By Ameer Faaiz –
Sri Lanka’s Muslim women are being denied family and other rights available to other women under this country’s constitution. The government committee set up nine years ago to reform the out-dated and discriminatory Muslim Marriage and Divorce Act (MMDA) has finally made its recommendations for change. But six months later, the government has taken no action. Why this urgently needed reform is being blocked is a mystery. Or is it?
The Report of the Justice Saleem Marsoof’s Committee on reforming the MMDA was handed over to the Ministry of Justice on 22ndJanuary 2018. While the Minister of Justice, Thalatha Athukorale, deserves credit for having have persuaded the committee to conclude its deliberations and submit its report, that the Minister herself continued to sit on it without taking the reform forward remains a mystery, and speculations abound. The Ministry of Justice released the report on its website only on the 18thJuly, the day before Justice Marsoof was to explain the recommendations, including their variants, to Muslim MPs, on invitation.
The fact that the overwhelming majority of the recommendations are unanimous were lost on the Minister. Yet differences of opinion amongst the members of the committee remain on some important matters which demand reforms. They are crucial to the rights and equality of Muslim women in our country.
Most of the areas where there is variance also have a direct impact on the constitutionally guaranteed fundamental rights of citizens and the state’s obligation to uphold them. Hence the Minister should have referred the report to the Cabinet of Ministers for necessary follow up action without prevaricating.
The ACJU: a veiled threat of incitement
Why the delay? What happened at the 19thJuly meeting with the Muslim Ministers and MPs casts light on this mystery.
Minister Rishad Bathiudeen joined the meeting mid-stream and is understood to have prevailed upon the other Muslim Parliamentarians to invite the All Ceylon Jamiyyathul Ulama (ACJU), the self-appointed group of Islamic theologians, to explain their stance. This was totally unnecessary and without any legal basis. Agreeing to this was a typical manifestation of male chauvinism. The signed report contains the ACJU’s recommendations as well. The ACJU has no special or legal status to make any further input in the matter.
Furthermore, the Muslim Parliamentarians including Ministers are duty bound to acknowledge the diversity of views within the Ulamas or theologians. But, most importantly, they must respect the views of the most important stakeholders in the reform process: the women who have been adversely affected by the discrimination and abuse permitted and continuously perpetrated under the MMDA in violation of the spirit of Sri Lanka’s constitution. There are also the other men who hold different opinion to that of the ACJU but well within Shariahand Fiqh (deep understanding).
The MPs would do well to know that the women have met the ACJU on more than one occasion and presented the ground realities and the abuse women are subjected to. Yet the ACJU has completely failed to acknowledge their testimony or to learn anything from the women bearing witness to these injustices. It must be acknowledged unequivocally that, as a private male-only club, the ACJU is neither qualified nor entitled to represent the interests of women and or children.
Had the Muslim MPs applied themselves they would have realised that all the progressive reforms proposed in the Justice Marsoof’s Committee’s Report are within the limits of Islamic law (Shariah). There are examples of many Muslim countries that have reformed their family laws progressively.
Instead, the Muslim MPs, having invited the ACJU to contribute to their deliberations, were then subjected to a veiled threat by the president of the ACJU that his supporters would incite people through the mosques should the ACJU position not be accepted. Maybe this threat instilled the same fear in the mind of the Minister of Justice in relation to Muslim votes.
The diabolical actions of the ACJU are further highlighted by the fact that in 1951, its members, as the premier council of theologians, protested against the enactment of the Muslim Marriage and Divorce Act in the vicinity of the Old Parliament near Galle Face on the basis that they were not consulted despite repeated requests for hearing from the then Minister of Home Affairs. Blissfully forgetting that, now the very same pseudo Mullas or their offsprings are crying foul, falsely alleging that it is Shariah and thus cannot be amended.
MMDA reform: another ten year’s delay?
The call for reform of the MMDA dates back at least three decades. It is an import, dating back to the 1770s, from Batavia (now Indonesia) at a time when Sri Lanka was ruled by our past colonial masters. The substance of the law codified in 1951 has not been amended since. Indonesia itself has drastically reformed its family law, as have many other majority-Muslim countries.
From 1951 to date Sri Lanka has transformed its legal regime to incorporate equality, ensure non-discrimination, promote equal protection and gender parity, promotion of free education, health and hygiene amongst others. Comparable transformation of the MMDA is shockingly overdue. Any further delay permits Muslim women and children to continue be oppressed and discriminated by state structures. This is a gross neglect and dereliction of responsibility on the part of successive governments. It demonstrates their scant disregard and disrespect towards Muslim women who make up of half of all Muslim voters.
This is the context in which the conduct of the Minister of Justice after receiving the said Committee’s report must be judged. It was her responsibility either to accept the report of reject it. Instead, the Ministry has called for further response from the public when the committee itself had already entertained representations from all walks of life prior to finalising its report. This can only cause further delay, maybe for another 10 years. That is exactly what the ACJU and its supporters want. The Minister of Justice should be alive to the fact that already social media is full of sample letters being disseminated to all and sundry requesting males and females to copy and paste a letter to the effect that they “…agree with the Faiz Mustapha submissions (as spelt in those posts/mails) as it is based on solid Islamic principles.”
The moot points
These are the significant areas of disagreement over the Justice Marsoof’s Committee’s report. They reveal the mind-set of the ACJU and its supporters who oppose key reforms.
