{"id":193199,"date":"2018-09-04T16:19:25","date_gmt":"2018-09-04T10:49:25","guid":{"rendered":"https:\/\/www.colombotelegraph.com\/?p=193199"},"modified":"2018-09-04T18:28:59","modified_gmt":"2018-09-04T12:58:59","slug":"mmda-committee-report-are-we-asking-the-right-questions","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/mmda-committee-report-are-we-asking-the-right-questions\/","title":{"rendered":"MMDA Committee Report: Are We Asking The Right\u00a0Questions?"},"content":{"rendered":"

This article outlines Muslim Personal Law Reform Action Group (MPLRAG)\u2019s opening statements in the conversation on MMDA<\/a> Committee Report and is Part 1 of a series of articles on the report(s) and reform process.<\/em><\/strong><\/p>\n

Ever since the long awaited report of the Committee Appointed<\/a> to Recommend Amendments To the Muslim Marriage and Divorce Act (MMDA) was officially released, much has been said and written about the divided views of Committee members, the contents of the report and what needs to happen.\"\"<\/a><\/p>\n

One of the main focus in these conversations has been about how best a \u201ccompromise\u201d can be reached between what is pitched as the \u2018JSM report\u2019 and what is being referred by the All Ceylon Jamaiyytul Ulama (ACJU<\/a>) as the Faisz Mustapha or \u2018FM Report\u2019 report.\u00a0To be clear what is referred to as the JSM report is approximately 200 pages detailing contextual analysis and reasoning for the recommendations,\u00a0and eight pages of \u2018FM report\u2019 with points on some of the key issues with little or no contextual analysis.\u00a0It is surprising that people are able to compare both side-by-side given the extreme incompatibilities in language, evidence, framing and the recommendations themselves.<\/p>\n

For many the drive for compromise\u00a0appears to be a solution to prevent further divisions among the Muslim communities on this issue.\u00a0This has seen some individuals attempting negotiations with the ACJU, and yet others are organizing multiple events on trying to reach this elusive compromise between the two reports.<\/p>\n

But a compromise at what expense and on what issues?<\/strong>\u00a0\u00a0Between minimum age of marriage as 12 and 16? Between\u00a0\u2018No\u2019<\/em>\u00a0women Quazis and \u2018Yes\u2019<\/em>\u00a0women Quazis?. Between\u00a0\u2018No\u2019<\/em>sect law and \u2018Yes\u2019<\/em>\u00a0sect law? And the list goes on\u2026<\/p>\n

The discussions on compromise are usually followed by the sentiment that the compromised amendments must be \u2018according to\u00a0Shari\u2019ah<\/em>\u2019. Throwing the word around in conversations, or on the pulpit does not prove someone knows what it means. Ironically, both JSM and FM reports claim to be based on \u2018Shari\u2019ah<\/em>\u2019, despite contradictory recommendations.<\/p>\n

But what does \u2018Shari\u2019ah\u2019\u00a0mean\u00a0exactly?<\/strong><\/p>\n

Among Sri Lankan Muslims there appears to be lack of clarity on what constitutes\u00a0Shari\u2019ah\u00a0<\/em>and\u00a0the term\u00a0is often confused with \u2018Islamic law\u2019. But\u00a0Shari\u2019ah<\/em>\u00a0is much broader than our narrow and mundane understanding of \u2018law\u2019 or \u2018practice\u2019. \u2018Shari\u2019ah<\/em>\u2019 is an all-encompassing term that literally means \u2018the path to the water\u2019. A system of guidance, a way of being, a source of ethics and fairness in Muslim belief.\u00a0Shari\u2019ah<\/em>\u00a0is the compass of a moral universe, and it points towards justice and equality.<\/p>\n

The\u00a0Maqasid al-Shariah<\/em>\u00a0or purpose of\u00a0Shari\u2019ah<\/em>\u00a0include the right to protection of life, family, education, religion, property\/ resources and human dignity. The scholar of Islam, Ibn Al- Qayyim defined the four principles of\u00a0Shari\u2019ah<\/em>\u00a0as\u00a0justice, mercy, wisdom and common good<\/strong>.\u00a0 According to him the objective of the\u00a0Shari\u2019ah<\/em>\u00a0is the establishment of justice between and fairness among the people, so whichever path leads to justice and fairness is part of the religion and can never oppose it.<\/p>\n

Clarity on Shari\u2019ah, Fiqh and Islamic law is VITAL in this process<\/strong><\/p>\n

Sri Lankan Muslims must get clear on these different terms.\u00a0Shari\u2019ah<\/em>\u00a0is different from \u2018Fiqh<\/em>\u2019 which is the basis of Islamic or Muslim family laws such as the MMDA.\u00a0Fiqh<\/em>\u00a0is the human understanding and subsequent interpretations of Quran and Sunnah. The legal rulings that were given by various Islamic scholars on a plethora of different matters \u2013 from how to pray and fast, to how to marry and divorce\u00a0\u2013 these are all HUMAN efforts of\u00a0Fiqh.<\/em><\/p>\n

Muslim law such as the MMDA is based on\u00a0Fiqh<\/em>\u00a0\u2013 essentially man-made interpretations, which differ between primarily male scholars and schools of law (madhabs<\/em>) sometimes to such an extent that some of the rulings of the same sect (Eg: Shafi\u2019i and Hanafi madhabs of the Sunni sect) are directly contradictory to each other on the exact same issues (Eg: the requirement of wali\/guardian).<\/p>\n

This has led to a multitude of Muslim family laws globally. 48 or more countries around the world have some form of Muslim family law or practice, and no two such laws are exactly the same.\u00a0This proves that diversity of opinion is a part and parcel of Islamic legal tradition which is flexible and fluid to respond to emerging issues and challenges.\u00a0<\/strong><\/p>\n

So the difference in opinion about amendments does not mean the Sri Lankan Muslim communities are divided, it means we are diverse \u2013 and this is a GOOD thing!<\/strong>\u00a0It is what enables us at this point in time, in the tiny Island of Sri Lanka, to decide on the\u00a0best possible amendments<\/strong>\u00a0to our Sri Lankan Muslim family law, given contemporary context.<\/p>\n

So on the MMDA report \u2013 Are we asking the right questions?<\/strong><\/p>\n

The problem with current discussions on the Committee report is that we are NOT asking the right questions. In fact the questions the Muslim community is currently asking\u00a0\u2013\u201cHow to reach a compromise? How to choose between recommendations of the two reports?<\/em>\u201d\u00a0\u2013 are\u00a0FUNDAMENTALLY FLAWED<\/strong>.\u00a0 It assumes that the different recommendations of the Committee are the only possible options to choose from.<\/p>\n

In asking these, we are forgetting why we are here in the first place \u2013 discussing the MMDA in 2018!<\/p>\n

It is because and only because well over 20 years ago, and more so in the recent past, there was and is an acknowledgment and understanding that the provisions of MMDA discriminate against\u00a0MUSLIM WOMEN<\/strong>.\u00a0Muslim women are asking for this change because the evidence is overwhelming \u2013 the current MMDA as it exists now is causing Muslim women grave injustices.<\/strong>\u00a0It is resulting in broken families, denying women and children their dignity, robbing Muslim girls of their education, which one\u00a0can say goes against the purpose and principles of the\u00a0Shari\u2019ah<\/em>.<\/p>\n

So the ONLY questions that we must be asking are \u2013<\/p>\n