18 November, 2018

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MMDA Committee Report: Are We Asking The Right Questions?

This article outlines Muslim Personal Law Reform Action Group (MPLRAG)’s opening statements in the conversation on MMDA Committee Report and is Part 1 of a series of articles on the report(s) and reform process.

Ever since the long awaited report of the Committee Appointed to Recommend Amendments To the Muslim Marriage and Divorce Act (MMDA) was officially released, much has been said and written about the divided views of Committee members, the contents of the report and what needs to happen.

One of the main focus in these conversations has been about how best a “compromise” can be reached between what is pitched as the ‘JSM report’ and what is being referred by the All Ceylon Jamaiyytul Ulama (ACJU) as the Faisz Mustapha or ‘FM Report’ report. To be clear what is referred to as the JSM report is approximately 200 pages detailing contextual analysis and reasoning for the recommendations, and eight pages of ‘FM report’ with points on some of the key issues with little or no contextual analysis. It is surprising that people are able to compare both side-by-side given the extreme incompatibilities in language, evidence, framing and the recommendations themselves.

For many the drive for compromise appears to be a solution to prevent further divisions among the Muslim communities on this issue. This has seen some individuals attempting negotiations with the ACJU, and yet others are organizing multiple events on trying to reach this elusive compromise between the two reports.

But a compromise at what expense and on what issues?  Between minimum age of marriage as 12 and 16? Between ‘No’ women Quazis and ‘Yes’ women Quazis?. Between ‘No’sect law and ‘Yes’ sect law? And the list goes on…

The discussions on compromise are usually followed by the sentiment that the compromised amendments must be ‘according to Shari’ah’. Throwing the word around in conversations, or on the pulpit does not prove someone knows what it means. Ironically, both JSM and FM reports claim to be based on ‘Shari’ah’, despite contradictory recommendations.

But what does ‘Shari’ah’ mean exactly?

Among Sri Lankan Muslims there appears to be lack of clarity on what constitutes Shari’ah and the term is often confused with ‘Islamic law’. But Shari’ah is much broader than our narrow and mundane understanding of ‘law’ or ‘practice’. ‘Shari’ah’ is an all-encompassing term that literally means ‘the path to the water’. A system of guidance, a way of being, a source of ethics and fairness in Muslim belief. Shari’ah is the compass of a moral universe, and it points towards justice and equality.

The Maqasid al-Shariah or purpose of Shari’ah include the right to protection of life, family, education, religion, property/ resources and human dignity. The scholar of Islam, Ibn Al- Qayyim defined the four principles of Shari’ah as justice, mercy, wisdom and common good.  According to him the objective of the Shari’ah is the establishment of justice between and fairness among the people, so whichever path leads to justice and fairness is part of the religion and can never oppose it.

Clarity on Shari’ah, Fiqh and Islamic law is VITAL in this process

Sri Lankan Muslims must get clear on these different terms. Shari’ah is different from ‘Fiqh’ which is the basis of Islamic or Muslim family laws such as the MMDA. Fiqh is the human understanding and subsequent interpretations of Quran and Sunnah. The legal rulings that were given by various Islamic scholars on a plethora of different matters – from how to pray and fast, to how to marry and divorce – these are all HUMAN efforts of Fiqh.

Muslim law such as the MMDA is based on Fiqh – essentially man-made interpretations, which differ between primarily male scholars and schools of law (madhabs) sometimes to such an extent that some of the rulings of the same sect (Eg: Shafi’i and Hanafi madhabs of the Sunni sect) are directly contradictory to each other on the exact same issues (Eg: the requirement of wali/guardian).

This has led to a multitude of Muslim family laws globally. 48 or more countries around the world have some form of Muslim family law or practice, and no two such laws are exactly the same. This proves that diversity of opinion is a part and parcel of Islamic legal tradition which is flexible and fluid to respond to emerging issues and challenges. 

So the difference in opinion about amendments does not mean the Sri Lankan Muslim communities are divided, it means we are diverse – and this is a GOOD thing! It is what enables us at this point in time, in the tiny Island of Sri Lanka, to decide on the best possible amendments to our Sri Lankan Muslim family law, given contemporary context.

So on the MMDA report – Are we asking the right questions?

The problem with current discussions on the Committee report is that we are NOT asking the right questions. In fact the questions the Muslim community is currently asking –“How to reach a compromise? How to choose between recommendations of the two reports?” – are FUNDAMENTALLY FLAWED.  It assumes that the different recommendations of the Committee are the only possible options to choose from.

In asking these, we are forgetting why we are here in the first place – discussing the MMDA in 2018!

