Gender Discrimination by Unjust Law of Personal Laws in Sri Lanka
Muslim Law in Sri Lanka was firstly codified by British Chief Justice of the island Sir Alexander Johnston in 1806 and it was amended in 1929. The existing Muslim Marriage and Divorce Act enacted in 1951 have left certain provisions which are clearly discriminating Muslim women’s rights.
( March 2, 2018, Colombo, Sri Lanka Guardian) The legal pluralism in Sri Lanka seems to be quite an intrinsic heritage which is still remaining as a legacy of country’s colonial past. A layman can be utterly confused in examining the complex nature of Sri Lankan legal system as its present form has derived from different routines. As an example Roman Dutch Law is regarded to be the common law of this island and today Sri Lanka and South Africa are the only countries in the world that Roman Dutch Law applies in the legal sphere. As an offshoot of island’s one and half centuries’ British domination, the English Law too has widely infiltrated into its legal system. Essentially the enthusiasm shown by British judges in the colonial administration to refer English cases and English common law precedence crated the path for English law in Ceylon, especially when there was no remedy available in Roman Dutch law system British judges sought the answer through using English legal principles. However besides both English Law and Roman-Dutch Law as dominant features in the legal system, co-existence of personal laws focusing on special communities based on geography, religion and race is another cardinal characteristic in the legal pluralism in the island. In describing the special personal laws in Sri Lanka Theswalamai Law or “law of the land” has been prevailed among the Hindu Tamils in Jafna which is based on ancient Hindu laws and Kandyan law was conceived from the ancient Sinhalese customs. Nevertheless eventually those customs were only preserved in Kandyan Kingdom when the rest of the island was occupied by Western colonial forces. When it comes to the applicability of Muslim Law in Sri Lanka, it is more religious oriented system with assimilation of some peculiar customs only practiced among the Ceylonese Moors.
Despite having descended from a diverse ethnic, religious background those personal laws have become discriminatory towards the rights of women. In fact some of the provisions in Theswalami and Kandyan laws have laid down certain regulations which are contravening the rights of women. For instance under Theswalamai Law which is practicing among the Tamils in Northen province of Sri Lanka, a woman has to get the consent of her husband in order to alienate any immovable property and Article 11 and 12 of Kandyan Law Ordinance No.38 of 1939 has discriminated the rights of women in holding properties if those properties are not gifted by their husbands. Discriminatory outlook of both Kandyan Sinhalese laws and Theswalamai law among Tamils in Northern Province were accepted by Colonial rulers in Sri Lanka in order to appease the patriarchal values of Sinhalese and Tamil elites and those unjust terms remain unchanged thought it has been seventy years since British left Sri Lanka.
Notwithstanding the recognition of its Sui generis nature towards the Muslims as a personal law, Muslim law in Sri Lanka has a severe notoriety on trampling the rights of women in many ways. Muslim Law in Sri Lanka was firstly codified by British Chief Justice of the island Sir Alexander Johnston in 1806 and it was amended in 1929. The existing Muslim Marriage and Divorce Act enacted in 1951 have left certain provisions which are clearly discriminating Muslim women’s rights. As an example in Sri Lanka age 18 is the legally approved age for marriage, but this is not applicable under Muslim Marriage and Divorce Act in Sri Lanka. The law itself has allowed child marriage under a permission of Quazzi who is a male official under Muslim Marriage and Divorce Act exclusively reserved for males albeit it is paid for from the public funds. Furthermore the divorcing a wife has become a less troublesome task for Muslim men under the same Act which enables men to divorce wives unconditionally and unilaterally while women have to prove a fault of the husband. Irrational nature of the act is further portrayed by looking at some of its provisions which provide utmost freedom for the man to marry up to four times, but Muslim women have been staved off from such a freedom whereas consent of their guardian is mandatory requirement for their marriage.
In the constitution of Sri Lanka the equality before law is verified from the Article 12 (1) and that Article provides no safe guards to the Muslim women who have been subjected to such unjust legal restrictions mainly due to the fact that Article 16 (1) of the Constitution of Sri Lanka states that all the written and unwritten laws existed prior to the 1978 Constitution is valid and operative. This absurd Article has created a legal limbo in its applicability, because under the interpretation of this Article any law promulgated before 1978 can be valid if they are inconsistent with the fundamental rights granted to all citizens. Many Muslim women activists in the country believe this Article should be repealed from the constitution as it hinders the rights granted by the Article 12 (1) of the Constitution. But by looking at the facts on ground it is certain that none of parties representing the communal demands of the Muslim community in Sri Lanka genuinely attempt to raise these issues openly with the trepidation their having on maintaining the vote banks in Muslim dominant electorates. Mainly the male hegemony over the Quazzi positions in spite of having many of the educated Muslim women in Sri Lanka has exposed a tip of the iceberg and it has been reported that in many occasions Conservative Muslim groups have created a hostile environment among their community which has deviated the voice of Muslim women activists.
Sri Lanka’s obligation to uphold CEDAW (Convention on the Elimination of all Forms of Discrimination against Women) as signatory party stands as a significant factor and Sri Lanka has submitted eight periodic reports since 1981 to the CEDAW Committee. However the discriminative status of women under the personal laws in Sri Lankan legal system has awakened special concern of CEDAW Committee and having considered the ponderable situation in the island CEDAW has asked from the government to repeal all the discriminatory provisions in the personal laws. Furthermore CEDAW has emphasized the gender identity and sexual orientation should be taken into consideration in the proposed constitution drafting process.
However the question on amending or perhaps repealing those discriminatory provisions in the personal laws has become a double edge sword for the government, because Muslims and Tamils can get agitated by such a move as an act of interfering with their rights. There was a massive hullaballoo among Indian Muslims when Indian Lok Saba passed in bill in 2017 December which aimed at prosecuting Muslim men who divorce their wives through the “triple talaq”, or instant divorce. Same harsh reaction can be expected in Sri Lanka if Government makes a move on amending the personal laws, but the greater concern on justice cannot be marred by a mere religious and cultural dogma. In the context of Sri Lanka government should either draft a unified family code in conformity with the Convention in which equal rights of women and men in the family relations or amend the special personal laws in accordance with those religious and ethnic communities.
Punsara Amarasinghe is a Doctoral Candidate in International Law at National Research University Higher School of Economics in Moscow. He served as guest lecturer at Faculty of Arts, University of Colombo and holds his LL.M from South Asian University in New Delhi and LL.B from University of Colombo, Faculty of Law.
