"But
I am Both" Equality in the context of women living under
parallel legal systems: The Problem of Sri Lanka
Ramani Muttettuwegama
1. INTRODUCTION
Several years ago I asked a woman who wished to have legal advise
whether she thought the discrimination she faced was because she
was a woman or because she was a Muslim and her immediate response
was "but I am both". To separate one's identity is impossible.
This is the general dilemma posed by family laws to Sri Lankan
women. While they discriminate against women in several ways and
also differentiate between classes of women depending on the community
they belong to, the laws are supposedly a codification of the
customs of one's community. To agitate for reform from within
is impossible: the leadership of the community is quite content
with the laws. To agitate from reform from outside, in the context
of an internal war whose roots are found in the non acceptance
by the majority of a minority's language is equally impossible.
Thus, the laws remain.
The paper argues that it is virtually impossible to address the
issue of Gender Equality in terms of personal laws unless some
attempt is also made to address the underlying fears and tensions
of minority communities in Sri Lanka.
The paper provides a summary of the various personal laws that
are applied in Sri Lanka placing women in context, both versus
men of their own community and other women in the country. The
paper also analyses other available legal protection for equality
in Sri Lanka.
2. PERSONAL LAWS
What are Personal Laws?
In Sri Lanka, several legal systems govern the law of family
relations. The General law (a combination of Roman Dutch and English
law) is the main system applicable to every one except if they
are governed by the personal laws. There are three other parallel
systems of personal laws in Sri Lanka, i.e., Kandyan Law, The
Thesavalamai and the Muslim Law. These laws are grounded in ancient
customary practices and/or religion.
The important thing about personal laws is that they only apply
to the 'private' sphere of family life. A person's rights flowing
from marriage and parenthood as well as the right to own, dispose
of and inherit property are covered by the personal laws. It is
in this private sphere that many of the discriminations on the
basis of gender which remain unacknowledged and invisible take
place. This has created the tension in Sri Lanka between the rights
of women in general and the rights of minorities. Given the context
of a war whose roots belong to ethnic tensions, it is unlikely
that we would see in the next few years any amendments to the
Personal laws, which would result in positive change for women.
This is because the concept of women's right to equality has been
continuously subordinated in Sri Lanka to the major debate on
minority rights.
In the Context of colonialism and thereafter
The origin of separate systems of personal laws as codified lies
in the interest of the colonialists. Both the Dutch and British
set up a system of public law, which was uniform as well as familiar
to themselves. However, they were content to leave the various
systems of personal laws, which did not impede or impact on the
general system, intact as long as there was a system that could
be identified and applied by the Courts when necessary. The reluctance
to take on the massive task of drawing up a general system of
law which would satisfy the traditional ideas of all the communities
coupled with the various strategies employed by the colonialists
in governing the country seems to have contributed to the decision
to leave in place the various systems. The need to pacify minority
communities also played a determining role in this decision.
However, in the process of codification, the variety of sources
that the traditional legal systems relied upon seem to have been
ignored, leaving behind a mass of laws which do not form a correct
representation of the systems. Given that the sources of information
on the "traditions" were almost exclusively upper class/caste
males the resulting distortions are obvious. This process has
led to many problems and gaps within the personal laws. Although
subsequent legislation sought to rectify this, the effect of many
of the problems which the gaps originally caused still remain
unresolved.
For instance, in 1806, the British introduced the 'Code of Mohammedan
law', which is an English translation of a Batavian Code, which
was mainly a reflection of Shafie laws. Since its introduction,
Muslim personal law was interpreted with reference to the Code.
However, there are people from other sects who are also Muslims
who reside in Sri Lanka. The current law makes references to the
"laws that govern each sect" and leaves it to courts
to trace its own sources on the applicable norms. The Islamization
of Muslim Personal laws in Sri Lanka was as a result of reforms
that were initiated during the British period but finalized post
independence.
