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Monday, 26 December 2016

Shia and Sunni divisions

The “Arab Spring” has seen the masses across the Middle East and North Africa rise up and protest against the various despotic regimes that have plagued the post-colonial set-up in the region. Irrespective of whether the regime was a republic, such as Egypt, or a monarchy, such as Jordan, all of the rulers suffer from a lack of legitimacy; and the people of the region all suffer from similar issues such as corruption, oppressive police states, and unaccountable government.
Amongst the issues, one which has reared its head amongst these protests has been that of sectarianism, both in Syria and Bahrain. In Syria, the ‘Alawī sect rules the country despite only making up less than 20% of the population, while in Bahrain the al-Khalīfa Sunni family rules over a majority Shī’ah population. For this reason, both governments have played the sectarian cards when they have been confronted with protests, in order to galvanise domestic and regional support against the protestors. In origin, neither set of protests are sectarian, but rather are representative of the movement across the region, which has seen the rise of the people against the illegitimate regimes whatever their identity. This is supported by the fact that the Bahraini demonstrations have been widely supported in other countries such as Egypt.
Though the sectarian split exists in Syria, in reality all of the Arab governments support the Assad regime and would prefer that the uprisings are suppressed, and therefore the same sectarian element has not emerged as strongly, even though the ‘Alawī sect is without any doubt considered outside of Islam by both the Sunnī and Shī’ah. Rather, the government has used the excuse that they are the bulwark against “Islamic extremism” and that those opposing them are not representative of the society there.
On the other hand, the Bahraini authority has used forces from the Gulf including Saudi Arabia to suppress its protests, going as far as attacking hospitals and arresting hospital task. The Saudi regime has been very forceful in backing the Bahraini government due to its own fear that protests in the region could spread into Saudi – which is why they have gone as far as to ban any form of demonstration and accounting of the government. It claims that the Bahraini protests are fostered by Iranian support, and so there is a struggle between the two powers going on in Bahrain, similar to the one in Iraq. As a result of these struggles, more sectarianism has been pushed through the media and the clerical classes in Saudi to mobilise opinion against the Bahraini protests, with the excuse that they are Shī’ah disbelievers and therefore the al-Khalīfa family is better.
It is with this background in mind that the following issues will be addressed:
  1. Why did Shī’ism arise?
  2. What is the ruling on the Shī’ah? Are they Muslims or not?
  3. What is the solution for the situation, and is it sectarian in nature? If not – what is it?
Why Did Shī’ism Arise?
The origins of the split between the Shī’ah and Sunnī can be traced back to the time of the Companions (ra) and the subsequent generation. The dispute was political in nature, with those who preferred ‘Alī (ra) to be Khalīfa ahead of the other companions labelled as Shī’atu ‘Alī (‘The faction of ‘Alī’). As positions hardened different beliefs developed, and so Shī’ism came to represent all those who preferred ‘Alī (ra), but included a spectrum – from those who simply had a political preference, to those who believed in the divinity of ‘Alī (ra).
Today, the majority of the Shī’ah belong to the Twelver sect, though there remains other sects such as the Zaydī’s in Yemen.
Both the Sunnī and Shī’ah believe in the necessity of the Khilāfah, and the disagreement relates back to whoshould be the Khalīfah. In answer to this question, the orthodox position is that the Khalīfah is determined by the choice of the ummah, while the Shī’ah disagreed and claimed that the question of leadership was decided by revelation. It is beyond the scope of this article to expand upon this here, but suffice it to say that this question lies at the heart of the disagreement between the parties, and its resolution would resolve all the branch issues in one go by dealing with the fundamental root contention.

