29 September, 2021

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MMDA – Will The Cabinet Blink?

By Ameer Faaiz

Ameer Faaiz

Media reports say that in two separate meetings, held on 8th March and 29th April 2021, the Cabinet of ministers have approved reforms to the Muslim Marriage and Divorce Act (MMDA). The reforms will make 18 years the minimum age for lawful marriage, mandate the bride to place her signature on the marriage registration certificate, bar polygamy and to do away with the Quazi court system. The Advisory committee, appointed in December 2020 by the current Minister of Justice handed over its recommendations on June 21st.

No committee member resigned in protest, despite the Cabinet decisions altering their deliberative scope. However, three male members are reported to have handed over another separate document containing their observations. Having signed on to the report together with other members, the appropriateness of showing dissent separately subsequently speaks for itself. Probably to follow and appease their masters.

Those in the All Ceylon Jamiyyathul Ulama (ACJU) have started their shenanigans as expected. For them letting go the unquestioning stranglehold achieved through several means, including the perverted implementation of the MMDA is critical. Any attempt to enlighten and to some extent liberate the Muslims, especially the women and girl children, in line with the jurisprudence enunciated by shariah, will be resisted deploying every possible insidious means, both subtle and overt and directly and through proxies, by the ACJU and its patrons.

From an absolute obstinate stand, the detractors, having seen the writing on the wall, have lessened the bar now. Prior to the Cabinet decisions, setting a minimum age and appointing women as Quazis were anti-Islam and hence non-negotiable. Now, realising that including polygamy and Quazi courts are on their way out, they are readily shifting the goal posts. Fresh revelations, perhaps! Some have even assured the minister that they are fine with 18 years as the minimum age. This alone vindicates that they are out to protect and perpetuate selfish interests and not divine stipulation. I also sense a double ploy deployed. In this the detractors seem to have successfully co-opted some seemingly pro-reformist women too.

Those who have abused and enjoyed polygamy have started rabble rousing about the “Qur’anic right” to polygamy. Other is, a few urbanised pro-reformist women who make good use of keyboards and social media to advance reform, to question and critique the proposal to do away with the Quazi courts. Their recent attempt to solicit ground-level activist women and women victims of MMDA abuse came a cropper as those who have been calling for change support a reformed MMDA being administered through the regular courts. The mere fact that women activists questioning a cabinet decision would be a manna to the ACJU types was lost on these women. It is sad unless they were willing accomplices.

Since 1956, no less than five committees have been appointed to reform the MMDA. The penultimate one was appointed in 2009 by the then-Minister of Justice to make recommendations to reform the law. Having deliberated for nearly nine years, nine members of that committee commenced their dissenting opinion quoting an earlier observation as follows: “our considered view is that the Act as it stands now needs very few amendments and has stood the test of time. …” thus, revealing their mindset with which they had deliberated for nine long years. Isn’t it fair to infer that these nine members consciously served on that committee to deliberately scuttle any reform?

This time around, the latest committee has given a single report. However, those bent on stymieing reforms demanded by Muslim women are at play unscrupulously. The postscript missive to the minister is one of the arm-twisting manoeuvres of which these people are past masters at. Expect more.

Polygamy

Polygamy is not mandatory in Islam. Nor is it a preferred option. Muslim countries Tunisia and Turkey have banned polygamy. There are differences of opinion, even amongst jurists, as to the permissibility, acceptability, and applicability. Muslims claim that Islam restricted polygamy nearly 1450 years ago when there was no limit on the number. Hence, it befits the Muslims to apply Ijithihad to the jurisprudence of polygamy.

