RIGHTS-SRI LANKA: Supreme Court Rights Gender Discriminatory Rule

By Feizal Samath Reprint | | Print |

Feizal Samath

COLOMBO, Jun 4 1999 (IPS) - An immigration rule that discriminates between foreign spouses of Sri Lankan women and men has been overturned by the Supreme Court to the delight of rights activists campaigning for gender equality.

Foreigners married to Sri Lankan women have as much right to be granted residence visas as non-national spouses of Sri Lankan men, the Supreme Court said in a landmark judgement last week.

Antiquated immigration rules prevented foreigners married to Sri Lankan women from getting residence visas, while Sri Lankan men faced no such discrimination in bringing their married partners to live in the country.

Only those Sri Lankan women who could afford to give the immigration authorities a hefty 25,000 dollar as a deposit were issued residence permits for their husbands.

On May 28, the Supreme Court, reviewing a plea for resident status of a German national overturned this gender discriminatory practice by ordering that the German be issued a residence visa and that immigration rules be changed to ensure gender equality.

“We have been campaigning for the removal of this regulation for a long time,” said Shiranthi Ekanayake, executive director of the government-appointed National Committee on Women.

She added that the Committee had even written to the Defence Secretary, Chandranande De Silva, who oversees the Immigration Office, urging him to remove the “obnoxious rule”, but there was no response.

Though this was not the first case of gender discrimination that has come before the Supreme Court, the three-judge bench ruled in favour of changing the immigration rule on the basis of evidence submitted to the court for the first time.

In immigration guidelines documents listed ‘Secret – for official use only’ – clause five states, “Sri Lanka follows a patriarchal system: hence residence visas are normally granted only to female spouses of Sri Lankans.”

D.S. Wijesinghe, a senior attorney who appeared for the German national, Bernard Maximillian Fischer, said the court was determined to end the discrimination once and for all, though the state was keen to settle the individual case.

“Justice Mark Fernando said the rules must change and then the court ordered a change in the rules,” Wijesinghe told IPS.

Wijesinghe had challenged the immigration rule in a fundamental rights case saying it violated the Sri Lankan Constitution relating to an individual’s rights.

German national, Fischer, met his wife, Ronik Joseph, during a visit to Sri Lanka in 1996, and they got married the following year. Joseph moved to Germany, but the couple decided to come back and settle in Sri Lanka in the latter half of 1998.

He was told by immigration authorities that his application for a residence visa would be entertained only if he deposited 25,000 dollars and showed an inward foreign remittance of 9,000 dollars.

In his appeal he said he could not afford this sum, and like many other spouses of Sri Lankan women who live six months at a time here, he requested the authorities to grant him a 6 month tourist visa. What he was given however was a visa for two months.

All previous such cases before the Supreme Court, were “characterised by the unashamed and unapologetic willingness of the Controller (head of Immigration and Emigration Department) to come to a settlement in each case,” wrote Kishali Pinto Jayewardene, a journalist-cum-lawyer in the ‘Sunday Times’ May 30.

Foreigners married to Sri Lankan women would either pay up the money demanded by the immigration authorities for a residence visa or live six months at a stretch on a tourist visa.

“There are over 3,000 women with foreign husbands who are affected by this rule,” observes Sunila Abeyesekera, one of Sri Lanka’s best-known women rights activists.

Very few have petitioned the courts for relief, worried that such an action could lead to their deportation on some flimsy ground, Ekanayake of the National Committee for Women said.

Immigration officials, who did not want to be identified, said they were merely following an old administrative rule, and also hotly denied charges made by some activists that male spouses were able to get residence visas by bribing immigration officials.

Another reason for the continued implementation of a blatantly discriminatory rule was the fear that a change in rules would open the floodgates to India-born Tamils. Thousands of Tamils from India were shipped to Sri Lanka as plantation labour by British colonialists in the last century.

For decades they were stateless, until the governments of India and Sri Lanka signed an agreement in which Colombo offered citizenship to some while repatriating the rest to India.

Now families are divided between South India and Sri Lanka, and immigration officials fear many Tamils who continue to be stateless may marry Sri Lankan women to legalise their status.