BY Sachini Perera
A country’s laws must respond to and reflect the lived realities of its people and uphold their fundamental rights as human beings. It has become more apparent than ever as the country goes through a process of constitutional reform that Sri Lanka has a fair share of laws that don’t do so and result in violating people’s basic human rights. These include archaic laws from our colonial past such as the Vagrants Ordinance of 1841, sections 365 and 365A of the Penal Code that criminalize homosexuality, and certain customary and personal laws. The latter are Kandyan law (applicable to people of Kandyan origin), Tesawalamai law (applicable to Tamil people from the North of the country) and Muslim law (applicable to Sri Lankan muslims). These laws mostly pertain to inheritance and marriage, and contain provisions that discriminate against women when it comes to the ownership, inheritance, transfer and disposal of land and property, as well as legal capacity, marriage, divorce, and custody of children.
Currently these discriminatory provisions and laws remain unchallenged due to Article 16 (1) of the present Constitution, which prevents judicial review of any laws that have been in existence before 1978 (this amounts to over 600 laws introduced by statutes before 1978), even when they are inconsistent with the fundamental rights guaranteed by the Constitution, including the right to equality and the right to non-discrimination. Therefore there are calls to repeal Article 16(1) in the new Constitution and the expected result of this is not to get rid of personal laws and other laws prior to 1978 but to ensure that all Sri Lankan citizens, regardless of ethnicity, religion, gender, etc., would have access to remedy if their individual rights are violated by these laws.
It is in this context that Muslim personal laws have become the current hot topic in the country, especially the Muslim Marriage and Divorce Act (MMDA) of 1951. For years, women’s rights groups have advocated to reform the MMDA and have time and again been challenged. Advocacy around this issue has gained momentum with the ongoing process of constitutional reform in the country and has received backlash when it comes to the proposed reforms to the MMDA.
As stated by the Muslim Personal Law Reforms Action Group (MPLRAG), such resistance “completely ignores the present day lived realities of the Muslim community in Sri Lanka. For example, it shocks our conscience that Islamic jurisprudence is misinterpreted to justify child marriage and prevent women being appointed as Quazi judges.”
The calls for reform are rooted in the right of all Muslims, including women and girls, to equality, justice and non-discrimination. As Muslim women’s demands show, most of the reforms are related to the sexual and reproductive rights of Muslim women and girls whether it is the minimum age of marriage, mandatory consent of the woman to marriage, equal divorce provisions for women and men or the right to register a marriage under the General Marriage Registration Ordinance (GMRO).
As MPLRAG clearly and rightly says, the “State has the foremost responsibility to ensure that State laws protect rights of citizens and are not in-turn causing gender based violence, discrimination and injustice.” In addition, there are various international obligations to which the State must be held accountable. At the recently concluded review, the UN Committee on the Elimination of Discrimination against Women (CEDAW) called on the Sri Lankan government to expedite the process of Muslim personal law reform.
If we are to ensure that the country meets these various and interconnected obligations, then it is imperative that all actors in the reform process, including the Muslim Personal Laws (MPL) Reforms Committee, political leaders (both Muslim and non-Muslim) as well as the Sri Lankan State, demonstrate their commitment to implement the proposed reforms.
We are at a pivotal moment in Sri Lankan history and it is the duty of all citizens to stand in solidarity with our Muslim sisters to ensure that when we talk about rights to equality, justice and non-discrimination, we are talking about rights for all of us and not just for some of us or even most of us. Go to https://mplreforms.com/ to find out how to support this important work.