21 August, 2019

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MMDA Reforms: The Need Of The Hour – A Muslim’s View

By M Mifly Naleemi

The unique feature of Islam is the justice, fair play, equity and equality to all irrespective of gender, status, class and ethnicity of a person. The theologians or Ulamas are too not exempted from this basic fact. That is why it is said there is no “Priesthood” in Islam. No one has any special privilege or favor other than through his/her deeds and actions. No one is above the law and everyone is subject to criticism and question.

Nowadays, print and social media write for and against the views and suggestions purportedly attributed to Dissenting Group of the Saleem Marsoof MMDA Committee to the proposed amendments recommended by the committee headed by former Acting Chief Justice Saleem Marsoof.

I feel it is my duty too as a member of the Muslim community who was actively associated in the Islamic theological studies for the last fourteen (14) years to express my views on the proposed views and suggestions of Dissenting Group so as to dispel the consequential misunderstandings and misconceptions which would have been created in the minds of people who have lack of deep knowledge about Islam and Shariah

Dissenting Group is attributed to have said inter alia the following contentions which have been subjected to severe criticism by the media.

Imposing of minimum age of marriage is the violation of Shariah.

Appointment of women Quazi is in contravention of the Shariah. 

There are some basic principles for understanding and interpretation of any law- be it western or Shariah- If anyone tries to understand or explain such laws superficially without having awareness of such basic principles, misinterpretation of the law would be the inevitable result.

Few such basic principles related to understanding the MMDA Reforms are as follow:

Contextual meaning prevails the literal meaning. 

In pari materia (“upon the same matter or subject”) When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter

Golden rule versus literal rule. (Isthikraa’u). The golden rule gives the words of a statute their plain, ordinary meaning. However, when this may lead to an irrational result that is unlikely to be the legislature’s intention, then it is interpreted taking the spirit of the entire statute into the consideration.

Generalia specialibus non derogant. 

Specific rule prevails the general rules

I had a reasonable doubt when I read the views of the ACJU on the proposed reforms to the MMDA whether it had any idea of the principles of interpretation of a law.

I wish to explain the five (05) basic Islamic rulings covering the entire life of any human being so as to understand the incorrectness of ACJU on the above said two contentions. 

Obligatory (“Wajib”): The doer is rewarded and the abstainer is punished. Ex: Being truthful.

Prohibited (“Haraam”): The doer is punished and the abstainer is rewarded. Ex: Deception.

Commendable (“Sunnath”): The doer is rewarded and the abstainer is not punished. Ex: Giving charity. 

Undesirable (“Makrooh”): The doer is not punished and the abstainer is rewarded. Ex: Telling white lie.

Permissible (“Mubaah”): The doer is neither rewarded nor punished. Ex: Selection of dress, foods and other similar day to date affairs.

Any aspect- without any exception- of life of any human being does not fall except under one of the said five rulings in the sight of Shariah.

Imposition of minimum marriageable age

There is no any explicit or implicit ruling in Shariah saying that giving of a girl in marriage once she attained the puberty is “Obligatory” (wajib) or “Commendable” (Sunnath), instead it is permitted (Mubah).

In Islamic Shariah, what is prescribed as “Permissible” (Mubaah) can be made as “Obligatory” or “Prohibited” for a “Public interest” which is called in Shariah as “Maslaha Mursalah”.

 Several examples can be cited. The Holy Qur’an was compiled for the public interest after the death of Prophet Muhammad (PBUH). Nobody said it is in contravention of the Shariah. The restrictions and control imposed (for the public interest) on the trade of import and export cannot be argued as it is violation of Shariah simply because the Shariah has not imposed any restriction on international trade.  The mandatory requirement of possessing of valid driving license is not against Shariah even though it has not imposed such restriction. All these issues are classified under the category of “Permissible” (“Mubah”).  

Similarly, imposition of minimum marriageable age (which falls under the category of “Permissible”) for a “public interest” (Maslaha Mursalah) is not a violation of Shariah simply because Shariah has not imposed such restriction as claimed by ACJU.     

Assuming without conceding that child marriage is “Obligatory” or “Commendable”, the golden rule -which is equivalent to “Isthiqra’a” in the Shariah- on analyzing the other verses and spirit of the Shariah law, implies that child marriage is not recommended due to several reasons including the impossibility of getting just and fair consent from a child bride. 

