By Ameer Ali –
After nine years of mental perseverance amidst the death of two of its members, the Justice Saleem Marsoof (JSM) committee appointed to consider amendments to the Muslim Marriage and Divorce Act (MMDA) lodged its report on 22nd January 2018 with the Justice minister Thalatha Athukorala. Although the report not released to the public, a copy of it reached me from an anonymous source. The Muslim community, especially its female sector, expected action to follow promptly so that its decades-long agony over matrimonial injustice ended forever. With a female at the helm as Minister of Justice, Muslim women naturally raised their expectations. It is therefore disappointing that the minister herself after calling for a meeting with JSM committee members on 9th May did not attend, but was deputised by her secretary. Will this report, like several others before and on different subjects, end up in the archives to dust? In the current state of play and with the government and the Joint Opposition getting busier over forthcoming elections that seems to be a strong possibility.
Although the twenty recommendations in the report do not go far enough to reflect and include the ideological and practical changes on the status of women over the last several decades, yet, there are some progressive recommendations, which if implemented can go a long way in ameliorating some of the injustices caused to Muslim women under the current system. Recommendations regarding higher marriageable age, consent of the bride before marriage, stricter conditions on polygamy, women Qazis and women members in Muslim Marriage and Divorce Advisory Board, women registrars of Muslim marriage, and abolition of dowry in all its form, will certainly enhance the status of Muslim women. However, to allow Qazi courts to deal with child custody cases and to continue with the privilege of unilateral divorce (talak) for men are regressive steps that will certainly disadvantage Muslim wives. Moreover, to reduce the number of Qazi courts from 64 to one per district will create lot of inconvenience and expense especially to the poor.
One of the difficulties that every reformer or reformers confront when struggling to reform Muslim marriage and divorce practices is the confrontation with mullahs (in this case with the All Ceylon Jamiathul Ulama or ACJU over the fiqh that had accumulated over many centuries and developed under different social, political, economic and cultural environment context. When environment changes, laws governing that environment should also undergo change. Fiqh is manmade even in its literal sense and therefore changeable, and not divine and eternal. In the case of Muslim societies and particularly in Muslim minority societies, fiqh has become an instrument of control in the hands of the clergy. When reading the report one can clearly see a running confrontation between members of ACJU and their sympathisers on the one hand and the women and progressive thinkers on the other, which has deterred JSM from going further in making its recommendations more forceful, substantive and progressive. It is unfortunate that the committee, which was heavily stacked with legal brains, did not include at least a couple of experts from other disciplines such as sociology and history. After all, marriage is not a religious but social institution. It is the rules of religious orthodoxy indoctrinated and imposed by the clergy that had kept this institution so male biased and made Muslim women suffer and remain oppressed. Only the women can fight for their liberation and win the battle against an oppressive male conservatism.
For the moment, with all the shortcomings in the report, JSM committee, especially its chairperson, deserves congratulations for taking some bold steps in the right direction. The women in that committee deserve a special word of praise for their indomitable stand against the reactionary views of a couple of lawyers, an educationist and members of the ACJU. The problem now is its implementation. Muslim parliamentarians as usual will sit on the fence watching which side the wind will blow to support or reject the recommendations. Muslim women forums and other human rights organizations should rally in front of the parliament urging the government to bring legislation, incorporating at least the more progressive of the recommendations, without further delay. If they miss this opportunity they will have to wait for another committee and another report, and the agony will continue.
It is appropriate and admirable that the report has included a provision that if its recommendations were to be rejected, then, as a last resort, an option be given to Muslim women to marry under the General Marriage Ordinance.