Gender violence against women

by Prof. Savitri Goonesekere

[Part II]

There are many areas in which Sri Lanka’s women do have equal rights. A recent World Bank Report (2012) identifies indicators of gender equality in the laws regulating economic inclusion. These are, access to credit, and interaction with public and private institutions, managing and owning property, getting a job, taxation provisions, and going to court. In all the areas specified, except property rights, all Sri Lankan women have formal legal rights and protection.

In particular, in many areas such as applications for a passport, travel and residence, engaging in economic activities and trade, signing legal documents and opening bank accounts, being a head of household, work and employment rights, and litigation in civil cases, men and women in this country do have formal legal equality. We are perhaps the only country that has had so many women in leadership positions – whether as President or Prime Minister, or more recently, and at the same time as Chief Justice, Attorney General, Legal Draftsman and Secretary to the Ministry of Justice – the key posts in the area of administration of justice.

Sri Lanka is unique in the region, and even globally in giving over 80p.c women law students and over 50p.c medical students access to a cost free legal education in the public university system.

Achievements

These are significant achievements – yet the equal access to leadership positions in public administration is in sharp contrast to the failure to address de facto inequalities in many areas including violence against women, access to political participation and employment. Why is it that with such successes only 38p.c of a female population of over 50p.c has access to productive livelihoods and employment?

Why does Sri Lanka have the lowest representation of women in all legislative bodies in South Asia? Are the positive gains being undermined by other trends, which are seeking to limit women’s access to the public space and their right to equal treatment and opportunities within and outside the home and family?

The high incidence of gender based violence including rape, gang rape and murder of women has been documented over several decades in research, and has received a great deal of media attention during the armed conflict and very recently.

The Health Ministry has publicly acknowledged the high incidence of sexual harassment and abuse of male authority in the health sector and the need for preventive interventions. The law provides for legal accountability, since sexual harassment is a criminal offence. However there is hardly any reference today to the need to enforce disciplinary or penal sanctions for such abuse.

Sexual harassment

An initiative of the Women’s Ministry requiring all government ministries and agencies to formulate sexual harassment policies appears to have been ignored. Neither staff nor students seem aware of sexual harassment policies of a university, even when there are such policies.

Statistics on the high incidence of domestic violence in this country are recorded in our hospitals, in newspapers reports and sometimes in police records.

Why do women stay in abusive relationships, even at the risk of being maimed and killed, and the lives of their children traumatised? Why do women themselves not question family values that support access to education but deny the right of women to bodily security and freedom from violence and sexual abuse?

Divorce

Contemporary Kandyan law permits divorce on the ground of irretrievable breakdown of a marriage, evidenced by factors such as domestic violence. However our General Law, which applies to all other communities is based on Christian values introduced during the British colonial period. Proof of fault in adversarial court proceedings is necessary to obtain a divorce.

Women’s groups which counsel victims of domestic violence encounter the daily pressures faced by women to continue in abusive marital relationships, because of the adversarial nature of legal proceedings and the social stigma of divorce, that is associated with the “fault” approach to divorce.

Indeed this fault-based perception of divorce is reflected in the jurisprudence of our country. In Tennekoon v Tennekoon, (1986 1 Sri LR 90), a celebrated divorce case, the Chief Justice of the time disapproved of an interpretation that undermined the fault principle in our General law on divorce, remarking that “divorce that is based on marital breakdown rather than fault destabilises the institution of marriage, and undermines the moral and social foundation of our society”.

Given that some principles of Kandyan law applicable today permits no fault divorce for irretrievable breakdown of a marriage, our legal system has not entirely rejected permitting spouses to part without social disapproval, due to factors such as abuse and violence in family relationships. The fault based assumptions of the received colonial law on divorce undermine women’s right to bodily security and reinforce false social values on the need to preserve a broken and dysfunctional marriage, where the male spouse or partner perpetrates violence against women and children.

Sri Lanka’s Parliament passed the Domestic Violence Act in 2005 and there is increasing evidence, including from a recent report by the NGO Women in Need, that women are seeking relief against domestic violence. However, official statements from even highest in the land continue to see legal relief and remedies for domestic violence in a dysfunctional and already broken family as a Western conspiracy to “break up families.”

When double messages on domestic violence are given in families, the community and by law enforcement agencies such as the police and the judiciary, women are denied their right to make their own decisions in responding to such violence, by moving out of abusive relationships. Some justify in the name of culture, and family privacy, pathological domestic violence as a casual response that lasts, as a Sinhala saying goes, only as long as the “pot of rice cooks.” What does society have to say when a man beats a woman almost to death because, as reported recently, she refused her husband’s repeated requests to donate a kidney for Rs. 500, 000?

Violence

Transformations in family values and culture that encourage insensitivity to the predicament of women, who experience violence because they are women, have been reinforced in an environment of political violence. The culture of impunity associated with selective law enforcement and administration of justice discourages women from using available legal remedies. Access to pornography on the Internet in our new “knowledge based” society, and growing consumerism fosters a “macho” culture, which reinforces values of male domination over women.