Whilst rushing to its defence premised on Qur’anic permission, we must also pause to evaluate the practical impact that practise has had on the Sri Lankan community. Instead of calling pre-Christ philosophers and poets to justify polygamy, as a community wouldn’t it be worthwhile to delve deep into and acknowledge the realities of child abuse, spouse abuse, violent treatment of spouses, abandonment of spouses and children at will, the challenges that children with no names of fathers’ encounter including in getting education as marriages are not registered due to registration not being mandatory. Polygamy practitioners do not necessarily confine themselves to a maximum of four spouses at any given time. The list could grow. In this backdrop if anyone were to say that polygamy is permitted subject stringent conditions it would be a humongous lie and an absolute deception. Further, if anyone amongst the Muslim community is to claim that the permitted practice of polygamy has eradicated or prevented adulterous and extra-marital relationships or that there are no concubines is surely out of touch with reality.

It is high time that Sri Lanka evolves into a quintessentially pluralist state. We Muslims want to be treated equal to everyone else. In that context, should not these mighty guardians proactively promote some issues that could show the Muslims in a better light and promote pluralism as opposed to indulging in arm twisting and subtle intimidation? We have had examples of the ACJU compromising on Halal certification and constitutionally protected inalienable burial rights and even going the extra mile to be hypocritical and lie about human rights and minority rights being well protected when that was not the case. They should think of setting the tone and offer to compromise, in the larger interest of the community and the society, on a matter like polygamy that is not absolutely essential or religiously mandated but which has been used to abuse and savage many Muslim women and children. Applicability of what is in the Public interest or general good (Maslahah Mursalah) is a principle found in the Islamic jurisprudence.

The Quazi courts

The Quazi court system itself has been acknowledged to be the fountain of all ills for long. The cry for reform is rooted in the injustices meted out to women in the Quazi courts in addition to reforms needed to the substantive law. Women have felt abused, undignified, discriminated, and insecure whenever they had to have recourse to Quazi courts. They have been a graveyard for justice. There are ample statistics, case references, research findings and testimonies to substantiate this. It is lived reality and experience that justice and Quazi courts don’t go hand in hand. In fact, many Muslims agree that the Quazi court system is beyond redemption. The system is rotten to core. It violates the fundamentals of Islam: equality and fair treatment. It has become an antithesis to Islam.

“Muslim male with good character” is all that the law requires for a man to become a Quazi. Barring a few notable exceptions at an individual level, the preponderant majority of Quazis have proven to be anything but men of good character. The detractors in the previous committee did not even agree that Quazis should be learned in law or skilled and experienced in evaluating evidence judicially. Thus, the bar being so lowered, lawyers are not interested in becoming Quazis. Exploiting the situation, the ACJU gets its members selected as Quazis. This certainly does not augur well both for the community and the country.

Islam is all about social justice. If the women continue to feel that the system is not geared to deliver justice, why persist with it? To whose interest? Those who benefit from the impunity that a Quazi court provides obviously want it perpetuated. For they know with Quazi courts intact any reform could be nullified.

The institution of the Quazi courts has stood outside the mainstream of the administration of justice. It has no proper infrastructure, physical or administrative. The courts, including the Board of Quazi, function only on Saturdays. Yet this institution is the exclusive repository of the vast jurisdiction of the entire Muslim marriages, divorce, and maintenance. Worse, the state has been a silent observer, facilitator, and funder of this discriminatory system, arguably in violation of equality provisions and directive principles of the constitution. The state has shown no remorse in sustaining such a discriminatory structure with taxpayers’ money. Responding to a query related to MMDA at a UNHRC- Treaty Body, in 2016, the government, perhaps unwittingly and to wriggle out of an embarrassing situation, misstated facts thus:Their application was not automatic, but rather a personal choice by the concerned individuals….”. 

The Muslim women’s call is premised on the state’s duty to ensure equal treatment and protection of its citizens. A call for preferential treatment could dilute that. Bearing this in mind it behoves all Muslims to subscribe to the proposal to do away with the Quazi courts and ensure that a reformed MMDA is administered through the mainstream judiciary, namely the district courts.  That is the surest way to sustain and safeguard personal laws. Further, we have acceptable and successful examples in the administration of Muslim law in the matter of intestate succession and custody of minor children. One shudders to think of the scenarios had these two been handled by Quazi courts! All communities should do their best to bring customary and personal laws compatible with the fundamental rights chapter of the constitution, the supreme law of the land.

