23 January, 2018

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MMDA, ACJU & Pussyfooted Reformers

By Ameer Ali

Dr. Ameer Ali

The need for reforming the Muslim Marriage and Divorce Act is long overdue. After a long gestation the Sri Lankan Government, quite appropriately, appointed a committee of Muslim experts in the field, chaired by a Supreme Court Judge, to make recommendations. The All Ceylon Jamiyyathul Ulama, a conservative religious body with close ties with Saudi Arabia and Gulf States, appears to have scuttled that committee’s original recommendations and forced a dissenting report with the support of anti-reformers in the committee. Now there are two reports, and, yet a third “divided report”, which should have been finalised in December last year has not seen the light yet. In the meantime the Regional Councils Elections have caught up the attention of Muslim politicians and nothing may happen until that circus is over. However, one outcome is certain from this prolonged saga. There will be a legislation in the Parliament sometime this year which will only reflect centuries old Muslim matrimonial status quo with perhaps some cosmetic changes in the name of reforms.      

In reality the issue facing the Muslims is much deeper and more challenging than what this legal tug-of-war over MMDA entails. The ACJU always takes refuge under the cover of the so called sharia (Divine Law) for whatever that it advocates, which makes the challengers pussyfooted for fear of being branded as heretics by ACJU hierocracy. ACJU also claims that it has the ultimate say in interpreting what sharia contains and instructing how it should be implemented. It is time that this fallacious posture is intellectually countered and demolished so that a liberal, discursive and pluralistic environment, like that existed between the 9th and the 11th centuries, is created for introducing constructive reforms to be implemented for the sake of Muslim community’s progress, peace and prosperity.

The term sharia is opportunistically exploited not only by organizations like ACJU and others who have a vested interest in maintaining the status quo but also by Muslim governments and Muslim politicians who employs it as the last resort to rally mass support to their otherwise dwindling popularity. It is the general contention of Islamic orthodoxy that what it calls as the sharia law is celestially authored and no terrestrial body has the power to change it.  This is factually and historically erroneous because firstly, nowhere in the Holy Quran, which is believed to be the word of God, could one find a comprehensive list of laws governing all aspects of a Muslim’s life to be called Divine Laws. Even a few that are found scattered in the text would look more like an option than a prescription if the Quran is contextually analysed. The Quran is definitely not a legal document. In fact, according the Syrian-born Islamologist Bassam Tibi, whose evidence comes from Mohammed Said al-Ashmawi’s masterpiece Usul al-Sharia (The Origins of the Sharia), the word sharia occurs only once in the Quran and that too not in a legal but ethical and moral sense. In chapter 45, verse 18 the Quran says, “Then We put thee on the (right) Way of religion: so follow thou that (way), and follow not the desires of those who know not.” The “(right Way)” is sharia, as Yusuf Ali translates. Also, Muhammad Assad in his Message of the Quran, elaborates the literal meaning of this word as “the way to a watering place”. Therefore, to link sharia with law is factually incorrect. Even if we accept for argument sake that sharia is Divine Law who in the world would know those laws better than the Divine itself. Even the Prophet did not have that privilege.

However, the Quran has signs and guidance for humanity from which humans could derive laws to conduct themselves in the “right way”. Historically, Muslim jurists and the ulama of the golden era of Islam who were not only well versed in religious knowledge but also in other intellectual disciplines – a condition largely ignored by today’s ulama – used their critical mind and thought process to derive such laws that have come to be known as fiqh. Within Sunni Islam there are now four eponymous fiqh corpuses named after their authors. The one that is largely adopted in Sri Lanka is that of Muhammad Idris bin al-Shafi (767-820).

There are a few points to note here. Firstly, fiqh is not a Divine product but derived from a rigorous intellectual thought process undertaken by some exceptionally erudite humans. Incidentally, those who undertook that process were all men without exception. Hence, the laws governing marriage and divorce are literally manmade. No wonder, there is gender bias in these laws in favour of men. Secondly, because fiqh is manmade it is alterable as human knowledge broadens and deepens and as time and circumstances change.  None of those famous fathers of the four schools of fiqh namely, al-Shafi, Abu Hanifa, Ahmad ibn Hanbal and Malik ibn Anas ever claimed that their laws were universally applicable at all times. There was one incident during the rule of the Abbasid Caliph Abu Ja’afar al-Mansur that will prove this point. When Mansur decided to declare Imam Malik’s al-Muwatta, which the Caliph himself instructed the Imam to produce, as the law of the Caliphate Imam Malik opposed that move arguing that there were different communities and cultures within the Caliphate and that his laws were not suited to all of them. Similar instances could be cited from the lives of Imam Abu Hanifa and Imam al-Shafi who were so liberal in their approach that they never claimed universal superiority for their laws and interpretations.

