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 9^th and the 11^th 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