It is because and only because well over 20 years ago, and more so in the recent past, there was and is an acknowledgment and understanding that the provisions of MMDA discriminate against MUSLIM WOMENMuslim women are asking for this change because the evidence is overwhelming – the current MMDA as it exists now is causing Muslim women grave injustices. It is resulting in broken families, denying women and children their dignity, robbing Muslim girls of their education, which one can say goes against the purpose and principles of the Shari’ah.

So the ONLY questions that we must be asking are –

  • ARE THE RECOMMENDATIONS OF THE COMMITTEE GOING TO ADDRESS THE ISSUES OF DISCRIMINATION FACED BY MUSLIM WOMEN?
  •  Are they going to protect the rights of women and children? Will they ensure wellbeing of children?
  •  Are the provisions and procedures fair to all? Do they guarantee equality in marriage and divorce?
  •  Are the recommendations going to ensure dignity of all persons, especially those who are currently most affected?

In asking these questions for each of the issues, we will see that what Muslim women’s groups such as MPLRAG are demanding is precisely what we believe a Muslim family law based on Shari’ah principles must be. A MMDA that is just and fair in the provisions, process and procedures of marriage and divorce. A MMDA that grants Muslim women and men autonomy as full human beings that God created. A MMDA that restores and guarantees our dignity in all matters of marriage and family. A MMDA that ensure children’s wellbeing and opportunity for education.

A MMDA that considers Muslim men and women as equal partners in building and sustaining strong families and communities. 

Hence in our view – there is no ‘compromise’ to be reached between the JSM and FM reports. Each and every one of the recommendations of both groups needs to be scrutinized and assessed against whether or not they will ‘solve’ the problems and not continue or cause more discrimination against Muslim women and children. If they don’t then we need to discuss improvements – What kind of amendments will address the issues faced by women today and going forward?

MPLRAG strongly believes that an egalitarian MMDA that protects our rights as human beings and citizens of Sri Lanka, is a Shari’ah compliant MMDA!

Therefore, any recommendation for an amendment that continues to violate our rights and/or further perpetuate injustice towards us, cannot and will not be accepted. Because as Muslim women, our faith in a just, fair and equal Islam, will not allow us to stop fighting for justice and dignity in every aspect of our lives – especially the family.

Muslim Personal Law Reforms Action Group (MPLRAG)

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Latest comments

  • 10
    2

    So long as a corrupt bunch of Muslim politicians in a weakling government and an obscurantist ACJU are in cohort to protect their access to Arab purse no amount of rationality and protest is going to reform MMDA. Muslim women activists with their sisters from other communities have to enter into direct action.

    • 3
      2

      MPLRAG,

      “MPLRAG strongly believes that an egalitarian MMDA that protects our rights as human beings and citizens of Sri Lanka, is a Shari’ah compliant MMDA!”

      But….ACJU and many Muslim men strongly believes that an egalitarian MMDA that protects our rights as human beings(women) and citizens of Sri Lanka,(women) is NOT a Shari’ah compliant MMDA, will NOT Allow the Ulama to maintain their hegemony and to abuse and rape girls, which they have been doing for a long, long time.

      • 1
        1

        MPLRAG,

        “MPLRAG strongly believes that an egalitarian MMDA that protects our rights as human beings and citizens of Sri Lanka, is a Shari’ah compliant MMDA!”

        For the Ulama, abusing women citing scriptures, their own interpretation for self-interest of MMDA, is not enough. Even when it is not in the scriptures, they will pick up “traditions” from other pre-Islamic cultures, such as female circumcision, to consolidate their hegemony.

        For them, the constitutional rights of Sri Lankan Muslim women do not matter, as women are chattel, things like cattle.

        Muslim groups call for female circumcision to be medicalised

        http://www.dailymirror.lk/article/Muslim-groups-call-for-female-circumcision-to-be-medicalised-155186.html

        A number of Sri Lankan Muslim groups have called on the government to medicalise female circumcision.

        In representations made to the Parliamentary Committee on Women and Gender, members of the All Ceylon Jamiyathul Ulama, All Ceylon YMMA Conference, Centre for Islamic Studies and United Religions Initiative urged the Health Ministry to withdraw a recent circular prohibiting medical professionals from carrying out female circumcision.

        In their submission, the joint Muslim groups stated that the Muslim community is very concerned about moves to ban this obligatory Islamic duty on the grounds that it is Female Genital Mutilation (FGM).