The Ruling on the Shīah – Muslim?
The first question to be answered is – What makes a Muslim?
Someone enters into Islām with the pronouncement of the shahādatayn – ‘There is no God except Allāh, and that Muhammad (peace and blessings be upon him) is the Messenger of Allāh.’ Belief in Muhammad (peace and blessings be upon him) necessitates belief in the Qur’ān as the immutable word of Allāh. Belief in the Qur’ān means to believe in all that came in it, since the Qur’ān has been transmitted through mutawātir (mass transmission negating the possibility of any error) channels. Anything which is confirmed definitely in the Qur’ān as part of the belief, or is known by necessity, are conditions for belief in Islam. Issues which are not known by necessity, or are not definitely concurred upon in the Qur’ān and fall under the realm of ijtihād are areas where it is not permitted to make takfīr (pronunciation of disbelief) of the person who holds the different opinion, though they may be disputed with.
As for that which is confirmed, for example Allāh has said in the Qur’ān:
يَا أَيُّهَا الَّذِينَ آمَنُوا آمِنُوا بِاللَّهِ وَرَسُولِهِ وَالْكِتَابِ الَّذِي نَزَّلَ عَلَىٰ رَسُولِهِ وَالْكِتَابِ الَّذِي أَنْزَلَ مِنْ قَبْلُ ۚ وَمَنْ يَكْفُرْ بِاللَّهِ وَمَلَائِكَتِهِ وَكُتُبِهِ وَرُسُلِهِ وَالْيَوْمِ الْآخِرِ فَقَدْ ضَلَّ ضَلَالًا بَعِيدًا
“O you who believe – believe in Allāh and His Messenger, and the Book which He sent to His messenger and the Book which He sent to those who came before him. Anyone who denies Allāh, His Angels, His Books, His Messengers and the Day of Judgement has gone far astray.” (An-Nisaa, 4:136)
The verse makes it clear that belief in Islam is based upon belief in Allāh, the Angels, all the revealed books ending with the Qur’ān, all of His Messengers and the Day of Judgement. Anyone who disbelieves in any of these is outside of the fold of Islam, whatever they may claim.
In this case, someone who claims that the Qur’ān is changed – has gone against these fundamentals of faith and is a disbeliever. Likewise, if someone believes in any person personifying God – like the ‘Alawī consider ‘Alī – then such people are also outside the fold of Islam since they have gone against the first of the shahādatayn.
However, if someone believes in something not known by necessity, or which is disputed, then this does not take them out of the fold of Islam – such as the position that the Qur’ān is the created Word of Allāh, or whether the Prophet (peace and blessings be upon him) did the ascension from Mecca to the Dome of the Rock and up to the heavens in physical body or not.
With this in mind – it should be noted that to make a blank assertion regarding the Shī’ah would be incorrect, due to the fact they accept the shahādatayn, and therefore are considered as part of the Muslim Ummah in origin. Beyond the fundamental beliefs stated previously they have additional beliefs, as there are many different branches which come under the umbrella of the Shī’ah, from those who prefer ‘Alī as Khalīfah over Abū Bakr and ‘Umar (may Allāh be pleased with them all), to those who claim divinity for ‘Alī. Therefore to declare any specific Shī’ah as a disbeliever requires clarification as to their beliefs, with the acceptance that they are in origin Muslims. To declare a specific person outside of Islam in this case would require a proof that they are going against something definitely proven in Islam, and is known by necessity.
Issues which remove a person from Islam
From the issues that would remove a person from Islam, which have been attributed to various sects of the Shī’ah:
  1. The claim that the Qur’ān was altered or is incomplete in any way
  2. The claim that the Qur’ān was wrongly revealed to Muhammad صلى الله عليه وسلم and it was intended for ‘Alī (ra)
  3. The claim that ‘Alī (ra) is a divine being
  4. The claim that the companions on masse are not Muslim
Though the above claims have been attributed to some factions of the Shī’ah, they are not agreed upon as the foundation of Shī’ah belief, which means that it is not possible to make a generalisation and rather each person should be discussed separately.
Other issues, such as the cursing of specific individual companions, or the belief that ‘Alī is better than Abū Bakr, do not reach the level of disbelief which removes them from the deen, though is considered extremely reprehensible.
Therefore, in approaching the question of the Shī’ah, it would not be correct to make general assertions; and rather since they have entered into Islam through their belief in the shahādatayn and believe in the fundamental aspects of the Islamic belief, to make a declaration of disbelief requires investigation into that specific individual’s understanding, since the issues mentioned above (1-4) are not universally held by those who ascribe themselves as Shī’ah.
Words of the Classical Scholars Regarding the Shī’ah
To summarise what is coming for those who are not interested in the more detailed discussion and references – Muslim scholars in the past did not do blanket takfīr of the Shī’ah. Rather they accepted them as Muslims in origin and some even accepted to narrate through them. Ibn Taymiyyah, who is often quoted as an authority on the Shī’ah, did not do a blanket takfīr of them, though he was very harsh with respect to their beliefs. Rather he considered them as Muslims who had gone astray. This is with respect to the generality of the Shī’ah.
1. When the Scholars mention that an opinion is Kufr, they did not intend specific takfīr of those who may have held that opinion
This is because someone could hold an opinion that is considered kufr according to one scholar, but it is notkufr according to another, so it is an issue of disagreement. Alternatively, it may be that the person who held that opinion is ignorant of it being an invalid opinion, and so their ignorance prevents them from being labelled as a disbeliever. (In other words, the conditions/preventions of making takfīr are not removed from such a person, and so until they are given the knowledge and understanding, they cannot be declared as outside the fold of Islām.)
As an example, Sheikh ibn Taymiyyah mentioned, in explaining what was meant by the scholars when they declared that ‘whoever declared a particular opinion was a disbeliever’ had to be understood within a context. He stated “rather, what is narrated from each of them is that he does takfīr of whoever said some opinion, and what was intended was that that opinion/word was (in itself) kufr, in order to warn against it [and therefore it was not intended to mean that the person who said it was necessarily a disbeliever]. And if an opinion is kufr, it is not necessary to do takfīr of everyone who says it with ignorance and ta’wīl (interpretation)”[1]
It is necessary to lay that foundation as it is sometimes seen that there are narrations from different scholars doing takfīr of the rāfidah (the more extreme Shī’ah are labelled in the classical texts as the Rāfidah – pl. Rawāfid– and they are mentioned in various places, often citing that they are disbelievers). In other places, narrations regarding the same scholars make it clear that they consider the rāfidah as Muslims, such as through their acceptance to transmit Ahādith (Prophetic narrations) via them. This seeming contradiction has been explained above – that their labelling of the beliefs as disbelief is to warn against them, but that they did not necessarily consider the specific person believing in them or calling for them as a kāfir.
2. Amongst the scholars were those who accepted narrations from the Rāfidah
The following quotes highlight the position of some of the classical scholars in accepting narrations through innovators (and amongst the conditions for the acceptance of a narration are: Islam, and righteousness oradalah). There was a difference opinion amongst the scholars in this issue, and Imām Baghdādi mentioned those who accepted narrations from innovators:
“and from those who accepted this (narrations from innovators) from the jurists was Abū Muhammad ibn Idrīs al-Shāfi’ī who said, ‘and the statement of the people of desires (innovators) is accepted, except for the khātibiyya of the rawāfid due to the fact that they attest and agree to false witnesses’, and it is narrated that this is the opinion of ibn Abī Laylah and Sufyān al-Thawrī and similar to this has been narrated from Qādi Abū Yūsuf”[2]
It can be noticed that the statement makes clear that apart from one group from the rawāfid, Imam al-Shāfi’ī and others mentioned accepted narrations from the Shī’ah generally, meaning that they accepted them as being Muslims and also as being just.

