The Infringement Of International Law, Political Climate And Its Impact On Muslim Women

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The Infringement Of International Law, Political Climate And Its Impact On Muslim Women

It could be argued that although there have been a few isolated cases, there is a growing issue of early marriage due to ill informed decisions. Child marriage cases that have come before grassroot organisations and the Quazi courts demonstrate that early marriages between the age of 14 and 17 are arranged by guardians in districts such as Puttalam and Batticaloa.34 Furthermore, in 2015 statistics showed that 22% of Muslim marriage registration in Kattankudy involved a bride below the age of 18.35 This was a substantial increase from 2014 where the statistic was 14%.36 Child marriages also occur in Mattakkuliya, Maradana and in the nations capital Colombo. Through focus groups, a study has revealed that it is due to the outlook of society who believes that the value of the girl decreases after they turn 17 years of age. As a result, this has significantly affected the autonomy and independence of many young Muslim girls and women.

An early marriage is highly complex as it does not allow a girl to enjoy their childhood fully, a right to pursue their education at tertiary level, bodily maturity and the ability and capacity to consent to marriage and sexual intercourse freely. Young women and girls who are given in marriage at a young age are more likely to discontinue their education to pursue the role of housewife,37 subsequently drastically limiting their educational and economic opportunities. Moreover, this also places young girls and women financially dependent on their husbands or in a financial difficulty if the circumstances of death of husbands, polygamy, divorce or abandonment arises.38 Furthermore, statistics from a 2011 report illustrates that Muslim girls are at a higher risk of teenage pregnancy.39 They are also vulnerable to gender-based violence, including domestic violence and marital rape.40 These issues clearly demonstrates the importance of removing the legal provisions in the MMDA to protect young Musim girls and women.

Child marriages can occur for several reasons such as socio-economic and cultural aspects but the key reason in Sri Lanka is that it could be because it is legal. The MMDA promotes and legalises child marriage, whereas the rest of the State it has not. The leaders in Sri Lanka have not been proactive in eliminating the practice out of the best interests of children under Islamic law. It appears that the current context is that Muslim politicians believe that MMDA reforms should be decided and mandated within the Muslim commnity. Although it is unlikely that there would be a consensus on raising the minimum age of marriage to 18 years and deciding that the State should set the minimum age of marriage for all citizens, it is important that the State recognises and protects the rights of all citizens.

Under international law, Sri Lanka is a party to the Convention on Rights of the Child (CRC) and Convention for Elimination of All forms of Discrimination Against Women (CEDAW) are international human rights instruments that Sri Lanka is a party to. Therefore, the government has an obligation to adhere to global benchmarks on child and womens rights. The CRC acknowledges that an individual under the age of 18 is a child, this is expressly stated in Article 2 that no child can be treated unfairly on any basis including religion, ethnicity or gender. In addition, Article 19 of the CRC states that children need to be protected from all forms of violence, including physically and mentally. It is clear that CEDAW considers child marriage a harmful practice in which the State needs to seriously needs to reduce and eliminate the issue. Therefore Sri Lanka must ensure that the minimum age of marriage is 18 years for every citizen regardless of religion or ethnicity to protect the next generation and ensure every girl and woman is empowered to be independent and exercise their own autonomy.

The second issue of child marriage under the MMDA is that it does not promote equal autonomy and decision making for the bride. The MMDA does not require bridal consent as a prerequisite for a marriage to be contracted as under the Act the wali of the bride has the right to consent.41 Whereas in circumstances where there is no wali, the Quazi would be required to make an authorisation order of marriage.42Although the GMRO has express provisions for the women to consent and sign official marriages, that is not the case for a Muslim marriage in Sri Lanka where there is no provision for the brides signature or thumbprint.43 This demonstrates that the nikah c eremony and registration process only requires the signature and declaration of the wali of the bride. These provisions clearly demonstrate that the Sahfii madhab44 on which the MMDA is framed on, must have the permission of her wali to marry. Whereas under the Hanafi madhab, women can marry without the approval of her wali if she marries a person that is legally suitable.45 Regardless, under the MMDA it does not allow the Muslim bride have her own independent decision-making as she would require the consent of the wali.

This concept restricts an individuals autonomy and equal standing in familial matters. The provisions of the MMDA have entrenched the patriarchal notion that a woman’s decision-making should be controlled by a male family member. This notion must change and change will only occur if the law reflects the social changes that have evolved in Sri Lanka. Therefore, the signature and/or thumbprint of all documentation should be by the groom and bride as this would promote equal autonomy and decision-making. It could be argued that human rights specified by United Nations Conventions are rights that all Sri Lankan citizens are entitled to. However, the current social dynamics and conflict between ethnicities would be the barrier for change.

It could be argued that currently Sri Lanka lacks strong leadership and this would be one of the many barriers to a successful reform. The Sri Lankan government have made very little attempt to address the issues related to the MMDA and have demonstrated no concerns of the infringement of womens rights and the impact the MMDA has on Muslim women and girls.46 The fact that government representatives have placed the responsibility on Muslim leaders and the community to resolve the issue, highlights the State does not prioritise womens rights, child rights, human rights or violations against women.47 The discriminatory features that are embodied in the MMDA highlight how cultural and religious beliefs are deeply ingrained in legislation. In a country where there are pluralistic religious and ethnic belief, which requires sensitivity in such an environment, the MMDA has not been successful in addressing the issues that young Muslim girls and women are experiencing.48 In addition, Sri Lanka has ignored the pressure to take action from an international level49 which could be further argued how the right wing of Buddhism ideology may be playing its role.

With the upcoming federal election in Sri Lanka and the issues that have occured in the post-war context of Sri Lanka, it is vital that the new President includes Muslim womens rights in their action plan. Amnesty International has stated that for Sri Lanka to uphold its transitional justice after decades-long civil conflict, the importance that human rights be at the heart of the next presidency is significant.50 Amnesty International has called upon that repealing repressive laws and protecting human rights rights must be addressed. This also highlights that by addressing these issues, it would also achieve womens equality, protection, social cohesion and achieve a multi-faith and multi-ethnicity society.

In conclusion, girls and womens rights must be at the forefront of Sri Lankan leaders to eradicate child marriage and promote female autonomy, equality and independence. Currently, there is a strong right wing ideology of Sinhalese Buddhists in which small organisations and groups are dominating the social arena with hate and false information. Sri Lanka has endured decades of internal conflict and now it is more important than ever that the leaders of Sri Lanka respond to the needs of the people. Sri Lankan Muslim girls and women have advocated for change and want their rights to be acknowledged and upheld. With the current political situation in Sri Lanka, change may not occur but it is vital to bring the community together and uphold social cohesion.

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