A force up to the task?

Friday, 19 November 2021 00:00 -     - {{hitsCtrl.values.hits}}


By Austin I. Pullé

The flaws in the mandate and the manifest incompetence of many of the TF members should not hide the fact that an equality project is long overdue – Pic by Shehan Gunasekara


Critics decry the establishment of the ‘One Country, One Law’ Task Force (TF) headed by a rabid Islamophobe, as yet another Muslim-bashing exercise. They also question the credentials of the members of the TF. 

Apart from the qualifications of the members of the TF, the choice of the TF title itself shows the confused thinking of the convenors. The UK is one country but it has two laws. The civil law applies in Scotland and the English common law applies in the rest of the UK. Federations like the US recognise that there could be different laws for different states and the state of Louisiana applies civil law. Even in Sri Lanka, provincial council governments have a limited power to enact province specific laws.

What is unacceptable is not that one country has more than one law but that such country recognises and enforces laws which treat people differently because of illegitimate differences of ethnicity and gender which are accidents of birth. 

As the American Supreme Court pointed out in Brown v Board of Education, the concept of “separate but equal” is a toxic oxymoron and can never legitimise disparate treatment of persons based on race, religion, or ethnicity. A more worthy title for the TF, derived from Article 12 (1 and 2) of the Constitution would have been ‘Citizenship Equality’ but that title would imply an acceptance of human rights values beyond the tolerance levels of those sectors of Sri Lankan society which marinate in ethnic and religious hate. 

The flaws in the mandate and the manifest incompetence of many of the TF members should not hide the fact that an equality project is long overdue. Sir Henry Sumner Maine in his seminal book, ‘Ancient Law,’ correctly observed that the history of modern society has been a journey from status to contract. If personal laws confer disparate rights and impose disparate obligations of persons by virtue of their status, then such laws have no place in a modern 21st century society. 

The origins of many personal laws, in Sri Lanka and elsewhere, can be traced to patriarchal societies where males made the law and dominated subservient females. “Honour killings” are a manifestation of a mindset that regards women as property. After all, has anyone heard of any male being subject to “honour killing”? In order to function as a modern society, Sri Lanka must eliminate those laws that impose disabilities on its citizens on the basis of status, such as gender or ethnic classification. 

The Sri Lankan State continues to violate its international law obligations that it freely accepted in the Convention on the Elimination of Discrimination Against Women (CEDEW). It enforces the Muslim Marriage and Divorce Act (MMDA), which, as an unconstitutional law, has been void ab initio. But for Article 16(1) of the Constitution which grandfathers Kandyan Law and Thesawalami, these personal laws would violate the equality guarantee contained in Article 12(1) of the Constitution. Finally, because of the subordinate status of women in a patriarchal system of laws which developed when males were the breadwinners, the economic precarity of females subject to such laws continues because their access to credit and security is hindered if not made practically impossible. 

The good news is that both Article 12 (1 and 2) of the Constitution and CEDAW provide useful criteria for any review committee composed of capable persons to achieve desirable outcomes in a citizenship equality project. Article 12(4) of the Constitution arguably makes such a project mandatory.

Sri Lanka, by ratifying the CEDAW in 1981, became a party to this convention and thereafter was bound to implement the provisions of this treaty. However, by maintaining the MMDA and the other personal laws, it has been in continuous violation of the core provisions of CEDAW. Article 1 of CEDAW defines “discrimination” as “any distinction, exclusion, or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of having rights and fundamental freedoms in the political, economic, social cultural, civil or any other field.” 

Many provisions in the personal laws will indubitably fit into this description of discrimination. Article 2(f) of CEDAW requires state parties to “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.” Article 27 of the Vienna Convention on the Law of Treaties makes it clear that a state cannot invoke domestic law as an excuse for not performing its treaty obligations. 