    • 4
      1

      Sir,
      All are equal before the law. Regardless of gender, race, religion or sexual orientation. Period. TO HELL WITH RELIGIOUS TYRANNY! Islamic, Christian or Buddhist.
      PS: Corrupt SLFP & UNP leadership are being held to ransom by Vote Bank politics. They have no backbone to stand up against this kind of primitive injustice prevailing in modern-day SL. CITIZENS NEED TO TAKE DIRECT ACTION! TAKE TO STREETS! DITCH BOTH SLFP AND UNP!

    • 1
      1

      AA.
      Spot on.
      It’s a women’s issue as well, no matter which community.
      The present ACJU and its political supporters are a bunch of bullies.
      Justice SM has to be congratulated for his effort to correct the deficiencies in the defunct MMDA(1951).
      Hope the female Justice Minister has the courage and the will to table the legislation and make it the law of the land..

  • 1
    2

    ACJU is on its track but late.
    Latif , Ameer Ali and Rishard etc are blind as a bat comparing to this.
    Anyways thanks for exposing the truth.

  • 8
    1

    MMDA or JSM or FM – Who cares. What should matter in the final analysis is nothing infringes on the human rights of Muslim women and children. If there is an infringement the constitution should prevail. The constitution should supersede everything. This is the only way to liberate the Muslim women and children from the tyranny of medieval beliefs and practices so that they can lead their lives with dignity.

    • 2
      0

      Muslim Personal Law Reforms Action Group (MPLRAG),

      RE: MMDA Committee Report: Are We Asking The Right Questions,

      Thanks for the write up. Yes, Muslim girls and women are being screwed by ACJU, Ulama and many men every day in the DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA. Yes, this is travesty of justice. Ask the question from the Ulama, is Islam the religion of Peace or Injustice? Why did Islamic Science decline from the 11th Century? Ulama Hegemony? Faith and Reason and blind interpretations?

      “A MMDA that considers Muslim men and women as equal partners in building and sustaining strong families and communities.”…………………………………………………………….But ACJU, Ulama and many men do not think so, and taken upon themselves the interpretations of the scriptures, (HERMENEUTICS) to their own advantage.

      Throw the writings of Ibn Rushd/Averroes(Latin), on Faith and Reason and also on the Plato’s Republic.

      What about the French Revolution? The Women’s march?

      The women first marched to the Hôtel de Ville, demanding that city officials address their concerns.. The women were responding to the harsh economic situations they faced, especially bread shortages. They also demanded an end to royal efforts to block the National Assembly, and for the King and his administration to move to Paris as a sign of good faith in addressing the widespread poverty.

      https://en.wikipedia.org/wiki/French_Revolution

      The Revolution overthrew the monarchy, established a republic, catalyzed violent periods of political turmoil, and finally culminated in a dictatorship under Napoleon who brought many of its principles to areas he conquered in Western Europe and beyond. Inspired by liberal and radical ideas, the Revolution profoundly altered the course of modern history, triggering the global decline of absolute monarchies while replacing them with republics and liberal democracies.

  • 4
    6

    Its not about “Are We Asking The Right Questions?” Its about are we asking the questions to the right people. All Ceylon Jamaiyytul Ulama does not gather the opinions on Budhists regarding MMA. In order to create an inclusive society, Budhists must have a say in MMA.

    • 2
      0

      Then Muslim and Tamils must have a say about BBS..

      • 1
        0

        If Tamils and Muslims are members of BBS, of course they can. MMA is not a political party. Only members of UNP party has a say in governance of UNP. Same principle goes to any other political parties.

    • 0
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      Jim da Dimwit:
      “All Ceylon Jamaiyytul Ulama does not gather the opinions on Budhists regarding MMA. “

      Do you even know what MMA stands for? What has this got to do with Buddhists, Catholics or Hindus?

      You should be asking why the Mahanayake did not want Cooray as Governor in Kandy.

      • 0
        0

        Do you know what does LTTE stands for?

  • 1
    1

    What is required to society & individual is justice.

    The idea that justice is given through a religion is a medieval concept.

    It’s applicable to every religion including Buddhism; that’s attempted to be described as a philosophy only.
    The human advancement in knowledge (scientific) & paving the way for logical thinking is still beyond the reach for majority as they are still embroiled & suffering in medieval religions.

    Muslims are the terribly affected. We take pity on them, we have the task to take them to forget religion @ least for paving the way for justice.

    It’s an irony that even the US, which is believed to be in the forefront of knowledge & power still consider that freedom to have a faith in religion is a right.

    Even the UN should remove the right to have faith in religion from its charter & make man made law superior to religions.

    In such a manner we can make Sharia something irrelevant to life.

