The members of the Committee appointed in 2009 to propose reforms to Muslim Matrimonial Law and the upgrading of the Quazi Courts, who were invited by the Minister of Justice and Prison Reform Thalatha Atukorale, to a discussion last afternoon with the Muslim Members of Parliament of their Report handed over to the Minister more than a year ago on 22nd January 2018, were in for a shock. The meeting, which was expected to be a “closed door” discussion, was attended by several others as observers, most prominent among them being the member of the Constitutional Council Javid Yusuf, who was neither a member of the 2009 Committee nor a member of Parliament.
As disclosed widely in social media, Javid Yusuf was one of those who went with a delegation of the Young Men’s Muslim Association (YMMA) to hand over a so called “consensus report” prepared by the YMMA to the Chairman of the 2009 Committee Justice Saleem Marsoof, PC and later to ACJU President Rizwe Mufti and Faisz Mustapha, PC last week. The YMMA report is said to be the product of the deliberations commenced by them at a Conference organized by the YMMA at Hotel Mandarina in September 2018, which endorsed the views of Rizwe Muthi and few others who signed with him and were opposing the progressive reforms proposed by the 2009 Committee. The YMMA had written to the Minister of Justice on 5th February suggesting that the Minister should request Justice Saleem Marsoof PC and Faisz Mustapha PC to study the YMMA recommendations and submit a revised report acceptable to the majority of the 2009 Committee members.
At the very commencement of the meeting, Justice Saleem Marsoof PC who was the Chairman of the 2009 Committee, was asked by the Minister to open the discussion, which he did, highlighting the fact that there was a great deal of consensus in regard to the matters considered in the Report of the 2009 Committee submitted to the Minister of Justice Thalatha Atukorale on 22nd January 2018. He also outlined the areas of contention which were mainly the question of the current disqualification of women to hold office as Quazis, issues relating to the applicability of the law according to their “sect to which the parties belong”, the qualifications necessary to be appointed as a Quazis, and the right of any person litigating in a Quazi Court to be represented by an Attorney at law of his or her choice which is now barred by section 74 of the Muslim Marriage and Divorce Act (MMDA) of 1951. He also said that in regard to age of marriage, polygamy and mata’a for divorced women, there was agreement in principle though there were some differences in regard to the details which need to be ironed out.
The very first matter taken up for discussion was whether the word “male” should be deleted from sections 12 and 14 of MMDA, which had the effect of preventing Muslim women of suitable attainments being appointed as Quazis when there is no similar bar to them being appointed as Magistrates or to any other Judicial office, and was therefore discriminatory. ACJU President M.I.M Rizwe Mufti strongly objected to the proposal to remove the bar to women being appointed Quazis on the basis that this is contrary to the shariah. Justice Marsoof disagreed, and pointed out that the Hanafi opinion was that women may be appointed to officiate as Quazis, and stressed that sections 12 and 14 of MMDA violated the equality provision enshrined in Art 12 of the Constitution. This was brushed aside by Justice A.W.A Salam, who pointed out that the MMDA was “existing law” and remained valid. He then went on to make some adverse comments regarding the funding of a book written by Justice Marsoof in 2001 entitled “The Quazi Court System in Sri Lanka and its Impact on Muslim Women,” but was prevented by the Chair from continuing since this meeting was summoned not to discuss this book but the Report prepared by the 2009 Committee.
Justice Marsoof stated that he and some progressive members of the 2009 Committee were targeted by certain ulema who at Jumma sermons expressed the view that some of the reforms proposed by them based on the opinions of the Hanfi school of thought were contrary to the shariah. He said that the great imams of Islam, Imams Abu Haniffa, Shaffei, Malik and Hambal, who founded the four major Sunni mazhabs, and their adherents respected each other’s opinion and were very flexible in their approach to developing the fiqh, and that he was very pained by these Jumma sermons. He said that while it is necessary to consider the opinion of the Muslim community in bringing about reform, which the 2009 Committee had done in earnest, it was necessary to make the Tamil version of the Report available to the Muslim public and give them time to study the contents of the report before consulting them in regard to the proposed reforms, since they have been misled by these jumma sermons.
At this stage Safana Gul Begum, Attorney at law spoke about the need to upgrade the status of Quazis and the Quazi Courts and to redress the abuses taking place in these courts. She emphasized the need to make it compulsory to register all marriages since the absence of registration caused difficulties to women claiming maintenance and children applying for schools. She said that since the reforms deal with marriage and divorce, which involve both males and females, there was an acute need to consult the opinion of affected women in regard to the untold suffering they are made to undergo in the Quazi Courts. Attorney Nadvi Bahaudeen, who has held office in the past as the Chairman of the Board of Quazis, outlined the practical difficulties faced by Quazis and made some useful suggestions on how they may be removed through administrative measures.
Hon Mujibur Rrahman then proposed that since there is no time to consider all matters in detail, a committee be appointed consisting of Justice Saleem Marsoof PC, Faisz Mutapha PC, Sheikh Rizwe Mufti and Constitutional Council member Jawid Yusuf to attempt to reconcile differences of opinion in a manner acceptable to all members of the 2009 Committee. Attorney Razmara Abdeen stated that the 2009 Committee has completed its task and handed over its Report, and the ball is now in the court of the government to implement the Report.
The Minister of Justice agreed and said that administrative measures will be taken to redress some of the grievances of the Quazis and litigants. The Minister of Justice also said that there was wide consensus that the Muslim Marriage and Divorce Act requires urgent amendment, and that it was also necessary to take immediate steps to publish the Report of the 2009 Committee in Tamil and go ahead with the proposed reforms in consultation with the Muslim members of Parliament. The meeting was attended by Minister of Justice Thalatha Atukorale, Ministers Rauf Hakeem, Rishard Bathiudeen, Abdul Haleem, A.H. M. Fowzie, State Ministers Ali Zahir Moulana and S.M.M Harees along with other Muslim Members of Parliament.