The rationale for changing MMDA is indisputable because that Act is heavily gender biased and the circumstances of today’s Sri Lankan Muslim women have changed dramatically since that Act was passed in the 1950s. These women are now better educated, more knowledgeable, more skilled than their previous generations, and above all they have become an income earning entity prepared to take sole responsibility if needed in the economic management a family. In short they are not only becoming more independent economically but also more learned to understand by themselves what their religion teaches. In short, gone are the days when men told the women what the Quran says about women. 

All this development should be considered when undertaking reforms. If one can stop reciting the Quran for a moment and start studying it and understand its intentions and directions of those revelations one will be surprised to realise how accommodative and farsighted that Holy text is. It is only when one comprehends that accommodativeness and farsightedness one would realise how the Quran becomes a text for all times.  How to do that study? According to the Tunisian scholar on Islamic theology Muhammed Arkoun, one needs a “tele-techno-scientific” mind instead of a “mytho-historical mind” to enable oneself to think the “unthinkables” and “unthoughts”. For more than a millennium Islamic religious orthodoxy has deliberately prevented the development of a tele-techno-scientific mind among its students. ACJU is no doubt a victim of this historic retrogression.  This explains why they scuttled the original reforms suggested by the committee.

What should be done? The reformers should not get pussyfooted just because the word sharia is hurled upon them. There are two fundamental principles on which the early Muslim jurists constructed their legal corpus: dharurath (necessity) and maslaha (welfare). Are the reforms necessary now? And, will the intended reforms enhance the welfare of those who will be impacted by them immediately and society at large eventually? If the answers to both questions are positive then the reformers should be able to assert their position and if need arises confront ACJU through argumentation. An argument can be demolished only by a better argument and by fatwas and condemnation. To advance a better argument in the case of MMDA the reformers themselves should have a solid grounding on the teachings of the Quran. One can only hope that they at least would have a tele-techno-scientific mind.       

Dr. Ameer Ali, School of Business and Governance, Murdoch University, Western Australia

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Latest comments

  • 3
    1

    In a non-Islamic country where Buddhists rule and Buddhism dominates, the Muslim community is so tiny and just a fraction, yet so divided among themselves to an extent that they’re struggling for decades to get along and find a simple solution for MMDA reforms, says that SL Muslims are good for nothing, and living years behind.

    Perhaps, SL Muslims need to get some training on finding solutions for something simpler than MMDA first. How about sorting out piling of footwear and the crowd making a mess out of searching theirs in the mosques as the prayer ends?

    • 1
      2

      Rishard.
      It is not compulsory to pray at the mosque. You can pray at home. You can put your footwear in a bag and carry it with you for safe keeping.
      It’s strange, I mean your priority’s..

      • 1
        1

        Sarrij,

        You sound a typical one! I am not faking my name, and I know what I am talking about. Don’t you know that Prophet (PBUH) laid a rope from a blind man’s house to mosque? It is that important.

        My message was, the majority of Muslims are not organized and never think of others or others’ convenience, and always selfish.

      • 1
        0

        R.
        Instead of making sweeping statements why don’t you suggest a concrete solution to “piling of footwear and the mess it creates”.
        MMDA reform is required and urgent. The Prophet never was a misogynist; the ACJU is influenced by Mullahs who are misogynists and political hacks.

        • 0
          1

          Suggest a concrete solution to piling of footwear? Muslims should learn and be brought up not to be selfish, and respect others convenience first, be it another Muslim or a non-Muslim (not just footwear, but in all aspects. In my experience, I have never heard of any Imam preaching on improving practical thinking among these guys during a Friday prayer session)

          Until such a time, mosques should find a way to overcome this irritating trend and the similar. It is the responsibility of the mosque trustees to make sure everyone comes to pray feels comfortable.

          MMDA reform is urgent. But what is the percentage among Muslim women (who are the direct victims) know even the word MMDA? Or some serious battle is going on to reform it?