District courts would certainly provide a more objective, secure, balanced, and dignified environment to women. It certainly won’t be derogatory and abusive to women. It could be argued that proceedings in district courts could take longer. It is not that Quazi courts dispensed justice expeditiously to all. The “laws delay” is a national issue. It is time that the Muslims too joined the larger society in collectively advancing law reforms, including personal laws and better, expedited, and easier access to justice.

Opting out of MMDA is a fundamental right

The Sri Lankan state not only aided and abetted the perpetuation of the discriminatory Quazi courts, but it also proactively discriminated against Muslims being treated equal to their counterparts. Muslims were not permitted to marry and/or divorce under the General Marriage Registration Ordinance nor could they have recourse to regular courts for matrimonial actions. Muslims of Sri Lanka, should they choose to marry, were compelled to marry only in terms of the MMDA.

Having witnessed first-hand the sufferings of Muslim women throughout the island, persuaded by them and realising that Muslim men wouldn’t facilitate meaningful reform, former parliamentarian, and medical practitioner Dr. (Mrs) Thusitha Wijemanne presented three private member’s Bills to set a common minimum age for marriage, to allow the Muslims the choice to marry under GMRO and the choice of the district courts or the Quazi courts to have recourse to dissolve a marriage. Those Bills could not be brought forward owing to the early dissolution of Parliament pending their second reading. In the current parliament MP for Matale Mr. Premitha Bandara Tennakoon while acknowledging the earlier attempt by Dr. Thusitha Wijemanne submitted similar private member’s Bills to achieve the same objectives. Their first reading took place in December 2020 and none of these Bills, past and present were challenged in the Supreme Court by any defender of the current MMDA.

Possibly realising that one of its own members is moving to set the wrong right, it looks like the government has taken over the matters urged in those private member’s Bills. There are reports in the media that those necessary amendments have been approved to the existing laws to permit Muslims to marry under the general law.

Hell bent on thwarting reform

Those who are hell bent on thwarting any meaningful reform to the MMDA, are also intent on stymieing the effort to amend the laws to permit Muslims the choice of law under which they could marry. Such is their unethical and immoral pursuit and determination to retain the stranglehold and oppression of the Muslim community. This is an admission on their part that given the option, many Muslims would choose that if the MMDA is not adequately reformed.

All the earlier committees carried out extensive consultations with broad sections of the community prior to finalising their reports. Justice Marsoof’s committee consulted and listened to community members from different walks of life for a major part of their nine-year deliberations. The current claim by wicked and misogynist men that any reform must come from within and after due consultation with the community is solely to stall possible reform. The reality is that for years demand for reform has come from within the community and not from outside. Further, for these men, “community” means men only. They conveniently and maliciously block women – who constitute more than 50% of the community – from participating in community consultation.

To these unrelenting, self-serving, chauvinistic, and condescending men who are selectively mobilising signatures and petitions selectively, misleading the unsuspecting masses under the guise of mystic beliefs, please spare a thought for your mothers, spouses, and daughters. For their sake please do not try and stifle the progressive reforms that have been proposed. These are what the Muslim women have been clamouring and yearning for over a half century. It is time that Muslim politicians and so-called religious leaders joined fellow citizens in advancing rights collectively without going through the backdoor for patronage. It is time for Muslim politicians to repent and support the efforts of Minister Ali Sabry who has shown commitment to rectify not only the injustice done to the Muslim women under the guise of Islam but also to obliterate inequalities meted out to them. The goal is to get the state to elevate the jurisdiction of Muslim marriage and divorce so that it is brought into the mainstream of the administration of justice. This is long-overdue. It is needed to ensure equal and dignified treatment for all, professional adjudication for every citizen, and accountability by the state.

