20 September, 2018

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MMDA – Groping In The Dark? 

By Ameer Faaiz

Ameer M. Faaiz

The long-awaited report by the ‘Justice Saleem Marsoof’ (JSM) committee that was set up to ‘consider and propose reforms to the Muslim personal law and Quazi Courts System’ delivered its report to the appointing authority the Minister of Justice, on 22nd January 2018. This labour on reforms to the Muslim Marriage and Divorce Act (MMDA) has taken nine long years. It is somewhat akin to a complicated and arduous delivery of a baby. There are claims that what has in fact been delivered are twins. Although consensus has been reached in a broad range of issues the committee was unable to reach consensus on all aspects where reform is needed. The result is different sets of recommendations in relation to such issues. The Minister has not made this report public yet. This has left many groping in darkness. 

Mr. Hilmy Ahamed, writing on the subject has accused Justice Marsoof of miserably failing to ‘negotiate a consensus.’ Responding to another article Hilmy Ahamed has, himself, claimed some credit for what he describes as a ‘much improved document’ that was dated and produced on 21st December 2017 by what he refers to as the “majority group” in which agreement was reached on some contentious issues. However, he complains that the Chairperson of the JSM Committee had already made up his mind on what should be said in the report and hence had no interest in studying the so-called ‘improved’ version.   

Prior to that the Minister of Justice had called a meeting to sign the JSM Committee report the previous day, 20th December. That meeting was not attended by seven of the members who are said to have signed the differing set of recommendations. The Report is said to contain a narrative of the events that led to the circumstances that made it virtually impossible for the whole committee to arrive at a consensus.   

In another article, written more objectively, Rizani Hamin poses the question as to whether Muslim men are “against equality?”. Obviously some certainly are! Rizani likens the debate surrounding the MMDA in Sri Lanka to the debates around issues involving Muslim women globally: a gender war.

Contrary to her own assurances and undertakings at the meeting of the Sectoral Oversight Committee on Women and Gender chaired by Hon. Dr. Thusitha Wijemanna, Member of Parliament held on 6th December 2017 at the Parliament, the news media have reported that the Minister of Justice is considering not publishing the report until it is forwarded to the Cabinet of Ministers and discussed in Parliament. Rather than follow the proverbial blind men inspecting an elephant, I spoke to a few members of the Committee themselves. This confirmed my belief that the Chair of the Committee and the members had been working hard towards consensus and were almost there when, in October 2016, the Cabinet of Ministers approved a proposal by the former Minister of Justice, Dr. Wijedasa Rajapakshe, to appoint a Cabinet sub-committee ‘to make proposals on amendments to the Muslim Marriage and Divorce Act, which allows girls under the age of 18 to be married.’ Whilst some, including the All Ceylon Jamiayathul Ulema (ACJU) welcomed the proposal, some including Sri Lanka Thowheed Jamath (SLTJ) protested. However, the government wisely decided to await “the Justice Marsoof Committee” report.

It is learnt that with the politicisation since October 2016, the Marsoof Committee got into turmoil. The consensus that had emerged prior to October 2016 was disrupted by what a member of the Committee described as ‘hidden hands’. This apparently led the Chair to ask the president of the ACJU, Mr. M.I.M Rizwe, who himself was a member of the MMDA Committee, and who has also considered to have contributed to the delay in finalising the report, to host meetings of the Committee at ACJU’s auditorium. On a proposal by the said Rizwe, a ‘small committee’ within the JSM committee was apparently been appointed to discuss issues and try to reach consensus. Despite meeting thrice nothing positive has emerged from them.

It is learnt that a meeting of the MMDA Committee scheduled for 17th September had to be postponed as certain members claiming to be the “majority” group failed to attend. Instead, they emailed a document containing their views that morning. But on 26th November, the meeting had to be again adjourned as a report containing a ‘majority opinion’ had been brought by M.I.M Rizwe whilst the other signatories to that opinion kept away from the meeting making meaningful discussion impossible. Hence, members present had decided to meet on 20th December for purpose of signing the Report whilst resolving to endeavour to reach consensus in the interim. However, on 19th December 2017, the said Rizwe had informed the Chairperson by email that a signed ‘majority report’ would be sent to him by noon on 21st December.

Thus, it appears that some members of the JSM Committee turned out as scheduled on the 20th having signed a report dated 20th December and those who did not turn up for that meeting, signed their own set of recommendations the day after, 21st December. Although claims of a ‘majority’ have been made, in fact the committee has been evenly divided. Two sets of recommendations have been signed by nine members each. 

This is perhaps how the Report submitted to the Minister of Justice by the Chairperson has come to consist of two sets of recommendations, one dated 20th December and the other 21st December.   

If the above chronology is correct, it would seem unkind to state that the Chairman of the MMDA Committee, the respected Justice Marsoof, either failed to attempt at arriving a consensus or didn’t bother to read an alternate opinion or had made his mind up on his own. On the contrary, the claim that those amongst the committee who did not want to agree to certain reforms that are in line with Shariah and Fiqh may not have had the courage of their convictions to meet as agreed to discuss different opinions in the open within the committee, may hold water. Needless to mention, we Sri Lankans have enough experience to know very well that ‘majority’ is not necessarily always correct. Since the Committee is divided on certain proposals the best cause of action would be to make them public to enable a broad discussion. Based on that, an informed decision could be made.

