In January 2017, MPLRAG submitted a shadow report on ‘Muslim women’s issues in Sri Lanka’ to the CEDAW Committee for Sri Lanka’s country review during the 66th CEDAW Session.
The shadow report covered issues pertaining to discrimination faced by Muslim women and girls under the Muslim Marriage and Divorce Act (MMDA), including: lack of minimum age of marriage; lack of autonomy for Muslim women to enter into marriage; unequal provisions for divorce; polygamy, ill treatment faced by Muslim women in the Quazi court system; Quazi interventions on GBV cases and other laws discriminating against Muslim women.
MPLRAG also attended the CEDAW review of Sri Lankan during the 66th CEDAW Session held in Palais des Nations, Geneva, Switzerland. We submitted a collective oral statement to the CEDAW Committee, together with other women’s rights activists from Sri Lanka. Read oral statement here.
Media coverage on the CEDAW Session and lobby efforts below:
- At CEDAW, Lankan women activists call for equality and end to discrimination
- CEDAW asks Sri Lanka to amend personal laws
1. Constructive Dialogue
During the Constructive Dialogue with the Sri Lankan delegation, the CEDAW Committee questioned the government about discrimination provisions in the MMDA. Snippets from the summary of proceedings below:
- CEDAW Committee said that the Muslim Personal Law, which exclusively and compulsorily applied to 10 per cent of the population, contained many problematic discriminatory provisions. It provided for different grounds for divorce for men and women, did not set a minimum age for marriage, permitted polygamy for men, and excluded women from Quazi courts.
- The Committee was encouraged by the news that the committee established in 2009 to consider the matter had finally submitted its report in 2016, but past experience showed that the Government tended to frame the Muslim Marriage and Divorce Act as a cultural issue to be resolved internally by the Muslim community, rather than as a human and women’s rights issue for which the State was responsible.
- Since the delay in the committee’s submission of its report had been caused by conservatives wishing to maintain the status quo, the Committee asked what assurances could be given that the impasse would not continue. The Committee wondered why more women had not been included in the process and whether the State party would consider following the example of other countries that had managed to reconcile Islamic law with women’s rights.
- The Committee asked whether the Sri Lankan Government was considering an amendment to the Marriage Registration Ordinance to ensure that Muslims could opt out of the Muslim Personal Law and be registered under the general law.
2. Concluding Observations (COBs)
The CEDAW Committee gave very strong COBs and recommendation to the Sri Lankan government including on reform of the MMDA. These included ‘Follow-up issues’ or priority recommendations that the government needs to show progress in 2-4 years:
13. The Committee reiterates its previous recommendations (A/57/38, para. 275) and 2011 (CEDAW/C/LKA/CO/7, para. 17) and further recommends that the State party accelerate its law reform process, with the full participation of women, and ensure, within a specific time frame, to review and repeal all discriminatory laws that violate fundamental rights, in particular the following:
- (b) Amend all Personal Laws, including the Muslim, Kandyan and Tesawalamai Personal Laws, 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. (Follow-up issue)
45. Recalling its general recommendations No. 21 (1994) on equality in marriage and family relations and No. 29 (2013) on article 16 (Economic consequences of marriage, family relations and their dissolution), and joint general recommendation No. 31 of the Committee/general comment No. 18 of the Committee on the Rights of the Child (2014) on harmful practices, the Committee reiterates its previous recommendations (CEDAW/C/LKA/CO/7, para. 45) and further recommends that the State party:
- (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.
Report by Sri Lankan government
In October 2009, the government of Sri Lanka sent the CEDAW Committee a report on progress with regard to the priority follow-up issues. Link here.
MPLRAG feels the report inadequately covers the actual reality of the stalled MMDA reform process, while simply listing recommendations put forward by the Ministry of Women’s Affairs to the Attorney General’s Department.
Response by CEDAW Committee
In March 2020, the CEDAW Committee issues a Follow-up assessment of Sri Lanka in which they considered the information provided reform of discriminatory family laws as “partially satisfactory”. The Committee recommended the Sri Lankan government to take the following action prior to the next periodic review.
- Expedite the amendment of all Personal Laws, including the Muslim, Kandyan and Tesawalamai Personal Laws, 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 next CEDAW periodic review of Sri Lanka is due in 2021/2022.
- Sri Lanka State party report as well as NGO shadow reports can be found at this link.
(B) CRC – Child Rights Convention
In December 2017, MPLRAG submitted an alternative report to the CRC Committee for the country review of Sri Lanka during the 77th Session.
The report covered the issue of child marriage including: the lack of minimum age of marriage for Muslims in Sri Lanka under the MMDA; the exception for statutory rape provision under the penal code for married Muslim children, and; Article 16(1) in the Sri Lankan constitution which exempts personal laws such as the MMDA and by extension denies protection of fundamental rights of Muslim women and girls.
In it’s Concluding Observations to the Sri Lankan government, the CRC Committee recommended the following relevant COB’s:
B. Definition of the child (art. 1)
14. The Committee recommends that the State party make the necessary legal amendments to establish an overarching definition of a child and eliminate the inconsistencies regarding the age of majority, ensuring that it is raised to 18 years in every piece of legislation, without any possibility for exceptions. 15. Noting that under the Muslim Marriage and Divorce Act, a girl, even below the 12 years of age, may be married with the permission of a Quazi, the Committee urges the State party to expeditiously increase the minimum age of marriage for all to 18 years of age without exceptions, including by amending article 16 of the Constitution in this regard.
C. General principles (arts. 2, 3, 6 and 12) Non-discrimination
- (d) Ensure that girls, to whom the Muslim Law is applicable, are provided with the rights on equal terms with boys, including the right to inheritance;
E. Violence against children (arts. 19, 24 (3), 28 (2), 34, 37 (a) and 39)
Sexual exploitation and abuse
- (b) Take prompt measures to revise article 363 of the Penal Code to criminalize statutory rape of boys, and take large-scale awareness raising measures to encourage the reporting of rape of boys, to eliminate stigma associated with it, and to ensure accessible, confidential, child-friendly and effective reporting channels for such violations;
- (b) Remove from article 363 (e) of the Penal Code, on statutory rape, exceptions related to marital status for girls under the age of 16 ;
Notably on FGM: C. General principles (arts. 2, 3, 6 and 12)
- 26. The Committee recommends that the State party: (a) Ban, as currently under discussion, the practice of khatna (“circumcision”) on girls, a form of genital mutilation practiced by the Dawoodi Bohra community and carry out awareness-raising activities, including campaigns on the patriarchal nature of this practice and its negative effects on health.
- Sri Lanka State party report as well as NGO shadow reports can be found at this link.