Establishing the minimum age of marriage for all citizens is foremost a State responsibility.
Women Action Network (WAN*) welcomes and appreciates the actions of Member of Parliament (MP) Hirunika Premachandra during a workshop with parliamentarians on the formation of Constitution, held on 29th March 2016 wherein she raised the concerns that Muslim Marriage and Divorce Act (MMDA) allows for Muslim girls and boys below the age of 18 to be married. MP Hirunika’s comments come in light of the fact that under the Penal Code (Section 363) of Sri Lanka, sexual intercourse with a girl below the age of 16 (with or without her consent) amounts to statutory rape, therefore the provision of early marriages for Muslims is contradictory and requires attention in this regard. As a concerned MP, it demonstrates her apprehension about the practical and potential problems faced by the minority Muslim women and children in the country with regard to lack of minimum age of marriage.
For over two decades, these concerns have been raised at multiple forums including with religious leaders and Muslim MPs, and are usually ignored on the basis that early marriage is not happening in the Muslim community. However, Muslim women’s groups who have been working very closely at the community come across many cases of early marriage on a regular basis. High prevalence of early marriage has also been noted in districts such as Batticaloa, Puttalam and parts of Colombo. In some areas the number of early marriages have in fact increased from 2014 to 2015, and a look at the data on registration of Muslim marriages will reveal the facts and figures. In most cases of early marriage, young girls are removed from schools in order to be married. Thus, early marriage is also closely associated with a denial of educational opportunities and other social, economic and cultural rights. In addition, girls are more vulnerable as a result of their age, inexperience and lack of awareness to reproductive and health problems, gender-based violence, harassment within marriage, economic challenges in case of divorce, or non-maintenance by husbands.
WAN advocates that minimum age of marriage is first and foremost a serious child rights concern, which the State has the principal obligation to protect and NOT one that should be left at the discretion of any particular community.
We are therefore highly disappointed at the counterargument of Minister Rauff Hakeem in response to MP Hirunika, when he stated that the issue of age of marriage is a concern that is being dealt with by the Muslim community through reforms of the MMDA. Reforms to the MMDA have been overdue for 64+ years and we are also saddened that little action was taken by Minister Hakeem during his time as Minister of Justice to expedite the process.
While we are aware that there is a Muslim Personal Law Reforms Committee that was established in 2009 by then the Justice Minister Milinda Moragoda tasked with recommending reforms to the MMDA, we are unaware of the progress that has been made by this committee in the past 7 years. The broader Muslim community has very little information on the work of the committee thus far, timeline of when its report will be delivered to the Government and whether or not it recommends the protection of rights of Muslim children on par with the rest of the children of Sri Lanka.
Given these concerns and significant delay to reforms, many Muslim women’s and victims of the injustices faced under the MMDA have gone before the Public Representation Committee on constitutional reforms in district level hearings in Puttalam and the North and East. They have made oral and written submissions demanding immediate reform of the MMDA or to give Muslims the option of choose to marry under Sri Lankan General Marriage Ordinance. It is highly problematic that when it comes to marriage and divorce, Sri Lankan Muslims are governed only by an outdated MMDA with discriminatory provision that especially violates the rights of Muslim women in many ways (such as allowing early marriages). In Sri Lanka fundamental rights should apply to ALL citizens of the country and not be left to the discretion of minority personal laws. This had to be one of the primary concerns addressed in constitutional reforms.
We reiterate that the issue of age of marriage is NOT a ‘Muslim issue’ but rather one of human rights and child rights. Sri Lanka is required to adhere to global benchmarks set for implementing child rights through a number of human rights instruments and international commitments, such as the Child Rights Convention (CRC) and Convention for Elimination of All forms of Discrimination Against Women (CEDAW).
Such rights should apply to ALL citizens of the country. Women of minority communities should not be left out of the protection of their rights. In fact in 2010, the Committee on Economic, Social and Cultural Rights at the forty-fifth session, reminded Sri Lanka that when it comes to statutory and personal laws which allow early marriage of girls as young as 12 years old are discriminatory against women and, and restricts their economic, social and cultural rights. They went on to say that repealing such laws “…is an immediate obligation of the State parties which cannot be conditioned to willingness of concerned communities to amend their laws”.
Thus it is illogical that a different minimum age of marriage applies for a minority community than to the rest of Sri Lankan citizens and this discrimination needs to be questioned and raised as a concern by many more MPs. Action also needs to be taken by relevant government agencies such as the National Child Protection Authority to understand the implication of such a discriminatory provision under State laws.
WAN also calls on more political and community leaders to take due effort to understand the situation of minority communities and with this knowledge and awareness raise issues pertaining to the violations of rights. While calling for empathy and understanding, we insist that ‘cultural sensitivity’ should not be used as a cover for not raising concerns and asking important questions. When it comes to human rights issues of any citizen, it is the duty of ALL elected representatives to urge Government to promote laws that treat citizens of this country equally irrespective of their class, religion, ethnicity or gender.
*WAN is a collective of 8 women’s organisations that are working in the north and east”