A powerful Personal Law regime weakens constitutional protections
Sri Lanka has a particularly strong customary law regime that is often in tension with civil law. The law can be divided into two categories: the General Law and the Personal Laws. The General Law applies to all citizens and derives from a combination of statutes, Roman-Dutch law and English law. The Personal Laws are specific legal regimes enforced by the secular Sri Lankan government that pertain to such issues as marriage, divorce, intestate succession and property rights for persons of specific ethnic backgrounds or religions. The great religious and ethnic diversity of Sri Lanka's population makes these divergences especially important. The Personal Laws are subdivided into three categories: Muslim Law; Kandyan Law; and Tesawalamai Law. Where the Personal Laws are silent, the General Law applies. Roughly 50 percent of the Sri Lankan population is subject to the Personal Laws, while the remaining 50 percent is subject only to the General Law.
The interaction of the General Law, the various Personal Laws and the Sri Lankan Constitution is complex, with fundamental constitutional rights in tension, including the right to gender equality and the right to adhere to and practice religion and culture.
Sri Lanka's Constitution prohibits discrimination on the grounds of race, religion, language, caste, sex, political opinion or place of birth (Article 12 (2)). Article 14(1)(g) of the Constitution provides that every citizen is entitled to the freedom to engage by himself or in association with others in any lawful occupation, profession, trade, business or enterprise. These Constitutional laws apply broadly, ensuring that both men and women can legally own, transfer, inherit and dispose of land and property and may enter into any economic activity, form of business or employment, as long as it is not illegal or against public policy. Subsection 12(1) of the Sri Lankan Constitution guarantees equality before the law and equal protection of the law to all citizens. However, analysis of property rights can also depend upon which of the Personal Laws apply.
Women's marital property rights are established by the 1923 Married Women's Property Ordinance. The ordinance provides for equal rights to inheritance for male and female spouses: Upon the death of either spouse, the surviving spouse inherits half of the deceased spouse's property. However, a representative instance of legal contradiction for married women is presented by The Matrimonial Rights and Inheritance Jaffna Ordinance, 1911, amended in 1947. It stipulates that a woman has the power to deal with her movable property during her lifetime without the consent of her husband. However, a married woman may deal with or dispose of any immovable property only with the written consent of her husband, except in the case of last wills. Rights of inheritance can be complicated by personal law, as in the case of the 1938 Kandyan Law Ordinance as amended, which makes no mention of the rights of unmarried women but specifies that women do not have equal intestate rights with men under Kandyan law.
This publication is provided for your convenience and does not constitute legal advice. This publication is protected by copyright.
© 2017 White & Case LLP