We are grateful that the Sub Committee proposing constitutional reforms on Fundamental Rights had considered the right to equality and freedom from discrimination in great detail. We appreciate that the recommendations Sub-Committee has put forth in this regard would ensure greater inclusivity and accord the right to equality to all of Sri Lanka’s citizens. It is commendable that the committee recommends that “Women and Men shall have equal rights and duties in all areas of public, family, political, economic, social and cultural life”[1].
It is in this backdrop that we are deeply disappointed that the report of the Sub Committee on Fundamental Rights fails to reflect a consensus on the repeal of provisions contained in Article 16 of the current Constitution. In light of multiple initiatives by affected women and others highlighting the adverse impacts of discriminations under laws covered by Article 16(1), the effort to retain them in one form or the other is unacceptable.
Its continuation will render a significant number of Sri Lankans as second-class citizens, legally less equal than the others, and will jeopardize the supremacy of the Constitution.
We are grateful and encouraged that three members of the Committee, Hon Mahinda Samarasinghe, Hon (Dr) Thusitha Wijemane and Hon. Jayampathy Wickremaratne endorsed the complete repeal of Article 16(1) and have made recommendations to that effect including judicial review. We reiterate that this position, without any exemptions to it, secures the supremacy of the proposed Constitution and guarantees fundamental rights in equal measure to everyone in Sri Lanka.
This basic guarantee empowers some of the most affected sections of our communities to challenge discrimination, inequality and various forms of physical and psychological abuse. We are saddened that the rest of the peoples’ representatives in the committee have not supported this exemplary stance.
Furthermore, we are dismayed at the position taken by Sri Lanka Muslim Congress (SLMC), via its representative Hon. MHM Salman, and their continued abdication of accountability to the women and children of the Muslim communities.
We particularly note, that despite numerous representations made to the PRC as well as the Sub-Committee, the only representative of the Muslim community on the Sub-Committee, Hon MHM Salman, has chosen not to reflect the call for repeal made on behalf of Muslim women and girls. Hon MHM Salman’s position on article 16 also seems to be at odds with the official position of SLMC, whose representative making submissions before the Sub-Committee was for conditional repeal of Article 16(1). This duplicity towards a principled position must raise questions as what considerations have outweighed the clear call for repeal from sections of the community, particularly the most affected.
Furthermore Hon MHM Salam of SLMC seeking ‘clarification’ on the clause recommending ‘equality for women and men’ and asking for an exemption from equality for all personal laws is only reflective of a conservative patriarchal worldview that wants to maintain the unequal status quo. That is unacceptable and untenable in the current context. Particularly so given that the Tamil and Sinhala representatives are not asking for the retention of the Article 16(1) exemption with respect to laws affecting their communities.
We urge the Steering Committee to recognize the fact that elected representatives of the Muslim community repeatedly continue to fail the interest of Muslim women and children and acceding to their wishes would be retrograde and regressive.
The recommendation endorsed by Hon. Vasudeva Nanyakkara is an equally weak and alarming position on Article 16(1) and completely fails Muslim women and girls. The onus placed on the most affected by virtue of this recommendation is akin to slamming a door on their call for protection of rights and securing of dignity.
We therefore ask that the Members of the Steering Committee of the Constitutional Assembly appreciate and heed the call from the most marginalized and worst affected by the Article 16(1) exemption and to ensure that this reprehensible and outdated provision does not repeat itself in the proposed Constitution. Failing to do so will contribute to making some Sri Lankans including the Muslim women and girl as second-class citizens in their own country.
We further urge the Honorable Members of the Steering Committee to emphasize amongst its members the need for the state to assure equal protection under law and equality. We request them to prevail upon fellow members, including the Muslim legislators to ensure a meaningful Constitution that does not leave anyone behind.
We strongly urge the Steering Committee of the Constitutional Assembly to recommend provisions for our new Constitution that effectively repeal exemptions to fundamental rights like in Article 16 of the current Constitution. Personal laws should not be grounds for justifying discrimination.
We expect and will only support a new Constitution that ensures equality and non-discrimination to all people in Sri Lanka.
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[1] We would like to note that for full inclusivity this equality clause should be even broader as in other progressive constitutions.
Statement initiated by Muslim Personal Law Reforms Action Group (MPLRAG).