Witness also the recent lobbies resisting strictly regulated medical termination of pregnancy advocated on grounds of public health, and in the limited circumstances of violence against women perpetrated through incest and rape. The National Child Protection Authority and the police have frequently referred in the last year to the very high incidence of adult sexual abuse of young girls below the age of sexual consent – a criminal offence that amounts to rape. Such offences are also committed by teenage boys, in an environment of co-education in State schools and the ubiquitous “tuition classes” where boys and girls interact freely. Forced marriage of teenage girls by falsifying birth registers is a response to both adult sexual abuse and the reality of teenage sexuality.

The absence of a sentencing policy that was promised by the Supreme Court in a litigated case, and the shockingly low sentences pronounced in cases of sexual abuse of children, legitimises men having sex with underage girls. This should be as much a concern as the emergence of a new phenomenon of child marriage of girls in conflict affected areas.

All efforts to encourage responsible sexual behaviour through school curricular has been resisted by education authorities in the name of “our traditional” cultural values. The incapacity to raise public awareness encourages new forms of violence against women and girls, without diminishing its incidence. If sexual harassment of women is perpetrated on public transport, it is now also perpetrated through the Internet and the cell phone.

Ideology

It is in this environment that there is an urgent need to find a discourse and ideology that can provide consistency and coherence in public policy and also guide us in sustaining the gains on gender equality and justice in Sri Lanka. The recently published government Human Rights Action Plan, (2012) addresses gender inequality and violence against women as realities that must be addressed through a Human Rights approach.

This offers some hope that the contradictions we have recently witnessed in state policy and official statements will be replaced by some clear initiatives to carry forward this action plan. The plan offers an opportunity that women’s groups and institutions like the Centre for Gender Studies should used in developing their programs to promote a gender equality agenda. An erosion of the Constitutional principle of gender equality by ideologies that seek to enthrone repressive cultural and religious values in the name of authentic homegrown solutions to problems should not be underestimated.

Human Rights

Feminist criticism of human rights has often prevented women’s groups developing and adopting a holistic and consistent advocacy strategy to advance gender equality. The political battle lines on State and Non-State actor accountability in international law for human rights violations has unfortunately created an environment where Sri Lankans in positions of responsibility are increasingly persuaded that human rights are a selectively implemented Western and alien ideology. We then fail to understand that respecting, protecting and fulfilling human rights has provided the foundation for many of the progressive developments in governance, public law and policy that that Sri Lanka has witnessed in over six decades of independence. Women too have benefited from these developments.

It is because the progressive social values of rights, including those on gender equality, were accepted as the normative foundation of good governance, that equality, without discrimination and denial of equal life chances on the basis of the biological differences between the sexes, was accepted in our Constitution of 1978.

The feminist critique of the human rights discourse is in general based on a misunderstanding of human rights as giving priority to individual civil liberties.

It is argued that gender equality from the perspective of women cannot be achieved without recognising that women function in a world where they want connectivity to others, in shared and caring relationships. This critique fails to recognise the reality that international and even national human rights norms have moved towards recognising the indivisibility and interdependence of both the traditional civil liberties of the West, and the social and economic rights that have been the focus of communitarian socialist political ideologies.

Feminist theories

Critics of human rights tend to ignore the contribution of feminist theories on human rights in deconstructing gender bias in principles of criminal justice. It is these endeavours that have contributed to extensive reforms in law and policy in many countries including Sri Lanka, and the transformation of international and national approaches to violence against women in situations of armed conflict. Violence against women in any form, including sexual violence is not considered today an issue of women’s chastity but an infringement of women’s right to personal security and bodily integrity.

Patriarchy in feminist theory lies at the foundation of gender based discrimination. Patriarchy from the time of the Romans, with their ideology of “patria potestas” or male power, represents institutionalised abuse of power, creating conditions where people are gripped by the fear of power and the power of fear. All dimensions of human rights whether civil or political or socio and economic seek to prevent abuse of power, and encourage responsible accountable use of power.

It is also important to recognise the significant contribution of feminist jurisprudence based on human rights protection to our understanding of gender equality. The traditional Anglo American approach to equality focuses exclusively on realising formal or de jure equality in law and public policy. Feminist jurisprudence has contributed to refashioning this limited concept of equality, focusing on achieving both formal equality and de facto equality in impact and result.

The concept of substantive equality which seeks to eliminate de facto discrimination and disadvantage, also emphasises the need to transform attitudes and institutions that contribute to the discrimination experienced by women.

This concept of achieving substantive gender equality as a necessary dimension of the human right to gender equality, brings Non-State actors, whether in the corporate sector, the community or the family, within the scope of accountability for human rights violations.

It is important that all those working on gender issues understand and relate to this norm of substantive equality that is now incorporated as part of international human rights, and explained in the CEDAW (Women’s) Convention General Recommendations, particularly No 25 and 28.

Contradictions

If we examine the contradictions in law and policy in Sri Lanka, the myths of a homogenous pure local culture that deny the realities of social transformation, the gap between formal legal rights even when they exist, and women’s incapacity to access these rights, we must surely understand the importance of a human rights concept of substantive equality.

