Sri Lanka: Need for further legal reform

Cat's Eye - UNCUT

In 1995 a significant set of reforms to the Sri Lanka penal code was enacted. The process was consultative and women’s groups were included in the discussions that led to the reforms. While the 1995 amendments were, by and large, a welcome modernization of the penal code, nineteen years after these amendments, still other laws remain which undermine women’s equality. The demand for further legal reform is about this ‘unfinished business’. At a time of elections Cat’s Eye particularly wants to highlight some laws (which apply to both men and women, and some to women in particular) that require urgent reform so that the public and political parties can take note.

Judicial Review of Legislation

Article 121 of the Constitution of Sri Lanka recognizes that any citizen has the right to challenge the constitutionality of legislation being considered or discussed in parliament, by a petition in writing addressed to the Supreme Court. Such a petition has to be filed within one week of the bill being placed on the order paper of parliament. This is a ridiculously short period of time to allow any citizen to firstly read and digest bills full of legalese and then draft a coherent petition which can challenge the constitutionality of such bills.

We take the view that the time period allowed under Article 121 is in violation of basic democratic norms that call for citizens’ (both women’s and men’s) engagement and participation in the law making process. Many laws and amendments to laws which go against human rights and women’s rights in this country are often surreptitiously passed without many citizens knowing about them due to the extremely short period of time available to discuss and challenge these laws. A more reasonable time period for citizen challenges to law would be one month from the bill being placed on the order paper of parliament.

Access to Land and Property

An issue which also needs to be addressed urgently, and instead continues to be swept under the carpet is the recognition of women’s right to ownership of government owned land that is given for agricultural purposes. The 1935 Land Development Ordinance (LDO) which is still in force today is based on a principle of primogeniture or, preference for the eldest male among the heirs. Even as far back as 1958, the Land Commission recognized this anomaly of giving preference to male heirs in contradiction of the General Law of inheritance where there is no discrimination between male and female heirs. However, despite empirical evidence on this discriminatory practice, and repeated attempts to reform this law, (even when noted in the Concluding Observations of the 2002 CEDAW committee), the LDO continues to provide a basis for discrimination against women’s right to ownership of government land.

Needless to say, the preference given to male heirs in the LDO stems from archaic notions that only males are heads of households. It is only if the adult male is dead that the adult woman is officially recognized as the head of her household. Despite very clear shifts in household responsibilities, whether it be financial, material or emotional from men to women over the last three decades, most policies and programmes for example, in relation to eligibility to government subsidies (samurdhi) or housing (land settlement schemes), overlook women as heads of households.

The notion of the head of household as being male has to be routinely challenged. In any case, the Department of Census and Statistics data indicates that almost 24% of households are in fact female headed. In the absence of a comprehensive island-wide census since 1981, the planned Census in 2010 is likely to show that these statistics will be even higher. Perhaps, at that time, the decision-makers and holders of political and social power will be compelled to get rid of prevailing prejudices and come to terms with the reality that women are in fact bearing a far higher and tougher burden both within the home and in the wider economy.

Quota for Women in Elected Political Bodies

Given the abysmally low representation of women in elected political bodies particularly at local government level, we demand that proposed amendments to the system of elections at Local Government level should include a 30% quota for women.

We reiterate that current resistance regarding quotas for women by some politicians, and sections of the media and public is based on a lack of understanding of structural discrimination against women within political parties. There is a need to redress discrimination through affirmative action. For many years women’s groups have highlighted the fact that in South Asia, Sri Lanka has the lowest number of women in local and national government. India has introduced 33.33% quota of women at local panchayat level in a constitutional amendment in 1992. In successive Women’s Manifestos published by women’s groups, the demand is for a minimum 30% quota of women in Provincial Councils and at local government level – i.e. Pradeshiya Sabhas, Municipal and Urban Councils. Political parties should also nominate a minimum of 30% women candidates at all levels in political structures.

Archaic Laws

It is really amazing that sixty years after independence the country has several ridiculous archaic laws, some of them concerning women. To give one example, the subsidiary legislation to the Excise Ordinance states ‘No liquor shall be sold or given to a woman within the premises of a tavern.’ The question of what constitutes a tavern has been left unanswered. This law was drafted in colonial times, ostensibly to ‘protect’ women getting involved in drunken brawling. In today’s context, if a case of absurd refusal to allow women to buy liquor in stores is legally challenged, the courts would no doubt interpret it as discrimination not in keeping with the fundamental rights provisions of the constitution. But the question we ask is why do such archaic laws still remain in the statue book?

Another law which dates from colonial times and was enacted in Ceylon in 1883 is in Section 365A of the Penal Code of Sri Lanka which makes criminally liable ‘Any person who, in public or private commits, or is a party to the commission of, or procures of attempts to procure the commission by any person of, any act of gross indecency with another person’. As commentators have pointed out, the act of gross indecency has not been spelt out, but in implementation serves to frame charges against gay, lesbian and transsexual people. Until 1995 this law applied to men alone. But when the penal code was reformed in 1995, ostensibly under the guise of making the law less discriminatory towards men, instead of abrogating it altogether, women were added to the list of those who would be criminally liable under the provision!

For those who believe that homosexuality is a Western way of life and that it has been decriminalized only in Western liberal democracies, (The English law itself was amended in 1967 under the Sexual Offences Act to decriminalize homosexuality), the recent fundamental rights petition against Section 377 of the Indian Penal Code is instructive. Given the common colonial heritage, Sections 377 of the IPC which also criminalizes ‘unnatural offences’ is similar to the law in Sri Lanka although it was enacted earlier in the 1860s.

The petition against Section 377 argued on the basis of a person’s right to privacy and dignity guaranteed by the Indian constitution and highlighted the fact that criminalizing homosexuality only serves to drive it underground, reinforce social stigma, and make it more difficult to access homosexuals for purposes of sexual health.

In a landmark judgment, the Indian High Court held that inclusiveness is one of the cherished principles of the Indian constitution. It stated ‘it cannot be forgotten that discrimination is antithesis of equality and that is it the recognition of equality which will foster the dignity of every individual.’ It allowed the law to continue in the case of those under 18 years of age but upheld the petition against it for those over this age limit. This landmark judgment has now been referred to the Indian Supreme Court so that it can be enacted nationally. The Sri Lankan law should be similarly amended to show that discrimination against any minority, including sexual minorities, should not be any part of its new dispensation

Reproductive Health

Termination of pregnancy is illegal in Sri Lanka under the Penal Code of 1883. Section 303 of the Penal Code provides that anyone voluntarily causing a pregnant woman to miscarry is subject to up to three years’ imprisonment and/or payment of a fine, unless the miscarriage was caused in good faith in order to save the life of the mother. Women have argued that abortion constitutes choice and an exercise of their right to have control over their own bodies. This maybe so especially in cases of pregnancies arising from rape and incest as well as when it is a risk to the physical and / or mental health of women. Abortion is not an uncommon event and is a form of birth control practiced even by many married couples. In India, abortion has been legal since 1971.

In Sri Lanka it was estimated in 2007 that about 1000 illegal and often unhygienic abortions take place every day. Given the risks involved and the soaring demand for abortion, it is time that Sri Lankan legislators not only strengthen education on family planning and safe sex but also consider the issue of abortion in a pragmatic manner.

So wake up law-makers! There is much unfinished business to attend to!