          For example, men not knowing to respect others convenience, women not knowing about MMDA, etc, etc, etc are all pointing fingers at something common – Muslim Parents don’t do much in improving a child’s life. Muslim mothers lacking not only education but also some common sense.

  • 3
    2

    Haven’t we had enough of MMDA and ACJU? It is quite boring. Please spare us the boredom.

    • 1
      2

      Muhandiram
      ACJU is looking for honorary Ulemas. Preference will be given to ‘bored’ people.

    • 6
      2

      GoSL and the education ministry must force Muslim children to school. Laws and legislation must be passed to enforce this. Breaking the shackles of ignorance that surrounds this community is to benefit of all – Muslims.tamils Catholics and Sinhalese. Muslims have never integrated anywhere- not UK , US. germany, or Australia.
      When you read comments like Sri Lanka is only for Muslims or only for Sinhalese and Muslims – citizens should be worried.
      Tick tock tick tock ….

      • 0
        0

        Niro, very true. See for instance what happened to innocent Tamils and terrorist Tigers who had been calling Jaffna is only for Tamils?

      • 0
        0

        You buffon Nero all Muslims children go to school except those in remote villages or very, very poor. That is true even for Sinhalese and Tamil children.

        • 2
          0

          Ah, Mohomad,

          So there are exceptions! Whether Niro is a buffoon or not, I don’t know. I find that Dr Ameer Ali always writes eminent sense.

          I’ve not rested with that. I have found that some disturbing things have been said about Ameer’s son in Australia. But that surely has nothing to do with the validity of what Ameer says.

          Thanks, Dr Ameer Ali, for all your excellent articles.

    • 4
      8

      Leave Islamic matters to Muslims. We Muslims don’t get involved in Hindu and Buddhist affairs. So follow your father’s religion which is Buddhism. We can handle Islamic affairs internally.

      • 6
        1

        We defeated the Arabs. Unlike india Pakistan, Bangladesh, Maldives. Your on our turf. Losers don’t get to tell us what to do.

        • 2
          0

          Niro,

          You defeated? where? In cricket, football, jallikattu or tug-of-war in an avurudu games?

      • 2
        1

        Fathima, then, people like Ameer Ali should Stop writing about Islamic affairs in the National Media.

      • 2
        0

        Fathima.
        V. simplistic thinking .”We Muslims”are a divided lot and politically opportunistic. For the country to be progressive religious identity should be very minimal and have no significant
        political roll. We all should attempt to practice “the separation of religion and politics” for the benefit of ALL.

      • 2
        0

        Dear Man masquerading as Fathima,

        You can manage affairs internally in some other country. A child born in Sri Lanka is a citizen of Sri Lanka. I don’t want any such child being turned in to a sex slave.

        The assurance that only one old man rapes her doesn’t take away my misgivings.

        I’m not a racist, for all that I call myself by something that you may find provocative.

        Want to know my real name, and see my unhandsome face. Google Thomian + Pharisees and you will see both in some articles that I have written.

    • 5
      0

      Dear Muhandiram,

      I think that you are right, but I’m no Islamophobe.

      Muslims must be protected, like all other people in Sri Lanka. There are laws to protect human beings. There are laws relating to marriage. Let there be no special laws for Sinhalese, Tamils, Burghers, Moors, Malays. Those are supposed to be ethnic groups. I don’t know how scientific that classification is.

      Let there be no special laws for religious groups. Bring Buddhists (including monks), Hindus, Muslims, Christians, Agnostics, Atheists, Jews, Zorostrians, under one law since they are humans. No laws for dogs and bitches which mate in all sorts of ways – but too many of them: neuter them, or shoot them. Please shoot no humans.

      Scrap MMDA entirely. Please don’t ignore the problems faced by female babies born to Muslim parents. Most crucial is having marriage age at eighteen for all human beings in this country.

      Why can’t our GOVERNMENT stand firm on this. Well, they don’t stand firm on anything, do they?

      What says Muhandiram to that?

      • 1
        0

        Dear Sinhala Man

        Has man found solutions to his problems whether Social, Economic, Political and any other? Is there any country in the world which is free from Crime, Poverty, Inequality, Exploitation etc. regardless of whether there is one law for all or different laws for different groups?