The government and the cabinet should stand firm. They must not compromise justice for political expediency. These reforms must enter into law as soon as possible. They will emancipate the Muslims and provide equal access to justice for all. 

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Latest comments

  • 6
    0

    Dear Faaiz,
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    Thank you for for writing so clearly; you appear to expect some resistance to reform from within your own community.
    .
    This is essentially a matter for Muslim families, but there will be all sorts non-Muslims making hypocritical and ambiguous statements. I will not do so, only wish you well. On many of these matters persons like me know little. Let me assert three things that I’d like very much to see emerging:
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    1. I don’t think that child marriage is common among Lankan Muslims, but even one girl under 18 being married will be one too many.
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    2. Let Muslim girls catch up with other citizens in the area of education. (I am a retired teacher with two grand-daughters; heaven alone knows whether there is satisfactory education for 95% of Lankan children!)
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    3. Women who are getting married must willingly place their signatures on the registration certificate.
    .
    This is as much as I will express on “One Law for All.” Please work out all other details (including polygamy) according to the culture and customs that prevail amongst you. I wish you, and all other progressives, well.
    .
    Panini Edirisinhe (NIC 483111444V)

  • 4
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    All the Muslim women are asking for basic rights which their non Muslim sisters have in this country.
    Muslim men who keep resisting this, should be ashamed that they do not want their mothers, wives, daughters, and sisters, have those rights. They want them barefoot and pregnant (at a very young age) and inside their homes, maybe suffering under an abusive man. At the time the Quran was written, women were not pilots, architects, researchers in the medical field, or breadwinners in their families.
    Time to step out of those dark caves and help your women become part of the mainstream society, or they will continue to be at a huge disadvantage.

  • 3
    1

    Part I of II
    Thank you for a brave and forthright article. The statement in this thoughtful piece that “Muslims claim that Islam restricted polygamy nearly 1450 years ago” suggests that at a time when men had an unrestricted number of wives, Islam restricted that to its credit. In the Christian faith too (shared with the Islamic faith) Moses was polygamous as were Esau, Jacob, Elkanah, David, and Solomon but this was rejected by the Church in favour of strict monogamy.

    Judge Prabhath Fernando records (A Journey Back to the Authentic Apostolic Church, 2021, In press), that Philip of Hess (1504 – 1567) had a wife who was not attractive to him thereby making him have many adulterous relationships. Hess therefore proposed to Martin Luther a bigamous marriage for himself to avoid his propensity to adultery. The argument was “God allowed something to weak nature.”

    Hesse married Margaret von der Saal as his second wife in 1539. Martin Luther joined by two other Protestant leaders, Melanchthon and Bucer, wrote to him that bigamy could be permitted in certain cases of necessity, and they granted their approval for a second marriage without divorcing the first wife. However, they urged Hess not to tell anyone else. But the new wife’s mother proudly told everyone that the king was her son-in-law. [Contd.]

  • 3
    1

    Part II of II
    A scandal was let loose as a result within the Protestant Reformation. This exposed the weakness of Luther’s theology of sola scriptura where everyone interprets the Word as he wants instead of going by the authority and tradition of the Apostolic Catholic Church. Luther had to back off: “If anyone [hereafter] should practice bigamy, let the Devil give him a bath in the abyss of hell.” The Protestant deviance was reversed for then.

    It took us Christians long to move away from the needs of the mighty who could marry many times citing their weak flesh asking for unrestricted sex. Today the Protestants have fallen behind the high standards of the Catholic and Apostolic Church, elevating the needs of the flesh above the teachings of the Church. We are wandering in the wilderness again. The Protestant Churches seem not to know what Apostolic Tradition insists on.

    The world over, men enjoy effective polygamy through affairs, citing their lustful needs. But we refuse equally lustful women the right to polyandry when they feel driven by the flesh.

