17 August, 2017

Muslim Personal Laws Reforms; On Or Not?

By Ameer M Faaiz

Ameer M. Faaiz

Ameer M. Faaiz

In announcing the decisions made by the Cabinet of Ministers last Wednesday, the Government spokesperson has stated, amongst others, that the Cabinet has decided to appoint a Sub-Committee of Ministers to study and recommend reforms to the Muslim law in Sri Lanka, with a view to bringing it in line with Sri Lanka’s international human rights treaty obligations.

In the absence of any clarification as to what is the status of the Committee appointed by the Minister of the Minister of Justice in 2009, to make recommendations for Muslim law reform, it is to be assumed that that committee headed by former judge of the Supreme Court, Justice Saleem Marsoof has not been wound up. There are reports in the public domain, which indicate that the Saleem Marsoof Committee is still working on after almost 7 years of its establishment.

The Cabinet decision in question refers only to the need for aspects of the Muslim Personal law being made compliant with international human rights treaty obligations of Sri Lanka. This is an important call, which the Muslim community should respect. However, one should not forget that there are two significant benchmarks against which the need for reform has become more pronounced in recent years. The first remains the imperative of changing what today is a pre-modern, archaic Muslim Marriage and Divorce Act in Sri Lanka. It needs to be transformed into a legal regime that is fully capable of providing true justice, and not subverting it. That, no doubt, depends on a range of factors; policy that underpins it, persons who administer it, institutions that give effect to it, and, of course, leadership, truly courageous and imaginative, that sees beyond the pale.

The ongoing process of constitution making which should also address the issues of women and children and help empower these vulnerable segments of the society is the second, yet pre-eminent benchmark. This needs to be done through provisions that are entrenched, or mandatory, in the supreme law of Sri Lanka. The need for reform, in my view, rests on all these factors. The expected outcome of Saleem Marsoof Committee could be the need of the hour.

The current law and its challenges

The Muslim Marriages and Divorce Act (MMDA) enacted by Sri Lankan Parliament in 1951 govern the Muslims of Sri Lanka. This law has been amended a few times, mostly, to fill in procedural shortcomings. Emphasis must be made that although it is known as MMDA, it is, however, not a pure and simple reflection of the Sharia law that is applicable in respect of marriage and divorce within the Muslim community. This law, in fact, is a kind of an amalgamation of some Sharia aspects and some customs practiced then, as chosen and codified by a group of men that subsequently became law. Ironically as it stands today it accommodates features that are contradictory to Sharia stipulations.

This law governs ‘with respect to the marriages and divorce’ of all Sri Lankans born to Muslim parents and/or those who subsequently embrace Islam marrying amongst themselves.
The implementation of this MMDA is riddled with a host of constraints, in particular discrimination meted out to Muslim women since its enactment. The demand that the law must be amended to rectify these shortcomings date back at least to 30 years. Muslim women have been in the forefront of the call for reform then as now.

The practical discrimination meted out to women and also to children for years has been brought to the attention of the leaders of the Muslim community. There has also been an acknowledgment that this law needs to be reformed in that different committees were set up in 1956, 1984 and 1990 by the Government to propose reforms. Except formulating recommendations, these committees achieved next to nothing. Being compelled by the demand from within the community and realising the imperative need for change, a Committee was set up by the then Justice Minister Milinda Moragoda in 2009 comprising 16 members including three Muslim women, a few eminent lawyers amongst others and was headed by Justice Saleem Marsoof.

The original remit given to the committee was that it should come up with its reform proposals within six months. The fact that it is several years hence and that we are yet to see any concrete recommendations is a sad reflection of the importance placed (by) on this committee which consisted of professionals, jurists, educationists and activists. The delay has unfortunately reinforced the argument that the community on its own is not going to bring about the required meaningful reforms or is incapable of doing so.

Renewed hope?

It is in this backdrop that it was good to read that justice Saleem Marsoof saying that his committee would come up with its report by November. In saying so he has also acknowledged the call for the release of the report and that there are ‘extreme members opposed to more liberal views’, perhaps contributing to the delay. The impression that a few individuals who may be interested to perpetuate dominance over a community against accepted norms impede him and other members in their work does not augur well.