        We in Sri Lanka have enough and more problems Politically, Economically, Socially and otherwise with Bond Scams, Corruption, Poverty, Hunger, Starvation, Murder and Crimes of all types in spite of Laws and Legal Systems. Aren’t such problems more important than MMDA and ACJU on which the likes of Ameer Ali are spending their time? And this man, Ameer Ali is a retired Professor! Can you see how our qualified people are missing the wood for the trees?

        • 2
          1

          Dear Muhandiram,

          There ARE problems more serious than the mosquito which tried to bite me just now. I killed it, Hurrah!

          Are you telling me that because more serious problems exist, I shouldn’t have killed the mosquito?

          Have you not read what I’ve written? I have asked that all special laws for Muslims be scrapped. Do you disagree with that?

          The above is the question that you must answer.

          I don’t mind the government exerting itself on behalf of 1.5 million (and rising!) Muslims and amending MMDA, instead of denying them some right to a special identity. I say that because I understand the complexity of the problem. I don’t like special identities. Not even the Sinhala Man identity.

          Let us all be human beings.

          My wish is different from the question that I’ve asked. Please see above.

    • 0
      1

      You are right, I cannot understand why this donkey write about MMDA and ACJU when he is not an authority in Islamic subjects. This brings only hatred comments here.

  • 4
    1

    All Ceylon Jamiyyathul Ulema (ACJU)

    Ameer Ali, thank you for raising the MMDA issue.
    The All Ceylon Jamiyyathul Ulema (ACJU) is an unelected body with its head Mufthi Rizwe holding the post of chairman for over a decade.
    Rizwe in repeated Jumma sermons had insisted that females should wear the Nikab and has been a strong opponent of any reform to the MMDA, insisting on ideals such as marriage at the age of 6 being permissible.
    Activists have attempted to reform MMDA1951 and have pointed out that MMDA as is where is, violates human rights. Mufthi Rizwe says “OK, reforms are permitted provided no changes are made”.
    This man must be run out of town.

  • 1
    5

    Dr. Ameer Ali: what you are talking is your religion’s setup. This ACJU, MMDA are all organizations which implement your Holy book and other arabic rules. IF your god is discriminating against women what to talk. YOu also do not talk about Female Genital mutilation in Sri lanka and I heard it is prevalent and rampant in the muslim or Islamic community. what I cannot believe is how we buddhists say our is majority buddhists. Why God the creator is this barberic.

    • 6
      0

      J S
      Obviously, you have no clue about Islam.
      It is your prerogative to believe or not to believe, any religion.
      Female Genital mutilation is a cultural prevalence, nothing to do with Islam or God. Get educated you ignorant man?

      • 0
        2

        Sarji: What you guys show faith is to Arabic version of Islam. I can teach you Islam if you write. Because you people are so ignorent.

        • 2
          0

          J S
          non capisto, you ignoramus.
          Islam is a religion revealed first to the Arabs in their native language which is Arabic. This is the original language .The Quran has been translated as well as transcribed into other languages
          How can you understand or teach Islam with your poor English? You must be joking!

          • 0
            0

            Dear Sarrij,


            It is easy for you to ridicule Jim softy whom all of us find irritating, and who cannot spell “ignorant”. I must concede that even what I write can have typos.

            Could you please tell us whether or not you want MMDA amended, so as to impose a lower age limit on marriage?

            You can say that child marriages rarely take place. Well, we don’t want a single.

      • 1
        0

        Dear Sarrij,

        I know that genital mutilation is not part of Islam.

        How do you defend not amending MMDA so as to protect children under the age of eighteen?

        • 1
          0

          S _M

          MMDA needs urgent attention and significant change and protection of women and children.
          SL law should apply to all Muslim women and children without any exception.
          The law of the land should always prevail.

          • 0
            0

            Dear Sarrij, my “brother”,

            _

            How nice to know that there is no disagreement between the two of us.

            I wish we could have every Sri Lankan saying what you have said!

    • 3
      0

      Jim softy dimwit

      Do you have any evidence to say Dr Ameer Ali is a believer and a Muslim.

      “Why God the creator is this barberic.”

      Of course God must be a Sinhala/Buddhist male chauvinist fascist.

