By Ameer Faaiz –

Ameer Faaiz

Media reports say that in two separate meetings, held on 8^th March and 29^th 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 21^st.

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.