha taught, one understands things for what they truly are. Hence, in order to comprehend the fetal rights and the dire need of its constitutional protection, one must approach the subject not with intellection, but with intelligence. Various legal doctrines, jurisprudential arguments and logical debates stem from intellect and hence, for the most part, fraught with the possibility of flaw.
A word after spoken would not revert back. The time, after gone cannot be reversed. The reproduction of an occasion, after it is missed, is an absolute impossibility.
Therefore, the new constitution of Sri Lanka to be, yet, is an unspoken word, an occasion, not yet missed and hence, must be made use of to constitutionally protect the right to life and fetal rights.
Right to life
The Good Governance is in the making of the new Constitution of Sri Lanka. For any Governance to be good, only problem addressing would not suffice. It needs to strengthen and fortify fundamental rights of the people, it represents.
The constitutional making is a wonderful chance, the Good Governance may make use of. Thus, among the rights, which are anticipated to be constitutionalized, the right to life represents the one, not only pivotal, but also central. Why?
Undoubtedly, the phenomenon of life is the most important truth in the Universe. Among various kinds of lives, the human’s life is very important. Human’s life is the noblest among all and the excellent entity of existence.
Mankind is the most talented creature and that is why his life is so centrally significant. Actually, what distinguishes the value of the human’s life from that of other creatures, while making him outstanding among other creatures, are his astonishing and extraordinary physical and spiritual potentials and talents.
Cognition of the magnitude of human, who enjoys wisdom, judgement, insight, discretion, knowledge, will power, conscience, love, perfectionism and management, is not easy. And these are only a fraction of it, as all these are only a part of the power and ability of man’s life. Compared to other creatures, scope and span of human’s life impact, is so vast and astonishing that in various dimensions, without any pause in history, it has always attracted the attention of scholars and philosophers.
The most important principle of inherent rights is the right to life for mankind. This has been unanimously accepted by all schools of thought. The right to life is one of the inherent and natural rights of mankind. It is the fundamental of all other rights of mankind. There are no other rights for mankind without the right to life.
Inherent right means no legislated law is required for the existence of the right to life, and this state itself is a law for everyone, including animals. No law, be it internal or international, grants life to man. It only can protect man’s right to life. Legislated laws in every system and every society must protect and defend the human’s right to life, in order to provide necessary safety for man. And it must find its vivid reflection in the fundamental law of the country- the constitution.
Rights of the fetus
If the conceptualized doctrinally unsubstantiated polemics are to be set aside for a moment and should one is to empirically refer to the authentic inception of life, it can be well seen and discerned that life begins with the conception of the fetus in the mother’s womb. The fetus and its conception is a mysterious dimension, well above and beyond law. It may seem metaphysical to some legal luminaries, yet, the truth is not a lie. The final destination of life is not its end, but, its continuity and perfection via evolution. That is the essence of man-woman duality. Woman’s womb is the God-gifted space for the conception of the fetus and the fetus, in its turn, is the foundational power for the continuation of mankind. Hence, the mother has been assigned an existential duty to continue the mankind, which, she bears the total responsibility for. This existential responsibility cannot and should not be one, to be absolved from. It is an existential necessity, though, there may certainly be rare exceptions. Hence, the constitution making of Sri Lanka must be in concordance with natural patterns of human development and no constitution can last, if it is diametrically opposed to nature. Why? Nature is above law. All the written laws are man-made and man-made laws are incapable of granting absolute justice. The best, they, in the administration of justice, can reach is, not total justice, but, its proximity.
In many court cases, determining the right to abortion and birth control, the central question, posed, in order to counter the defending of the right of the fetus to life is, “Is fetus a person? Can a fetal personhood be established? Can the unborn children be persons within the linguistics and meaning of international conventions, the main intent of which is, the protection of human rights? These are the questions, the abortion and birth-control promoting NGOs are making use of. Now, the Sri Lankan constitutional makers have a responsible duty. That is not be trapped in to such NGO homilies, which degrade the innocent wombs of our mothers in to brutal killing fields and constitutionally guarantee the right of the fetus to life unequivocally, certainly with the simple exception of the medically recommended abortion and birth-control by medical professionals, in order to protect the life of the mother.
Duty of Good Governance
It is good to refer to some judicial precedents, in order to consider and acquire the right experience of other indigenous and international jurists for the determination of certain cases. Yet, it is not necessary to absolutize this practice, embracing all what is coming from the West. Sri Lanka has a historical heritage. It never teaches us to kill our children.
The beautiful religion of the majority original community of this country is Buddhism. Therein, the brutalization of mothers’ wombs in to killing fields has been clearly declared as sin.
Besides, thanks to the NGO introduced “Golden Family Concept” and the animalistic deception of abortion and birth-control based economic prosperity, more than 800,000 women, for the most part, Sinhala Buddhist mothers, have been subjected to birth control and as a dangerous consequence of it, the nation is heading towards its own cessation, with the threat of non-discernible and gradual disappearance. Colombo capital is the best example of it. Hence, there is a burning need to constitutionally guarantee the right to life and right of the fetus to life, the fundamental responsibility for which goes to the managers of Good Governance.
The plagiarizarion, clandestinely extracting jurisprudential texts, formulated by others, certainly would not help. Vague terminologies, absence of doctrinal exactitude, impertinence to actual domestic needs, disregard of national interest, harmful destruction of the demographic development of the country, space allocation for the NGOs of vested interest, to interpret the law to suit their private agendas are matters, the constitution makers should pay their attention for.
Implicit recognitions by certain legal luminaries on concrete cases should not be absolutized and they can be used on a particularized and concretized basis. Yet the constitution, dealing with the right to life, should comprise, not a ground, wherein implicit conjectures are possible, but a solid foundation, which writes explicit jurisprudential terms, which, elements like NGOs of vested interest, will not be able to paralyze and brutalize against the nation, in the present case, against the conceived fetal rights and its total possibility of uninterrupted growing in to a full-fledged human person. Importing imperfect jurisprudential texts from international conventions and their constitutional embodiment in the fundamental law of Sri Lanka, would only do more harm than profit.
The absence of unanimity of all States, in holding unborn children to be persons under criminal, tort, and property law, the erroneous findings of certain jurists in substantive law, which, as a whole, amount to judicial errors and which should be held null and void as to the rights and interests of unborn persons, must not serve as the jurisprudential foundation to destroy the rights of the fetus, conceived in the wombs of Sri Lankan mothers.