- Attorney & trainer on gender equality/social inclusivity Radika Gunaratne shared insights on various aspects of the said Bill including sacrosanct positives & profane vexations
In Sri Lanka, the landscape of gender equality stands at a critical juncture, characterised by both progress and challenges. Despite existing legal provisions addressing gender related issues, there remains a notable absence of a dedicated framework focused solely on promoting and achieving gender equality.
The recent introduction of the Bill on Gender Equality marks a significant stride forward, aiming to dismantle entrenched patriarchal norms and foster a society where equal rights and opportunities are paramount. This Bill has garnered considerable attention following a recent Supreme Court (SC) determination on it, and subsequent remarks from President and Minister of Women and Child Affairs Ranil Wickremesinghe, critiquing the said SC determination.
Against this backdrop, attorney and certified trainer in gender equality and social inclusivity, Radika Gunaratne shared insights on the Bill, in an interview with The Daily Morning.
Following are excerpts from the interview:
Are there existing legal provisions in Sri Lanka that address gender equality?
Sri Lanka currently has several legal provisions addressing gender-related issues. Article 12(2) of the Constitution identifies sex as a primary ground of discrimination, with the Attorney General (AG) and a Court judgement further defining sex to include sexual orientation. The Prevention of Domestic Violence Act, No. 34 of 2005, applies in a gender neutral manner. Additionally, various legal instruments, including the recently passed, controversial Online Safety Act, No. 9 of 2024, are in place. However, there is no explicit or specific law dedicated solely to promoting and achieving gender equality.
How crucial is the introduction of the Bill on Gender Equality in the current situation?
There has been a long-standing absence of a legal instrument to ensure gender equality in Sri Lanka. This has created a dire need for such a law for the longest time. When there is no dedicated law to address these issues, new legislation is drafted considering both current issues and possible future scenarios. From the women's quota in political representation, to escalating issues like gender-based violence in the workplace, gender inequality, emotional and economic violence against marginalised communities, and cybercrimes, these challenges require a comprehensive legal framework. The introduction of this Bill aims to promote and achieve social equality in general terms, addressing the pressing need for gender equality in our country.
What changes would this Bill bring to society?
When we go through the provisions outlined in this Bill, it becomes evident that entrenched patriarchal, sexist, and misogynistic structures that have persisted in Sri Lanka for centuries will face disruption. To progress as a nation, we must discard toxic teachings that perpetuate oppression and the mentality of deriving happiness from others' suffering. Addressing topics such as sex, sexuality, gender identity, and sexual orientation remains taboo in conservative societies, rooted deeply in personal and societal layers.
This is a reality in Sri Lanka as well. There is an absolute absence of formal education on these matters for citizens, both during and after school in Sri Lanka. The lack of even basic knowledge in this area is disheartening, contributing to minimal discourse on the victimisation and suffering it causes. Those who do bring up these issues often face personal attacks. It is against this backdrop that this Bill is being introduced. At times, there is a doubt as to whether Sri Lanka is prepared for such progressive legislation. Nevertheless, this Bill establishes a legal framework to initiate conversations, promote mutual respect, and encourage humane conduct.
Have the views and suggestions of the relevant parties been sufficiently obtained before preparing this Bill?
We know that suggestions were solicited from the relevant parties, but the adequacy of this process remains uncertain. For instance, during consultation sessions, civil society representatives explicitly advised against using certain terms with a heteronormative bias and binary such as the 'Sthree Purusha Samajabhawaya', yet, these concerns were not heeded. Consequently, there is a significant risk of the Sinhala version of the Bill containing numerous translation-related errors, potentially the highest in history.
Many such errors can already be identified, reflecting the broader issue where legislation in Sri Lanka, originally drafted in English due to the expertise of scholars in this subject, often suffers in translation to Sinhala and Tamil. There is an urgent need for translators who possess both linguistic expertise and subject matter knowledge to ensure accurate translations. Neglecting this crucial aspect could pose implementation related challenges for the Bill, if passed in the Parliament, in the future, especially given the legal provision that grants precedence to the Sinhala language in cases of linguistic discrepancies, as also stated in Section 30 of this Bill.
What notable beneficial provisions do you identify in the Bill?
This Bill encompasses numerous positive aspects. It includes provisions that mandate directives and guidelines for public and private institutions, emphasising issues such as workplace equality, education, research, and gender-based budgeting. For instance, we frequently encounter cases of workplace harassment faced by women simply because of their gender. Such issues, which could have been addressed by the provisions of C190 (Violence and Harassment Convention) concerning violence in the world of work, have been long-neglected by the Ministers of Labour over the past.
This Bill takes steps to address these critical issues. Additionally, Section 28 of the Bill asserts its supremacy over conflicting provisions in other laws (overriding clause), akin to the priority clause in the Right to Information Act, No. 12 of 2016. It comprehensively covers contexts such as education, employment, healthcare and access to healthcare information, private and family life, justice and dispute resolution, public services, public spaces, media and information and communication technology, protection from violence, and the enjoyment of economic, political, and social activities, ensuring equal opportunities across these domains.
