Introduction

The Sri Lankan Constitution of 1978 provides for the protection of the fundamental rights of its citizens in Chapter III. These rights include the right to equality and Article 12 states that all persons are equal before the law and are entitled to the equal protection of the law. The Article further provides that no person shall be discriminated against on certain specified grounds including sex. And further, a more debatable provision states that nothing in this Article shall prevent special provision being made by law, regulations or administrative action for the advancement of "women, children and disabled persons". Then why are crucial discrepancies evident between the constitution, the acts and provisions that follow it and the implementation of the law in an incident of gender specific crime or any other incident that infringes on women's rights? This inevitably leads us to question the effectiveness of adopting legislature in order to achieve women's rights in Sri Lanka.

Political

Sri Lanka is regarded as a model country for having elected the world's first prime minister and for having had a woman president too. But the discouraging fact remains that although having the highest political status in Asia; Sri Lanka has one of the lowest levels in political participation. Today, Sri Lanka is 97th in terms of parliamentary representation of women.

Sri Lankan women received the right to vote and the right to stand for election in 1931. In these 70 years, women have never held more than 6 per cent seats at any level of government in the country. Over the last 20 years it has reduced to 4 per cent.

At the Fourth World Conference on Women, held in Beijing in 1995, the lack of women in governing institutions was a critical concern. The Platform for Action reiterated that women remain underrepresented at ministerial, executive and legislative levels. Traditionalistic management of political parties and government structures hinder, while discriminatory attitudes, home responsibilities, costs involved discourage, women's participation from political life.

In 1997, the Sri Lankan government announced that it was proposing to reserve 25 per cent of the seats at local government level for women. In August 2000 the Sri Lankan government released another draft of its constitutional proposals and the little protection that was given to women's political rights was removed from the August 2000 draft. According to the August 2000 draft:

'Every Statute made by a Regional Council of a Region relating to elections to local authorities in that region, under paragraph (3) of the Article, shall as far as practical, provide for the adequate representation of women, persons under thirty five years of age and the major communities ordinarily resident in the local authority area for which a local authority is established.'

Where the October 1997 draft made it mandatory that local authorities have are least 25 per cent women, the August 2000 draft removed it completely and only provides for adequate representation of women 'as far as practicable'

The low representation of women in national and local political bodies has become a major concern among women's groups in the region and among international humanitarian bodies. In an interview with Judith Colp Rubin Corti, a member of the CEDAW for 14 years stated that 'Dealing with issues like violence is important, but it is the second stage of our struggle, because who will push the issue of violence if we don't have enough women in parliament? '(Preferring Women: Gender and Politics in Sri Lanka)

Thus the Women's manifesto- released around the time of October 2000 elections by the joint effort of 12 women's groups in Sri Lanka- calls for an introduction of a quota of 30 per cent for women at local government level, provincial and parliamentary level feeling that even the proposed 25 percent in the October 1997 draft (was removed from the August 2000 draft) is insufficient.

The authors behind the book Preferring Women: Gender and Politics in Sri Lanka also say that: 'Equality demands that equals be treated equally. Equality also demands that disadvantaged groups be treated differently. Preferences for women'in political bodies are founded on the basis that women and men are not equally situated and therefore need to be treated differently if there is to be a genuine equality of opportunity. Quotas are one way of achieving this in the political sphere.' The authors further state that inequality is the reason of years of patent discrimination and the continuation of this discrimination in subtler forms. It is thus comprehended that without the intervention in the form of a reservation it is most likely that the number of women in Sri Lankan political life will remain dismal for years to come.

Economic

Women constitute more than 50 per cent cf the Country's population and contribute largely to the economy. But they work under appalling conditions receiving much discrimination simply because of their gender. The cheap labour of women in the Free Trade Zones (FTZ) and plantations as well as migrant labour, provides the bulk of Sri Lanka's foreign exchange. But employees and the state pay little attention to the various forms of exploitation an oppression experiences by these workers.

The recent report by the United Nations Development Fund (UNDP) on the Gender Dimensions of the Millennium Development Goals in Sri Lanka said that the majority of women are employed in low skilled jobs and in the informal sector, outside the protection of labour legislations moving from one low income low skill occupation to another or confined to unpaid family labour in agriculture. It further stated that the garment industry, where the majority are women employees, 80% of the factory workers are women, concentrated at the bottom of the employment structure in semi-skilled jobs without job security and opportunity for upward occupational mobility while 70% of those employed at management, technical and supervisory jobs are men. The unemployment rates of women have been double that of men with 11.9% of those unemployed being women in contrast to 5.5% of men. The rate of female participation in the labour force stood at 30.9% when compared to 67.1% male participation.

Although statutory conditions relating to hours of work, overtime and night work are set by the shops and Office Employees' Act, the Wages Boards Ordinance and the Employment of Women, Young Persons and Children and the Factories and the Shop and Office Employees' Act, women who go to work in the Free Trade Zones enter into agreements that violate both national laws and international labour commitments under the ILO. Such as agreeing to work overtime when requested, resign when and if they get married, not join any group in the establishment without prior written approval and instigate their companions to be against the management.