  • 2
    3

    This man is confused He does not know any thing about Islam and its legal system: its theological system: He has learned about Islam from non-Muslim sources: he is brain washed with Non-Islamic ideas. I do not accuse him but his writing tells us that he does not have any profound knowledge about Islam: The terms deen, shariah are identical: the terns and its synonyms have been used in Quran many times: Deen is one for all prophets and but Allah gave different sets of law to different nations. Entire religion is a form of Shariah : theological, legal, moral doctrines all are part of shariah: fiqh is human interpretation to divine commands.
    I agree that we need to have some reforms but not as this man wanted. He wants to change all.. He may say its ok to eat interests. or let ladies to go out into clubs : this is not what we say reform. Reform within Islam:

    • 4
      3

      Lankan 7, you are the confused infidel. Islam is a primitive concept with barbaric laws and practices which are not suitable for the present age. Modern science is proving all Islamic teaching such as a flat earth and ascending to haven in a chariot as concocted fantasy fit for a comedy film. All these jokers who try to defend these outdated beliefs are only fit to fill a mental asylum and not to be part of a civilised society. When other religions are advancing, it is a pity that Islam is continuing to indulge in stupidity.

  • 4
    2

    A A.
    v good and appropriate.
    Unfortunately most of the so called religious rituals, practices and”Sharia laws” in SL have very little to do with Islam; they are basically imported pagan culture and practice spread by questionable and political mullahs with a political agenda mostly influenced by Saudi money and teachings.. The so called erudite “Muslim interlectuals” involved with ACJU and MMDA are mostly political hacks ,The Mullahs in particular are misogynic culturally.
    Unfortunately the hope for a progressive change in the MMDA in SL appears bleak at the moment, Sadly.

  • 3
    5

    What is wrong with this man ..
    Who is not an Islamic scholar .
    But read Islam from any one and anywhere.
    To read Islam you need to get it from right sources.
    Otherwise you will be misguided.
    Quran is not a book of science .
    But many scientific facts are mentioned in Quran
    I’m asking Dr Ameer Ali if he doubt the Quran.
    How did prophet knew all those scientific facts .
    1400 years ago
    How did prophet spoke about big bag theory or the expansion of university and many scientific facts are proven..
    How .?
    Read Qur’an and sciences by moris Bochales book

    • 2
      1

      “How did prophet knew all those scientific facts 1400 years ago”.
      You are absolutely correct as your prophet knew that the world was flat.

      • 2
        1

        Al-faquriah,

        1400 years back, the prophet to believe the world was flat is still okay when today, we still have people who believe that a monkey called Hanuman flew over the seas or in one mighty leap crossed over India and Sri Lanka back and forth.

  • 2
    2

    ( the Quran which is believed to the word of God ).
    Are you a Muslim or atheist?
    To doubt on Qur’an is serious issue.
    Any one doubt on the Quran is not a Muslim at all .
    First read this and speak about Islam

    • 0
      0

      Critical Thinking that is why you people are stupid. Book was written by some one and he said it is by the GOD and you believe it and continue it. Read and understand KALAMA SUTHTHA.

      • 0
        0

        Look at the man who advise to read Kalama Sutta, his writing is full of bigotry and intolerance.

        • 0
          0

          Can’t write more than one sentence. You are the authority to call an erudite scholar Donkey. Better see your face in front of mirror. The fact of the matter is, this is a Muslim issue and not an Islamic issue per se. Try to understand the difference.

    • 2
      1

      “Any one doubt on the Quran is not a Muslim at all”.
      You are spot on. Everyone who believes that the world is flat is a Muslim.

      • 1
        0

        A F
        You don’t understand the word think. You think wrong. Think again. Think if you thinking is logical.

  • 0
    0

    Equality before law is very important, so all the communities must be given a single personal law.

    If MMDA is so vibrant, it must be given to everybody irrespective of any differences (except that discriminating underage marriage).

    So all men should be entitled to marry 4 women & as women are to be treated equally they as well should be given a right to marry 4 men.

    If Muslim people are ready to accept this new concept of chained families we, the non-Muslims are ready to ok MMDA.

  • 0
    0

    Has Faizer Mustafa got cool feet after threats from Nana ? Or is he going to kade for him ?

    Why betray the community for personal political gains ? Is it not true leopard never loses its spots ?
    Why this petty hate .why change the name Akbar Town ? Something even and extremist like Mahinda never did ? Why such low down politics ?

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