A similar scenario may be traced with respect, for instance,
with the development of the Thesavalamai. It is considered to
have emerged from a system of laws that were applicable to ancient
Tamils, both in Sri Lanka and in India. Thus, originally, it was
heavily matriarchal in its basis. This changed over a period of
time. The first attempt at codification was by the Dutch in 1707
that resulted in the collection of the laws and customs by Claasz
Isaacsz being made into the "Thesavalamai Code". During
the British period, the Code was modified upon several instances.
Finally, now, the Code is only of persuasive value with the enforceable
areas of law being contained in several legislative enactments.
The Matrimonial Rights and Inheritance Ordinance (Jaffna) 1911
first amended the system of intestate succession to change the
order of some collaterals vs. some ascendants. The rights of married
women were amended in 1947 to correct a mistake in the 1911 version
of the Act.
In terms of the transition from a colonial to post colonial state,
the legal rights of women in terms of personal laws did not change
much. The members of the legislature followed the policies of
the old colonial rulers in not wishing to make drastic changes
to personal laws that were not authorized by the members of each
community that were governed by these laws. Thus, although both
the Constitution of 1972 and 1978 recognize the right to equality
and the 1978 Constitution goes even further and recognizes the
right to non discrimination, the discriminatory impact of each
personal law on women within each community has never been addressed.
Upto date no challenge has been raised in the Court with respect
to the tension between the right to equality and the right to
freedom of culture and religion.
Contents of personal laws
Summary
The personal laws not only set up parallel legal standards, applicable
to women depending on the community they (or their husband) belongs
to, they also set up parallel adjudicating mechanisms. For instance,
General, Kandyan and Muslim marriages are registered by three
different types of registrars. Further, disputes relating marriage
are also resolved by different authorities. In terms of Muslim
personal law, almost every aspect of it is first adjudicated by
the Quazi and it is only an appeal that lies to the common Court
of Appeal. In terms of the Kandyan law, marriages are registered
and dissolved by special registrars. Under the general law, registration
is by specially appointed registrars and the dissolution is adjudicated
by the District Court. For Kandyan, Thesavalamai and General law
intestate succession is adjudicated by the District Courts. The
Thesavalamai is not applicable to the area of marriage registration
etc. and persons governed by the Thesavalamai for interstate succession
are governed by the general law for all aspects of marriage except
the control of property by women. I have outlined, some areas
that may be of interest and not generally known or understood
about the personal laws and their impact in Sri Lanka.
Kandyan
The Kandyan law cites as its source the laws and customs of the
Kandyan Kingdom (the last area of Sri Lanka to be colonised) and
is applicable to all Kandyan Sinhalese. A "Kandyan Sinhalese"
is one whose parents can trace their lineage to being residents
of the Kandyan Provinces during the Kandyan Kingdom and include
those who currently do not reside in "Kandyan areas".
Thus not all people domiciled within the Kandyan provinces fall
within the definition of a "Kandyan Sinhalese".
The areas of Kandyan law that are currently retained in Sri Lanka
relate to marriage and divorce and intestate succession. All Kandyans
have the option of choosing whether they marry under the Marriage
and Divorce (Kandyan) Act [M &D (K)A] and, thus be governed
by the Kandyan laws or the General Marriages Ordinance in which
case, they would be governed by the Roman Dutch law. In the case
of intestate succession, a Kandyan person is governed by the Kandyan
Law by virtue of the Kandyan Law Ordinance (KL) as well as the
Matrimonial Rights and Inheritance Ordinance. Some areas of the
Kandyan laws on adoption are also applicable here. In all other
areas such as maintenance and custody the general law applies.
Thesavalamai
The Thesavalamai is part of some ancient customs of Tamils in
Sri Lanka and India. In Sri Lanka the law is applicable to the
" Malabar inhabitants of the Jaffna Peninsular" and
the persons governed by the law include those who do not reside
in Jaffna any longer. The only areas of the Thesavalamai personal
laws that are now applicable are matrimonial rights with respect
to property and intestate succession. These are governed by the
Matrimonial Rights and Inheritance (Jaffna) Ordinance [MR &I
(J)O]. In all other areas, the general law applies.