    I am sure thinking leaders like Ameer Faaiz will lead Muslims and the rest of us to equality in marriage .

  • 4
    7

    What is the alternative if polygamy is banned? Keeping concubines, illegal wives, mistress …and leading to same sex marriage and single mums..
    If we go by the examples of Tunisia and Turkey there are more than 45 islamic countries where polygamy is accepted. God’s wisdom is much more than all of us in the inverse have.

    • 1
      0

      There you go, Roshan! You espouse views that will ensure that nothing is done.
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      First prove that God exists; next that you are privy to his thoughts.
      .
      This is not an Islamic country; I think it is meant to be secular, but even the decision to lock down the country to save us from COVID was taken because the “Sangha” requested it. Poor ignored Gauthama.
      .
      Roshan, can’t you see that you’re a selfish Muslim man whose words will create problems for your entire community? Please see what I have said here in relation to what I have respectfully requested above.

  • 2
    1

    MPs who do not vote for the bill when it’s presented to the Parliament should be noted so that at the next election they can be kicked out. The voting in the Parliament should be by name-calling not by a secret ballot.

  • 6
    1

    Great writing and good liberal thinking. What we need from SL Muslims is this kind of thought. We need you all to become part of SL, not be left in stone-age in the 1400’s and move with the times. You will be castigated for this article from your own community but ““Stand up for what you believe in, even if you stand alone.” – If the SL Muslims can’t get this reform now within next 6 months, it will be lost for all the SL women for a long time.
    The “option” to marry under general law is a farce. No Muslim in-laws will allow it. SO MARRYING AT MINIMUM AGE OF 18, SIGNING FOR THE MARRIGE, REMOVE POLOGYM, QUASI COURT REMOVAL NEEDS TO BE MANDATORY REQUIREMENT AND COMPLUSORY!

    FIGHT FOR YOU DAUGHTER AND YOUR SISTER – DONT LET THEM DOWN!.

  • 3
    0

    The existing laws act as a protection to abusers. The legal system and government LEGITIMIZES what society would normally consider to be illegitimate. And by doing this society, i.e. family, friends and community, cannot intervene and resist.

    Abusers use the existing corrupt law enforcement and legal system to delay and mitigate judgment.

    After all, what is the court system for except to legalize (under guise of interpretation) what society would normally consider to be illegal or immoral. E.g. the constitution.

    The reform to MMDA wiLL not only have no effect on the current levels of abuse, but will likely worsen it.

    The business of marriage is squarely a private matter between individuals, just like how business is conducted, and therefore it is outside the scope of government.

    Government should be restricted to its proper role. As Bastiat in The Law argued, government should ONLY protect life, liberties and properties. Abuse of marriage can be considered to be a violation of liberties, and that is the only way in which government can step in to do something.

    Therefore it is better to repeal all marriage laws to prevent further abuse. Let community step in to resist bad unions. Let government only be involved if liberty is violated in signing a contract.

  • 0
    0

    Dear RizMoh,
    .
    I’ve taken a quick look at both the texts. There is much wisdom in them, and they both have thinking that when properly digested, will help us see that much that is proclaimed about how we should regard public affairs, can be much more rationally contemplated by us.
    .
    Thank you very much for the links, and let us hope that many other readers access them; however, to be realistic, it seems a bit unlikely.
    .
    The “handles” that each of us has adopted reflect the stereotypes that each of us is assigned with owing to our background; and I’m sure that we both wish to discard these ridiculous roles assigned to us. All fine at the level of philosophy which we both are inclined towards. By now, I’m an old man, and I tend to make all too many comments on the political events which tend to obsess us on this website. What I have said about MMDA doesn’t concern me all that much; I’ve always been taking that line.
    .
    During the past week I’ve been closely following, with horror, thee events unfolding in Afghanistan. The betrayal by Biden is going to hurt us all, I fear.

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