The following authentic Hadees explicitly emphasizes the importance of getting the consent of the bride prior to her marriage.

“When a man gives his daughter in marriage and she dislikes it, the marriage shall be repudiated” (Bukhari, 67:43).

Hence, the probability of such negative ruling may lead to an absurd result that is unlikely to be the pure intention of the Shariah and so on.      

Appointment of Woman Quazi  

There is no any hard and fast rule that women should not be appointed as Quazis. There is no any explicit prohibition in this regard in the Shariah. ACJU might have come to the conclusion that Muslim women cannot be appointed as Quazis based on the interpretations of literal meaning rather than of the contextual one.

For an illustration, the holy Qur’an says: “and they-women- have rights similar to those against them in a just manner, and the men are a degree above them-in responsibility and authority-, and Allah is Mighty, Wise.” (Chapter 2 and Verse 228) 

The above verse does not subscribe to the interpretation that women are inferior to men. On the contrary it explicitly implies that men are given some responsibility over women in some aspects   considering the inherent strengths and weaknesses of the gender.

Further, it was attributed to Dissenting Group that the following saying of the Prophet Muhammad (PBUH) was quoted to prove that women are incapable of leadership roles

“No people will ever prosper who appoint a woman in charge of their affairs”

The saying attributed to the Prophet Muhammad (PBUH) was a specific incident mentioned by the Prophet.

 Hence, the specific incident or rule should not be generalized in the light of the maxim of interpretation of “Generalia specialibus non derogant”.

Assuming without conceding that there were such explicit narrations to the effect to say that men are superior to women, such literal interpretations contravene the golden interpretations when we look at the Shariah on a larger perspective (which is called in Shariah “Isthiqra’u”)

For an illustration the holy Qur’an declares

“Never will I allow to be lost the work of any of you, whether male or female; you are of one another.” (Qur’an 3:195)

“O mankind, indeed We have created you from male and female and made you peoples and tribes that you may know one another. Indeed, the most noble of you in the sight of Allah is the most righteous of you. Indeed, Allah is Knowing and Acquainted.” (49:13)

On the basis of the above and other facts, I kindly request the Dissenting Group of the Justice Saleem Marsoof MMDA committee to revisit their position, set aside the petty differences and come to a united position to reform this long awaited MMD Act. 

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Latest comments

  • 0
    0

    his 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/

  • 7
    3

    We would like to hear the views of Izeth Hussain,Hilmy Ahmed and Mohammed fazal about this issue.They are up in arms against any trivial matter when it involves non Muslims and soon try to take the moral high grounds.Gentleman
    ,your own women are fighting for the justice of their young daughters who rightfully deserve a proper education employment and not a paedophile husband screwing them left and right .Common please use your pens to support them in the time of need .Otherwise you are just exposing your own male dominating hypocrisy .

    • 2
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      Did you really mean that, Prabath?

      Izeth Hussain passed away a few months ago, aged almost ninety.

      I’m glad I looked up the old gentleman, in his Dehiwela home, about two years ago. I didn’t find him at all fearsome.

      • 0
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        Ohh I do apologise.Really sorry to hear that .May his eternal life be blessed.
        Just wanted to highlight male muslim writers are largely silent on this Issue.

  • 8
    2

    It is the bounden duty of the ‘leaders’ of every religious group to ensure that the interpretations of the religious edicts that govern their members are compatible with the evolving social, economic, technological and cultural changes that influence society at every point in time so that it’s benefits reach every segment of that religious group.

    Brother Mifly Naleemi, when the Ummah find their path to progress blocked by intransigent ‘Lebbes’, they have just two options – either remove the block or circumvent it. The Ummah are wasting time trying to persuade the Lebbes to loosen their thinking. They will never do that since they individually and collectively have too much to lose. We, the Ummah, created our own ‘monster’ which is now running amok.

    The local electoral laws have been recently amended to necessitate the inclusion of females in the list of candidates of every party. This means that all the Muslim political parties too will be compelled to adhere to this rule. What then would be the response of our Lebbes to this development, bearing in mind their favorite Hadith ‘People who elect a female as their leader are destined to fail’ ? Are they now going to canvas against the election of female representatives at all levels of government in accordance with their interpretation of this hadith ? If not, why not ?

