By Ameer M Faaiz –

Ameer M. Faaiz

Does the axiom have it that the more you change, the more you remain the same? With a slight twist, what may be said of All Ceylon Jammiyathul Ulama (ACJU) is that the more you TRY to change, the more you are dragged to same. In an uncharacteristic move the representatives of ACJU in Justice Saleem Marsoof’s committee that was appointed in 2009 to make recommendations to reform the Muslim Marriage and Divorce Act (MMDA) have given their response in writing to the said committee’s draft proposals. This 37-page response[1] defies logic and common sense in virtually denouncing all proposed reforms and leading possibly to a deadlock within the committee. This is also bound to cause division within the community.

Islam has no concept of clergy. Yet religious scholars “Ulema”, barring a few honourable exceptions, often have arrogated to themselves disproportionate and illegitimate authority. In Sri Lanka, ACJU is no exception. However, history also records that truly learned Islamic scholars have been in the forefront of creative interpretation, within the four corners of Islam, needed for a coexistence society.

In an earlier piece I have drawn attention to the fact that there is no objective manner or mechanism to measure the quality and competence of members of this men only club in Sri Lanka. While remaining unaccountable, this body demands an unquestioning, unreasoning, community of followers – which is antithetic to Islamic principles. Islam indeed promotes reasoning and questions virtues to be a conscious and intelligent segment in the society. The rich Islamic Jurisprudence has been a source from which many current rights regimes have evolved. Unquestionably, Shariah is dynamic and not static.

President of ACJU for the last 17 years Mr. M.I.M. Rizwe was quoted in the media a few months back as saying that there need not be any amendment to the MMDA and the law in its present form is perfect. This was after having acknowledged on several occasions the need for reform, as a member of the committee that was established in 2009 to make reform recommendations to the existing MMDA. In the midst of outright condemnation he retracted his statement on 3^rd April 2017. He remarked then unfortunately, the statement made by the President of the ACJU that ‘’the MMDA in its present form is perfect, has been subjected to misinterpretation”.

The head of ACJU and his ilk defend themselves against criticism by mouthing “Islam is a religion of equality”, and that “Islam is a religion of justice”[2]. I have no doubt that it is. Its jurisprudence, in particular, opened the eyes of the world to equality and justice. But what is interesting is that while ACJU maintains this stance, its members do not seem to demonstrate the sincerity of this statement by personal conduct. If they really mean what they say, they should have no qualms to accept that human rights, equality, and social justice in Islam and Sharia principles, which they interpret and advocate for, can never be second to any internationally recognized human rights covenants. If so, there is no reason why the ACJU should not be acknowledging and accommodating internationally accepted rights.

Their personal conducts seem unbecoming of it, though. They had had the benefit of having gone through the draft of a report circulated amongst the members of the said reform committee, which was the culmination of a process in which they remained engaged. The leaders of ACJU nevertheless chose to breach the confidentiality, by taking on a sneaky campaign to lobby Muslim Parliamentarians and Muslim political parties against proposed recommendations therein.

I was present at one such meeting where the said lobbyists conceded that some amendments were needed to the existing law. Further to a query as to whether they shouldn’t explain to the public that MMDA is a law enacted by Sri Lankan Parliament to which amendments are being sought and not to tamper with Sharia-law as being misinformed by some anarchists, they remained quiet. They have not done that to date. Ironically as it may seem, they agreed that if the government were to bring about far reaching amendments, they would comply, as it would be the law of the land.

Despite reiterating that the ‘reforms were on’ as far back as October 2016 onwards, Justice Saleem Marsoof’s report is still eagerly awaited. Whilst empathising with Justice Marsoof’s prolonged persuasions at the elusive unanimity within his committee he should do well to realise that this delay in releasing his report has unfortunately played into the hands of those elements wanting to sidestep any reform efforts.

Now it is all the more apparent that the leaders of AJCU have formulated their response in writing to committee’s draft proposal that presumably has been circulated amongst the members for their perusal, assent or dissent in a dignified manner within the committee. The response provided, however, has offered some self seeking interpretations of Shariah rejecting virtually all the forward looking amendment proposals. This response in fact is going back on their own agreements reached at earlier deliberations[3] in respect of some proposed amendments.

Islam as understood and adhered to by the preponderant majority of the Muslims world over is a religion of peace. Islam promotes reasoning and critical review. Shariah is dynamic and not at all static. As written earlier, introduction of Islam elevated the status of women, gave equal rights and protection to women, at a time women had no rights whatsoever, female infants were buried alive and unlimited polygamous relationships were the norm. Any attempt to roll back a progressive jurisprudence or hold it static nearly 1450 years after the advent of Islam, purportedly under the guise of Shariah is a disservice to Islam which has to be stopped forthwith.

Many well-researched articles[4] that have appeared in the recent past have established beyond doubt and with substantial support drawn from Quran that women and children are entitled to equal protection and equal rights.

I, for one, hold the firm view that the response from ACJU signifies a blatant betrayal of the collective conscience and dignity of the Muslim community. It is my humble position that some of these ‘Ulamas’ of questionable competence do hardly deserve public respect let alone a role in the administration of justice.

The Muslim community must not be aloof beyond this. It needs to brace itself to debate, reason and critique. We should reject by all means this absurd, abusive, isolationist identity manifestation agenda. Our approach needs to be one that is just, intellectually challenging, tolerant, accommodative of diversity and promotes pluralism and coexistence.

