By Mohamed Harees –

Lukman Harees

‘Certainly We have sent Our messengers with clear guidance; and We sent down to them the Book and the scale so that humans may conduct themselves with justice.” (Quran : Surah al-Hadid, 57:25),

When Justice Saleem Marsoof (JSM) handed over his Committee Report on Muslim Marriages and Divorce Act (MMDA) Reforms to Hon. Minister of Justice in December 2017, ending a long period of wait and suspense, the Muslim community in particular and the country in general eagerly expected that its’ recommendations will carry much hope and promise for those affected by certain aspects of this legislation. However, shattering all such hopes, it came to light that the Report was not ‘unanimous’ as it was initially thought to be; in fact there were two separate reports in one, with another ‘rival’ Report being also submitted alongside by another prominent member of the Committee Faisz Mustapha PC (FM) representing a dissenting group within, including the powerful ACJU, which basically challenged and disputed many key recommendations in the Main Report. This state of affairs obviously reflected adversely on the ability of the Muslim community to resolve its’ own issues amicably even after a long period of time. 

Ever since then, much debate and discourses have ensued in the public domain, with various parties even washing dirty linen in public, which have unfortunately generated more heat than light. Frustratingly, both the Justice Minister, the Government and even the Muslim Parliamentarians will therefore drag their feet in proceeding further in the absence of a consensus due to the political risk involved in taking sides/ implementing unilaterally. It would have been much nicer and productive for JSM as Chair if more time was taken to resolve contentious issues with the dissenting sub-group to come up with a unanimous set of recommendations in the several areas which are in dispute , rather than creating this quagmire, which many believe, arose out of egoistic reasons on both sides. 

The general law administered through civil courts governs marriages of other ethnic and religious communities – the Sinhalese, Tamils and Burghers, while the MMDA established a parallel Quazi (Muslim judge) court system to administer the Act. Throughout the period in which the MMDA has been implemented, there have been serious concerns raised by women’s groups with regard to discriminatory provisions as well as the quality of service and practices of the Quazi courts, which put Muslim women and girls in socially and economically vulnerable situations. Many Muslim women’s rights groups have therefore been highlighting this dire plight of multitude of affected Muslim women. Thus, there is definitely a dire need to reform this piece of law, and Muslims should seriously reflect whether to allow token cultural and religious rights embedded in the present MMDA , which has been traditionally passed off over the years as namesake ‘Islamic law’ to triumph over concepts of justice and equality as articulated and promoted under the objectives of Sharia (Maqasid Sharia) as laid down in the Quran and practices of the Holy Prophet of Islam (OWBP). However, as it stands now, many community initiatives to reconcile both positions taken up by both JSM and FM groups  have not been as effective as they should be. 

A cursory look at the general acceptability of the JSM-FM reports shows mixed reactions. On the one hand, the Muslim women’s groups and human rights groups which demanded drastic reforms showed an inclination to favour JSM recommendations, which appears to address the main concerns of the affected people to a greater extent and therefore they hailed this report as progressive and forward looking. They in fact even referred to FM as the distractor in chief. On the contrary, the FM-led dissenting report which was backed to the hilt by the influential ACJU, found favour with the conservative sections of the Muslim community, visibly due partly to intense lobbying at grass-root levels by the ACJU and partly as a result of misinformation , as the report sought to basically  maintain (almost) status quo in respect of substantive law and major areas which generated controversy, however suggesting administrative changes. They took up the position that JSM Report, sacrificed some aspects of the Sharia to appease those demanding drastic reforms to the MMDA without thoroughly thinking through the implications- a measure which may have long term impact on the religious and cultural sensitivities of the Muslim community. However, it has been fact that JSM Committee (JSM) has even authored books and written many research earlier on this area), has clearly done lot of research based on Sharia and comparative study about the law reform process even in other Muslim countries as well and his report was a comprehensive one. Thus any attempts to brand his Report as ‘anti-Sharia’ is both misleading and erroneous. The blame about his Report has been that there are no Religious scholars who has signed his report. 