Formal sector women workers are entitled to benefits during pregnancy and after delivery under the Maternity Benefits Ordinance. In the late 1980s, maternity leave and benefits were extended from 6 weeks to 84 days (approximately 4 months), for two pregnancies with subsequent nursing intervals. For 3 months before and after the confinement, a woman cannot be given tasks that may be dangerous to the mother or the child.

However, violations of these regulations have been found in the formal sector including in the FTZs. There is little or no provision for nursing intervals in either the private or the public sectors. There are also instances where women have lost their jobs or were being obstructed from promotions as a result of using their maternity leave and benefits entitlements.

Under the Equality Provision of the Constitution, it can be interpreted that there should be no discrimination in wages paid to women and men for equal work. However, clear differentials continue to exist in different sectors of employment, primarily in the non-State sector

In foreign employment, two thirds of migrant workers are women and 80% of the women are domestic workers who contribuie substantially to the country's foreign exchange earnings and to household income, but are often exposed to economic exploitation, physical assault and sexual abuse in the absence of adequate protection in their workforce. Of 230.963 people who departed for foreign employment in 2005, 136,998 were women, out of which 125,054 were housemaids. Only 6757 females departed for skilled jobs in 2005 in contrast to 38,833 men. Women are also under-represented ax senior decision-making levels both in the public and private sector while women's participation in the political sector is also low.

Violence

An area of concern and a location of inequality and disempowerment is gender based violence as women more often than men are apt to be victims. They need the support of the law and law enforcement personnel who should be made aware of their responsibilities. An article in a popular weekly column that deals with women's issues: 'Cat's eye', stated: 'In just three months, from October to December 1998, 77 cases were reported in the printed media. They ranged from assault and battery, to incest and murder committed within the home.' Violence against women remains the most significant area of indirect discrimination.

The year 1995 brought an amendment to the penal code that brought about many changes to the criminal law. Sexual harassment was made a criminal offence punishable by a fine or five years' imprisonment or both. Sexual harassment was now includes the causing of sexual annoyance or harassment to either by words or actions. According to the police statistics, 280 complaints of sexual harassment were registered in 1997 and 324 complaints in 1998.And these are only the registered cases.

The penalties for rape were increased and the age of statutory rape was made 16. The need for absolute evidence was deleted and rape was defined as sexual intercourse with a woman without her consent. There is no need of physical evidence for rape is even considered rape when consent is obtained by threat, fear of death or when the victim was in a state of intoxication or unsound mind.

.The amendment of 1995 also introduced the concept of 'grave rape' where harsher punishments can be imposed. Gang rape;, rape of a pregnant woman, or a girl under 18 years and incestuous child rape carry heavier sentences. The statutory policy now prevents plea bargaining and suspended sentences in sexual offences

Although the Penal Code provisions on sexual violence were amended and enhanced in 1995, several shortcomings still exist both in the substantive law and in its implementation. Although laws do exist to protect women against gender violence those who are victimized are often reluctant to come forward because of the social stigma attached and the knowledge of their perpetrators not being publicly condoned. For example, according to a 1996 report personnel at the Women and Children's Bureau at police Headquarters said that a mere 25% of domestic violence cases are reported. (Daily News, 25 Aug. 1996) The same can be said for rape where the number of cases reported is far smaller than the number of rapes that occur.

In the instance of rape and sexual violence, the level of medical expertise across the country is uneven. Where in some cities there are skills needed to conduct a comprehensive medical examination in others, even the basic instruments 'rape kit' and other facilities needed to conduct such an examination are absent.

The Police station is known as largely patriarchal institution that is run by male values. If the victim chooses to use the criminal justice system, she will most likely have to approach male officers who will take down her complaint. Usually she will have to repeat her story more than once to different officers. Although Women's and Children's Desks have been stationed in all police stations they are inadequately trained and not sensitized to deal effectively with victims of violence.

Another important focus of the Amendment to the Penal Code in 1995 should have been the introduction of both procedural and substantive laws which specifically deal with domestic violence. The Prevention of Domestic Violence Bill was passed in August 2005 but should now be effectively implemented and publicized for most women are unaware of the strengths and support that these laws may give them to leave their abusive partners.

Legal

Women continue to use the civil courts to file legal actions for relief and remedy. When they do so, they face the problem of the laws, delays and the cost of private litigation. The Constitution of 1978 while providing for non-discrimination on grounds of sex, prohibits, judicial review of past legislations. Such laws violating constitutional standards and guarantees continue to coexist until there is a parliamentary amendment. Glaring examples are personal and family laws, women's rights to State grants of public land, criminalisation of prostitution and abortion:
a) The Civil Procedure Act defines the scope of matrimonial litigation. The Maintenance Act (1999) has now recognized the concept of reciprocal spousal support according to the means available to each spouse to contribute to the home and fulfil their joint liability to maintain children. Women should therefore be able to claim legal costs in actions for support for themselves or children, under the Maintenance Act, even when a divorce has not been filed. Maintenance cases continue to be important for women who want financial support for themselves or their children. Procedural requirements to corroborate the women's story prejudice the right to claim support for a non-marital child, from the putative father.There have been instances where applications for permanent alimony on divorce had failed due to a technical error in the papers.
b) Even though the divorce rate has risen these do not include half those victimized by domestic violence or any other harassment within a marriage. Most women are afraid to proceed to divorce and often seek it as a last resort because of the society's narrow perceptions and lengthy and time consuming procedures. Another reason why women hesitate to approach legal council is due to the high cost and the public nature of the trial including events prior and following.