It is also hoped that the committee would have actually gathered views of larger sections of the society impacted by the implementation of the existing laws including by consulting those who have faced the brunt of it. Justice Saleem Marsoof and a majority of the other learned men and women in the committee would know very well that they were appointed to the committee for their erudition, proven objectivity and integrity and hence would do well not to be held up by a couple of individuals with no societal or public accountability.

It is important to note that the committee itself was appointed upon an acknowledgement that all is not well with the said MMDA or its implementation thereof. In fact the government has on many occasions been compelled to assure and/or give undertakings to the UN and other partners that it would reform discriminatory laws.

This being so, perhaps unwittingly the government at times in trying to buy time or to wriggle out of the situation, has misstated facts in response to queries relating to Muslim law. The unedited informal summary of record of the Committee on Elimination of all forms of Racial Discrimination, captures what the delegation of Sri Lanka stated in August 2016 thus: “In answer to the questions relating to the application of customary laws, a delegate said that customary laws had been in place in the country since before the colonial era.  These laws were recognized and codified, and regulated aspects of life such as marriage, inheritance and divorce.  Sri Lanka’s legal system was therefore a mix between legislation and customary laws which were constantly monitored and reviewed.  Any change of customary law had to originate from the communities themselves, a delegate said.  Their application was not automatic, but rather a personal choice by the concerned individuals.  Specific constitutional provisions recognised and protected customary laws, he added.  A special committee had been established to discuss the codification of customary laws governing marriage and divorce for the Muslim community.” (emphasis is mine).

Discrimination at the core

Main areas of contention, as delineated from the on going discourse is about the discrimination meted out to Muslim women and children under the cover of this law. The areas of discrimination, amongst others, range from permissible age of marriage, women not being able to be appointed as Quazis, women not being required either to give or withhold their consent expressly when being given in marriage or contracting marriage, to unequal treatment of spouses when in polygamous marriage.

Many Muslim majority countries have raised the minimum age of marriage. This is generally true of most rich Gulf Islamic States, and includes Algeria, Afghanistan, Pakistan, Bangladesh, Egypt and Morocco. However, Women are appointed as judges and Quazis in Indonesia, Malaysia, Afghanistan, Bangladesh, Pakistan, Tunisia, Egypt, Sudan and Morocco. Similarly in keeping with the Quranic injunctions, Malaysia has imposed stringent preconditions in the case of polygamous marriage and further in progressively interpreting the Quran, Turkey criminalised polygamy in 1926 and Tunisia banned it in 1956, both predominantly Muslim States.

Islam for justice

Justice Weeramantry, in his seminal treatise “Islamic Jurisprudence an International Perspective”, has traced the Islamic fundamental tenets as the founding base for the Universal Declaration on Human Rights Charter. UDHR remains at core of all other treaties including in particular, the International Convention on the Rights of the Child. Justice Weeramantry goes on to trace as to how Islam paved way for, and ensured protection of, equal rights between men and women at a time women and children had virtually no rights. He quotes verses from Quran extensively in drawing attention to directives that ensure that men and women are equal.

Justice Weeramantry is not the only jurist to have reiterated that Islamic jurisprudence is the predecessor and the forerunner to the current internationally accepted human rights norms. Nisrine Ahamed, in her treatise “Sharia Muslim States and International Human Rights Treaty Obligation”, outlines a number of areas where Islam brought positive changes, contributing to improvement of human rights.

It is undeniable that some of the discriminatory practices rooted in personal laws in Sri Lanka derive their justification from Article 16 of the Constitution, which permits the validity of the written or unwritten pre-existing laws.

Article 16; Charter of Servitude for women?

The call for the repeal of Article 16 in the Constitution is the culmination of the longstanding frustration over the failure to make right the wrongs meted out to the women and children. Ironically these are perpetuated by men and male-dominant institutions that continue to trot out unsubstantiated facts and unsustainable reasoning for the continuation of discriminatory practices. It must be realised that it is the State’s – not a community’s – responsibility to ensure equal treatment of all its citizen.