    • 0
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      ekelbroom ,

      Nowhere on this planet people are being guided by religions !
      It is peoples who guide religions . About how Muslims in
      Srilanka follow Islam can be explained by just one incident
      that takes place all over Srilanka on a chosen day of a chosen
      month of the year . The month is Ramazan and the day is 27th
      night . What does Islam say about the night of Lailathul Qadr ?
      “Find the night of Lailathul Qadr” on the odd days of the last
      part of ten days of the month, meaning from 19th or 20th
      fasting of Ramzan . This leaves you with 21,23,25,27 and 29 .
      What do we see in reality ? Mosques are flooded on the night
      of 27 for that night everywhere , every year ! Whose invention
      is that ? Who leads whom ? When I asked one Ulemma , I was
      told , people want it so they give it ! I put my second question
      that made him dumb . I asked him whether you are guiding
      the people or the other way ! Just one clear example for
      Muslims and it is the same with all other religions . So , why
      waste time on such hypocrisy of the whole religious societies ?
      People are just deceiving themselves and the Ulemmas , Monks
      Priests and Kurukkal all take advantage of the foolishness !
      ONE CAN NOT HAVE ECONOMIC DEVELOPMENT AND RELIGION
      IN ONE PACKAGE . LOOK AT THE DEVELOPED WORLD IF YOU
      DON’T BELIEVE IT.

  • 2
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    Vis-a-vis alternative ethical systems Muslims are struggling to save face. They are looking for new ‘interpretatins’ after 1400 years. Who will compensate for the absolute darkness billions of Muslim women lived through those 1400 years?
    Soma

    • 0
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      It’s not Muslim women who live in darkness, it’s their male folk that live in darkness but unfortunately holding power upon their women folk.

      It’s observed that a considerable number of women are living in fools paradise; obeying mythology.

    • 0
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      Soma ,

      The world is billions of years old and the history of humans run
      into millions of years . Human history was not under the control
      of 1400 year history of Muslims . Somas were running wildly at
      the sight of the sea in full panic when Arabs took a dive in sea !
      Muslim’s religion is also called one of three “Abrahamic”
      religions . So, go wild against all three religions and take your
      sister Leela with you . Remember , Babylon is the cradle of today’s
      civilization where you are groping in darkness while sun shines !

  • 7
    2

    MMDA as it is extremely unfair by the women and male chauvinism runs through the entire subject matter. Br. Mifly Naleemi has taken great task to explain certain matters in detail and I agree with him. Literal interpretation of certain Quranic verses and Ahadith certainly leads to mis –
    interpretations ignoring the essence of what Allaah desires. Hazrath Aisha (RA) is a proof that a woman can be far more learned than man and that can be the teacher of scholars and experts.
    If hazrath Aisha can be the commander in chief of the army at the battle of Camel, what prevents
    our women to hold responsible position. Our Mullahs are yet in the cocoon, refusing to grow and see the changes in Islamic World particularly in countries like Malaysia and Indonesia. Certainly Arab Nations are not role model to follow.

    • 6
      3

      If a Buddhist, Hindu or a Christian wants to give up Religion there is no compulsion from the Religious authorities. There are many I know who are off the hook. Can the same be said of the Muslims who wants to give up? I know one Muslim who wanted to give up Islam as he did not believe in Islam but he was mobbed by the Mullas and the community and forced to continue. What freedom the Muslims have.

      • 0
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        Gamini,

        All Muslims are not praying five times a day , specially those who
        live in multi culture societies in any part of the world . That is
        breaking one of five obligation . Majority of women don’t pray . Why
        should one leave the religion when nobody forces him to strictly
        adhere to it ? But if someone wants to leave, as I said , in a multi
        culture set up and in a – not so developed country , one can do it
        by totally abandoning his community and moving into the new
        community he has chosen . Mullahs , Monks or Priests , no one
        will stop him . Domestic parrots are not welcome and of course
        rejected by the flock of free parrots because of their language
        difference .

