Issue of discriminatory customary/family law in Sri Lanka raised by international committees and treaty bodies since 2010
1.Convention of All forms of Discrimination Against Women (CEDAW)
Sri Lanka has an obligation as a state party to the Convention of All forms of Discrimination Against Women (CEDAW) and its Article 2(f) that asks states to:
“Take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women”.
Further, the CEDAW Committee has stressed that governments “must address patriarchal traditions and attitudes and open family law and policy to the same scrutiny with regard to discrimination against women that is given to the ‘public’ aspects of individual and community life.”1
SRI LANKA: Concluding observations of the CEDAW committee – Forty-eighth session released on 17 January – 4 February 2011 stated:
CEDAW/C/LKA/CO/7
15. The Committee calls upon the State party:
(a) To fully incorporate into appropriate domestic legislation such as the Women’s Rights Bill, the principle of equality between women and men in line with article 2 (a) of the Convention, as well as a prohibition of discrimination on the basis of sex in line with articles 1 and 2 of the Convention;
(b) To ensure State responsibility for acts of discrimination by public and private actors in accordance with article 2(e) of the Convention, with a view to achieving formal and substantive equality between women and men.
Discriminatory laws
16. While noting that there is an ongoing reform of the Muslim Personal Law, the Committee is concerned about the persistence of discriminatory provisions in the law, including in the Penal Code, the Land Development Ordinance which gives preference to male heirs over females, the general personal laws, the Muslim Personal Law, the Kandyan Law and the Tesawalamai Law. The Committee is also concerned about the plurality of legal systems composed of the general, customary and religious laws and the lack of choice for women between the different legal systems. The Committee further reiterates its concern at the fact that there is no opportunity for judicial review of legislation pre-dating the Constitution.
17. The Committee calls upon the State party:
(a) To accelerate its review process to harmonize, within a specific timeframe, its domestic legislation with provisions of the Convention;
(b) To expedite the adoption of bills aimed at modifying discriminatory laws, such as the Land Development Ordinance currently pending in Parliament for amendment;
(c) In particular, to provide its support for customary law reform through sensitization of, dialogue and collaboration with religious groups and community members, civil society organizations including women’s non-governmental organizations; and
(d) To ensure that women are fully and equally involved in the law reform process.
2. International Covenant on Economic, Social and Cultural Rights
Sri Lanka – Ratification/Accession 1980
In 2010, the Committee on Economic, Social and Cultural Rights at the forty-fifth session, reminded Sri Lanka that statutory and personal laws discriminate against women and girls such as by allowing early marriage of girls as young as 12 years old, and thereby restricting their economic, social and cultural rights. Therefore repealing such laws “…is an immediate obligation of the States parties which cannot be conditioned to willingness of concerned communities to amend their laws” (E/C.12/LKA/CO/2-4).
Para 15 of E/C.12/LKA/CO/2-4 reads as follows:
‘The Committee is concerned that in spite of repeated recommendations made by treaty bodies since 1998, the State party has still not repealed statutory and personal laws that discriminate against women and girls, such as the 1935 Land Development Ordinance and the provisions of the Muslim Personal Law allowing early marriage of girls as young as 12 years old, and has taken limited steps to address the persistence of stereotypes, attitudes and patriarchal traditions on family and societal roles of men and women. The Committee notes with serious concern that the State party relies on the communities themselves to amend their personal status laws and that the Women’s Bill does not protect women and girls from all communities from early and forced marriage. (art. 3)
The Committee reminds the State party that the equal right of men and women to the enjoyment of all economic, social and cultural rights is an immediate obligation of the States parties which cannot be conditioned to willingness of concerned communities to amend their laws. The Committee therefore calls upon the State party to take immediate action to repeal all statutory laws that discriminate against women and to amend the Muslim Personal Law and to put it in conformity with its national legislation with the view to outlaw early marriage. The Committee also encourages the State party to vigorously promote equality between women and men at all levels of society, including through targeted educational programmes and mass media campaigns against stereotypes which prevent women from enjoying their economic, social and cultural rights. The Committee draws the attention of the State party to its general comment No. 16 (2005) on the equal right of men and women.’
3. International Covenant on Civil and Political Rights (ICCPR)
Allowing for customary laws like the Muslim Marriage and Divorce Act (MMDA) to hold precedent over the constitution also means that Sri Lanka is in direct violation of the International Covenant on Civil and Political Rights (ICCPR) and its Article 26 which states that:
“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.
- There is no consensus among the Sri Lankan Muslim community on the exact nature of Islamic jurisprudence that must apply to the MMDA, let alone whether or not reforms to the MMDA are needed and the nature of those reforms.
- Muslim women’s groups have been calling for MMDA reforms for the past 25 + years and there have been 5 Muslim law reforms committees set up since 1970 to no avail;
- The Sri Lankan government has foremost responsibility to ensure that state laws protect the rights of citizens and is not in-turn causing discrimination and injustice on the basis of gender and religion. In this regard the Sri Lankan government cannot grant any religious or ethnic group the onus to decide on whether or not individual and fundamental rights of citizens can be forgone in the name of cultural and religious rights of the group to which they are affiliated;
- Especially in a democratic state that has secular laws, which by default, should apply for each and every citizen. On certain issues such as minimum age of marriage, the Sri Lankan government is mandated to establish an age that is suitable for all citizens and protects child rights and promotes education, health and wellbeing.
- Putting perceived cultural and religious rights before child rights and legally allowing for Muslim minors to be given in marriage at an earlier age and legally exempting their protection under the Constitution and Penal Code is a serious violation of this state responsibility.