Those who are bent on perpetuating discriminatory practices, taking cover behind Article 16 argue that, the Government seeking to change the law would only evoke the religious feelings amongst the Muslims. That is a trick up the sleeve of these oppressive elements, and the Government should not fall prey to it. Worse still, these elements try in vain to make it look that the call for the repeal of Article 16 is intended to repeal the entire Muslim Personal Law, not just the discriminatory parts of it.

Politicians’ responsibility

It is in this backdrop that it was startling to read reports which implied that the Leader of the SLMC was surrendering his democratic obligations towards his constituency to what he called “supreme body”, which is the code name for the All Ceylon Jammiyathul Ulema (ACJU).

Isn’t it he who said he stood for minimum age for marriage for women and that Muslim women could also be Quazis? We must note that people did not elect the ACJU, but Mr. Hakeem and several Muslim men as their representatives in the Parliament. A sweeping statement passing the onus to ACJU would only evince the total abdication of responsibility, if not leadership. I know Mr. Hakeem tried to prevail upon the Saleem Marsoof committee to release its recommendation when he was the Minister of Justice, emphasizing its importance.  He would have done so with a view to seeing how best it could be implemented when it is out. Where is that moral responsibility now?

It is important that politicians, professionals, community leaders, activists, people’s representatives and people from all walks of life come together in addressing and reforming social issues. Other political leaders within the community should also play a positive role without competing with Mr. Hakeem in saying the hardest.

ACJU, as it claims itself, might be able to provide some guidance or opinion but to let them decide for all of us would only lead to putting the community in a pre-modern, time-warp. A majority of them have neither the legal nor social capacity to do that, as could be seen in some of their recent statements and actions on matters that affect the community. Further ACJU is a members’ only organisation consisting exclusively of men. There is no way that their competencies can be tested through a public and /or objective system. All stakeholders within the community need to look at such issues in a socially conscious, yet nationally responsible manner.

On the contrary, elected representatives have been so chosen by the public to contribute to the governance of the country, and to make policy and legislate on behalf of the people. If they are to abdicate this responsibility, they should honourably resign and perhaps help the ACJU to get elected instead.

It is pertinent to draw the attention that three men involved in the Nallanthaluva mosque administration have now been remanded, charged in the Puttalam Magistrate Court apparently for having carried out punishment akin to lashing a woman publicly for her alleged immoral behaviour. It is understood that pressure has been exerted on the woman to withdraw her complaint.

Needed: A constructive approach

It is our expectation that reform initiatives should draw on experiences and reforms carried out by progressive Muslim countries that not only help ensure gender equality, social justice, ethnic and religious pluralism, but also creatively provide for the basic tenets espoused by Islam. The reformed law should proactively protect and safeguard children’s right so that they can grow into worthwhile citizens without being forced into early marriage that breeds social outcasts. It would be rather ridiculous if it would emerge that even after almost 7 years, a committee consisting of a majority of eminent persons has not addressed these aspects, and/or has not finalised its report as expected.

It is my strong conviction that Islam is for all human kind and for all times, and, is just and equitable. It cannot – and should not – be interpreted to provide inequalities between men and women. The Quran clearly emphasises equality and justice. In seeking to transform the law, it is timely to seize this opportunity and make the much wanted and long-awaited changes, whether in the form of constitutional reform or legislative reform.

In Sri Lanka’s contemporary history, committees are not immune to manipulation. It is our strong expectation that any committee or process that would address the issue of reform would do justice by the people that demand it. There should be no room left for the Muslim members in Parliament to try to pick out one or two recommendations emanating from the process, and use them to keep the judicial review away from the Muslim Personal Law, or suggest the repeat of a more protracted intra-community consultation. If that happens, when the proposed constitutional reforms become a reality, everyone in this country would be constitutionally entitled to be treated equally except those cry for it – and deserve it: Muslim women.