What are the main flaws you see in this Bill?
The Sinhala translation of this Bill contains several errors that may lead to significant prejudice in the future. As legal professionals and advocates, we understand the immense effort required to amend incorrect or distorted terms after a law or Act has been passed. Even the title of the Sinhala version of this Bill is prejudicial. The term ‘Sthree Purusha Samajabhawaya’ was first used in Sinhala for ‘gender’ by Prof. Subhangi Herath, who introduced Sri Lanka's first Gender Course in the Department of Social Sciences at the University of Colombo in 1998.
She employed this term in a situation where it was not possible to adequately convey the need for equal opportunities and rights for women in the male-dominated Sri Lankan society. Due to the prejudicial connotation of this term, she requested that it not be used outside the university. Unfortunately, it continued to appear in official documents, a development she has often expressed regret about. We have documented this history and, as far as possible, introduced a reasonable set of terms regarding gender to ensure inclusivity. We find hundreds of instances in this Bill, particularly the Sinhala version, where such prejudicial meanings emerge.
The Bill grants a range of powers to the subject Minister and certain establishments that have been proposed. What are your views on it?
According to Section 25 of this Bill, any person who fails to act in accordance with the powers and guidelines assigned to the subject Minister must report to the Minister. However, there have been periods in Sri Lanka when there was no State Minister of Women's Affairs, let alone a Cabinet Minister. This raises a practical question about how the State can fulfil these promises in such circumstances. On the other hand, the State cannot evade its responsibility in the future, which presents an advantageous situation. It is proposed to appoint a Council of five members to promote gender equality. However, the Minister of Women's Affairs and the Minister of Youth Affairs are referred to as ‘he’ in this Bill. This implies that these ministerial positions should be held by men, perpetuating a patriarchal perspective. Ironically, this suggests that, according to the basic interpretation of this Bill, a woman cannot hold the said positions. Resolving these issues through judicial interpretation is both time consuming and costly. Therefore, it is imperative to correct these errors during the drafting process itself.
How do you see the SC determination on this Bill?
Many of the issues highlighted by the SC Judges can be identified as technical flaws in the Bill. The language issue that arises with regard to the Bill has not been highlighted as the Courts operate in English. The original English draft does not have these issues. The SC, working in English, and the petitioners, seem to have overlooked the translation-related errors. The SC stated that the long title and the preamble of the draft are inconsistent with Article 12 of the Constitution. What they pointed out was that the Bill lacks direct provisions regarding its basic purpose, the ‘National Policy on Gender Equality and Women’s Empowerment’. In order for this Bill to be passed, I believe that there is no other way forward now. Action should be taken in accordance with the SC determination. A separate review must be conducted to address translation related errors. The Tamil translation should also be read aloud alongside the English draft.
What is your view on the President's proposal to appoint a Parliamentary Select Committee (PSC) to look into the relevant determination?
The President's proposal raises concerns about the independence of the Judiciary at first glance. The principle of ‘people's sovereignty’ in the Constitution underscores that the Legislature, the Executive, and the Judiciary should operate independently, subject to checks and balances. However, throughout Sri Lanka's history, there has been a pattern of Executive encroachment on judicial independence. Despite these concerns, there is a potential positive aspect to appointing a PSC.
The President suggests forming this PSC from the Women Parliamentarians’ Caucus, presenting an opportunity to address issues highlighted by the SC and to correct errors in the Sinhala draft, which holds prominence. This approach also offers a chance to rectify the technical deficiency of solely empowering women in the Bill. Yet, correcting errors in the Sinhala draft could mean that the version reviewed by the SC no longer aligns with subsequent iterations. This introduces additional legal considerations that must be carefully evaluated moving forward.
Is this kind of legal provision alone enough to ensure gender equality and solve related issues?
Not at all. The initial opposition to this Bill came from Buddhist religious leaders in the country, who are primarily concerned with the concept of ‘gender equality’ rather than the Bill's main objective of ‘women's empowerment’. They argue that these laws contradict the culture, suggesting that Sri Lanka may not yet be prepared for such advanced legal concepts. Despite these challenges, there is a clear necessity for these laws to be enacted.
Concurrently, there must be a concerted effort towards transformative change aimed at addressing existing attitudes and ignorance surrounding sex and gender, promoting comprehensive sexuality education, and combating stigma and discrimination. Law is fundamentally a social science that should ensure everyone's right to live with dignity and love in the society, based on equal rights and opportunities. Equality does not imply uniformity; it recognises and values diversity among minority communities with different identities. Awareness, attitudinal shifts, and legal protections must progress in tandem. Establishing laws is crucial as they serve as societal tools that compel fair and just conduct.