Sri Lankan women's rights activists ought to have been jubilant following December 1997. Two judgments, each of significant interest to gender rights had been delivered by the Supreme Court and the High Court, transfixing Hulftsdorp out of its usual end of term lethargy
On the face of it, there was considerable reason to rejoice. Columnists and human rights activists had been waxing indignant on issues of bigamy and rape, both of which were dealt with in Abeysundere Vs Abeysundere and the Kamal Addararaachchi case. Critics pointed out however that the judgments bestowed mixed blessings .
This issue of JUSTICE, The Sunday Times monthly page on law and legal matters, critically examines Abeysundere Vs Abeysundere in the context of judicial activism. We also feature a Guest Column on gender developments in the Indian law from Justice J.N. Bhatt, Judge of the High Court of Gujarat, as well as synopses of recent Sri Lankan judgments of note.
Next month's JUSTICE will focus on the Kamal Addararaachchi case
For long, the law had been blamed for a sta tus quo that had penalized the unfortunate victim, be she subject to rape or deserted by her husband for a " marriage by conversion". It had been pointed out ad nauseam that judges are conservative and too obsessed by legal technicalities to care about social realities. They were asked to wake up and take note of progressive developments in the law courts in the rest of the subcontinent
In the month of December 1997, the Supreme Court did exactly that. The Court ruled that a once married non Muslim man cannot convert to Islam and marry a second time without dissolving his previous marriage. In doing so, Reid Vs Reid decided by the Privy Council over thirty three years ago was overruled, the Court saying that the approach of the Privy Council to a pivotal provision of the Marriage Registration Ordinance was "fatally flawed". The judgment was greeted with hurrahs from Muslims and non Muslims alike.
So why the doubts now, expressed pungently in a recent comment made by a social
activist (who preferred to remain unidentified, thank you very much) that Sri Lankan judges were somewhat like relay runners who tarry too long at the starting point and then try to make up for it with a burst of speed that is at the least ill judged, and at the worst, may cost them the race. The point that our cowardly friend was trying to make was that judicial activism is all well and good, but that it should be both well timed and within carefully thought out parameters.
It might be appropriate to examine what exactly could have led to our activist's wrath.
In its "barebones" judgment that revolved round interpretation of the Marriage Registration Ordinance, the Supreme Court concluded that the entire tenor of the Ordinance was to the effect that polygamy was prohibited. This was in view of the fact that several provisions of the Ordinance spoke about marriage being dissolved only by a decree pronounced in a court of law. Quoting Indian law, the Court pronounced that "Marriage is the very foundation of civilized society...it is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilization can exist."
The problem was however the interpretation clause in the Ordinance which stated that the term "marriage" meant all marriages excluding Kandyan and Muslim marriages. In Reid's case, the judicial thinking was that therefore, the Ordinance did not apply to those professing Islam. Its decision was based on the fact that Sri Lanka was a multi ethnic country whose inhabitants have the right to change their religion and personal laws. If this right had to be taken away, it had to be through specific laws. The Supreme Court disagreed, saying that to hold likewise would be to virtually "emasculate" that particular provision of the Ordinance that stipulates monogamy. The interpretation section was held not to apply. The Ordinance did apply to persons of the Islamic faith. If a person chooses to marry under the Ordinance, then his obligations could be dissolved under the Ordinance alone.
At a particularly lively session hosted by the Law and Society Trust (LST) to discuss the Abeysundere judgment last week, the question was whether the Supreme Court had left several crucial issues hanging in the air ? What of parties who have, in the words of that quaint legal phase " ordered their lives" on what Reid had declared to be the law for over thirty years ? In a legal system that forbids retrospective laws so clearly, should not a judgment that amounts to having the same effect been declared with a trifle more sensitivity ? What of children born of the second marriage, now declared void ? Could not specific provision have been made (as indeed it has been done before) to stipulate that the children of the second marriage would not unwittingly be penalized for the sins of their elders ? At the moment, the matter is open to conflicting legal opinions, all of which need not have been necessary if specific provision had been made.
Meanwhile, it was obvious that the Court had carefully avoided the thorny problem of whether Abeysundere's conversion was genuine or not. The Court affirmed the conviction of Abeysundere for bigamy imposed by the Magistrate's Court. The latter had however ruled against Abeysundere stating that his conversion was not genuine going by five factors. These related to the fact that Abeysundere had tried to divorce his first wife, that he had a relationship with another woman at that time, that he had gifted his matrimonial home to this woman, that he had converted to Islam shortly after the dismissal of his action, that the second woman had also converted to Islam and that both of them had registered their marriage very
shortly afterwards. In Reid's case, the genuineness of the conversion was not an issue, and it was on this basis that the Magistrate had ruled that Reid did not apply in the instant case.
