By Arundathie AbeysingheLecturer

International Aviation AcademySriLankan Airlines

What is an International Convention? International Convention is an agreement

under International Law entered into by states“An international convention can be compared

to agreements where willing parties assume obligations among themselves”

(Article 2 of the Vienna Convention on the Law of Treaties)

A convention is an official document which expresses an agreement in words

What is CEDAW?• CEDAW - an acronym for the Convention

on the Elimination of All Forms of Discrimination against Women• It is the first international treaty that

addresses discrimination against women comprehensively in all areas• It is also referred to as the international bill

of rights for women• It was adopted by the UN General Assembly

in 1979 and came into force on 3 September 1981

• CEDAW calls on states to respect, protect, and fulfill women’s human rights and requires states to expressly consent to take on obligations to implement the treaty through the act of ratification• The ratifying state is referred to as a state party to the Convention

What hinders the implementation of CEDAW?

• Socio-economic, cultural and religious factors• Sri Lanka is an Asian country as well as a

multi religious and multi racial country• Sri Lanka is also a patriarchal society• Thus, implementation of international

conventions is limited due to cultural, social and religious attitudes

•These attitudes cannot be changed easily• Sri Lanka has values peculiar to the Asian region• These factors conflict with conventional provisions

Constitutional provisions• Article 12 (1) of the 1978 Constitution of

the Democratic Socialist Republic of Sri Lanka provides that “All persons are equal before the law and are entitled to the equal protection of the law.”

• Article 12 (2) of the Constitution provides that "No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds.”

Provisions in CEDAW • Article 1: Defines discrimination

against women 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 marital status, on the basis of equality between men and women, of human rights or fundamental freedoms in the political, economic, social, cultural, civil or any other field.”

CEDAW specifically explains ‘discrimination against women’ and women’s inequality is present in all spheres; political, legal and social aspects of life and are entrenched in religion, culture and tradition

Article 2: Mandates that States Parties condemn discrimination in all its forms and ensure a legal framework including all laws, policies and practices that provides protection against discrimination and embodies the principle of equality

Article 3: Requires States Parties to take action in all fields: civil, political, economic, social, and cultural to guarantee women’s human rights

Law in the field is different from the law in the books

•CEDAW is unable to have them amended to fit international obligations•Why….? • There are deep rooted cultural practices that have been incorporated into statutory provisions

• Customary laws such as Thesawalamai Law and Muslim Law are such examples• There have been no significant agitations from women subject to Thesawalamai Law as they have accepted such discriminatory rules for generations and they do treat them with respect considering them to be the culture they have inherited from birth

• According to Thesawalamai Law, a married woman has no capacity to transfer her dowry property without the consent of her husband even when the spouses are living in separation• Rasammah V. Karthigesu, “Mr.

Chelvanayagam contends that under that law a married woman had no capacity to transfer her dowry property without the consent of her husband even though they were living in separation”

• In support of this, he relies on the following statement of the law in Part IV, Clause I of the Thesawalamai(Cap.51)  • “When husband and wife live

separately on account of some difference, it is generally seen that the children take the part of the mother and remain with her• In such a case, the husband is not at

liberty to give any part whatsoever of the wife’s dowry away, but if they live peaceably, he may give some part of the wife’s dowry away

• If the husband on his side wishes to give away any part of his hereditary property which he has brought in marriage, he may then give away one tenth of it without the consent of the wife and children, and no more, but the wife, being subject to the will of the husband, may not give anything away without the consent of her husband, as she is subject to the will of her husband”

• The laws governing marriage, divorce and maintenance for Muslim women pre-date the current Sri Lankan Constitution• The present laws violate CEDAW principles• Muslim women have unequal rights in

marriage and divorce• Polygamy is recognized in the Muslim

Personal Law• Muslim women have unequal rights in

marriage and divorce under Muslim Personal Law

• There is no minimum age of marriage and polygamy is legal• In theory, a woman’s consent is necessary

for marriage• But, in practice, she can be married off

without her consent• Husband can divorce his wife without

giving a reason or compensation• To divorce the husband, the wife has to

prove fault• Muslim women cannot be appointed as

family court judges or registrars of marriages

• The current Muslim Personal Law has several discriminatory provisions which need to be reformed if women are to enjoy full equality as guaranteed by the Constitution of Sri Lanka• There is no minimum age of marriage for Muslim girls

