Women Action Network: Constitutional reforms:
Fundamental rights must apply to all equally
Fundamental rights is central to the Constitution and if the new
Constitution cannot guarantee equality and equal protection under the
law for all citizens then all efforts towards constitutional reform
would be futile, a media release by the Women Action Network said.
It is encouraging to note that the constitutional reforms process has
been broadly consultative and has engaged the public from the grassroots
all the way to national level. It has given Sri Lankans the opportunity
to articulate their perspectives publicly and engage in a process that
has multi-generational impact for many years to come. The reforms
process must ensure a Constitution that is supreme under normal
circumstances. Thus the concern emerges regarding Article 16 of the 1978
Constitution, which makes all written and unwritten laws in existence
before the promulgation of the constitution valid and operative despite
inconsistencies with fundamental rights, it said.
As the Women Action Network - a collection of activists and human
rights organizations across the island, we wish to draw attention to the
significant impact Article 16 has on Muslim women in relation to the
Muslim Marriage and Divorce Act (MMDA) of 1951.
Article 16, by upholding the MMDA sans reforms, renders Muslim women
second-class citizens by not guaranteeing them equal protection under
the law. Muslim women, including victims of child marriage, have
articulated very strongly to the Public Representations Committee on
Constitutional Reform that the constitution must guarantee that their
human and citizenship rights are not violated in the name of 'cultural
and religious rights' and that every woman and girl in this country
should enjoy equality and basic human rights regardless of religion or
ethnicity.
Discriminatory provisions
This includes either the removal of Article 16 in the new
constitution, or amendments that allow Constitutional supremacy above
discriminatory customary laws.
For decades, Muslim women and groups working closely with victims
have been advocating for reform to the MMDA and the Quazi court system.
Women's groups documented numerous cases of injustices faced by Muslim
women under the MMDA enabled by discriminatory provisions within the Act
such as lack of minimum age of marriage and agency to consent to
marriage, unequal process of divorce for men and women, polygamy without
conditions, arbitrary process of compensation, to name a few.
Multiple cases of child marriage have been documented all over the
island in Muslim communities, which is enabled by the MMDA and Article
16. In addition to case data, information from marriage registration,
maternal units in hospitals and research on child marriage shows both
child marriage and child pregnancies are prevalent, with the lack of
legal protective mechanisms as a key contributing factor. Data collected
of registered Muslim marriages from four DS divisions in two Eastern
districts indicates over 143 cases of underage marriage in 2014 and over
118 cases for the first few months of 2015 alone.
Muslim women around the country have also articulated in multiple
forums that they are discriminated against by the sub-par Quazi court
system, which is significantly different from the civil court system and
doesn't allow for affected persons to have legal representation.
Women are often mistreated by incompetent Quazis and the jurors of
the courts; not given equal treatment as their husbands; are unable to
express their side without fear of being verbally abused, threatened and
humiliated in courts throughout their case processes.
It is notable that the Quazi court system, while being a government
sanctioned system funded by tax payer money, prohibits women from
holding any position of authority, either as marriage registrars, Quazis,
jurors, or Board of Quazi members and thus is marked by systemic gender
discrimination (MMDA Section 8,12,14,15). What good is a 'special'
family law if it violates rights of the women of a said community rather
than protect, promote and guarantee rights? For the answer, one must
merely ask the number of 15-18 year-old Muslim girls forced to go to
Quazi courts after being forced/coerced into marriage, or who are
abandoned due to polygamy around the country.
The opposition to the amendment or removal of Article 16 has come
primarily from conservatives who want to maintain the status quo by
claiming to have the best interest of the Muslim community at heart.
Arguments
The arguments put forward by said groups include, that the MMDA is
based on Shariah and cannot be reformed; however, the Sri Lankan MMDA is
a combination of multiple imports of versions of Shariah law and local
customs and also includes anti-Shariah provisions such as the
recognition of kaikuli (dowry) which is forbidden in Islam.
Others claim that the Muslim community is under threat from
anti-pluralist elements and as such the MMDA must be protected; however,
protection in the Constitution for minorities does not mean that
discriminatory family laws are allowed to supersede the Constitution
merely to guarantee cultural/religious rights at the expense of equal
right of women.
The new rights-based constitution must guarantee that Muslim women
have equal legal status and protection under the law. Making the
constitution truly supreme by removing or amending Article 16, will
provide space for the Muslim community to reform the MMDA to be
equitable and address contemporary issues of the community.
There are different approaches to addressing Article 16, but leaving
it unchanged is not an option. If Sri Lanka is to become a progressive
nation that treats all its citizens equally then progressive realization
of women's rights is of paramount importance at this time. No citizen
whatever his or her religious or ethnic status should be left behind.
WAN is a collective of eight women's organisations, working in the
North and East. |