c) The existing legal framework on land rights in the context of State grants of public land to citizens, discriminate against women both in law and in practice. Grants of State land in agricultural colonization schemes are made to the male with the wife receiving no rights. Inheritance rights under the land settlement laws are founded on a concept of primogeniture which favours the male heirs over the female. The undermining of women's rights because of pluralism in family law, and, the failure to apply women's human rights can still be seen in judicial decisions of the appeal courts. For example, women under the Kandyan law have been denied rights of inheritance to their husband's ancestral property.

d) Sri Lankan law does not criminalize prostitution in itself. The law relating to prostitution is found in the Vagrants Ordinance and the Brothels Ordinance. The former makes provision to arrest those soliciting on the public roads and the latter makes it an offence to live off the earnings of prostitution. Women engaged in commercial sex work are routinely arrested by the police and charged in court. Women under detention in the police stations are frequently subject to abuse. Fines are imposed on them and if they are unable to pay, they are then sent to State detention homes. Similarly, the police raid brothels and take the women into custody rather than the owners and others involved in procuring. This is, in spite of the fact that the law is intended to penalize the brothel owners rather than those working in them. These laws are also not subject to judicial review and require

e) Sections 303-307 of the Penal Code deal with the 'the causing of miscarriage or injuries to unborn children' The Beijing Declaration and Platform for Action 1995 calls for countries 'to consider reviewing laws containing punitive measures against women who have undergone illegal abortions.' In Sri Lanka, 1995, even an attempt to liberalize the law on abortion even in limited circumstances failed. Sri Lanka has a high rate of maternal mortality and morbidity arising from abortions performed illegally everyday. Prof. Jayanthi Chandrathilaka, in a series of lectures organized by the National Committee on Women, Ministry of Women's Affairs, stated that states that in Sri Lanka 'Legal reforms must be pursued especially for liberalizing abortions to make them safe with medical advice.'Abortions should not be made illegal in the case of rape, complications to the foetus and where it poses a threat to the woman's life

Media

Patriarchal structures and attitudes demeaning women persist in Sri Lanka. This is clearly seen in the media, especially at election time when obscenities about women politicians are not uncommon. Yet one of the most potent weapons to promote positive images of women is the newspaper, journals, radio and TV and video visuals. But unfortunately, sexism in advertisements, cartoons, articles and editorials still prevail. Many TV series depict violence against women and display sexist attitudes, portraying women only as wives and mothers, or as sex objects. Women are also underrepresented in media production, especially at decision-making levels. There no provisions introduced to combat sexism and stereotyping of women in the media. And Gender sensitizing programmes that should be introduced to media personnel are not heard of. There is also an absence of a continuous media- watch in three languages to monitor and expose sexism in newspaper articles, advertisements, cartoons, videos and televison programmes, especially 'teledramas.'

Education

Even though there are laws making it compulsory to gc to school till the age of 14. The implementation of the law does not occur in this regard in most rural areas where male children are given priority over girl children. The girl children often stay at home to look after their younger siblings and/or help out in the family business. In most cases they are married off conveniently on reaching marriageable age to a man who is more likely to leave her in the course of her lifetime. In the event of the husband leaving they are not able to initiate divorce or request alimony or any other compensation for her and the children. Therefore this makes it crucial for an education to be given to girl children so they may have a say in how they live their life out and the compulsory age be increased to 16.

Conclusion

In Sri Lanka the most obvious cases of discrimination have been removed. 'Formal equality' is evident in almost all aspects of life. The discrimination where it does occur, is subtle, harder to monitor and therefore harder to acknowledge. Public resistance, including resistance from women themselves is thus likely to be more in these forms than in patent discrimination. In the last decades of the 20th Century, important changes have occurred for the improvement of women's lives in many aspects and progress made in reforming laws. However their lies more to be achieved and the challenge at present is to minimize or eliminate the discrepancies that occur between the written law and the law that is implemented. For this to succeed awareness of women's rights and gender specific laws should be made available to the women and the public, in order to reach consummation of their fundamental and legal rights.

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References

Preferring Women: Gender and Politics in Sri Lanka by Mario Gomez and Shymala Gomez, 2001

Cat's Eye: A feminist Gaze on Current Issues by Malathi de Alwis, 2004.

Women and Human Rights National Committee on Women, Minister of Women, Ministry of Affairs. Lecture Series April-July 2003.

Labour Legislation and Female Employment in Sri Lanka's Manufacturing Sector by Ramani Gunathilaka.

The Constitution of the Democratic Socialist Republic of Sri Lanka 1978

The Government's Proposals for the Constitutional Reform, October, 1997, Ministry of Justice.

The Amendment to the Penal Code

The United Nations Development Final Report: Gender Dimension of the Millennium Development Goals in Sri Lanka.