On the other hand, the Muslim community consider MMDA as a great legacy left behind by the earlier generation of legal minds, politicians and religious scholars and therefore their fears are reasonable in that, reformation to this legislation should be undertaken with utmost  circumspect, caution and foresight, without merely seeking to resolve current societal issues. Thus, FM groups which was consisting of ACJU representatives, Dr Shukri(Director Jamia Naleemiah), Shibly Aziz(a former attorney general) and many others felt that some measures may be too drastic or radical, given the present cultural context within the Sri Lankan Muslim community as the reform process need to proceed with extreme caution; thus, may need further discussion with the community/religious leaders or education at the grass-root levels, for example, areas like ‘far reaching’ implications arising from changing the substantive law, polygamy and divorce procedures. Many administrative changes were however proposed to resolve current issues raised by the women’s groups.

A very sensitive issue considered by the Committee was the substantive law applicable to determine the validity of marriages and divorces as well of the status, mutual rights and obligations of the parties. It was recommended in the JSM Report that any reference to “sect” (or mazhab) be done away with, so that all matters contemplated by those provisions will be governed by the principles of “Muslim law”, and the opinions of all recognized schools of thought may be considered in making orders and decisions of the Quazi Court and the appellate courts. This was contrary to the status quo where our courts have held consistently that as Sri Lankan Muslims largely belong to the Shaffi sect “the Shaffi doctrine is generally applicable” and a party should be presumed to be a Shaffi unless there is evidence to the contrary.  The FM report did take exception to this major change in law, taking into consideration cultural sensitivities of the Muslim community, fearing that it will open up avenues for more controversies. Other areas of major disagreement were appointment of Female Quazis, requirement of registration for validity of a marriage and bride’s signature, minimum age for marriage, requirements for a polygamous marriage and divorce procedures, among others.

JSM, in one of his previous articles on the subject refers to the fact that some provisions of the MMDA do not fall in line with sharia requirements. He says for example, ‘although the sharia’t regards marriage as a contract as opposed to a religious sacrament, there is no provision in the Act for the bride to place her signature in the marriage register, and the consensual nature of marriage has been overlooked in most of the judicial decisions relating to the exercise of the option of puberty (khyar-ul-bulugh) by girls given in marriage by their marriage guardians.  Obsessed by the self imposed need to apply Shaffie law to the followers of the Shaffie mazhab, our Courts have forced such girls to abide by marital bonds which they had not voluntarily entered into’. Further, it is also a fact that even the un-Islamic practice of Kaikooli (dowry from a bride’s party to the bridegroom ) has been given validity in the Act. Thus, the assertion that MMDA is based on Sharia principles does not hold water. More-so, in the context of much injustice caused to the women, it cannot be said that the MMDA in Toto falls within the spirit of justice and fairplay as envisaged by the Sharia. Therefore , it is true as JSM says, ‘from the foregoing, it would be apparent that most of the problems in the Muslim Law of Marriage applicable in Sri Lanka arise from the deficiencies in the statutory framework within which the sharia’t rules operate, and the failure of the Courts to appreciate and give effect to the wisdom of the sharia’t’.

In fact, a prominent Sri Lankan Muslim scholar Ustad Mansoor drove home this point during a recent online video interview series on the subject, where he stressed the need to understand the overall laudable objectives of the Sharia(which is ensuring justice and fairness in dealings) in bringing about the much needed amendments to the Act without some sections feeling discriminated against. If the exercises to amend this Act defeats this objective, then they will be futile and cannot be considered as justice and fair. He quotes the Quran verse quoted above, to prove this point where all parties should feel the just and fair-play nature of the Islamic law as it happened in earlier times. He stated that ‘earlier Imams (Jurists) did formulate laws according to the conditions prevailing then; however they are not to be taken as set in stone, but will provide a basis for modern law making. If circumstances and conditions change like in modern times, then those changed situations should be considered in amending laws, which is the larger objective of Sharia.(this progressive and forward looking character (flexibility)is embedded in Islamic law making)’ 

