‘One country, one law’ for women as well?
By Sharanya Sekaram
Conversation is abuzz with the recent appointment of a task force by the President “to present proposals for formulating a conceptual framework ideally suited for Sri Lanka after making a study of said concept, taking into account the views and opinions held by various parties with regard to the implementation of the concept ‘one country, one law’”. Interestingly – and when one looks at the history of Sri Lanka’s law reform, unsurprisingly – the initial 13 members appointed to this task force had the notable absence of women from any community, despite women being the most affected by problematic and discriminatory laws in the country. Earlier last week, two members of the initial 13 renounced their seats, and one woman – Yogeswari Patgunarajah – was included among the three new members.
Despite our impressive rates of equality in education, employment, and health, at our core, Sri Lanka is a patriarchal society, and many assertions of our issue with gender inequality are met with the notion that women should be grateful “at least” for what we have been given. This is rooted in the idea that our rights and autonomy are still seen as something someone grants us – not as something we should inherently have without question.
This completely fails to address the structural heart of the matter that women should be empowered to make decisions for themselves, considering whatever they’d like to. Every person should have access to their rights; it is not something for others in power to give or take away. We shouldn’t have to be grateful that they are given, and the notion that it is something to be given and taken away is profoundly patriarchal and sexist.
Several laws continue to unfairly discriminate against and impact women in a myriad of ways; beginning with our Penal Code in Section 363 that explicitly states the definition of rape does not apply to intercourse between a husband and a wife unless a judge has ordered separation. In other words, marital rape is not a crime. Reforms to this appalling law were proposed by the Justice Ministry in 2017 to amend this and stopped short of being enacted. Nothing else has been done since.
Sri Lanka also continues to have some of the strictest abortion laws globally, only allowing termination of pregnancy in the circumstance that the mother’s life is in danger as per Section 303 of the Penal Code. The penalty for causing a woman to miscarry (with or without her consent) is up to three years’ imprisonment and/or a fine. The Justice and Health Ministers, in 2017, following extensive lobbying led by the Sri Lanka College of Obstetricians and Gynaecologists, expressed support to amend the law. This was based on recommendations made following the findings of the Justice Aluvihare Special Committee, which would allow for voluntary termination in the case of rape, incest, and foetal abnormality. Following protests from the religious lobby led by the Catholic Church, the reforms were shelved for the fourth time since 1995, and no further action was considered since. It is interesting to note that since 2017, several Catholic-majority countries, including Ireland, Argentina, and Mexico, passed laws decriminalising abortion in their countries.
One country, many laws
A section of Sri Lanka’s legal system includes community and personal laws that govern certain aspects of marriage, divorce, and inheritance and apply to people depending on the community they belong to or the geographical area in which they live. Of these community laws, the one facing the most scrutiny is the Muslim Marriage and Divorce Act (MMDA), which applies to Sri Lankans who are Muslims by virtue of birth and conversion to Islam.
Among other issues, it has been critiqued for the provision where there is no minimum legal age of marriage and allows children under the age of 12 to be married where special approval is given by qazis (magistrate or judge of a Sharia court). Girls aged 12 can legally be married without this permission, unlike the Marriage Registration Ordinance (General), which stipulates an age requirement of 18 years. Muslims in Sri Lanka are not given a choice to “opt out” of this law and marry under the general law. It is applied to them by virtue of their birth with no choice. Despite facing backlash from their own communities, Muslim women activists have called for reform to this law, citing several issues. To say that no one raised their voices against the issue of child marriage, in this case, is a profound disservice to these brave and incredible women who have been fighting this battle for decades. There have been reports – the most recent being in July 2021 – that the Cabinet of Ministers decided to raise the age of marriage for all Sri Lankans to 18, make the consent and signature of the bride for the marriage mandatory, recognise the eligibility of women to be appointed as qazis, and prohibit polygamous marriages of Muslims. Any substantial changes have yet to be enacted, however.
Sri Lanka also honours the Thesavalamai law, which is the traditional law of the Sri Lankan Tamil inhabitants of the Jaffna Peninsula. The law, in its present form, applies to most Tamils in northern Sri Lanka and applies primarily to property, inheritance, and marriage. This law also has issues women face in its application. For example, while property can be written in a woman’s name, she is unable to sell, rent, or mortgage it without the permission of her husband or father.
The third community law is Kandyan law, also known as Udarata law, which applies to Sri Lankans who are Buddhist and from the former provinces of the Kandyan Kingdom. At present, it governs aspects of marriage, adoption, transfer of property, and inheritance, as codified in 1938 in the Kandyan Law Declaration and Amendment Ordinance. Like the MMDA, which allows for polygamy, this law allows for polyandry. The law has also been critiqued for its application of being used to disinherit women who, as said by the law, are no longer entitled to their inheritance once they are married.
This is just the tip of the iceberg of what women in Sri Lanka face regarding a legal system that continually discriminates and oppresses against them on paper and in practice. The above is just a glimpse and does not go into the difficulties women face when filing complaints of violence or harassment, the lack of protection and support for victims, the harassment of women “loitering” on the presumption they are sex workers, the ban on women purchasing alcohol or working in places where alcohol is served, and more.
Addressing the patriarchy
It must be made clear that the solution does not lie in simply appointing a group of women to the task force, however. This task force is not and should not be the approach to amending and revising problematic laws in the country. The process for law reform is already in place with institutions such as the Law Reform Commission under the Ministry of Justice of tasked experts and continued engagement from civil society groups (including the women’s movement), and the responsibility lies in the hands of Parliament; this is what we elect them to do.
For systemic and institutional change to address oppressive systems, including patriarchy, we need to approach it at the institutional level using the systems that have been put in place for this exact reason. If the intention is genuine, then perhaps the focus should be on enacting the many proposals for reform already in place, using the extensive procedures and systems that we have developed over the years. The women’s movement has been made hoarse, asking for decades: “Where are the women?” Does the State not consider their voices, needs, perspectives, and concerns significant enough for inclusion? Actions speak louder than words.
(The writer is an independent policy and advocacy consultant focused on gender and based in Sri Lanka. Her current areas of focus are gender-based violence, resourcing women and girl-led organisations, and violence against women and girls [VAWG] in humanitarian and emergency contexts)