The United Nations Working Group on Discrimination Against Women and Girls and several other Special Rapporteurs have raised concerns over proposed reforms to the Muslim Marriage and Divorce Act (MMDA), which they say could significantly restrict the rights of women and girls, violating the country’s international human rights obligations.
The United Nations Working Group on Discrimination Against Women and Girls; the Special Rapporteur in the Field of Cultural Rights; the Special Rapporteur on the Independence of Judges and Lawyers; and the Special Rapporteur on the Sale, Sexual Exploitation, and Sexual Abuse of Children have, in a detailed communication to Sri Lankan authorities, highlighted various issues with the proposed amendments, particularly in relation to the MMDA.
The communication emphasises the importance of upholding principles of equality and non-discrimination in family matters. Specifically, it questions recommendations put forward by 17 Muslim Members of Parliament (MPs) and expresses concerns about the potential adoption of these recommendations into the MMDA.
The international experts point out that if the recommendations of the 17 Muslim MPs are integrated into the draft bill, it could exclude Muslim women and girls from rights of equality and non-discrimination that are constitutionally and internationally guaranteed to all other Sri Lankan citizens. This, they argue, would put Sri Lanka in violation of its international human rights obligations, particularly under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
“If recommendations put forward by the 17 Muslim MPs were to be introduced into the draft bill, it would be contrary to international standards and obligations on the protection of women’s rights. The adoption of a draft bill that would incorporate such recommendations would significantly restrict women’s and girls’ rights and put Sri Lanka in violation of its obligations under international law. We encourage all concerned authorities to ensure that the revised law guarantees women’s and girls’ rights, in accordance with the international human rights standards presented below.
“Regarding the principles of equality and non-discrimination in the family: the recommendations put forward by the 17 Muslim MPs would exclude Muslim women and girls from internationally and constitutionally guaranteed rights of equality and non-discrimination enjoyed by all other Sri Lankan citizens, which would also be in violation of Sri Lanka’s international human rights obligations under the CEDAW, ratified by Sri Lanka on 5 October 1981.”
CEDAW condemns discrimination against women in all its forms and obliges state parties to take appropriate measures to modify social and cultural patterns of conduct that are based on the idea of the inferiority or superiority of either of the sexes.
Polygamy harmful to women and girls
The communication underscores that international law considers polygamy as discriminatory and harmful to women and girls. It is recommended that states prohibit polygamy, as it contravenes women’s right to equality with men and can have serious emotional and financial consequences.
“We would like to recall that under international law, polygamy is deemed discriminatory and harmful for women and girls. The CEDAW Committee and Human Rights Committee have recommended that states should prohibit polygamy on the grounds that it contravenes women’s right to equality with men and can have serious emotional and financial consequences for women and their dependents (Human Rights Committee GR 28, para. 24 and CEDAW Committee GR 21, para. 14).
“Such practice should be repealed and the legal solution must protect the rights of women and girls, who remain the victims of these harmful marriages. Their rights to subsistence, to property, including land and inheritance, to a place of residence, to custody of children, and to remarry must be guaranteed.”
Need to eliminate child marriage
In addition to addressing polygamy, the UN experts emphasise the need to eliminate child marriage, as it is seen as a form of child sexual abuse and exploitation. They argue that child marriage restricts the rights of girls, increasing the risks of early and unplanned pregnancy, maternal and neonatal morbidity and mortality, and exposure to intimate partner violence.
“We would also like to refer Your Excellency’s Government to the Convention on the Rights of the Child (CRC), ratified by Sri Lanka on 12 July 1991, which guarantees the best interests of the child as a primary consideration (Art. 3) and children’s right to freedom of thought, conscience, and religion (Art. 14). We would also like to highlight that the primary responsibility for supporting the child in the exercise of his or her human rights lies on the parents.
“According to Article 5 of the Convention on the Rights of the Child, they should provide ‘appropriate guidance and direction’ to the child in that regard. Article 14, paragraph 2 of the convention further specifies general understanding by enshrining due respect for the rights and duties of the parents ‘to provide direction to the child in the exercise of his or her right’ to freedom of religion or belief.
“Both parents must be able to provide that guidance on an equal footing, without discrimination based on their gender or religion. Article 5 also states that parental guidance must be ‘consistent with the evolving capacities of the child’. The child, once capable of forming personal views, must be given the chance to express such views freely. Article 12, paragraph 1 of the convention requires that the views of the child be ‘given due weight in accordance with the age and maturity of the child’.
“Thus, the child should, in the course of time, assume an increasingly active position in the exercise of his or her rights, including freedom of religion or belief. We would like to refer to the report of the Special Rapporteur on the Sale, Sexual Exploitation, and Sexual Abuse of Children (A/HRC/49/51), which highlights that in many cases, child marriage amounts to a form of sale of children, as covered by the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography, namely, ‘any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration’ (Art. 2 [a]).
“The Committee on the Rights of the Child in its general comment No. 13 (2011), para. 25 (d), has listed the sale of children for sexual purposes and forced marriage as a manifestation of child sexual abuse and exploitation. The aforementioned report also underscores that the harmful practice of child marriage restricts the rights of girls and deprives them of the opportunity to participate in any decision-making that affects their lives and develop to their full potential. It increases the risk of early and unplanned pregnancy, which in turn increases the risks of maternal and neonatal morbidity and mortality, and exposes the child to intimate partner violence, with far-reaching effects both at the individual and at community levels.
“The report recommends for stronger community involvement in order to ensure long-term solutions that directly involve girls and women, boys and men, including by enhancing knowledge of the real societal costs of child marriage and the sale and trafficking of children for sexual exploitation, and on the lasting benefits of education and life-skills trainings.”
Request for information from the Govt.
The communication concludes by urging the Sri Lankan Government to proceed with the draft bill based on recommendations submitted by the 2021 Advisory Committee to amend the MMDA (Haleemdeen Committee). It emphasises the importance of aligning domestic law with international human rights obligations and calls for the inclusion of Muslim women’s groups in the reform process.
Sri Lankan authorities have been requested to provide information on the status of the MMDA reform and the measures it intends to take to ensure that the revised law complies with international human rights law.
This communication, which addresses pending legal reforms in Sri Lanka, will be made public via communications reporting channels and subsequently reported to the Human Rights Council. It reflects the concerns of international experts about the protection of women’s rights in the proposed legal amendments.
Working Group on Discrimination Against Women and Girls Chair Rapporteur Dorothy Estrada-Tanck, Special Rapporteur in the Field of Cultural Rights Alexandra Xanthaki, Special Rapporteur on the Independence of Judges and Lawyers Margaret Satterthwaite, and Special Rapporteur on the Sale, Sexual Exploitation, and Sexual Abuse of Children Mama Fatima Singhateh were the signatories of the communication.
Minister of Justice Dr. Wijeyadasa Rajapakshe had referred the recommendations of the Muslim MPs to the committee headed by Attorney-at-Law Shabry Haleemdeen in July this year.
“There has been no progress on the amendments from within the committee thus far,” Haleemdeen committee member and Attorney-at-Law Ermiza Tegal told The Sunday Morning.