Muslim scholars reflecting on the larger objectives of Sharia have said that laws derived from it must always protect the following: life, intellect, family, property and the honour of human beings. These five objectives create what we may consider to be a pre-modern Islamic Bill of Rights, providing protection for civil liberties. Islamic Shariah calls people to the middle path in all things in belief, worship, ethics, morality, behaviour, individual interactions, social interactions and in intellectual understanding. In pre-modern Muslim lands, Fiqh (jurisprudence) authority was separate from the governing authority, or Siyasa. Colonialism centralized law with the state, a system that carried over when these countries regained independence. By using state power to force particular religious doctrines upon the public, they would essentially create Muslim theocracies, contrary to what existed for most of Muslim history. In order to create a legal system that could do both address issues of their time and tackle questions yet to come, scholars used different hermeneutics that enabled them to extent what they found in the finite body of scripture such as Qiyas (analogy),  Istiḥsān (equitable discretion), maṣlaḥa (public good), qawāʿid (maxims) and the role of the spirit of the law. Earlier legal practice therefore has shown that the Islamic legal system has been flexible enough in reacting to and accommodating social change.

Another myth about Sharia is that it is anti-women. While it’s true that certain majority-Muslim societies have laws that treat women unfairly, many of these laws, have no basis in Fiqh and/or cherry-picked to suit the needs of the rulers. The Quran recognizes the absolute equality of men and women as human beings and proclaims that they are each other’s partners in promoting the common good. Shariah therefore requires that both men and women have equal access to knowledge; it requires a woman’s consent before marriage; and it allows her the right to initiate divorce under certain conditions. Muslim jurists allowed abortion in the first trimester of pregnancy, especially if the mother’s health was in jeopardy. Above all, Sharia allows a woman to inherit property from her male relatives and to keep this property for herself, even after marriage – her husband cannot lay any claim to it. In contrast, European Christian women were not allowed to hold on to their property after marriage until the 19th century. Muslim feminists campaigning for equal legal rights in Muslim majority societies today draw their arguments and strength from Sharia. Some hold that the Quranic verse that men are the “protectors” (Qawwamun) of women, as signifying inferiority of the woman. However, as scholars like Wadud, Azizah al Hibri (1982) and Riffat Hassan(1999) argue, linguistically  Qawwamun means ‘breadwinners’ or those who provide a means of support or livelihood’. Thus this verse charge men with maintaining women from their economic resources in which they have been preferred(given more of than women). Many Muslim countries have female judges too.

After all, family life is where the individual sense of religious and cultural identity is most strongly embedded and it is there that justice, equality and fairness should begin. Family law even in Muslim-majority countries has undergone tremendous change over the past century, and this process continues today with intensity and even controversy. The Quran and the Holy Prophet(OWBP)’s traditions urge Islamic society to do justice to all human beings. Thus, there seems to be no reason ‘why justice should be denied to the suffering Muslim women in the redress of their grievances in the implementation of family laws’. 

It is therefore nothing but fair (and also not too late) that both JSM and FM groups (which represents some of the best brains in the community) should look beyond their set of recommendations conflicting with those of the opposing one and sit around a table with or without (a) moderator/s to look for ways and means of finding common ground and a way out of this frustrating stalemate, in the best interests of the community and those crying out for redress from the injustices of the present MMDA. The ACJU as a responsible body should discontinue its’ damaging dissemination campaign against the JSM report recommendations and act sensibly to bring about a consensus ; the wider Muslim community too cannot be caught napping and should also bring pressure on all of them to consider this as a priority .

The differences are not totally irreconcilable or absolutely at tangents; it only needs a holistic approach in the wider spirit of the Sharia and also dispelling fears harboured by the other. Further, at a wider level, greater questions also need to be answered as well : Will mere reforming the Act restore and offer full protection of the rights of Muslim women, men and children? Is a reform of the MMDA the answer to address issues facing the Muslim community and particularly Muslim women and girls?. Be it as it may, the history and Almighty Allah will judge them eventually if they unduly delay further or fail to grasp this golden opportunity to correct the historic injustices in the Act and make MMDA ‘fit for purpose’.