A leaked version of the report compiled by a committee led by Justice Saleem Marsoof to amend the Muslim Marriage and Divorce Act (MMDA) published in the website Groundviews is incomplete and distorted. Colombo Telegraph obtained the original and complete report and publishes it below.
Six long months have gone by after the finalization of the MMDA Committee Report and its hand over by the Chairman of the Committee Justice Saleem Marsoof, PC to the Minister of Justice Thalatha Atukorale on 22nd January 2018, but still the Report has not been officially published, and several applications for access to the Report filed by women’s activists are still pending before the Right to Information Commission. The only silver lining in the dark horizon has been the publication of a “leaked”, redacted, incomplete and to some extent distorted yet useful version of the Report for the reform of the MMDA in the Groundviews of 5th April 2018.
The Marsoof Committee had been appointed by the former Minister of Justice and Law Reform Hon. Milinda Moragoda in July 2009 to consider and propose amendments to the Muslim Marriage and Divorce Act, No. 13 of 1951 (MMDA) and the upgrading of Quazi Courts, as Minister Moragoda was of the opinion, as stated in the letters of appointment issued to the members of the Committee, that a “review of the Muslim personal law and the system of the Quazi Courts was urgently necessary”. The general public, in particular affected Muslim litigants of either sex, have anxiously awaited the publication of the Report of the Committee and its implementation, but since of late, they have expressed their frustrations in many ways.
It is not surprising that on the very day the MMDA Report was handed over to the Minister, the Muslim Personal Law Reform Action Group (MPLRAG) speaking on behalf of all affected Muslim women, expressed their anguish and anxiety against the delay in handing over of the Report which had been finalized on 21st December 2017. The MPLRAG also staged a protest in front of the Ministry of Justice at 9 am on 22nd January 2018 to demand the handing over of the report without further delay. Apparently, the women’s activists were not aware that the Report was to be handed over to the Minister that very day, but intelligence reports about the proposed demonstration prompted the Ministry of Justice to change the time of handing over of the Report from 9 am to 11 am in order to avoid embarrassment to the much-respected Chairman of the MMDA Committee.
The aspirations of long suffering women for the improvement of the Quazi Court system were expressed in the said article published in the Sri Lanka Brief on 22nd January 2018 by the MPLRAG in the following words:-
“We understand that the submission of the report by the Committee is just the start of the process for reforms, as each individual recommendation for amendments to the MMDA will need to be considered in the light of constitutional guarantees of equality and non-discrimination, as well as other human rights standards and Sri Lanka’s international treaty obligations. But the submission of the report we believe, will be a significant step towards the expediting progress on equality and justice for Muslim women. Therefore today’s silent stand is to say NO MORE TO DELAYS and to ask the Minister of Justice, Hon. Thalatha Athukorale to (1) provide the Muslim community with an urgent update of the status of the report and its exact date of submission; (2) ensure that the report once submitted is shared with the public; (3) invite open consultation and dialogue about the contents and recommendations of the report, especially engage with women who are directly affected by the MMDA; (4) brief the Muslim community on the process and timeline as to when the MMDA amendment bill will be prepared and tabled in Parliament; and (5) ensure that any and all amendments considered to the MMDA are in keeping with equality and non-discrimination between Muslim men and women and formulated with full engagement and participation of women’s groups.”
While the Ministry of Justice has been dragging its feet in disclosing the contents of the Marsoof Report in full, much has been written about the report after its hand over to the Minister of Justice by some authors who were likened by lawyer Ameer Faaiz to the proverbial blind men inspecting an elephant in his piece entitled “MMDA: Groping in the Dark?” published in the Colombo Telegaraph dated 19th February 2018. Even after Groundviews published the “leaked” MMDA Report on 5th April 2018, articles written by very learned authors on the topic expose the lack of full knowledge on the subject entirely due to the non publication of the Report by the Ministry of Justice, which according to Tisaranee Gunasekara in her comment entitled “In the Springtime of Tyrants”, was the result of “the government succumbed to pressure from fundamentalist Muslim clerics” and shelving the MMDA reforms, “despite the crying need to redress the egregious practices sanctioned by the MMDA, especially child marriage”.