*The author, Ameer M Faaiz, LL.M., is a practising lawyer who has also been a civil society and a political activist and his current positions include Director – International Affairs of the Sri Lanka Muslim Congress and Director – Secretariat for Muslims.

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  • 2
    1

    Ameer M. Faaiz

    RE:Muslim Personal Laws Reforms; On Or Not?

    “The Cabinet decision in question refers only to the need for aspects of the Muslim Personal law being made compliant with international human rights treaty obligations of Sri Lanka. This is an important call, which the Muslim community should respect. However, one should not forget that there are two significant benchmarks against which the need for reform has become more pronounced in recent years. The first remains the imperative of changing what today is a pre-modern, archaic Muslim Marriage and Divorce Act in Sri Lanka. It needs to be transformed into a legal regime that is fully capable of providing true justice, and not subverting it. That, no doubt, depends on a range of factors; policy that underpins it, persons who administer it, institutions that give effect to it, and, of course, leadership, truly courageous and imaginative, that sees beyond the pale.”

    “There are reports in the public domain, which indicate that the Saleem Marsoof Committee is still working on after almost 7 years of its establishment.”

    Thanks for highlighting the issue. Rights of Man? Rights of Women? Do we need a “French Revolution” to give Rights to Sri Lankan Muslim Women?

    What does it tell you. Procrastination, and hope that the issue will go away.

    No, the Mullah’s and Ulema won’t let it go. They don’t even let women go to the Mosques. There is no lower limit to marry off girls, and a host of other violations of fundamental humans rights to women in Sri Lanka. The bride does not even sign her marriage certificate.

    The Muslim Community should be held accountable to give the basis women’s rights enjoyed by the other Sri Lankan Women, which they have prevented for so long.

    This is an issue of fundamental human rights issue.

    When the State of Utah, dominated by Mormons, joined the Unuion of United States, they had to give up polygamy.

    The MMDA must be reformed.

    Look at Bangla Desh and Turkey. They do not have violations of Women’s rights.

    68 years after “Independence” the Sri Lankan Muslim Women’s Rights are STILL being violated.

  • 1
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    Here the question is whether to lessen the victimization of the weaker section by softening the MMDA or releasing the victims once and for all. Non Muslim Tamils experience on this is a gem. In all committees and amendments, the victims are further victimized by finding the loopholes that provoked to consider the need of appointing commissions or adding amendments, are closed. After 65 years of complaining of violation of their rights, Tamils earned 6th Amendment and PTA as their solutions. It is not secret the anti-racial slurs bills proposed in the parment was harsher than PTA on minories. TNA and others opposed it. Same with the PTA’s replacement too. TNA’s Sumanthiran like lawyers have said the proposed new law, which is meant to get in line with UN’s, IC’s standard and which in turn is being considered only to the external pressure, is recycling some of same old provision and further adding in additional tightening and making it more harsh. Lankawe is not meant to get out of its Mahavamsa Mentality, even if the ISIS study Kuran and starts to refine themselves.

    Danger here is the government’s agents and “Kumapalai Kovindtha” clan like Women Network. Their only object is to work with BBS and set up Muslim extremist for the money they receive from government. So far I haven’t come across in any news they offering their help for the Woman was lashed in the Puttalam(Nallanthaluva) Mosque. Their call for removal 16th A is only to remove the the reaming protection of the minorities thought fair practices and ethics introduced in lawmaking and administration by British Colonial Goverment. Once its gone, the 9A will implement the Mahavamsa perversely in all law matters. It call is in the same angle of the Indian Pakistani citizenship law. In that the North-East politicians were fooled to get support to deport upcountry Tamils. The same way Hakeem signed the Divineguma against 13A to get a Chief Minister job in East under weakened 13A.