Public funds have been wasted in studying reforms to the MMDA. As the MMDA is an unconstitutional law, there is no use in studying reforms to a non-existent law. When the MMDA was enacted in 1953, in order to constitute a valid law, it had to comply with Section 29 (2) of the constitution in force. This it could not do. The Soulbury Constitution, which in pertinent part read:

“(2) No such law shall-

(a) prohibit or restrict the free exercise of religion; or

(b) make persons of any community or religion liable to disabilities or restrictions to which persons or other communities or religions are not made liable; or

(c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions;” 

The MMDA contains many provisions that would not have survived scrutiny if tested against the criteria for a valid law set forth in Section 29(2). Three instances of the many provisions that fall afoul of Section 29(2) should suffice. 

Muslim men could engage in polygamous marriages. A non-Muslim who contracts a polygamous marriage commits the offence of bigamy. Surprisingly, in Sri Lankan society there were/are intrepid souls, undaunted by the prospect of multiple mothers-in-law, who wish to contract a polygamous marriage. The Privy Council in the Reid case held that a non-Muslim man could convert, engage in a polygamous marriage, and not be convicted of bigamy. A subsequent ruling by the Supreme Court in the Abeysundere case, in a poorly reasoned decision, reversed this holding, and illegitimately reduced the sweep of Article 10(b) of the Constitution. By conferring privileges of engaging in polygamy exclusively to Muslim men, the MMDA violated Section 29(2)(c). It would not be a stretch to argue that any legislation permitting polygamy should also have permitted polyandry, a practice that was followed in some parts of the Kandyan kingdom. 

Section 23 envisages the abominable prospect of a female under the age of twelve being given in marriage. Outside the MMDA, consummation of such a marriage would be considered statutory rape and paedophilia. Subjecting helpless pre-pubescent Muslim females to such marriages when they had not reached the age of consent is indubitably a cruel disability imposed in violation of Section 29(2)(b). 

When the MMDA was enacted, the grounds for divorce for non-Muslim couples were adultery and malicious desertion. A divorcing spouse had to go through the expense of filing a court proceeding, and if adultery was the ground of divorce which was contested, name and shame the “co-respondent”. A Muslim man, on the other hand, could recite the Talak incantation while sitting on his armchair having his cup of tea and terminate his marriage. Unlike non-Muslims, Muslim men were privileged to effect a no-fault divorce. 

A court appraising the validity of the MMDA against the criteria of Section 29(2) of the Constitution then in effect would have had no option but to declare the whole act unconstitutional, null and void. The doctrine of severability, whereby courts sever the bad parts of the act, would not have been possible because of close interaction of the various provisions of the MMDA with each other. 

Normally, if a statute is void, all transactions taken pursuant to it would likewise be null and void. However, strict logic of the law is impractical because of the social chaos that would ensue. Perhaps, the courts could hold that the state is estopped from voiding such transactions given its complicity in enforcing the act. This would be a departure from the principle that estoppel cannot be raised against the state. However, all subsequent regulations and amendments to the MMDA must be regarded as ineffective. One cannot graft branches on to a dead tree. 

Females subject to the Thesavalami and the Kandyan Law are also subject to disabilities, especially in the field of credit and security. The due diligence reviews of such women seeking bank loans would require time consuming and expensive investigations which most banks would avoid. If done, they would simply add to the transaction costs. Such burdens on affected women are emblematic of the subordinate status of women in pre-modern societies.

To convert Article 12(1) of the Constitution, hitherto a parchment right, and convert it to an enforceable right where “All persons are equal before the law and are entitled to the equal protection of the law” is a complex but worthy outcome for any task force. Bringing the Sri Lankan State into compliance with its international obligations under CEDAW will require the shredding of many rules enshrined in personal laws. 

Any task force or committee tasked to produce these outcomes would have to consist of the best lawyers, the best academics, and the best think-tank wallahs. That is the reality. Only persons in a dream state induced by ingesting copious amounts of prohibited substances could genuinely believe that the present members of the force would be up to the complex task. 


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