On appeal to the High Court, the Magistrate's order had been overruled and it was following this that the parties had gone before the Supreme Court. This entire issue of the genuineness of the conversion which had divided the lower courts was however bypassed by the Supreme Court without nary a murmur, the Court preferring to keep themselves within the bare provisions of the Ordinance.
" It would have made absolutely no difference to the judgment even if Abeysundere's
conversion had been found to be genuine" confirmed President's Counsel Ranjith Abeysundere when questioned on this point by participants at the LST discussion. Mr Abeysuriya was the senior counsel appearing for Ms Abeysundere at the appeal.
It was also obvious that the Supreme Court had been heavily influenced by a recent decision of the Supreme Court of India which had ruled that a Hindu husband married under the Hindu Marriage Act of 1955 cannot convert to Islam and marry a second time.
"This decision was given under the Hindu Marriage Act which had a totally different policy base to our Marriage Registration Ordinance. The question is whether this decision could have be imported wholesale into our law. I have some difficulty about this" confessed Professor Lakshman Marasinghe. Attached to the University of Windsor, Canada, Professor Marasinghe is a visiting lecturer at the Faculty of Law, University of Colombo.
Human rights activist Sunila Abeysekera pointed to what particularly disturbed her
" We call ourselves a multi cultural and multi ethnic society. Yet our courts give opinions that elevate one principle of law ( in this case, the General law) over another( in this case, the Muslim personal laws) We cannot have it both ways." she warned
All this is of course in the context of a debate whether a judgment given under secular law can in fact alter or affect personal laws in the manner that Abeysundere has done.
It could even be argued that by superimposing those provisions of the Ordinance over the personal laws, a person's right to freedom of thought conscience and religion is affected and particularly that constitutional provision which states that " every citizen is entitled to the freedom...to manifest his religion or belief in worship, observance, practice and teaching."
Whatever may be the arguments for and against these views, they were all matters raised by counsel during the hearing of the appeal. At the very least, the judgment ought to have considered the merit of these arguments. Indeed, what is somewhat disturbing is the very matter of fact manner in which the judgment has been delivered. Coming as it did, from the highest court of the land, one might have expected a more substantive discussion of the issues involved. Was it proper that what essentially amounted to a conflict between two systems of law have been decided on such a literal reading of the Marriage Registration Ordinance ? Should not the court have shown that it appreciated the nature of the controversy and was conscious of the significance of its decision ? Should it not have applied recognised maxims of interpretation in reconciling the interpretation section with the other sections in the
After all the sound and fury of these questions dies down, the ultimate question would be whether Parliament might now have to step in and clarify the law by legislation. Apparently, there have been some calls made to this effect. This is of course long overdue. It was precisely because the Muslim personal laws were being abused by non Muslims, and no effort was being taken by policy makers to correct the situation, that the judiciary had to step in, irrespective of the argument that they could have stepped in with a greater delicacy
Meanwhile, it is obvious that some serious thinking will have to be done about reviewing our absurdly unrealistic laws that stipulate fault as a basis for divorce in every case. A rehauling of laws relating to maintenance is also necessary to ensure that easier laws of divorce do not benefit errant spouses eager to renege on their marital obligations.
Ultimately, it is axiomatic that whatever legislative changes are contemplated, a great deal of care will have to be shown in achieving a compromise that respects the fundamental right of every person to change his or her religion and enter into valid arrangements in line with those personal laws, while prohibiting abuse of this same right will have be achieved.
Abeywickreme Vs Chief Inspector Police Station Mara-dana & Others
SC ( Special ) No 93/96
Before G.P.S. de Silva C.J Anandacoomarasamy J., Shirani A. Bandaranayake
J. Decided on 13.11.1997.
Fundamental rights/ Article 11 - what constitutes degrading treatment?
Article 13 (1) freedom from arbitary arrest
Judgment of Shirani A. Bandaranayake J.
In this case, the petitioner who is a three wheeler driver had alleged that his fundamental right of freedom from torture or to cruel, inhuman or degrading treatment or punishment and freedom from arbitary arrest respectively under Articles 11, 13(1) had been infringed.
The petitioner stated that on the night of 7th July 1996 he had taken a passenger on hire and dropped him off at a lodging house. The passenger had gone inside to bring the money for the hire, and because he was getting late, the petitioner had gone in search of him.He had then seen the passenger involved in an argument with some other person.At the same time, some police officers had come there and asked the passenger to come to the police station.The passenger had elected to go with the petitioner.
At the police station, the petitioner had elected to stay outside.However, he had then been called inside by a police officer, and assaulted. Subsquently, he was produced before the JMO, and then brought back and locked up. He was released only the next day on police bail.