Muslim
The Muslim special laws are applicable to people who follow Islam.
In all areas of family the Muslim law applies and, unlike with
Kandyans, in the event of marriages between Muslims, they do not
have the option of marrying under the General law at all. Marriage,
divorce and all other related areas are governed by the Marriage
and Divorce (Muslim) Act [M&D(M)A] No. 13 of 1951 and the
subsequent amendments. The act states that the law is applicable
to marriages and divorces and other matters connected herewith,
of Muslim inhabitants of Sri Lanka. This Act covers a range of
areas and clarifies the situation of women belonging to the Shafi
sect. The Act also goes on to state that the status and rights
and obligations of the parties shall be determined according to
the Muslim law governing the sect to which the parties belong
and that non/registration of marriage alone will not in/validate
a marriage or divorce which would otherwise have been valid/invalid
according to the law of the sect.
The areas of intestate succession and donations are dealt with
by the Muslim Intestate Succession Ordinance No.10 of 1931 (MISO)
that is applicable to the intestacy of and donations made by Muslims
either domiciled or owning immovable property in Sri Lanka. The
Act merely states that the law applicable will be that of the
relevant sect and it is necessary to examine the Muslim law itself
in order to ascertain its contents.
It is important to note that both Acts make provisions for the
laws governing each sect that the person in question belongs to
prevail, notwithstanding anything to contrary in the Act itself.
General Law
The term "General" is misleading because it is more
a catchall law. Every area of family laws is covered by some aspect
of general law.
The area of marriage including the age of marriage, the procedure
for a marriage, the registration of marriage and its dissolution
either by divorce or through a judicial separation is governed
by the Civil Procedure Code (CPC) and the General Marriage Ordinance
(GMO). The GMO is applicable to all marriages except those between
Muslims. It also contains express provisions regarding the recognition
of traditional forms of marriage as being valid.
The law on the matrimonial rights of married persons with regard
to property and intestate succession is contained in the Matrimonial
Rights and Inheritance Ordinance (MR & IO) read together with
the Married Women's Property Act (MWPA). These acts are not applicable
to Kandyans, Muslims or people governed by the Thesavalamai.
The law on adoption is contained in the Adoption Act as amended.
On the face of it, the Act is applicable to all communities. In
terms of intestate succession, however, its applicability differs
according to the community.
The general law on maintenance is contained in the Maintenance
Ordinance. This Ordinance has been amended recently to shift away
from the old concept of indigence and need to a general right
of persons to maintenance. However, since the 1951 Marriage and
Divorce (Muslim) Act, the Maintenance Ordinance is not applicable
to people who marry under it.
Further, the Wills Ordinance which lays down the law regarding
wills is applicable to any one and there are no prohibitions on
the types of bequests that may be made by a will in Sri Lanka.
Minimum age of marriage
Under the general law and the Kandyan Law, minimum age of marriage
is now 18 years for both males and females. However, under the
Muslim law, there is no minimum age although the registration
of a marriage of a girl under 12 years of age is prohibited unless
authorized by the Quazi. Although there are very few recorded
instances of children under the age of twelve being married under
the Muslim laws, the anomaly could have far reaching impact on
the lives of Muslim girls.
Under the Penal Code of Sri Lanka, until 1995, the general age
of consent for sexual relations was twelve years. In 1995, the
Penal Code was amended and the age of statutory rape was raised
to 16 years UNLESS the person happens to be the perpetrator's
wife and they are not judicially separated (Section 163(e), Penal
Code as amended ). Thus, unlike in the period before 1995, when
although the age of consent was very low, it was uniformly applicable
to every one (although even during this period Muslim girls could
be married under the age of consent), now Muslims who are married
are specifically not covered by the Code.
