and these limitations do not apply. The application of the Muslim law in defined areas such
as marriage divorce and inheritance and connected matters as a religious law of the Muslim
community is protected by Article 10. However there are other areas such as the criminal law
where Muslims are governed by the law applicable to all other citizens [See Annex].
In the Manohari Pelaketiya Case, the Supreme Court held that the provisions in the
Establishment Code, applicable to the service conditions of public servants could not be
interpreted as lawful restrictions of the fundamental rights to equality and freedom of speech,
guaranteed by the Constitution. The power of judicial review of already applicable subsidiary
legislative regulations like the Establishment Code was not discussed by the Court.
Religious and Customary Law
The Constitution has recognized the obligation of the State to restrict manifestation of religion and
culture in the public interest, national security, public health, or for securing respect for the rights and
freedom of others or “of meeting the just requirements of the general welfare of a democratic society” Art
15 (7). This clearly authorizes State interventions in regard to customary practices like the virginity test and
female circumcision referred to earlier, that violate a woman’s human rights. In the past civil and criminal
courts have exercised jurisdiction in many areas applicable to Muslims (See Annex, and earlier sections on
statutory rape). The State has in recent years shown reluctance to intervene even when Muslim Women’s
Groups have asked for reforms that seek to harmonise religious practices, Islamic law and human rights
norms. The State has taken the view that reform initiatives must come from the community, a viewpoint
reiterated by Sarath Silva CJ in a case on the ICCPR Act in the Supreme Court. (Determination, SC Reference
2008, Annex). The same approach has been taken in regard to reform of the Kandyan law of Marriage, and
the Tesawalamai or Tamil Customary law applicable in the Northern Province regarding property rights of
spouses. There has been no reform of these laws though there is information on the discriminatory impact
of these provisions on the economic rights of women [See Annex]. Women's groups are not recognized as
the voice of “the community.”
A provision in the ICCPR Act creates a serious generally non-bailable criminal offence which prohibits
advocating national, racial or religious hatred that constitutes incitement to discrimination, hostility and
violence. ( S. 3). This provision is one that can be used to prevent advocacy of extremist views that can
involve GBV and infringement of reproductive rights on religious grounds.
IV. INTERNATIONAL NORMS AND STANDARDS:
THEIR RELEVANCE TO WOMEN’S REPRODUCTIVE RIGHTS AND GBV
Sri Lanka is a member state of the United Nations and is therefore bound by the Charter of the
United Nations to recognize human rights of the people. Human rights must not be considered “Western
standards” as they were developed out of the experience of people all over the world on abuse of
power and authority, and lack of government accountability to use national resources for the benefit of
all the people. This Compendium documents the way in which these human rights standards have been
recognized in our own Constitution of 1978, and developed in our Courts. We also have in our country
local institutions such as the Human Rights Commission and the National Child Protection Authority, (both
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COMPENDIUM ON LAW, GENDER BASED VIOLENCE AND REPRODUCTIVE RIGHTS