The police state that they proceeded to a lodging house, namely Elite Hotel Maradana on a complaint recieved by one of its employees that he was being assaulted by one Saman who had accused him of theft.Upon going there, they had arrested one Saman and the petitioner who had seemed drunk.They were taken into custody in order to conduct further investigations, and the petitioner released later onwards.
Meanwhile, the petitioner had got himself admitted to the Colombo General Hospital immediately after this.The medical officer who examined him has observed that he had a contusion in his right groin and tenderness.
The Supreme Court considered the question as to whether this could amount to torture or degrading treatment under Article 11. The Court pointed out that in Thadchanamoorthi, it had been held that "an aggravated form of treatment or punishment could satisfy Article 11."
In his book " Our Fundamental Rights of Personal Security and Physical liberty" Justice Amerasinghe had also stated that "something might be degrading in the relevant sense, if it grossly humiliates an individual before others or drives him to act against his will or conscience."
" In this case, the petitioner was a three wheeler driver who earned his living by taking hires.When a man who made an endeavour to earn his living by carrying on an honest occupation is taken into custody, assaulted and locked up in a cell, in my view he has been subjected to degrading tretment" said the Supreme Court. It was pointed out that the medical evidence corroborates the physical suffering.A violation of Article 11 was held to be established.
It was also held that Article 13(1) which stipulates that no person shall be arrested except according to procedure established by law, and that any person arrested shall be informed of the reason for his arrest had been violated.This was on the basis that the Medico Legal report ( which was made within half an hour of arrest) does not show any evidence of drunkeness of the petitioner.There was no complaint made against the petitioner, and the reasons for his arrest not explained to him.
State ordered to pay the petitioner Rs 12,000/= as compensation and Rs 3000/= as costs.
26/ 06/ 1997
Section 303/102 of the Penal Code/ Prohibition with regard to criminal
abortion
High Court judge Shirani Tillekewardene
The High Court stated that in the context of the offence and the evidence in the instant case, it is opportune to consider a landmark Canadian case Dr Henry Morgenthaler and others Vs Her Majesty the Queen in which it had held that laws prohibiting a woman from having an early abortion essentially takes away her basic rights and subjects them to the control of the state.
In doing so, it was not only her right to liberty in the sense of her right to autonomy in decision making that was being affected. Such laws were a direct interference with her physical person as well where she becomes the passive recipient of a decision made by others as to whether her body is to be used to nurture a new life. This does not accord with human dignity and self respect, the Canadian Court said.
Having cited this, High Court judge Tillekewardene went on to warn that this concept of a woman's right to make the choice in early stages of pregnancy, whilst considered as a fundamental choice under the sphere of liberty that the law guarantees equally to all, does not however operate in Sri Lanka.
Our penal law prohibits all abortions, except those performed to save the mother's life.
In this case, the first accused was a private medical practitioner and in charge of the Manthri Nursing Home in Negombo while the second accused was a nursing sister attached to the same Nursing Home.The mother who was a married teacher and whose foetus had been aborted gave direct evidence as the main witness for the prosecution. She had gone to the Nursing Home for a stomach wash which is the popular term for evacuation of the contents of the womb. some time after pregnancy when she had noticed a brownish discharge.
She had been taken inside the room by the second accused and asked to lie on a table and spread her legs.She had closed her eyes due to fear of pain and had then felt something being introduced into her vagina followed by mmense agony. Before the surgical intervention was complete, she had heard a tremendous commotion and had then seen a policeman come rushing inside the room.She had been asked to get off the bed and had later been taken to the police station with several other women.
The Court pointed out that the police evidence differed slightly in that they state that when they came in, the first accused had been attempting to pull the complainant out of the room.The first accused had been identified as the proprietor and doctor in charge of the nursing home.A watch and a stethoscope later identified as belonging to the first accused were also found lying on a table adjacent to the operating table.All this was taken by the High Court to show that it was the first accused and the second accused who were involved in this act.
The second question was whether the abortion had been performed in good faith.Specialist medical evidence given before the Court established that what had been performed was not an operation to save the life of the mother.The Court pointed out that acknowledged authorities to have also been perused to determine the question for itself.In any case, it was said to be apparent that for this, a through examination of the complainant would have been neccasary which did not take place.
In all the circumstances of the case, the court held that the guilt of the accuseds had been proved beyond all reasonable doubt.The first accused was sentenced to three years RI on the charge of performing an illegal abortion and the second accused to two years RI for aiding and abetting.Appeal against the High Court order is presently pending in the Court of Appeal.