The apathy of the State and the lack of political will in eliminating gender based discrimination, and the incapacity to enforce fundamental rights when the perpetrators are Non-State actors have been highlighted by gender activists. Substantive equality addresses these gaps and lacuna.

The failure to understand substantive equality is mirrored in the judgements of the Supreme Court in its recent determination on the Local Government Bill.

The Attorney General was able to argue and persuade the Supreme Court, presided over by the Chief Justice, that Art 12 (4) of the Constitution, which mandates temporary preferential measures for women to address de facto inequality, was a “weapon” to achieve gender equality.

The Supreme Court rejected arguments for a specific quota of seats only for women in local government assemblies in a situation where Sri Lanka has the poorest record and one of the lowest percentages of women in parliament and local assemblies in the South Asian region.

By using the term “weapon” to describe preferential measures, and creating the spectre of a battle between the sexes in the political arena, lawyers for the State and the Supreme Court de-legitimised substantive equality as a guideline for effective public policy to achieve gender justice.

Political participation

The State faces challenges in ensuring that women have equal access to political participation, livelihoods and land, and freedom from violence, particularly in the post armed conflict situation of the North and the East. Substantive equality is a norm that includes Non-State authors. It can help to fashion laws and policies that address the ground realities of discrimination and marginalisation of women, and gender based violence, including as war widows and female heads of household who have suffered the trauma of years of conflict and violence. Substantive equality is also important for all women, in an environment of increasing privatisation and expansion of the corporate sector.

Sri Lanka’s pregnancy leave laws and policies are generous, and were formulated on the basis of women’s reproductive health rights and children’s wellbeing.

Yet, there is anecdotal evidence of the private sector perceiving this leave as a “women workers’ employment benefit” which can be justifiably denied. Male employers then foster the idea that care obligations in the family are the exclusive responsibility of women, rather than a shared and joint commitment of women and men and society.

Ground realities

Sri Lanka’s experience on law and policy formulation, and the ground realities faced by women also reaffirm the importance of the human rights approach to cultural diversity. The right to manifest religion and belief in worship, practice and teaching, individually, or with others in ones community, is recognised in international human rights and in our Constitution, Art 14 (e) and (f).

However, there is recognition that cultures are never static and unchanging, but reflect the impact of diverse political and economic and social changes over a period of time. Consequently it is also accepted in international human rights law and our Constitution that the State has a right and duty to give leadership and introduce laws and policies in the wider community interests of “national security, public order, the protection of public health and moral values or to secure due recognition and respect for the rights and freedom of others, or to meet the requirements of the general welfare of a democratic society” (Constitution Art 15 (7).

It is on this same rationale, that the international human rights treaty bodies, including the CEDAW Committee that monitors the CEDAW Women’s Rights Convention that Sri Lanka has ratified, repeatedly question the States failure to eliminate discrimination against women in the personal laws in the name of sensitivity to culture or manifestation of religious beliefs. Thus, practices that encourage child marriage or child labour of girls, contrary to public health and human resource development needs, violence against women, and denial of women’s economic and property rights because they are women, are acts of discrimination that cannot be justified today in a culturally relativist approach.

The new Centre for Gender Studies at Kelaniya University can through its work, helps to develop a consensus on using human rights as a valid framework to promote gender equality both within the university and the community, demonstrating the need to move beyond a cultural relativist approach to the many problems in our country. It is such a framework that in my view can impact on State and community accountability for promoting the welfare of both men and women.

We must resist the recent argument of cultural and religious fundamentalists that gender equality is an alien and Western value by disseminating information on the many women of all classes including grassroots communities who have had the courage to challenge gender based discrimination and claim their human rights.

The incapacity to change negative stereotypical values and attitudes regarding women and institutions that reinforce these values, is a recognised barrier to achieving a standards of substantive equality in many countries.

Transforming gender inequality becomes impossible, unless there are proactive initiatives, that challenge and address cultural relativism.

Too often women’s groups and gender activists promote cultural relativism by our inability to come together on a common platform of human rights, even for law and policy reform. The history and reality of change in cultural and religious practice needs to be understood by all of us, and should provide the basis of our advocacy for change.

As the late Muhamed Ali Jinnah of Pakistan remarked in a debate on the introduction of restraints to child marriage, “If we are going to be influenced by the public opinion that can be created in the name of religions (and I would add, culture) when we know that (they) have nothing to do with the matter, … we must have the courage to say ‘No, we are not going to be frightened by that.”

Let us all from our diverse communities not be misled or frightened by arguments of cultural relativism, and the false consciousness and myths created by those who would seek to undermine the advances made by the women of this country in claiming in peace, that historically and globally accepted right to substantive gender equality and non-discrimination.

Let us have no illusions about the power of negative social forces that seek to push Sri Lankan women into a world of submission to male domination in the home and the public space in the name of “home grown” ideology and falsified truth about our diverse religions and cultures.

Unless women in positions of leadership in universities, professions and public life combine to resist these negative trends, and used the opportunities we still have, to promote gender equality we may regress and become a society that replicates the type of discrimination against women we see in other parts of our region today.