Focus on Rights

Re-visiting our right to choice
It is a paradox of a fairly unenviable kind that, despite our professed superiority in human development in South Asia, Sri Lanka's laws and general socio-cultural inhibitions lag, in many instances, far behind some of our neighbours on this subcontinent. No better example is evidenced in this regard than where the reproductive health of Sri Lankan women is in issue.

Recently, specific expressions of concern by the United Nations Human Rights Committee (UNHRC) in its Concluding Observations following consideration of Sri Lanka's fourth and fifth periodic reports in Geneva last year, highlighted this anomaly very well.

These remarks by the UNHRC have gone largely unnoticed due to the immediate furore created by other Observations, particularly its severely critical references regarding the prevalence of torture and the continuing impunity of state officers. Nevertheless, they deserve particular scrutiny, given their immediate importance to women in this country, constituting fifty percent of the population.

Firstly, the UNHRC was concerned that abortion remains a criminal offence under Sri Lankan law except where it is performed to save the life of the mother. It also expressed concern regarding the high number of abortions in unsafe conditions, imperiling the life and health of the women concerned.

This, the UNHRC opined, violated Articles 6 and 7 of the International Covenant on Civil and Political Rights, (respectively the right to life and interestingly, the right to be free from torture or cruel, inhuman or degrading treatment or punishment). The UNHRC also remained perturbed that marital rape was criminalised only in the case of judicial separation and consequently urged the State to criminalise marital rape in all circumstances.

The Sri Lankan government will be put on further inquiry regarding both these concerns when the next state report is considered by the UNHRC in November, 2007. By Article 2 of the Covenant, Sri Lanka is committed "to adopt such legislative or other measures domestically, as may be necessary to give effect to the rights recognised in the Covenant". Translated into ordinary language, this means that if any of the domestic laws violate Convention rights, the Sri Lankan state is bound to repeal and/or amend such laws.

Whether the State adheres to this commitment or not is periodically monitored by the Geneva based UNHRC. In a different context, any individual who is subject to the jurisdiction of the Sri Lankan State can also appeal individually to the UNHRC in respect of any violation of Convention rights.

Laws pertaining to abortion and marital rape are matters of considerable controversy in this country, as one may not take long to recall. In 1995, for example, the government initiated the reform of some pre-colonial provisions of Sri Lanka's Penal Code, based on the old English law which has been modernised quite a while back. Backed by strong lobbying by women’s groups, amendments were passed to the Penal Code in 1995, which re-structured legal provisions dealing with rape and sexual harassment but has had little practical effect since then.

For the purposes of discussion in this column, even though the law was reframed to some extent, the most important of the proposed amendments safeguarding life and liberty rights were defeated at the final stage in parliament by powerful minority religious and cultural lobbies.

The first of these was the original amendment recognising marital rape as a crime punishable by law. Prior to 1995, Section 363 of the Sri Lankan Penal Code specifically provided by an exception that "sexual intercourse by a man with his own wife, the wife not being under twelve years of age, is not rape", in effect the statutory codification of the English common law principle that a woman, by entering into a marriage contract, gives irrevocable consent to sexual intercourse at all times.

With the revising of the old notions of women as chattels, the English law rejected the old common law principle and the exclusive rights of the husband upon marriage. The offence of marital rape came to be explicitly recognized by the English courts.

The 1995 amendments to the Sri Lankan Penal Code, at the stage of drafting, embodied this principle of marital rape in its entirety. However, due to strong lobbying by pressure groups, the principle was narrowed down so as to outlaw marital rape only between judicially separated spouses, despite the fact that judicial separation was a remedy very rarely resorted to by women in this country. The diluting of this amendment was such as to make it almost void of any practical effect.

Secondly, the proposed amendment liberalising abortion to enable safe abortion in the case of women who are pregnant due to rape and incest and in the case of a foetus being detected with congenital abnormalities, was completely withdrawn on the basis that it offended cultural values. There was minimal recognition of the fact that non-amendment of the law was despite some estimated seven hundred and fifty illegal abortions per day where not only was the law itself violated with impunity but the lives of poorer women who could not afford Colombo's upmarket abortion clinics, were being put at risk. In consequence, Sri Lanka continues to have one of the strictest legal regimes relating to abortion in the world, as opposed to India for example.

From the aborted amendments of 1995, there has been very little progress since then. Statutory law reform bodies such as the Law Commission of Sri Lanka have tried to discuss draft laws relating to the medical termination of pregnancy but with no visible success so far.

Currently, a Women's Rights Bill is before the public for discussion. Though its provisions are unwieldy in some instances, there is no doubt that this clumsiness could be eliminated with careful fine tuning. Though space precludes further discussion of its clauses, the Bill reaffirms the right of women to enjoy equal rights in all areas of private life, including rights within the family and their private lives and the right to control their bodies and rights relating to child birth.

It proposes the setting up of a National Commission on Women which has an array of powers similar to the National Human Rights Commission of Sri Lanka including the power to investigate into any infringement of these rights and summon persons in that regard, take action in terms of conciliation or mediation, recommend that prosecution be instituted or refer the matter to court.

Increasingly thou-gh, one is visited with a weary feeling of deja vu with the patterns of opposition to the Bill exhibiting very similar features to the concerted resistance that manifest itself whenever a gender progressive law is mooted. It is time that we re-visited our right to choice in fundamental issues affecting our sexual and reproductive rights.

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