• Many areas of Muslim family law in Sri Lanka are governed by the Muslim Marriage and Divorce Act No. 13 of 1951 (the Act) • While the Act recognizes that consent of both parties is essential for a valid marriage, there is no space in the marriage register for the signature of the bride

In the Act, there is no obligation on the Quazi to find out whether the husband is able to treat all his wives equally and justly or even obtain the wife’s (wives’) permission to get married again

Instead, the husband is only required to give notice of his intention to marry a subsequent wife

• Under the present provisions of the Act, a husband who wishes to divorce his wife need not give any reasons for doing so• A Muslim woman is only entitled to

maintenance for the period of iddah• The Qur’anic verses on maintenance,

however, make it clear that a Muslim woman on divorce is entitled to that which is equitable or responsible

 

•Only male Muslims can hold the offices of Quazis and marriage registrars and therefore they have amended laws according to their favor• There have been many attempts for legislative reform of Muslim Law

• Yet, they have been unsuccessful due to a growing Muslim lobby which has preferred to see reform as an interference with the religious identity of the Muslim community and there have been attempts to attribute such reforms as contradictory to the “will of God” • If a legal principle is based on a

religious concept or a deep rooted religious belief, the legislators would not attempt to enact amending laws unless the request comes from the religious sector itself

• Muslim Law in Sri Lanka has been reformed on the initiative of male elites of the community in 1929 and 1956 in an attempt to bring the law more in line with the ‘true spirit of Islam’• Recent attempts by Muslim women to reform these laws to give justice and equality to women have however met with little success

• There are provisions in CEDAW to end discrimination against women• How can we transform these principles

from mere declarations in to living law?• Are there enforcement mechanisms and

procedures? Are women aware of their rights, if not, what measures can we take to make them aware?

• We have to take affirmative action to end discrimination taking place on the pretext of social, cultural and religious practices

• For generations, women’s rights have been suppressed and they have been considered as inferior to men

• In terms of human rights, we have to ensure equality and take measures to maximize the individual and collective participation of women in all spheres of life while maximizing their individual and collective potentialities

•  Thus, they can contribute to the community enormously which in turn will help a country develop economically• According to Justice C.G. Weeramantry “Legislation is not merely declaratory of the rights of women but it should provide access to courts, tribunals, committees and other forms of relief

• It should grant redress, impose penalties, make investigations and inquiries, make recommendations, establish institutions for promoting the advancement of these norms, educate the public, inaugurate reporting procedures, so the various violations can be reported back to the central authority• There should be a method of enforcement”

• In Sri Lanka, steps have been taken towards this end• But it is most important that wherever possible we do not merely rest content with formulating these principles into the statute books• We have to translate this in to something meaningful which makes a real impact upon the lives of women as they live in their daily lives

• There are those psychological and attitudinal problems and traditions coming down from generations that treat women as subordinate members even in the marriage relationship, prejudice against women holding high positions; there is an interlocking web of oppression caused by law (Thesawalamai and Muslim Law), tradition, history, custom, social practice and ideology

What can we do to eliminate discrimination against women? According to the General recommendations made by the Committee on the Elimination of Discrimination against Women following measures should be taken by States parties to eliminate discrimination against women:

“ Establish and/or strengthen effective national machinery, institutions and procedures, at a high level of Government, and with adequate resources, commitment and authority to advise on the impact on women of all government policies

Monitor the situation of women comprehensively

Help formulate new policies and effectively carry out strategies and measures to eliminate discrimination

Undertaking programs including conferences and seminars to publicize the Convention on the Elimination of All Forms of Discrimination against Women in the main languages of and providing information on the Convention in their respective countries

Inviting national women's organizations to cooperate in the publicity campaigns regarding the Convention and its implementation and encouraging non-governmental organizations at the national, regional and international levels to publicize the Convention and its implementation

There are cultural, religious, attitudinal, political and economic constraints to women achieving their full potential

These are the challenges Sri Lanka faces in implementing international conventions

Thank you!