It is also interesting, if not ironical, that those who claim to follow the Shariah principles in letter and word take pains to emphasise the ‘majority’. In the Islamic tradition and system, the decision is made by the Ameer (the chair in this case) who has only to consult (Mashoora), but his decision, even if he is the sole attributor with a preponderant majority differing from him, prevails and everyone accepts without dissent. Maybe the principle of Mashoora and adhering to the decision of an Ameer can go fly a kite when it comes to interpreting Shariah, fiqh, and so on for self-serving purposes by men claiming to be (un)holy!

It is pertinent to reflect on the divide in the way Muslims approach the interpretation of the Holy Quran and Sunna. The Commission on Marriage and Divorce (1959) averred in paragraph 54 of its report to this divide as follows: – 

“There was one extreme point of view advanced by witnesses that the Quran establishes an exhaustive religious code of conduct for all time which no Muslim or other person has the right to amend in even the slightest degree. There were others who maintained, with equal reverence to the Quran, that considerable reforms of the law were possible within the very framework of the Shariat

This apparent conflict of opinion may be easily dispelled by a better understanding of the concept of Shariah and its divine origins, and the dynamism of the principles of fiqh, which has been developed by jurists including great Imams such as Imam Shaffei and Imam Abu Haniffa. The word “shariah”, literally means “the way to God”, is generally used to refer to the body of Islamic canonical law based on the teachings of the Holy Quran and the traditions of the Holy Prophet (Hadith and Sunna), prescribing both religious and secular duties and sanctions to deal with lawbreaking. The term “fiqh” which literally means “deep understanding” or “full comprehension”, refers to the body of Islamic law extracted from detailed Islamic sources, and constitutes an important aspect of the Shariah. It is this body of law that is referred to as ‘the Muslim law’ in various provisions of the Sri Lankan MMDA. It is necessary to stress that progressive reform of the law is possible within the very framework of the shariah owing to the dynamic nature of Islamic fiqh and the methodology of ijtihad, which is known as usul al-fiqh. They certainly do not oppress and/or discriminate against women.

It must be emphasised that the JSM Committee’s work could not have been easy in view of the complexities of the issues involved and the diversity of opinion held by members of the community and the committee itself. Nevertheless, as these issues affect the very life of all men, women and children over whom the MMDA has jurisdiction they have to be considered in great depth from both the shariah and pragmatic perspectives. The work done by the committee, and which resulted in its report of 20 December, thankfully, resolved most of the differences of opinion. For that and for having diligently worked for so long and, more importantly, for having reached agreement on a set of recommendations, whether it be by majority, evenly divided or otherwise – the men and women in the committee and indeed the Chair need to be applauded and thanked.

It is now left to the Minister of Justice to take the Committee’s Report to its logical fruition. This would include making it public so as to afford an opportunity for discussion among the society at large as expeditiously as possible. Reforms to the MMDA are five decades overdue.

As has been said by many and umpteen times the MMDA contains many provisions that are discriminatory and inconsistent with the Islamic concepts of Justice and Equality. Litigants who had to invoke the jurisdiction of Quazi Courts, have suffered in silence for nearly seven decades, and it is indeed satisfying to learn that the recommendations of the JSM Committee are said to be both comprehensive and shariah compliant. The recommendations are said to include upgrading Quazi Courts and the Board of Quazis by making all Quazis full time judicial officers. They address knotty issues of substantive law arising from the description of the applicable Muslim law as ‘governing the sect to which the parties belong’. They fix a minimum age of marriage, and provide for pre-marital counselling, for the bride to sign the marriage register, and for registering the terms of any marriage contract. Solemnisation and registration of a second or subsequent marriages to adhere the shariah requirements too are said to have been dealt with.

However, most notably, consensus seems to have eluded in the Committee regarding the appointment of women Quazis and representative appearance in Quazi courts, which women regard as essential for the protection of their rights and are necessary to avoid miscarriages of justice.

Justice Marsoof and the members of his Committee deserve to be congratulated in making much progress to a very great extent in difficult times and circumstances. Yet, whether they have successfully crossed what some would call a “gender divide” or not can only be ascertained once the report is made public.

It is also incumbent on the members of the committee, who are considered to be erudite and learned, to make their views, justifications and recommendations contained in the report public. This will afford them opportunities to explain their convictions, be transparent and squash unnecessary groping in the dark resulting in warped speculations.

If they, or anyone of them, are pressurising the Minister not to make the report public that would be an admission on their part that their opinions and recommendations are not only not Shariah compliant but also cannot be defended in public. The MMDA is a vital matter of public importance that should not be mired or mystified by self-serving calls garbed under the false pretexts of emotional religious rights and identity manifestations claiming special laws and treatment that would only drive the community to exclusion, chauvinistic regression and backwardness.

The Muslim community as a whole need to be clear that it wishes to be enlightened, adhere to Islamic Jurisprudence on social justice, equality and pluralism and be compatible citizens of a pluralist democratic country whose Constitution aims at equality, freedom, protection and autonomy for all. 

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    AMF.
    Very good and balanced write up; well done!
    Let’s hope that this very important report gets published asap and does not gather dust in the Justice Ministers office or hit the dust bin; anything is possible in Paradise.
    Judge SM seems to have pronounced the long awaited, a fair minded conclusion on Muslim Women. Obviously the women especially the majority of Muslim women will be delighted to read the report for obvious reasons.
    The self proclaimed Muftis and Mullahs and their henchman and the political hacks will be disappointed; this is to be expected.

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