Guest Column - Special to the Sunday Times
Principles of gender equality and gender equity have been basic to Indian thinking. The 19th and early 20th centuries saw a succession of women's movements first around social issues and later around the freedom struggle itself. The Constitution of India adopted in 1950 not only grants equality to women, but also empowers the State to adopt measures of affirmative discrimination in favour of women, enforceable in a court of law.
Less than ten years ago terms such as "judicial gender bias" or "gender bias and the courts" were unheard of. Today, the systematic discussion of gender bias is not only part of the Indian Judicial Education System, but it has also received national and international recognition. Pervasive gender bias in the courts which was virtually invisible as recently as the 1980s has become apparent and is plainly visible on record. Research conducted into this matter by social scientists and researchers in the legal field have documented a judicial gender bias and its profound effect on judicial fact finding and decision-making.
In numerous areas of the law, a disquieting picture has emerged which shows that gender bias exists in all areas, operating sometimes to the advantage of men and more often and more seriously to the disadvantage of women.
If gender bias is identified in all its nuances and hues, that would be a large step in dealing with this dilemma. It is not special treatment for women or for men that is called for, because such special treatment is not needed. Instead, what is needed is a sensitivity to the ways in which unexamined attitudes about men and women lead to the unintended result of biased decision making. Once this sensitivity is achieved, and it is reinforced by curiosity, analysis and openness, then and only then will the litigants be able to explain their circumstances to a court that is both willing to learn and to judge to achieve a gender neutrality in its judicial system, which is both vital and important to the ultimate achievement of justice in its purest and highest form.
This is why judcial verdicts especialy of the highest Court can move mountains. They frequently do.
For instance before 1990, no married woman was entitled as of right to be appointed to the Indian Foreign Service. She required special written permission of the Government before her marriage was solemnized and could be made to resign if the Government was satisfied that "her family and domestic commitments were likely to come in the way of the efficient discharge of her duties". "Along, came one Ms Muthamma: a brilliant member of the Indian Foreign Service. She came with the complaint that as a result of the Service Rules she had been denied promotion to Grade I in in the Indian Foreign Services - a Grade which entitled her to be appointed Ambassador.
The Judges found in the rules what they described as "transparent discrimination" against women. But what is of interest and importance is than an enlightened member of the Bar, the then Solicitor General of India, appearing for the Union of India volunteered to review the rules and the seniority of Ms. Muthamma. The Court whilst pronouncing the marriage rule invalid said that it wished to impress upon Government.
"The need to overhaul all service rules to remove the stain of so discrimination without waiting for ad hoc inspiration from writ petition or Gender Charity".
Ms . Muthamma got her promotion and distinguished herself as India's Ambassador serving in several countries abroad.
In another instance, in the early eighties, the practice of fixing an early retirement age for Indian airhostess was challenged.In this case , the Indian Supreme Court exhibited judicial gender charity and gave only a slight concession with regard to unfairly discriminatory regulations that stipulated that airhostesses retire early on the discretion of the Managing Directors in contrast to their male colleagues.This is one instance of what Justice Krishna Iyer in the Muthamma case characterised as "gender charity".
If we are to rid ourselves of patronising attitudes we must be conscious of an innate gender bias especially amongst the male population in this region. Yes, even amongst judges. We can learn to improve only if we first want to learn.
How do you get rid of such attitudes and approaches? For one thing by adopting the direct Krishna Iyer approach more frequently.
In Muthamma's case this great judge just hacked through the Foreign Services Recruitment Rules - expressing in cold print his wonderment as to how sex prejudice against Indian women pervaded Indian Service Rules even 30 years after freedom was won. He wrote:
"If a married man has a right, married women, other things being equal, stands on no worse footing. This misogynous posture is a hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against woman's thraldom. Freeedom is indivisible, so is Justice. That our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-a-vis half of India's humanity, viz., our women, is a sad reflection on the distance between Constitution in the book and the law in action. And if the Executives as the surrogate of Parliament, makes rules in the teeth of part - III, especially when high political office, even diplomatic assignment has been filled by women the inference of die-hard allergy to gender parity is inevitable.
"Die hard allergy to gender parity". Strong words necessary to express judicial indignation. We require more of this from the Judiciary to shake people out of Gender Bias.
Have our judicial attitudes been too paternalistic and out of touch with realities? Are they in tune with fast changing social conditions and values? This is what should concern national courts in India and her neighbours in the sub continent.
Continue to Plus page 8 * Islam or hotchpotch of this and that? * Napoleon was 'tu' informal * When Watson overstepped his limits
Return to the Plus contents page
| HOME PAGE | FRONT PAGE | EDITORIAL/OPINION | NEWS / COMMENT | BUSINESS
Please send your comments and suggestions on this web site to
info@suntimes.is.lk or to
webmaster@infolabs.is.lk