  • 2
    2

    Mufthi Rizwe, Chairman of Jamiyyathul Ulema (ACJU) in repeated Jumma sermons had insisted that females should wear the Nikab and has been a strong opponent of any reform to the MMDA, insisting on ideals such as marriage at the age of 6 being permissible.
    M Mifly Naleemi says that post-puberty brides are permitted (Mubah). No Mifly it takes many more years for the girl to become a woman.
    Has any Lankan Muslim MPs, the ACJU Mufthis given away a twelve year old?
    MMDA1951 reform is long long over due. It is in public interest (Maslaha Mursalah).
    Come out unequivocally Mifly. Do not try this ‘have cake, will eat and keep”

    • 0
      1

      K Pillai ,

      Girls of all communities , ancient and modern , find their partners
      starting from the age of ten ! Even today , girls from non Muslim
      communities have babies at the age of fourteen . What Muslims
      have done is , regulated it ! The truth about any woman of all three
      community is that they are not respected as equals at any stage
      by majority of men and Muslims as usual in everything else , are
      more backward due to their religious beliefs which are most of the
      times twisted to suit their hypocrisy . Nevertheless , it is
      questionable why Muslims’ should be reformed without a need felt
      by themselves ? And I am sure more than 99% of Muslims are not
      looking for marrying under aged girls . Just a couple of weeks ago
      I went to a funeral 150 km away from my place with my extended
      family members and after the funeral one guy brought in a proposal
      to a young girl of 16 yrs after seeing her and her father quickly
      rejected the idea saying that the girl is pursuing higher studies !
      The best part was , the groom tried to influence father showing off his
      wealth but still , with not much wealth , girl’s father rejected it .
      People are more intelligent today and issues like these don’t need
      this much publicity to influence them . What should not be done is,
      genuine diversity should not be challenged . Different cultures exist
      since time immortal and reforms should come trough understanding.

      • 0
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        whywhy says ~ “Girls of all communities, ancient and modern, find their partners starting from the age of ten………”.
        Preposterous! Did your sisters?
        Then you matter-of-factly say ~ “Even today girls from other communities have babies at the age of fourteen………..”.
        This is obscene. Fourteen year olds do not go looking for motherhood. Often the motherhood is due to rape.
        whywhy goes on ~ “……..What Muslims have done is. regulated it………”.
        Regulated rape?
        Can you see how the Friday Mufthi Ritzwi sermons have buggered your mind?

        • 0
          1

          “Sanatana Dharma “says , the right age for a girl to get married is
          the time of puberty which is normally 11-12 . Seetha is said to
          have married Rama at the age of 13 . That has been the practice
          in ancient times whether the stories are myth or real .It has been
          common practice of Aryans to get their girls married off 12-15
          years . It was reported in UK press just a week ago that a man of
          as young as 23 became a grandfather . But despite facts and
          figures are being produced with historic examples and media
          revelations of actual incidents , K Pillai outrageously tries to
          undermine truth for his thirst of possibly racism ! It is Pillai’s
          mind that ‘s been buggered by Tom and Dick !

  • 4
    0

    An excellent piece of writing on this burning issue..
    Islamic texts of Qur’an and Hadith….6666 verse plus some thousands of prophetic traditions did not provide solutions to all problems of humanity for all time and all ages.
    Qur’an and Hadith set broader and general guidance..of course they have given detailed and spefefic rules and regulations but those are limited..
    But general guidelines and principles are more..
    So; it is duty of deserning Islamic scholars to read the texts and interpret texts . When texts are silent on any issues ..
    Legal device of public interest; legal equity and many more legal principles should be applied for issues that are not mentioned explicitly in the texts …
    Now marriage issue is in clear conflict with many texts.
    So; it should be taken in light with general ideas of Islamic teaching.
    In Islam soundness of mind and maturity is a must to do any contract and any duty or reritual.
    Puberty does not tell us she is intellectually and rationally matured…
    Marriage is a great responsibility in life ..
    If a child is marriage she is not fitting for family life for many reasons.
    It is a child abuse
    She would not know how to lead a family life or sexual life .
    It would be crime to engage her in sexual life ..
    She wouldn’t be matured enough to lead sexual life .
    Moreover; the age gap between her and husband will make it more complicated .
    If 40 years old man marries a child of 15 years old girl..it would not be fair at all..
    Do you think that marriage contract would be valid.
    Such marriage would great lots of problems.
    When we treat one isolated text and apply it without inductive reading we will have such problem of conflict.
    Moreover; middle age way of life is not always possible today.
    Before 1936..in England women did not have many rights voting right ; divorce rights and inheritance rights and many more. Can we treat them today as they did in the past .?

