Shadow Report to the Committee against Torture on Sri Lanka’s abortion law

News | Asia |

Submission to the Committee against Torture

in relation to its examination of

Sri Lanka’s Fifth State Party Report

 BackgroundOn 15 November 2016, the Committee Against Torture (CAT), during its 59th session, examined Sri Lanka’s fifth State party report. In October 2016, the Global Justice Center (GJC) and the World Organisation Against Torture (OMCT) jointly submitted a shadow report focused on how Sri Lankan law violates the Convention Against Torture by (1) banning abortion in most circumstances, (2) having an antiquated and flawed rape law and (3) by permitting child marriage.The CAT has established that restrictions to abortion access, especially in cases of rape, incest, fetal unviability and where the health of the woman is at risk, can amount to cruel and inhuman treatment. The CAT has routinely expressed concern about the absence of marital rape provisions and repeatedly found that a widespread and high rate of sexual violence in a country violates the Convention. The CAT has also found that child marriage is a form of ill-treatment.GJC and OMCT in their shadow report, urge the CAT to ask the Sri Lankan Government to repeal the anti-abortion law in the penal code, criminalize all acts of rape, including marital and child rape in all circumstances and absolutely prohibit the marriage of children under 18 years of age.

  1. Introduction
  2. In advance of the Committee against Torture’s forthcoming review of Sri Lanka, it is critical that the Committee pays particular attention to the disproportionate and abhorrent affects certain of Sri Lanka’s laws have on women and girls. The issues addressed herein, namely Sri Lanka’s abortion law, rape law and child marriage law, represent only a small cross-section of many of the gender-specific issues in the country, but together show in general the legislative obstacles to ensuring women and girls are free from torture and cruel, inhuman or degrading treatment in Sri Lanka.
  1. Criminalization of Abortion
  2. Sri Lanka’s Penal Code, dating back to 1883, criminalizes abortion services. Section 303 provides that anyone voluntarily causing a pregnant woman to miscarry is subject to up to three years imprisonment and/or payment of a fine, unless it was caused in good faith to save the woman’s life. [1]

Under this law, doctors as well as women who induce their own miscarriage are subject to the same penalties. [2]

  1. Despite being an old, antiquated and discriminatory law, section 303 is applied and enforced. The Sri Lankan government noted in its 2016 report to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) that the number of abortion “offenses” processed by the police increased from 2012 (46) to 2013 (68). [3]
  1. Where the Sri Lankan authorities have made sure to take aggressive action to enforce section 303, they have done almost nothing to ensure that when abortions are performed, they are done in a safe and medically responsible way. For instance, there are no legal or policy frameworks supported by the government that cover the provision of abortion services within the narrow limits of the law. This means that there are no regulations, provisions or guidelines specifying the facilities in which abortions are to be performed or even the qualifications of those authorized to perform abortions. [4]
  1. These restrictions and the very real threat of prosecution deter women from seeking health care and result in substandard services without mechanisms of accountability for Sri Lanka’s women.
  1. Denial of access forces Sri Lankan women to resort to clandestine abortion services. A 2014 survey of women hospitalized for abortion complications showed most abortions were performed by unqualified persons (36.1% self-proclaimed “abortionists”; 26.2% of providers did not reveal their qualifications) for a wide range of payments in non-sterile environments (45.9% unknown place) using septic procedures (38.5% trans-vaginal insertions; 24.6% unaware of the procedure). [5] None took place in government hospitals or clinics run by non-governmental organizations. [6]
  1. Abortion’s prohibition, prosecution, and women’s resort to unsafe services create a harrowing situation for women in Sri Lanka. Unsafe abortion contributes considerably to maternal mortality in Sri Lanka [7] and the Ministry of Health estimates that up to 16% of all female hospital admissions are attributed to complications of abortions. [8] In particular, the lack of exception for abortion services in cases of rape and incest expose women to be constantly reminded of the violation committed against them, causing serious traumatic stress and long–‐lasting psychological problems. [9]
  1. This Committee has found that conditions currently present in Sri Lanka are violations of the Convention against Torture. Specifically, this Committee has established that restrictions to abortion access, especially in cases of rape, incest, fetal unviability and where the health of the woman is at risk, can amount to cruel and inhuman treatment and violations of articles 2 and 16 of the Convention. [10]
  1. Thus, Sri Lanka’s law prohibiting abortion is too restrictive and must be addressed by the Sri Lankan government. 