It is no secret that the President of the All Ceylon Jamiyyathul Ulama (ACJU) Mufti M.I.M. Rizwe, has strongly opposed any amendments being made to the Act stating that it is of divine origin and “perfect in in the present state”. He created dissent and division within the Committee, which was predicted by Dr. Ameer Ali in an otherwise well written article entitled “MMDA, ACJU & Pussyfooted Reformers” to produce “two reports”.
It is fortunate that in these circumstances that the MMDA Committee had put its act together to produce one Report reflecting a fair amount of consensus on most of the controversial issues deliberated by the Committee, and was handed over to the Minister of Justice by the Chairman of the MMDA Committee, Justice Saleem Marsoof P.C, on 22nd January 2018. The Committee has recommended unanimously that the Muslim Marriage and Divorce Act should be amended to upgrade the Quazi Court system with the status of the Quazi enhanced to that of a Magistrate and the Board of Quazis to be renamed “the Quazi Appellate Court” with a full time Chairperson, to fix a minimum age of marriage, to provide for pre-marital counseling, to enable the bride as well as the bridge groom to sign the Register of Marriage and spell out terms of the marriage contract, to make the demand or provision of a dowry other than mahr and kaikuli an offence punishable by law, to remove the existing prohibition on the appointment of women as Marriage Registrars or Members of the Board of Quazis, to make the prior approval of the Quazi Court a prerequisite to enter into a polygamous marriage, to allow the Quazi to seek the assistance of family councilors, arbiters and mediators in resolving matrimonial disputes, to provide that at least one of the three assessors assisting the Quazi at hearings should be a female, to permit the grant of khula divorces even without the consent of the husband in appropriate circumstances, to streamline provisions for applying for divorce by mutual consent and for nullity of marriage, to empower the Quazi Court to grant mata’a to divorced women as prescribed in the Holy Quran and make orders relating to the custody of children and access, to make the system of enforcement of orders of Quazis more efficient, to provide for the maintenance of electronic records with inter-linking facilities to prevent abuse, and to establish a Maintenance Fund to financially assist destitute women who are not receiving maintenance for reasons beyond their control.
There are of course, a few matters in relation to which the members of the Committee have not been able to reach consensus. These include the requirement that all Quazis should be full time “Judicial Officers” who should be Attorneys-at-law with sound knowledge of Muslim Law, the age at which a person may be competent to contract a marriage, which according to the Committee Chairman Justice Marsoof and those who have agreed with him should be on the attainment of 18 years of age for both males and females, while Mufti Rizwe and his co-signatories have agreed to 18 for males and 16 for females, the deletion of the word “male” from sections 12(1) and 14(1) of MMDA to remove the prohibition of women holding office as Quazis, the removal of all references to the “sect” of a litigant in section 16, 98(2) and other provisions of the Act to enable the application of the same law to all Muslims governed by the Act, and the amendment of section 74 of the Act to remove the prohibition on an Attorney-at-law representing a party before the Quazi Court.
It is noteworthy that MMDA Report consists of two volumes, Volume I containing the recommendations of the members of the Committee, and Volume II in which the representations received by the Committee from the public which have been referred to in Volume I are included. In Volume I of the MMDA Report which runs into 323 pages there are two sets of recommendations, the first dated 20th December 2017 signed by Justice Marsoof and his co-signatories and the second dated 21st December 2017 signed by Mufti Rizwe and his co-signatories. The MMDA Report, which most Muslims believe is the need of the hour, deserves careful consideration by the Ministry of Justice, the Attorney-General, the Legal Draftsman and the Cabinet of Ministers before a draft Bill is presented for the approval of Parliament. The Report has considered many contemporary issues in an exhaustive manner, and provided many viable solutions, in regard to a few of which there is some difference of opinion.
The implementation of the progressive recommendations of the Marsoof Committee can, apart from giving relief to the long suffering litigating public, can also reduce the extremism the Muslim community is accused of. Although the said Committee had called for and considered representations of the public and had also engaged affected persons in formulating its Report, it may also be wise for the Ministry of Justice to commence a process of engagement with affected persons, particularly women without delay, before finalizing its recommendations to the Cabinet. Colombo Telegraph has in its possession Volume I of the MMDA Report in its entirety. It is important for the public to be aware of the contents of the Report in view of its importance and the fact the so called “leaked” Report published in the Groundviews has deleted all important schedules to the Report and its annexures reducing the 323 page Volume I to 270 pages.
To read the complete MMDA Report Volume – I click here