Article 16(1)

DOWNLOAD SINHALA – FAQs Article16(1)

1.What is Article 16(1) and what does it mean?

Article 16(1) is a clause in the Fundamental Rights chapter of the 1978 Constitution of Sri Lanka. It says that all  written and unwritten law that existed prior to the 1978 Constitution is ‘valid and operative’. This means that these laws are valid even if they are ‘inconsistent’ with fundamental rights granted to all citizens.

The exact wording of the article is as follows:

Article 16: Existing written law and unwritten law to continue in force.

(1) All existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter.

(2) The subjection of any person on the order of a competent court to any form of punishment recognised by any existing written law shall not be a contravention of the provisions of this Chapter

The concern is primarily with regard to Article 16(1).

2. What are the written and unwritten laws that Article 16(1) referring to?

The clause is referring to over 600 laws introduced by statutes before 1978, as well as any unwritten law practiced prior to that year. The more well known of such laws include the Code of Criminal Procedure 1976, Muslims Marriage and Divorce Act (MMDA) 1954, Kandyan Marriage Ordinance 1954, Thesavalamai Pre-Emption 1948, Penal Code Ordinance 1883 (including Section 365) and Vagrants Ordinance 1842.

3. What is the problem with Article 16(1)?  

Article 16(1) of the present Constitution supersedes the guarantees of equality (Article 12(1)) and non discrimination (Article 12(2)). This implies that if any of the 600+ written and unwritten laws infringe or violate a person’s fundamental rights, it cannot be challenged in a court of law.

This means that Sri Lanka continues to have and protect laws that violate people’s right to equality and non-discrimination.

4. Why are some Muslim women’s groups asking for repeal of Article 16(1) in the new Constitution, using the Muslim Marriage and Divorce Act (MMDA) as an example?

There are lots of groups that are adversely affected by Article 16(1) of the present Constitution. One such group that can show evidence of discrimination and link the discrimination to patterns of violence perpetrated against them are Muslim women.

One of the laws that Muslim women refer to is the MMDA. This law  is relevant to approximately 2 million people or 10% of the Sri Lankan population who are Muslims. The MMDA can be shown to be one of the most problematic laws with significant evidence of discrimination against women affecting family matters.

For instance, under the MMDA, a girl less than 18 years of age can be given in marriage without her consent to a partner of her parents or guardians choice. This is a direct violation of child rights, which the Sri Lankan State has foremost responsibility to protect. The State recognizes that with all other children the Court is the upper guardian of the child and that the State will ensure the best interest of the child. However, there is no such protection for Muslim children. It is the existence of Article 16(1) that makes child marriage for Muslims legal and removes the ability of the State to protect Muslim children.

Some examples of serious infringement on gender equality within the MMDA include :

  1. Legally allowing child marriage by not stipulating the minimum age of marriage for Muslims as 18 years (A Quazi can permit even the marriage of a child under the age of 12)
  2. No requirement of mandatory (and written) consent from the bride
  3. Different conditions of divorce for men and women
  4. Only husbands are granted the right to unilateral divorce without reason
  5. Process of divorce for wives lengthy, requiring reasons and evidence, witnesses and case hearings
  6. Arbitrary provision for wife and child maintenance depending on Quazi
  7. Practice of polygamy without requirement of consent from the wife/s or wife to be (and without their knowledge)
  8. Qualified women not allowed to be marriage registrars, Quazis, jurors or Board of Quazi members. The position of Quazi is a state-salaried and tax-funded position that is allowed to discriminate against women simply on the basis of sex, but yet again due to Article 16(1), this State discrimination is ‘legalized’
  9. No mandatory requirement of qualifications or mandatory training for Quazis

Muslim women’s access to justice is severely restricted in Quazi courts. Affected women have 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 clients 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. More often than not the all-male jurors (with no qualifications) are selected by Quazis arbitrarily.

For over 25 years, Muslim women’s groups in Sri Lanka have been trying to get the government’s to take responsibility in addressing  issues facing women with regard to the MMDA and the Quazi court system that is set up under this Act, to no avail.

5. Would repealing Article 16(1) mean that MMDA will also be repealed and disappear overnight?

Absolutely not. The repeal of Article 16 and the fact that the new Constitution will not have an Article 16(1)-like provision has no immediate impact on the continued operation and validity of MMDA or any of the other 600+ laws.

Muslims of Sri Lanka can continue to practice the MMDA and any other personal laws. There will be greater space for  reform which will have to be initiated and taken forward by the community itself. If the MMDA and proposed amendments for reform by the Muslim Personal Law Review Committee 2009 headed by Justice Saleem Marsoof or any other future reforms process guarantees protection of rights of all Muslims, men, women and children, then the operation of MMDA and any other law will be ensured well into the future.

It has been recommended that following the promulgation of the new Constitution, that a law reforms commission is appointed having a two year period to identify and recommend changes to laws that are found to be inconsistent with the new constitution.

After this review period, only if any one individual is adversely affected by the MMDA to the extent that his/her fundamental rights as a citizen is infringed upon, then the individual –as a Sri Lankan citizen – could be able to challenge this discrimination in a Constitutional or Supreme Court if he/she wants to.

6. Would repealing Article 16(1) mean denying cultural and religious rights of Muslims?

Not at all. The current Constitution guarantees the right to practice culture and religion which is guaranteed as the freedom of thought, conscience and religion (Article 10 and 14) and the right to be free from discrimination “on the grounds of race, religion, language, caste, sex, political opinion, place of birth” (Article 12).

Article 16(1), allows for previous laws to supersede the Constitution with adverse consequences, therefore its repeal would merely mean that the Constitution is supreme while continuing to recognize the right of certain ethnic and religious communities to practice their laws to the extent that it doesn’t violate individual rights of citizens. Abolishing Article 16(1) only means all people will be access the full gamut of rights guaranteed by the Constitution. It will not be possible to block certain groups from the Constitution and create second-class citizens.

7. Why is repealing Article 16(1) important for Sri Lankan Muslims?

It is important because Sri Lankan Muslims are also citizens of Sri Lanka and equally deserving of full protection of their rights under the new Constitution regardless of religious belief or ethnicity. The Constitution cannot deny a particular community from enjoying the protection of their rights, simply because of their religious faith. If Article 16(1) remains in its current form, it would ensure that the Sri Lankan government will continue to ignore and disregard any violations of human rights, gender equality and fundamental rights against faced under the MMDA or the Quazi court system by a Muslim citizen.

Special laws for minority groups should be to give the said group enhanced freedoms and protection and not deny some members of a community, rights that are guaranteed by the State to all other citizens.

8. Why is repealing Article 16(1) important for Sri Lanka?

It needs to be ensured that any Constitution of Sri Lanka is the supreme law of the land and that the rights guaranteed are available to all people of Sri Lanka. This is not possible with the presence of Article 16(1), which supersedes the Constitution. Repealing Article 16(1) will ensure that no written or unwritten law prior to 1978 will stand in the way of full realization of fundamental rights of Sri Lankan citizens. If the new Constitution is to be rights-based and progressive, then the only way forward is for Article 16(1) to be repealed and for equality to be ensured regardless of gender, ethnicity or religion.  

Keeping Article 16(1) in its current state means that the Constitutional reform process is futile and unsuccessful, as it does not protect violation of human rights, gender equality and fundamental rights in everyday matters of family, social, cultural and economic life.

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