Rights of married women
Under almost all the legal systems, the concept of separation
of property forms a strong basis in terms of rights of married
women. They own their own property. Dowry that is given by the
family is also usually given in the woman's name. Under the Matrimonial
Rights and Inheritance (Jaffna) Ordinance however, women married
under the Thesavalamai can not dispose of their property without
the written consent of their husband except by Will. This is not
the case for other women in Sri Lanka.
Divorce
Under the General law, divorce is based on the concept of "fault"
rather than on the irretrievable breakdown of marriage. The grounds,
however, are the same for both parties.
Under the Kandyan law, while the grounds are the same for both
parties in most circumstances, a wife seeking a divorce from her
husband on the basis of adultery must also establish an additional
ground of incest or gross cruelty. However, a divorce on mutual
consent is available under the Kandyan law. Further, unlike the
General law, a divorce is granted by the Registrar of Marriages
under the Kandyan law, thereby making dissolution of marriage
a much simpler procedure.
Under the Muslim law, a man seeking a divorce does not need to
specify a ground for divorce whereas women must establish either
ill treatment or an act/omission which amounts to a 'fault'. As
far as procedure is concerned, however, either procedure is much
simpler than the more cumbersome two-part procedure under the
General law.
Status
Women marrying outside their community or race are governed by
the personal law of their husbands while men in the same position
are still governed by their own personal laws. Under the Married
Women's Property Ordinance and also Matrimonial Rights and Inheritance
Ordinance, a woman marrying a man of different race takes on his
race until she remarries. The rule regarding the status of a Kandyan
woman marrying in Binna is not made clear here. A woman marrying
under the Thesavalamai is only subject to this rule during the
subsistence of the marriage.
The result of this is that women who marry outside their community
lose their customary rights of inheritance. Any Muslim who does
not marry under the Muslim Marriage Act (and possibly their children)
loses the right to inheritance under Muslim Intestate Succession
Ordinance thereby further restricting the women's choices regarding
self and communal identity.
3. MEASURES THAT ENSURE EQUALITY
The main step (other than the Constitution) was the adoption
of the Women's Charter in 1991. The Charter is based on CEDAW.
It sets in place a National Committee on Women empowered to monitor
the application of the Charter and the status of women in general.
The National Committee also has the main responsibility of disseminating
the contents of the Charter to the public and does so through
a series of meetings, especially with policy makers. The Charter,
it should be noted is more a statement of public policy than law
in itself.
Secondly, a National Human Rights Commission was appointed in
1996 with powers to hear complaints on the basis of the Fundamental
Rights Chapter of the Constitution. This Commission acts as a
reconciliation body between aggrieved parties and state institutions.
Once again, complaints based on the ground of "sex"
have been very rare.
Further to the Women's Charter, many changes were made to legislation
and to state policy and regulations with respect to women. This
included a uniform age of marriage for men and women under the
General Marriages Ordinance and the Marriage and Divorce (Kandyan)
Act (although no change was made to the Marriage and Divorce (Muslim)
Act. Further, changes were made to the regulations governing maternity
leave for employees of the government (although no changes have
been made to the regulations for private sector employees). Recently,
the regulations relating to granting of foreign spouses were amended
to have a uniform impact on men and women.
A recent attempt (in 1999) to introduce legislation on Equal
Opportunities failed miserably. This legislation, which was originally
a civil society initiative, was met with much opposition from
the majority community. The concerns included the impossibility
of the monitoring requirements and the stretching of the impact
of the Act to include the private sector. This has always been
an area of concern in Sri Lanka - the applicability of the equality
doctrine in private employment.
The main body empowered with reviewing and monitoring the situation
of women in Sri Lanka is the National Committee on Women. The
periodic reports to CEDAW help act as a series of checks on the
monitoring system. Further, for several years now, Sri Lanka has
a cabinet level Ministry of Women's Affairs, which is expected
to co-ordinate legislation on women's rights. It must be noted
that successive governments have continued to appoint some of
the weaker members of parliament to this post. Further both the
Ministry and that National Committee are often strapped for money
from the State.
