By Punsara Amarasinghe
Legal pluralism in Sri Lanka is a legacy of the country’s colonial past. The Sri Lankan legal system can be very confusing as its present form is derived from several different systems.
Roman Dutch Law is regarded to be the island nation’s common law. Today Sri Lanka and South Africa are the only countries in the world where Roman Dutch Law applies. After 150 years of British colonial rule, English Law too has widely infiltrated its legal system. Besides English Law and Roman-Dutch Law as dominant features in the legal system, co-existence of personal laws of special communities based on geography, religion and race is another important characteristic in the legal pluralism in the island.
Among the special personal laws in Sri Lanka, Thesawalamai law or ‘law of the land’ which prevails among Hindu Tamils in Jaffna, is based on ancient Hindu laws, while Kandyan law was conceived from ancient Sinhalese customs. Eventually those customs were only preserved in the Kandyan kingdom when the rest of the island was occupied by Western colonial forces. Muslim Law in Sri Lanka is a religion-oriented system with has assimilated some peculiar customs only practiced among the Ceylonese Moors.
Despite having origins in diverse ethnic and religious backgrounds, these personal laws have become discriminatory towards women. Some provisions in Thesawalamai and Kandyan law contravene the rights of women. Under Thesawalamai Law, a woman has to get the consent of her husband to alienate any immovable property. Article 11 and 12 of Kandyan Law Ordinance No.38 of 1939 discriminates against women in holding property, unless those properties are gifted by their husbands.
Discriminatory outlook of both Kandyan Sinhalese laws and Tamil Thesawalamai law were accepted by colonial rulers in Sri Lanka to appease the patriarchal values of Sinhalese and Tamil elites, and those unjust terms remain unchanged, though it has been 70 years since the British left Sri Lanka.
Muslim Law in Sri Lanka was first codified by the British Chief Justice of the country, Sir Alexander Johnston, in 1806, and amended in 1929. The existing Muslim Marriage and Divorce Act, enacted in 1951, has provisions which are clearly discriminatory to women.
In Sri Lanka, 18 is the legally approved age for marriage, but this is not applicable to Muslim women under the country’s Muslim Marriage and Divorce Act. The law allows child marriage with the permission of a Quazi, a male official, paid for from public funds. Divorcing a wife is less troublesome 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. The law provides freedom for the man to marry up to four times, but Muslim women have been denied any such freedom, while their marriage requires mandatory consent of their guardian.
In the Constitution of Sri Lanka, equality before law is guaranteed from Article 12 (1). But that Article provides no safeguards to Muslim women who face unjust legal restrictions mainly due to the fact that Article 16 (1) of the country’s Constitution states that all written and unwritten personal laws which existed prior to the 1978 Constitution are valid and operative.
This absurd Article has created legal limbo in its applicability, because under the interpretation of this Article any law promulgated before 1978 can be valid even 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. However, male hegemony and orthodoxy have prevented women from making a breakthrough.
Sri Lanka’s obligation to uphold CEDAW (Convention on the Elimination of all Forms of Discrimination against Women) as a signatory party is significant. The country has submitted eight periodic reports since 1981 to the CEDAW Committee. However, the discriminative status of women under the personal laws existing in the Sri Lankan legal system has awakened special concern of the CEDAW Committee, which has asked the government to repeal all 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.
The question of amending or repealing those discriminatory provisions in the personal laws has become a double - edged sword for the government, because Muslims and Tamils can view such a move as an act of interference with their rights.
There was a major furore among Indian Muslims when the Lok Sabha passed a bill in December 2017, which aimed to prosecute Muslim men who divorce their wives through the “triple talaq”, or instant divorce.
A similar harsh reaction can be expected in Sri Lanka if the government moves to amend personal laws, but the greater concern of justice cannot be marred by mere religious and cultural dogma. In the context of Sri Lanka, the government should either draft a unified family code in conformity with the CEDAW or amend the special personal laws in consultation with those religious and ethnic communities.
(The author is a Doctoral Candidate in International Law at National Research University Higher School of Economics in Moscow. He can be contacted at firstname.lastname@example.org)