1. The proposal to take off the reference to ‘Sect’ (a school of thought/’Madhab’) and apply ‘Muslim Law’ instead is to permit parties to choose the school of thought they are to be governed by. This is opposed to by the ACJU. In effect the ACJU wants all Muslims to follow Imam ‘Safie’ whereas Imam Shafie himself has not told his adherents to do so. They argue that “… if following of any school of thought is allowed, it would lead to people hand-picking the conveniences of the schools in order to follow their desires.” The ACJU’s rejection of this reform runs completely counter to what is generally accepted across the Islamic world. In jurisdictions such as Singapore and Malaysia it is clear that if a provision in a particular school of thought is against the public interest, other imams may be consulted, and a decision made on the basis of public interest or the greater welfare of society. The ACJU’s insistence on disregarding what is generally accepted across the Islamic world, and to impose a particular school of thought even when it is against the Shariah is oppressive and perpetuates injustice.
2. Their further justification “…that the generality of Quazisdo not possess required level of competence and knowledge to deal with this issue” is not only self-defeating but also butts up against another proposal to increase the competency of a Quazito be selected from among Attorneys-at-law with knowledge of Muslim Law, which too they oppose.
3. The ACJU insists that all ‘Quazis” (Judges administering MMDA) remain men, and only men. They seem mortally scared that one or two females could possibly get appointed as Quazisas time passes. Despite this, defying logic and reasoning, they are agreeable to women sitting in appeal as judges in the Board of Quazis. To put the ACJU anti-female prejudice in context, it is pertinent to note that Morocco, Malaysia, Indonesia, Egypt, UAE, Palestine, Jordan, Pakistan, Bangladesh and Afghanistan are all Muslim countries where women function as judges.
4. It is elementary that a Quaziis required to analyse evidence, adjudicate disputes and applying relevant laws. Hence the minimum requirement for being a judge (including Quazis) should be that the person is qualified as an attorney-at-law. The ACJU oppose this. This is possibly because of late the ACJU has been encouraging its members to apply to become Quaziswith the view of taking control of the entire Quazi court system as they have done with the mosques and Friday pulpits. This they believe would provide them with an easy launch pad for their entry into politics. The government of Sri Lanka must ensure quality administration of justice, which is a state responsibility.
5. The ACJU also opposes the right for family members to have legal representation in Quazi Legal representation is everyone’s right in Sri Lanka and whoever wants it should be able to avail themselves of it. The presence of lawyers could improve the quality of justice dispensed in the Quazicourts and reduce appeals. Further, the Quaziswould be compelled to reason out their orders and judgement and improve their court room demeaner and conduct.
6. The Quran permits conditional polygamy. The proposal opposed to requires prior approval of the Quaziwho has to be satisfied of compliance of the Quranic conditions prior to giving the nod. However, the ACJU wants it virtually unconditionally as it is practised now! That is with the mere consent of the Quazi. However, in their condescending compromise they offer that “…the wife could seek a Fasahdivorce in the event that the husband contracts a subsequent marriage without her consent.” This the ACJU proposes with the full knowledge of the prevalent malpractice of Quaziswho collude with abusive and unconscionable husbands persuade the wives to go for Fasahdivorce instead of ‘thalaq’, thus depriving these women of payment of maintenance and in future, possibly ‘Mata’a’
7. The ACJU also opposes a proposal to set a minimum age of 18 for marriage of Muslim women. The proposal is that marriage would be legal from the age of 18 with a proviso that the Quazicould permit marriage between 16 to 18 in exceptional circumstances. The ACJU wants provisions for girls as young as 12 to be married. They want the legal age for the marriage of females to be 16 with the Quazibe able to authorize marriage between 12 and 16. The general minimum age for marriage in Sri Lanka is 18 years.
8. The chair of the committee and those signed with him had made proposals to empower the bride and to ensure registration of the marriage within the remit of Shariah. The ACJU whilst agreeing to these in principle has proposed clauses to render these ineffective. Whilst acknowledging that Hanafi madhab does not require ‘Wali’ (maaraige guardian), yet the ACJU, equating Madhabsto Shariah, insists on ‘Wali’ being required as in the present law. Similarly, having emphasised the need to register a marriage yet want to leave a loophole to aid and abet the habitual abusers, who are then permitted even to marry young girls and even for the fifth time contrary to the Shariah. This is not only wildly inconsistent, but grotesque.
In their opening statement, putting forward their counter-proposals, the ACJU quotes these words from a previous report; “our considered view is that the Act as it stands now needs very few recommendations and has stood the test of time. Its provisions faithfully represent the letter and the spirit of the Holy Quran, Hadiths, Ijma, and Qiyas.” If this position, signalling intransigence to change, is the ACJU’s underlying attitude, then it is extremely difficult to believe they were acting in good faith when they agreed to be part of the said Committee. It was explicitly established to deliberate and propose recommendations for reforms. What then, were ACJU representatives doing as they served on the committee and took part in the evolution and contents of a report that runs to nearly 320 pages? Waiting for as long as it took – nine years – simply to launch their campaign for further, and if possible, perpetual delay?
Lies and abuse from the pulpits
The ACJU has unleashed their stalwarts to abuse and lie from the pulpits of mosques deriding anyone who did not agree with them in the Committee. They do this without explaining the recommendations and their justifications proposed by the Committee itself. Instead, the ACJU is abusing the Friday pulpits to incite people against reforms saying these would be in violation of Shariahlaw. Many of those who hear them proclaim this, have no way of knowing that they are being lied to.
One could also hear some sermons and homilies for the need to compromise. This is not about massaging egos. This is about addressing the lived realities and the discrimination perpetrated in the name of a law. To proscribe what is not proscribed in terms Shariahcannot be Islam. Hence one should be true to oneself, broaden one’s horizon celebrate the accommodation of diverse opinions within Shariah, apply Fiqhand ensure justice to all citizens.
The President, The Prime Minister and the Cabinet of Ministers must step in, act fast and give direction to reform this archaic and discriminatory legislation. Otherwise, they will be knowingly propping up a discriminatory structure that violates the spirit of the constitution and commit collective discrimination against the Muslim women of this country.