4. ROLE OF NGOS /CIVIL SOCIETY
The role of civil society has been both controversial (as in
the case of the Equal Opportunities Bill) and complimentary to
state action (as in the drafting of the Women's Charter for instance).
Its role has always been multi faceted and includes dynamic intervention
at the policy making and legislative level (women's groups have
been extremely successful, when they wanted to be in lobbying
parliamentarians for instance).
Further, the government reports to CEDAW have been the product
of much discussion with women's groups. Women's groups have also
been involved in the preparation of shadow reports to CEDAW for
some time. The same is however, not true of reports to CERD. There,
the Government submits its report with no reference to civil society
groups. Further, civil society is also not actively involved in
monitoring Sri Lanka's reports.
This is unfortunate since in the development of the concept of
equality, especially in the context of personal laws, equal attention
must be paid to rights of women and the protection of minorities.
It has been the frequent experience of civil society groups that
the interests of the groups working on minority rights and women's
rights rarely coincide. When the do coincide, they are often in
opposition to each other. This is an unfortunate trend that must
be addressed if the tedious issue of reformulating personal laws
so as to eliminate discrimination on the basis of "sex"
while continuing to pay attention to the rights of all minorities
to protect their culture and identity.
5. CONCLUSION
The main argument of the paper is that the systems of parallel
personal laws is in direct contravention of the right to equality
and has a stifling effect on cultural evolution. While it is conceded
that the State has the right to regulate the types of marriage
it will recognise (minimum age of parties, a system of registration
where applicable, a definite system for dissolution etc.) it is
the writer's opinion that the codification of cultural practices
relating to is excessive.
For instance, if one were to get away from the equality debate
for a moment and take a look at the concept of personal laws as
a codification of traditional practices, one would immediately
recognise the danger of the act of codification. Codification
is an attempt at fixing for all times a particular rule. Culture
and tradition on the other hand is constantly changing- In bits
and pieces; And gradually. But it surely changes and adapts to
new situations.
In the era when the average life expectancy was around thirty
to forty years of age, a person of twenty would be beyond middle
age. In those circumstances, a minimum age of marriage being,
say, twelve, would not have been unacceptable. However, in today's
context, where the average life expectancy veers between 65 and
85 in most parts of the world, a person of twelve years of age
is still a child and, thus not ready for marriage. In Sri Lanka
the average age of marriage for women by 1993 was 27 years. However,
the minimum age of marriage under most laws, for girls, was twelve
years until 1995 when the age was raised to eighteen years. The
law then changed a customary minimum age, over night while tradition
had changed it gradually over a long period of time. The danger
of codifying tradition and custom is that one makes it static,
with no room to adapt and be the dynamic force it is meant to
be.
The other part of the paper argues that both the women's rights
movement and the minority rights movements have failed to adequately
address the issue of personal laws due to their inability to see
the intersection of identities that personal laws represent. As
in other parts of the world, women from minority 's communities
are often reluctant to join the mainstream women's movement in
agitating for changes because they do not trust the main stream
to understand their fears of being members of a minority. At the
same time, women are marginalized within minority rights groups
due to these groups insistence on the adherence to ancient cultural
practices regardless of their impact on the women of their community.
Any attempts at reform of personal laws must, in conclusion,
take into account both sets of issues. Thus, a wider debate must
be had on the reasons for a variety of personal laws so as to
ensure that the existing laws actually serve their purpose. Finally,
given Sri Lanka's a long "tradition" of recognising
the concept of equality and all personal laws must be examined
within themselves so as to ensure gender parity within them.
December 2001
__________________________________________________________
Ramani Muttettuwegama
Lawyer, Thiruchelvam Associates, Colombo, Sri Lanka
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