If the Justice Marsoof committee and the erudite men and women therein do not bring out their report recommending progressive reforms the state must seriously step in and consider immediate;

1. introduction of a uniform format of marriage registration and divorce registration,
2. mandatory requirement of registration of all marriages and divorces,
3. removing the bar that proscribes Muslims registering their marriages under the General Marriages Ordinance,
4. Abolition of Quazi courts system and mandating civil courts to administer justice in terms of possibly reformed MMDA.

I had hitherto restrained myself from calling for the abolition of the Quazi courts despite having felt the need for it simply based on principal concerns of cost to litigants and possible delay. However, when one realises the justification offered in the ACJU response, it would appear that Quazi system is fixed on systematically stymieing any progress of the community in a pluralist country, including subjugation of women in order to sustain and wield their arbitrary power and influence.

Further abolition of the Quazi court system is not an end in itself nor is it going cause any harm to the Muslim community. We have witnessed fair administration of justice in matters of succession, custody of children, all civil transactions barring those related to marriage and divorce, financial transactions and disputes, criminal jurisdiction, etc all of which are administered through our normal courts and in some areas applying Muslim specific statutes and principles. This will also immediately restore certain degree of dignity and respect of the litigants and spaces where justice is administered but also provide much more decorum and safer and neutral space for Muslim women seeking justice.

It is also pertinent to draw the attention that in the recent past the Muslim political leaders, perhaps in order to cover their own lapses, have involved the Ulemas in public affairs, although the latter in most cases only had zero competence. The politicians must desist from doing this forthwith. If not it would amount to politicians unwittingly promoting a theocracy. The Civil society must open its eyes and start playing an active role including creating awareness of the dangers that lie ahead if this unelected, non accountable, men only club is left unchecked and unchallenged.

They should be stopped in their stride right now and without further delay. If not they are sure to drag the community down the precipice where intra community anarchy and abuse would be the norm and reasoning and critiquing would surely be shut and looked down.

Their using phrases as such ‘sin’, ‘sinning’ intermittently in a clear attempt to drive fear into the minds of those members of the committee standing by their conscience in support of reform, is well designed to achieve what it intends to. Their objective, perhaps, is to prevent members, particularly those who have fought regularly to safeguard the rights of many citizens in courts of law and continue to do so, from serving on the committee that was to undertake an onerous task of recommending realistic and responsible reform.

Muslim community would do well to learn from the experiences of others closer home. The recent media reports attributing various stances of Mahanayakes and Sangha in matters of politics and constitution making is anything to go by should strengthen the cry for a secular country. Similarly in the early days the majority from the Tamil community, civil society included looked the other side when the LTTE muted any dissent and alternative dialogue or narrative only to pay for that folly much later.

This segment of the Ulama can not be allowed to equate them selves to a kind of ‘Muslim Sangha’ and/or ‘Muslim Mahanayakes’. Such an attempt, if there was one, should be rejected outright. All Muslim Parliamentarians have subscribed to the call for Sri Lanka to be a secular country. Therefore they can’t be contributing and or fanning pseudo theocracy within the Muslim community.

The leaders of ACJU have already demonstrated by their conduct in relation to at least two issues that they would do anything, including totally un-Islamic deeds in order to preserve their self-importance and self-sustenance. One, the said president of ACJU Rizwe together with another important member of his ilk went over to the UNHRC in 2012 and uttered blatant lies to the effect that everything, including rule of law, human rights, rights of minorities, democracy were all fine and hunky dory and made bilateral representations too to that effect as reported in the media at that time. Two, when the BBS raked up tensions over the ‘Halal labelling’ issue in relation to products that were being marketed in Sri Lanka, the Parliament appointed a Cabinet sub committee to deliberate and address that issue. Whilst deliberations were on in the said Cabinet Sub Committee to resolve the said matter, in a surprise and possibly a self serving move the representatives of the ACJU engaged in negotiations with the then Defence Secretary and others and agreed without any reference to the said cabinet sub committee or its members to withdraw the said ‘halal labelling’ to be displayed on the products that are marketed within Sri Lanka.

The ACJU must understand and accept that they have no legitimacy to dabble in matters that are of civic nature, governance and politics let alone laws that govern people and administration of justice. They should realize and adhere to the laws of the land including the constitution of the country. It is in that manner that they could help promote coexistence and unity amongst different communities, which is one of their objectives.

It must be noted that the claim for reform of MMDA dates as far back as 1956, long before equality provisions came into our constitution in 1972. We need to own up our lapses in not making progress to bring discriminatory provisions up to speed with our constitution if we are to claim that we are a law abiding, quintessential set of citizens contributing to the welfare and social advancement of the country in which we live. Nobody should be allowed to scuttle or undermine this national responsibility.

[1] https://www.colombotelegraph.com/index.php/mmda-reforms-ulema-insists-women-must-play-second-fiddle/

[2] http://acju.lk/en/news/acju-news/item/1108-acju-and-the-mmda-a-statement-of-clarification

[3] Minister Rauff Hakeem’s speech at a public function in kalmunai on 14^th November 2016 as reported in Virakesari of   15^th November 2016.

[4] https://www.colombotelegraph.com/index.php/muslim-law-the-need-for-reform/