  • 5
    0

    M M N.
    Very well written, apt and scholarly.
    The problem is the ACJU Muftis who are misogynic and influential political animals supported by vested interested Muslim political hacks who are relics of a bygone tribal culture. S L Muslim women need to be treated no differently than other women in other religious groups in SL.
    Time to change archaic customs that have nothing to do with Islam.

  • 1
    5

    Yes. A girls age could be prescribed as a general recommendation as 16 years advisable and better with proper explanation to the Moslem community. But appointment of Women as Quazis NOT POSSIBLE in ISLAM as even if you refer the Islamic History, the pious predecessors the Salafe Saliheen have NEVER done that. So it’s Against Islam to appoint a woman as an authority.

    • 5
      0

      You mongel moulana ,If benazir bhutto and sheikh Hasina can rule Muslim countries women cannot sit in a Quazis court.You should be deported back in time to medieval dark ages.People think differently and fairly giving equal deserved rights to women these days for your information .

      • 0
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        P.
        Well said.
        V. good thinking.

    • 3
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      Quraish Moulana ~ “Yes. A girls age could be prescribed as a general recommendation as 16 years………….”.
      Why do you think 92% of Lankans “prescribe” minimum 18 and may raise it to 20?
      Would you like boys to be prescribed one talaq instead of the present three talags?
      Your mind has gotten buggered by the Friday sermons Quraish.

    • 0
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      Q M
      Hogwash
      Forget the Salafe Saliheen.
      Where in the Quran js your view stated? Unfortunately S L Muslims tend to accept as “gospel truth” by gone tribal practices.

  • 3
    1

    Muslims have customs that are significantly different from ours, and I don’t think it is my remit to change those in any way.

    Most things had best be left for that community to tackle. See what a mess we make of Tamil society by trying to change the caste system among them. There has to be change, but that has to be attended to by those who know it intimately, and know the Tamil language.

    By and large, the system of marriage and divorce among Muslims. However, from what I have gathered from many articles that I have read on MMDA, it looks as though a female infant born to Muslim parents is denied a proper life. Of course there are exceptions, but the system is against them.

    In fact,.the unfortunates who suffer may be very few. However, even one is too many. There MUST be a minimum age for marriage. Why not fix it at 10 years of age. If these Muftis refuse even that, do you blame me for feeling that there must be some under 10s being given in marriage.

    Actually, I feel that the minimum age for all citizens must be 18. That is one thing that I feel has to be forced on the Muslim community. Then their girls will get some education, and birth rates will start falling. Some of these subjects rouse passions and I think I’d better not continue in this vein.

    Please, Mifly Naleemi, continue with your good work. We guys may make occasional noises in support, but the task is essentially one that you should undertake.

    • 2
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      Sinhala_Man ~ “………..See what a mess we make of Tamil society by trying to change the caste system among them………..”.
      That is indeed a creative explanation to the pogroms from 1956.
      What was the 2014Aluthgama pogrom for?

  • 1
    1

    Tick tock…this has been dragging on for years, and it so one is able to put this right.
    All that foot dragging, reluctance, and uncertainty, and there is no conclusion to this situation.
    Moderate Muslims must take the initiative and raise the age for Muslim girls to be given in marriage, we do not want children going through trauma, and we must safeguard them. All women in this country must have the same age limit when it comes to marriage, and follow the law. Put the men with stone age thinking on a plane and send them to join the Taliban, or Saudi Arabia. We need reform here, and when it comes to the well being of little girls, we need it urgently.

  • 1
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    Dear K. Pillai,

    Oh, I know it is more complex than that.

    But the mess is palpable. I hope that we will be forgiven our arrogance and insensitivity.

  • 1
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    It’s unfortunate that those Muslim community members who don’t have faith in Islam & want to leave Muslim community don’t have a back up group.

    So in Sri Lanka it’s wise to make a social unit to accept such people; both men & women.

    They must be given a strong support to adhere to Sinhala or Tamil names or any other names if they want, that’ll totally change their previous social identity.

  • 0
    0

    And our beloved Native Vedda is missing in action? Oh where art thou? Silence can say a lot when words cannot!

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