Recommendations

  1. With respect to laws addressing abortion services and other sexual and reproductive health and rights issues, this Committee should recommend to the Sri Lankan government to:
  1. Repeal, without delay, Section 303 of Sri Lanka’s Penal Code;
  1. Undertake a review of other legislative and administrative laws, regulations and policies to identify and remedy legal obstructions to women’s access to reproductive health care;
  1. Provide universal access to a full range of the safest and most technologically advanced methods of contraception, ensure rights-based counselling and information on reproductive health services to all women and adolescents and guarantee access to contraceptives for victims of sexual violence;
  1. Create and promulgate policies, regulations and frameworks governing the safe provision of abortion services, including detailing the qualifications of those authorized to perform abortions and the facilities in which the procedures are to be performed;
  1. Develop a confidential complaints mechanism for women denied abortion services or subjected to discrimination, harassment or ill-treatment while seeking abortion, post-abortion or post-pregnancy treatment or other reproductive health services;
  1. Investigate, prevent and punish all incidents of ill-treatment of women seeking abortion services or post-abortion care.

The submission goes on to discuss the rape law and laws allowing child marriage.The Global Justice Center (GJC) works to achieve sustainable justice, peace and security by building a global rule of law based on gender equality and universally enforced international human rights laws… GJC’s legal projects challenge systemic discrimination in the enforcement of international law, while shaping international law to ensure gender equality. In doing so, GJC seeks to advance the integrity of our global legal system, forge new rights for women and girls, and have a direct positive impact on the rights and lives of persons who suffer from egregious human rights violations. GJC’s August 12th Campaign, created in 2010, challenges the denial of safe abortion services to women and girls raped in war and works to ensure that such services are provided in all humanitarian medical settings.The World Organization against Torture (OMCT) is today the main coalition of international non-governmental organizations (NGO) fighting against torture, summary executions, enforced disappearances and all other cruel, inhuman or degrading treatment. Specific programmes allow it to provide support to specific categories of vulnerable people, such as women, children and human rights defenders. In the framework of its activities, OMCT also submits individual communications and alternative reports to the special mechanisms of the United Nations, and actively collaborates in the development of international norms for the protection of human rights.FULL TEXT OF THE REPORTReprinted with kind permission of the GJC and OMCT._________________________________________________________________________________________________________________________ Endnotes

  1. SRI LANKAN PENAL CODE § 303.
  2. SRI LANKAN PENAL CODE § 303.
  3. Eighth Periodic report of the Government of Sri Lanka to the Committee on the Elimination of Discrimination against Women, U.N. Doc. CEDAW/C/LKA/8, p. 12, table 1, 29 May 2015.
  4. R. Kumar, Abortion in Sri Lanka: The Double Standard, 103 AM. JOUR. PUBLIC HEALTH 400 (2013)
  5. C. Arambepola & L. Rajapaksa, Decision making on unsafe abortion in Sri-Lanka: a case-control study, 11 REPRODUCTIVE HEALTH 91 (2014).
  6. C. Arambepola & L. Rajapaksa, Decision making on unsafe abortion in Sri-Lanka: a case-control study, 11 REPRODUCTIVE HEALTH 91 (2014).
  7. C. Arambepola & L. Rajapaksa, Decision making on unsafe abortion in Sri-Lanka: a case-control study, 11 REPRODUCTIVE HEALTH 91 (2014).
  8. R. Kumar, Abortion in Sri Lanka: The Double Standard, 103 AM. JOUR. PUBLIC HEALTH 400 (2013).
  9. Concluding Observations of the Committee against Torture – Nicaragua, U.N. Doc. CAT/C/NIC/CO/1, ¶ 16, 10

June 2009; Amnesty International, The Total Ban in Nicaragua: Women’s Lives and Health Endangered, Medical Professional Criminalized, 2009, at 23.

  1. Concluding Observations of the Committee against Torture – Philippines, U.N. Doc. CAT/C/PHL/CO/3, 39-40, 2 June 2016; Concluding Observations of the Committee against Torture – Poland, U.N. Doc. CAT/C/POL/CO/5-6, 23, 23 December 2013; Concluding Observations of the Committee against Torture – Ireland, U.N. Doc. CAT/C/IRL/CO/1, 26, 17 June 2011; Concluding Observations of the Committee against Torture – Paraguay, U.N. Doc. CAT/C/PRY/CO/4-6, 22, 14 June 2011; Concluding Observations of the Committee against Torture –Nicaragua, U.N. Doc. CAT/C/NIC/CO/1, 16, 10 June 2009; Concluding Observations of the Committee against Torture – Peru, U.N. Doc. CAT/C/PER/CO/4, 23, 25 July 2006.