Colombo Telegraph

Faiz Musthapha Becomes Detractor In Chief Of The MMDA

Presidents Counsel Faiz Musthapha by a letted addressed to the Minister of Justice dated 12th February 2018, has sought to completely subvert the Muslim Marriage and Divorce Act (MMDA) reform process, the Colombo Telegraph learns.

Justice Saleem Marsoof

Sources at the Justice Ministry provided copies of letters sent by Faiz Musthapha to Minister of Justice Thalatha Athukorala following the submitting of the report by former Judge of the Supreme Court Saleem Marsoof.

Musthapha has attempted to derail the report presented following 9 years of deliberations by the Committee appointed to reform the MMDA, shedding light on the manner in which the Muslim intelligentsia in the country conducts itself.

The MMDA reforms seek to end child marriages, give equal rights to women during the process of divorce and reform the manner in which marriages and divorces of Muslims are conducted. As it stands today the Law is heavily tilted towards males and the courts by which Muslims function are entirely male dominated.

Musthapha in his letter alludes to a majority and states that the report presented to the Minister of Justice was not the report of the Committee. However, the report was submitted on January 22nd and was given full publicity a full three weeks before Musthapha makes this claim.

Faiz Mustapha

Musthapha together with other Muslim male leaders have continuously sought to derail any reform on the Act. Rizwie Mufthie, the head of the Council of Muslim clerics has been a vociferous critic of the process.

Mufthie has been on record stating that the full face veil is mandatory and calling for males to insist that their women are covered in full during his Friday sermons. During the run up to the last election he insisted that females should not be voted in and campaigned against Muslim women contesting.

Earlier, the Clerics headed by Mufthi called for the continuation of the child marriage system among Muslims citing various theological sources.

The main point of contention in Musthpha’s letter was that the report was not the view of the majority as the Secretary to the Committee Dilhara Amarasinghe had also signed it and that she could not be a signatory.

In response, Marsoof in a letter dated 16th of February, had lambasted Musthapha for distorting the entire process despite not being present during the latter stages of deliberations.

Marsoof setting out the position of the signatories states that the report was in fact the Report of the Committee.

We publish both letters below:

Telephone: xxxx (Res) xxxx (mob) Justice Saleem Marsoof
Email: No. xxxxx
Sri Lanka

16th February 2018

Hon. Mrs. Thalatha Atukorale,
Minister of Justice,
Ministry of Justice,
Superior Courts Complex,
Colombo 12.

Report of the Committee appointed to consider amendments to the Muslim Marriage and Divorce Act

Most Respected Minister,

I have received a copy of a letter addressed to your good self by Mr. Faisz Mustapha, PC dated 12th February 2018 containing some allegations and accusations which are altogether false and misleading, and I hope to present for your kind consideration the actual position in this response.

I strongly object to the words “purporting to be the report of the Committee” in the first paragraph of the said letter to describe the Report I submitted to your honour on 22nd January 2017. This Report is by no means a “purported report” as Mr. Mustapha attempts to make out, but is the actual report of the Committee. At a meeting held at the Ministry of Justice on 26th November 2017 pursuant to notice sent to the members under registered cover by the Secretary to the Committee, Ms. Dilhara Amarasinghe, which meeting was not attended by Mr. Mustapha, it was decided that the Committee should meet once again on 20th December 2017 at the same venue for the purpose of signing the Report, which was expected to be finalized by then. Late in the afternoon on 19th December 2017, I received an email from Mufti M.I.M Rizwe (Annexure B7 to the Report) informing me that 8 members of the Committee including Mufti Rizwe and Mr. Mustapha will “be forwarding a set of recommendations duly singed by these members to reach you [the Chairman of the Committee] and the Secretary by 12 noon on the 21st December 2017”. When I attended the meeting on 20th December, I had a printout of the recommendations prepared by me which had been modified to include the said Annexure marked B7 since it was considered necessary to give legitimacy to the set of recommendations which was to be made available to me on 21st December 2017.