    The Ministerial Committee and Juice Saleem committee’s object should be fine tuned to find out if a law in the country should be framed to victimise a group. Muslim women are not by selection taking that new subjugation, but by birth condemned to bear it. Is it ok for a law to create framework to harass a group in a community because the community they were born at large want to do that. The committee has to research on that. This is parallel to caste system marriages, but , which is not legally recognized in Lankawe. The Fundamental Rights are there for individuals to protect them from not being victimised by government. Many marriage laws are violating these rights. There is a substantial misunderstanding from all part of the world on marriage laws by confusions created by Roman and Christian marriage laws. Many times it is felt it is absolutely important that these are being implemented and that in turn provoke the Muslims extremist to implement their version of Roman Law, the Sharia, which of course created by the antagonism rose with Roman Law. I do not see these are the law to protect the families and children. The research path for these two committees should not be limited to Muslims, it has to be an open question of if Women, Children and Families are in need of protection in Lankawe and so how if the marriage laws are providing them. If it focus on Muslim women, the output is going to be another 6th Amendment and to make sure that Muslim women in future no way expressing their grievances and if they wiggle out of pain, another PTA to handle it too.

    MMDA was brought in when the the anti- Tamils laws were mushrooming. Its purpose was to draw the muslim extremists’ support to curb Tamils’ call for the recognition of their right. It is successful and it produced Badiuddin, Ashar, Hakeem, Richad and the like who makes their bucks on the Muslim-Tamil split. Muslims can take example from TNA, which in the recent case of ex CBG Mahendran case, when they were asked to help make it as political issue, they declined. They did not consider Mahendran as Tamil and attempted to save him. That is what the Ranil’s UNP expected them to do. In the North army introduced drugs to obtain help of Ava Gangs. The same way they introduced the drug named MMDA to obtain the Muslim extremists’ help against the common Muslims and Tamils. It was obvious in how the “Pasu Vathai” and Halal issues handles recent years. But even the SA prince who was introduced the Rosana’s case did not give even small gift to that victim family. BBS brutalised Muslims, but Hakeem and Richad were pampered by them individually. If Muslims ask for a special law from government they are asking for another dose of opium. And they know, in warlords law, give and take is the law. The only choice to stay out being victimised the by Lanakawe’s Chitanda or Yahapalanaya governments is not asking for the extremists’ drugs as favor.

    I do not see the MMDA’s need to be fine tuned to lessen the victimization. Marriage laws are depressing and regressive. There is no need to marriage laws. Time to think about the families as a whole make sure children and women are not victimized in those units under marriage laws but they function as compassionately protecting and providing life for the weaker ones.

    Another factor is, while the MMDA is reviewed, a unit to provide the redress to those victimised by the law should be created. Those who fell off by the victimization should be able to get help from the government by bringing their case against government, rather than usual compensations from victimizer, where the victim and the victimizer are on the same parity in the eyes of the community, who see the judgment rewards from a law of court for the victim is as fair. Of course this will provoke the extremist and they will suppress victims from coming forward. This another well documented area of Tamils. For Example, the women and children should be provided shelter, employment, and protection from government funds as they cannot seek employment or other living means from the community. This is a matter the committees should recommend. It was expected the Puttalam woman to withdraw her case and she is doing it to hurt her life as there is no government protection in Lankawe for Individuals, other than the community’s one on which the community allow them to lean and then hurt them.

  • 7
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    If the Sri Lankan Muslims are to be assimilated with the general population they should sever all forms of separatism including separate laws that may be viewed as favourable or otherwise. Where women are concerned the Muslim laws are skewed against them and not in line with Sri Lankan values. I would urge the legislators to repeal the Act giving recognition to the Muslim Laws and the population subjected to just one set of laws i.e. Sri Lankan Laws.

  • 6
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    It would be rather ridiculous if it would emerge that even after almost 7 years, a committee consisting of a majority of eminent persons has not addressed these aspects, and/or has not finalised its report as expected.

    I think, they know it is highly political if they say what muslims doing right now are wrong. So, it is going for ever. Otherwise, why it takes seven years and does not see an end.

    Most probably, they do not want to write against “Islamic Preachings”. Islam is not only the Quran but also other writings and thpse are contradcitoruy to each other. Mullahs, cleric, or who ever can interprt it the way they want.

