The UN Committee on the Elimination of Discrimination against Women (CEDAW) has asked “all personal laws be amended to remove discriminatory provisions regulating ownership, inheritance, transfer and disposal of land and property, as well as provisions regulating legal capacity, marriage, divorce, and child custody”.
The Committee in its report released on Monday night stated that it was “concerned about the lack of progress regarding the reform of discriminatory provisions in the Kandyan Law and the Tesawalamai Law”.
The report was based on the 8th submission made by Sri Lanka to CEDAW on its achievements in the women’s rights in the country. Thus far the committee has published its findings on Sri Lanka, Ukraine, Ireland, Jordan, El Salvador, Germany, Rwanda, and Micronesia.
The committee also observed that domestic legal framework of the country was yet to be brought in line with the CEDAW convention first signed in 1981 and thus it was important to have greater involvement of women in the ongoing Constitutional reform process.
It recommended the new Constitutional process take into account the need to: “include sexual orientation and gender identity as a ground of non-discrimination, in order to clarify any uncertainty as to whether discrimination based on sexual orientation is prohibited under the Right to Equality and to repeal Article 16 (1) of the Constitution, which does not allow judicial review for discriminatory laws which existed prior to the enactment of the Constitution”.
The report, which specifically mentioned the Muslim Marriage and Divorce Act (MMDA) of 1951, observed that though a Cabinet Sub-Committee was appointed in 2016 to amend the MMDA, “the Committee appointed by the Minister of Justice in 2009 to consider and propose reforms to Muslim Personal law and the Quazi courts has not issued any recommendations” as of yet.
Given that the MMDA imposed exclusive and compulsory jurisdiction over Muslim marriages, the Committee expressed its particular concern in areas where it did not: (a) specify a minimum age of marriage and girls under 12 years of age are permitted to marry; (b) restricted the legal and judicial officer positions of Quazis, Board of Quazi members, Marriage Registrars and adjudicators to male Muslims only; and,(c) the law on statutory rape is not applicable to girls under 16 years of age who are legally married under Muslim law and who engage in sexual intercourse with their husband while not legally separated.
Sri Lanka was thus recommended to: (a) Prepare a unified family code in conformity with the Convention in which equal rights of women and men in the family relations, including marriage, divorce, inheritance, property and land are addressed; (b) Amend the General Marriage Registration Ordinance to ensure that Muslim women have the free choice to opt out from the Muslim Personal Law, so as to be registered under the general law; (c) Ensure that property rights are governed by general civil contractual and property law rather than religious law; (d) Increase the minimum age of marriage for all women in the State party to 18 years of age; (e) Eliminate any restriction on women’s eligibility to be appointed as Quazis, as Members of the Board of Quazis, Marriage Registrars and adjudicators; and, (f) Amend article 363 of the Penal Code to ensure that the crime of statutory rape applies to all girls under the age of 16, without exception in order to abide by the Convention the country is party to.
The committee has asked the state to report back with steps it has taken to rectify the above issues within two years. The next CEDAW review has been set for March 2021.
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