    • 1
      0

      RR.
      Buddhism is a PHiLOSOPHY NOT A RELIGION although it is practiced as a religion in SL.
      The US is a Democracy and the majority of people practice the Christian Faith and their rights and other religions rights are embedded in the constitution since its inception; this is not an irony.
      SL constitution gives preference to Buddhism pride of place with lip service to the Tamils (mostly Hindus) and other religious groups.

      Why should man made laws be superior; Russia and several other countries tried it and have been dismal failures; probably you belong to that mindset.
      Islam is the fastest growing religion in the world and Sharia guides the Muslim world.

    • 1
      0

      RR, you problem is very typical to SL mindset that you never understand, if not accept the issues that you are facing while trying to resolve others.

  • 3
    1

    Where are the voices of the Muslim Women in this column and comments?

    • 1
      5

      Muslim women are not allowed to participate in this discussion according to Islam.

      • 2
        3

        jimsot @
        Muslim woman never come and mix with those Boodayas who are kasippu and kudu addicts like you…!!
        Today your Kaavi Rowdies with some kudu addictswent to Mullaiteevu – jaffana , to erect a Idol of Budhar in a private land to occupy but sadly chased out by Thamil people. Budha is used to take others land illegally by Bhoodayas.. SHAME !!

        • 4
          2

          How do you know I drink Kassipu? It was that you selling kassipu to me behind the mosque last night.

          • 1
            1

            I though you are visiting only five stars for drink are you so cheap to visit behind the walls for a for no class drink

            • 0
              0

              obviously your thoughts are wrong. so next time you keep your thought to yourself. Whats wrong with drinking at a cheap place? You must be trying to hint to others that you are posh? usually people from the low class have to hint that.

      • 0
        2

        Their participation is banned by their fellow male animals but they’re in the process of accumulating energy & knowledge by reading (secretly) postings on CT (& likes).

        Lets expect a reasonable explosion in Muslim community.

  • 2
    1

    Good points to think about..
    It is a fight between literal school and rational school ..between a legal school that interprets rule of law literally or divine texts or Hadith and a rational school that goes with rationale of law or divine texts ..
    When rationale of law change ..
    That ruling must change in accordance with rationale .

    For instance ; under marriage ..
    Social norm of Arab in 6th century may have been fitting to such a marriage to take place ..
    But now situation is change or context is changes and world is changes ..
    Moreover; maturity of girls changed ..
    So; changes in ages is must now ..
    Ortherwise, intent of law will not be met at all ..
    Law will not be applicable to all place and ages .
    We can not go with literal world of with the texts that allows child marriage at all…rather we should go alone the wisdom and rationale of the texts ..
    The main controversial comes from this approach to texts.
    How to we interpret texts ..
    Literally or rationally .
    Contextually or literally ..
    Historically or not..
    Do we take time and space into accountant?
    Do we consider texts; contexts and social realities

    • 1
      0

      Lankan 3,

      “The main controversial comes from this approach to texts.
      How to we interpret texts ..
      Literally or rationally .
      Contextually or literally ..
      Historically or not..”

      Read up on In Rushd/Averroes works, 800 year ago. He said that there is no conflict between reason and scripture, only in this interpretation by the non knowledgeable Ulama. people of knowledge are only philosophers.

      https://www.iep.utm.edu/ibnrushd/

      Ibn Rushd (Averroes) (1126—1198)
      ibn RushdAbu al-Walid Muhammad ibn Ahmad ibn Rushd, better known in the Latin West as Averroes, lived during a unique period in Western intellectual history, in which interest in philosophy and theology was waning in the Muslim world and just beginning to flourish in Latin Christendom. Just fifteen years before his birth, the great critic of Islamic philosophy, al-Ghazzali (1058-1111), had died after striking a blow against Muslim Neoplatonic philosophy, particularly against the work of the philosopher Ibn Sina (Avicenna). From such bleak circumstances emerged the Spanish-Muslim philosophers, of which the jurist and physician Ibn Rushd came to be regarded as the final and most influential Muslim philosopher, especially to those who inherited the tradition of Muslim philosophy in the West.