    Even you, the author of this article, do not clarify it because, it is haram to talk against islam or simply don’t criticize when it is wrong.

    • 1
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      jim softy

      “Even you, the author of this article, do not clarify it because, it is haram to talk against islam or simply don’t criticize when it is wrong.”

      It is battle between Reason, Observation, Revelation and Interpretation.

      The Mullah, the Ulema and other religious authorities have taken an upper hand, and dictating their hegemony and version of interpretation. This battle is over 1,200 years old.

      Muslims and Islam need a Kamal Aatturk for reform.

      • 0
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        This basically the main conflicts in understanding Islam. Firstly, the Quran was written about 800 years after Muhammad the prophet allegedly bringing Allah’s wisdom and lastly, it is written in archaic Arabic that it is open to many interpretations, conflicting with each other. The version followed by ISIS in Iraq or the Wahabbis in Saudi Arabia (now creeping into Sri Lanka) have got to be the most abhorrent with women routinely denied of Human Rights and people being beheaded in public in the name of Islam, without a proper hearing or trial.

    • 0
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      “Most probably, they do not want to write against “Islamic Preachings”.

      As I said it was only an effort to upgrade the MMDA. The committee is expected to tell that the MMDA is harsh on women because it is not following the “Sharia”. The Committee recommendation has to be to replace the harsh MMDA with the “Sharia” then not just the Muslims women, even the men and the society as whole be happy. In other words, that the woman went through lashing in Puttalam is unfair to her, so in Saudi Sharia Fashion, if her head was chopped it would have been easy on her and tolerable. You know putting this in sofer words are difficult, unlike telling that nakedly in my crude English, so that your Modaya Chitanata- Yahapalanaya Governments will legislate it. Further trouble is making arrangements the Wahabi Middle East governments pay for the Mahr for Ranil, Old King, New Kings to keep make the Muslim women bought out and shut up. 65 years after the freedom we are still secretly cooking a constitution that TNA is not able to speak out outside about what is in it. The head man of the committee, Justice has his priorities before he can release his report. What is the big deal? What is the hurry?

  • 0
    0

    Whatever said or published, any Personal law in this country or elsewhere for a community has been framed enabling that community to follow a specific religion.In Islam, religion is a way of life which others find it difficult to comprehend. So if there is a need for change, that should manifest from within the community as a correction made to comply with the religious principles of that community. To ask them to follow another set of laws will be a erosion of fundamental right to practice one’s religion.

    Asking to sacrifice that right for any other reasons will be a crime on that community.

  • 0
    1

    Whatever said or published, any Personal law in this country or elsewhere for a community has been framed enabling that community to follow a specific religion. In Islam, religion is a way of life which others find it difficult to comprehend. So if there is a need for change, that should manifest from within the community as a correction made to comply with the religious principles of that community. To ask them to follow another set of laws will be a erosion of fundamental right to practice one’s religion.

    Asking to sacrifice that right for any other reasons will be a crime on that community.

    Also how could they be asked to follow a set of laws not in line with their respective beliefs.

    • 3
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      In Islam, religion is a way of life which others find it difficult to comprehend.

      What is difficult to comprehand, why sunnis kill shiites and other sects, why can have polygamy, women have to cover up, Why muslims do not take drugs but they sell it to people of other religions, Muslim women have to cover up every thing, but they sell western fashion cloths to women of other religions.

      Why a Religion of peace is unbelievably contradictory to different groups of people ? Is that the way of life ?

  • 4
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    akram m

    ” So if there is a need for change, that should manifest from within the community as a correction made to comply with the religious principles of that community.”

    Why hasn’t the change never arrived?

    Is it okay to rape a child of 12 years old just because the said community (the men) believe it is within the religious principles?

    A civilised world supported by medical evidence condemn such practices on health and moral ground, pedophilia is being given respectability through religious practices.

  • 0
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    The protests by Wahhabist extremists are only to defend their ‘rights’ to legally abuse 12 year old girls. This is a shame and insult to all decent human beings.

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