Meanwhile, those who were present at the meeting held on 20th December 2017 and were in agreement with the circulated draft signed the recommendations of the Committee prepared by me, with the exception of Solicitor General, Mr. Suhada Gamalath PC, who could not attend the meeting due to another commitment and signed the Report a few days later and Ms. Sharmeela Rassool, who was present at the meeting but announced that although she had read the draft and was in agreement with it, would only sign it after receiving the permission of her current employer to do so, and did sign it on a later date. I too refrained from singing the said Report on that day and wished to await what was indicated in B7 to be sent to me the next day. I signed the recommendations prepared by me after perusing the document sent to me at noon on 21st December 2017 by Mufti Rizwe. Accordingly, the position is that altogether 9 members of the Committee singed the recommendations prepared by me, as Chairman, and there were two sets of recommendations, one dated 20th December 2017 and the other dated 21st December 2017, signed by equal number of persons, which recommendations were incorporated into the Report presented to your good self on 22nd January 2018, in chronological order. The two sets of recommendations were part and parcel of the Report of the Committee and in my Foreword, I have thanked all members of my Committee, including Mr. Faisz Mustapha PC, “who had fully co-operated with me despite acute differences of opinion that arose, most of which have fortunately been resolved.”

I am therefore at a loss to understand how Mr. Faisz Mustapha PC, who did not attend the meetings of the Committee held on 17th September 2017, 26th November 2017 or 20th December 2017, and did not participate in the deliberative process in its final stages, could describe the Report presented to your good self as a “purported report”. I am also unable to understand what has clouded his mind to the extent of contending that a Secretary of a Committee such as Ms. Dilhara Amarasinghe, Attorney at law, who in 2009 was Additional Secretary (Legal) of the Ministry of Justice, and fully participated in the deliberations attending almost all meetings of the Committee, cannot sign the Report of the Committee, when in the past, not only the Secretary to the Commission on Marriage and Divorce, Mr. T.E Gooneratne, Registrar General, sign the Report published in Ceylon Sessional Papers XVI – 1959, but had also authored two valuable appendixes to the Report, notably Appendix B entitled “An Historical Outline of the Development of the Marriage and Divorce Laws Applicable to Muslims in Ceylon”. Similarly, Mr. M.M Zuhair, Advocate who functioned as Secretary of the Committee chaired by Dr. H.M.Z. Farouque, and Mr. M. Z. Akbar, Attorney at law, who served as the Secretary of the Committee chaired by Dr. A.M.M Sahabdeen, had also singed the respective reports of the said Committees.

Mr. Faisz Mustapha P.C has contended in paragraph 2 of his aforesaid letter that the Committee originally consisted of 17 members including himself, but has failed to advert to the fact that since no Secretary had been named in the list of 17 persons whose names were included in the letter of 30th July, 2009 (Annexure A to the Report) issued by the then Hon. Minister Justice and Law Reform, Hon. Milinda Moragoda, two persons were later named as Joint Secretaries, namely Ms. Dilhara Amarasinghe and Mr. A.K.D.D Arandara, but Mr. Arandara did not participate in the deliberations after attending one or two meetings, and Ms. Amarasinghe functioned throughout as the Secretary to the Committee. Nor has Mr. Mustapha made mention of Mr. A.H.G Ameen, Attorney at law, who was subsequently appointed as a member of the Committee, and functioned as such until he passed away on or about 26th November 2015. I note that Mr. Mustapha has stated that after one of the most active members of the Committee Mr. S.M.A Jabbar, then Chairman of the Board of Quazis passed away on or about 25th February, 2012, “Mr. Nadvi Bahaudeen was appointed to fill the vacancy”, without explaining which Hon. Minister of Justice appointed him into the Committee. The fact is that Mr. Bahaudeen was not appointed by any Minister but was invited by the Committee to attend meetings of the Committee and make his contributions since he was later appointed as the Chairman of the Board of Quazis, which position he did not hold at the time the Report was singed on his behalf by Mr. Mustapha PC (with his authority since he was overseas) on 21st December 2017. The Chairman of the Board of Quazis at the time was Mr. M.Y.M Faiz. Having clarified the factual position, I wish to add that I do not in anyway question the legitimacy of Mr. Nadvi Bahaudeen signing the Report since I, unlike Mr. Mustapha, am not in any way obsessed with any thoughts of being part of a “majority”.