      • 0
        1

        AMARASIRI .
        IT IS SAID IBN RUSHD HAS BEEN INFLUENCED BY ARISTOTAL AND PLATO IN HIS REASONING AND THINKING …
        SO; HIS LOGICS IS NOT ACCEPTABLE AT SOMR POINT ..
        HIS LOGICS IS AN ABSTRACT LOGICS ..
        NOT SUPPORTED BY DIVINE TEXT .
        BUT AL GHAZALI…
        HIS INTLLECT IS SUPPORTED BY DIVINE TEXTS .
        SO; WE NEED BOTH

        • 0
          0

          Lankan3,

          Read up on the Incoherence of the philosophers by Al-Ghazali and Incoherence of the Incoherence written about 60 or years later by Ibn Rushd, countering Ghazali’s arguments., where he showed that 17 of the 20 arguments were in error or incorrect. Inb Rushd was born 15 years or so after Ghazali died. The Ashari and Hanbali Ulama did not fully understand what Ghazali was countering, but was good enough to counter the philosophers,. So after, ibn Rushd countered with Incoherence of Incoherence, the Ulama instead of countering Ibn Rushd’s arguments, got him exiled by the ruler, and got his philosophy books burnt, just like the Catholic Church and the Inquisition.

          For example, Argument 17, Ghazali was wrong, wrong and wrong. Cotton burns because of oxygen,, not agent, and it could be stopped by a human.

          https://www.alaraby.co.uk/english/artsandculture/2015/4/9/ibn-rushd-in-his-darkest-hour

          During that period, Ibn Rushd and Arab civilisation suffered two tragedies. The first happened when Ibn Rushed was exiled from Cordova to Marrakech, and his followers were persecuted to the point where they hid their knowledge for fear of being killed.

          The second was the embargo imposed on Ibn Rushd’s enlightened philosophy that lasted for centuries.

          However, when talking about the trials of a philosopher like Ibn Rushd in the 12th century it is important to remember attacks on rational science, especially logic, began in Abbasid Baghdad under caliphs who were parrots in cages in the 10th century.

          A final reason offered was Ibn Rushd’s book The Incoherence of the Incoherence, in which he responded to the fallacies of Abu Hamid al-Ghazali’s The Incoherence of Philosophers. He did this despite knowing Ghazali was the master of the Almohad dynasty who were in power, and believed the earth was located between the horns of a bull.

  • 2
    1

    A Tongue-in-Cheek Response to the 4 Questions
    .
    [Answer1] Discrimination ? Discrimination ? What bloody discrimination ? Have you even read the full MMDA of 1951 ? The MMDA ensures that the rights of Muslim women are preserved forever. It is perfect.
    .
    [Answer2] Not just the rights of women and children, the MMDA is so perfect that, in it’s present form, it even protects the marriage and divorce rights of men.
    Ensure the well-being of children ? It definitely does, for you see this actually falls under ‘the well-being of women’ because what you do not seem to understand is that after a girl-child has had her first menstruation, she ceases to be a ‘child’ even if she is in her pre-teen years. Yes, that’s right, even if she is at the tender age of 9 – 10 years. She is considered to be a full-blown women ready for marriage and motherhood. A tried-and-tested method that has been in existence for 1,500 years and has withstood the test of time.
    .
    [Answer3] The fact that the MMDA of 1951 has been fair to men and women and that it has guaranteed equality in marriage and divorce is patently obvious to all but the most dense in our community. Don’t you know that the MMDA has been effective throughout muslim marriages since 1951 ? If it was not fair, would it have lasted for over 65 years ? Please read the recent article in CT on this topic written by one of our highly educated engineer-Brothers.

    [Edited out]

  • 0
    0

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

  • 0
    1

    We are asking the wrong questions from the wrong people.

    How about asking a panel of Muslim women, and consider their view too?

  • 1
    2

    In other news: one bunch of uneducated morons join another bunch of uneducated morons. No surprise there.

    “The Rehabilitated Liberation Tigers of Tamil Party yesterday (4) said that Bodu Bala Sena’s General Secretary Ven. Galagodaaththe Gnanasara Thera should be released soon. Speaking at a meeting, members of the Party opined that the monk had always acted in favour of the public.

    Leader of the Party, Kandasami Inbarasa claimed that the monk has warned about the rising Islamic extremism in the country. “As we know, the monk has not acted against any ethnicity. He simply pointed out the damage that can be caused by Islam extremism. He never harmed innocent Muslims,” said Inbarasa.”

    The sentence or the subject matter that led to the sentence had nothing to do with muslims.

  • 0
    0

    In Tamil Nadu, India, Muslim males and females participate in social discussions called “Pattimandram”.

    https://www.youtube.com/results?search_query=pattimandram+muslim

    Muslim Tamil scholars hold posts in universities.

  • 0
    0

    MMDA1950 violates human rights.
    Thank you in advance Muslim Personal Law Reforms Action Group (MPLRAG) for not compromising.

  • 0
    1

    ISLAM IS MADE FOR MEN

  • 1
    1

    I though you are visiting only five stars for drink are you so cheap to visit behind the walls for a for no class drink

    • 0
      0

      obviously you thought wrong. keep your thoughts to yourselves next time.

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