As to the obsession with the term “the majority” seen in the very first paragraph and carried throughout the said letter of Mr. Mustapha, my response is two-fold: (1) the same obsession was displayed in an email message addressed to me as Chairman of the Committee by Mufthi Rizwe dated 17th September 2017 (Annexure B4 to the Report) and a press release just issued by Ash-Sheikh H. Umardeen, Secretary of the Propaganda Committee of the All Ceylon Jamiyyathul Ulema (ACJU) and doing the rounds, a copy of which is attached to this letter, asserting that certain named members including Mufti M.I.M Rizwe and Mr. Faisz Mustapha PC constituted the “majority”, without naming the other members who signed the Report dated 20th December 2017 at a meeting summoned for that purpose at the Ministry of Justice; and (2) there have been numerous occasions in the history of mankind where the “majority” has been proved to be wrong, when very wise men were burnt to death at the stakes for asserting that the earth was not flat or was not the center of the universe, and in the contemporary world even the majority who voted for the exit of the United Kingdom from the European Union regretting their decision, and as far as I am concerned, all that matters is not the number who signed a particular set of recommendations but qualitatively which among the many recommendations deserve implementation.

Since Mr. Mustapha has only adverted to those members who signed the recommendations dated 21st December to which he is signatory, I too wish to put the record straight and include below a list of persons who singed the recommendations dated 20th December 2017, namely –

Justice Saleem Marsoof PC (Chairman);
Ms. Dilhara Amarasinghe (Secretary);
Hon. Suhada Gamalath, PC
Deshabandu Mrs Jezima Ismail,
Prof. Sharya Scharenguvel,
Mrs. Faleela Be Jurangpathy,
Mr. Razmara Abdeen,
Ms. Safana Gul Begum,
Mrs. Sharmeela Rassool.

In summary, let me state that Mr. Mustapha’s allegation that a Secretary of a Commission or Committee does only administrative functions and keeps records and has no authority to sign the report is baseless and is altogether unfounded, while being contrary to the practice of past Commissions and Committees to reform Muslim Matrimonial Law appointed in Sri Lanka as already demonstrated above, and even on his own argument, the Secretary’s signature is necessary to lend authenticity to the Report and its Annexures. The moves underway to stop the publication of the entirety of the Report with all recommendations and reasons is both sinister and malicious, and will altogether retard the endeavor to make much needed reforms to the Muslim Marriage and Divorce Act that as it stands now is contrary to shariah and the Constitution of Sri Lanka, not to mention Sri Lanka’s obligations under International Human Rights Conventions and Covenants and the welfare and well-being of a sizeable population of our nation. The Foreword to the Report did not attempt to go into details of the contents of the Report and was only introduced to thank all members and others including the successive Hon. Ministers of Justice for their unstinted support to the reform process, and the two sets of recommendations dated 20th December and 21st December 2017 have been placed in chronological sequence, and if necessary, the table of contents can be amended to make reference to the 9 page recommendations to which Mr. Mustapha is signatory when the same is published in the Ministry website, in sessional papers or in any other manner.

Justice Saleem Marsoof, PC
Former Judge of the Supreme Court of Sri Lanka,
Chairman of the Committee appointed to recommend amendments to MMDA.

Copy to Mr. Faisz Mustapha,
President’s Counsel.

Faisz’s letter:

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