In Ibn Hajr al-Askalāni’s commentary on Ibn Salāh – he mentions:
“The people divided into 3 opinions with respect to narrations from the Rāfidah – the first opinion is total rejection (of narrating from them), the second opinion is total permission (of narrating from them) except for those who lie and fabricate, and the third is a nuanced opinion which accepts the narration of a rāfidī who is known to be trustworthy in what they relate, while rejecting the narration of those who call to their innovation (their Shī’ah beliefs) even if they were considered honest.”[3]
This comment also makes it clear that the rāfidah were not considered as outside of Islām, but rather there was dispute over whether their narrations could be accepted, since their beliefs could be construed as removing the necessary characteristic of trustworthiness (adālah).

Ibn Qayyim also mentioned similar – stating:
“As for the people of innovations who are in agreement with the people of Islām, but they differ with them over some fundamentals, such as the rāfidah, the qadariyyah and the jahmiyyah, and the extreme murji’ah, who are on other than Islām – these and those similar to them can be divided into 3 categories”
He then goes on to mention the categories, with the first category being those who were ignorant, unable to get clarification of the deviancy of their views and were following others. He classed these as Muslims. As for the most harsh category – the third class of people who had had their deviancy explained to them, but they continued to follow their innovations out of partisanship etc. – ibn Qayyim stated that such a person would be considered afāsiq (sinful) at a minimum, and the issue of making takfīr of him was dependent upon ijtihād.[4]
What can be seen from all the quotes above is that the rāfidah were considered as Muslims in origin, with the discussion forming around whether to accept or reject any narrations or witness statements from them.

The Opinion of Ibn Taymiyyah
Ibn Taymiyyah is oft-quoted for his opinions on issues of belief, and is particularly used in regards to the Shī’ah due to his authorship of the book “Minhāj al-Sunnah” which was a comprehensive refutation of the Shī’ah. However, as mentioned previously, he has often been quoted out of context or with lack of understanding to back up the claim that the Rāfidah in their entirety are disbelievers. Amongst his many comments about the Rāfidah in this book are statements such as that they are the most dangerous enemies of the Muslims, that they are greater in disbelief than the Khawārij, that they were the furthest from the deen, and that their beliefs were the most disgusting beliefs. Despite this, a complete reading of ibn Taymiyyah can only lead to the conclusion that even though he was a fierce critic of their beliefs, he did not consider them as outside of Islam and did not make specific takfīr unless specific investigation was made.
a. The Rāfidah are Muslims
As a clear example – he stated:
“And many of the innovating Muslims, from the Rāfidah and Jahmiyyah and others, travelled to the countries of the disbelievers, and many became Muslim at their hands, and benefitted from that, becoming Muslim innovators, which is much better than remaining as disbelievers”[5]
When he was asked about someone preferring the Jews and Christians ahead of the Rāfidah (a good example considering that today some scholars have told the Muslims to be more afraid of Iran than Israel), he replied:
“Everyone who was a believer in that which Muhammad صلى الله عليه وسلم brought, then he is better than everyone who disbelieved in it, and even if that believer had an aspect of innovation, irrespective of whether it was the innovation of the khawārij or the shī’ah or the murji’ah or the qadariyyah or other than them; the Jew and the Christian are disbelievers and their disbelief is known by necessity from the deen of Islām. And if the innovator considered himself to be in agreement with the Prophet صلى الله عليه وسلم, not against him or disbelieving in him – then even if it was considered that he had committed disbelief, his disbelief is not like the disbelief of the one who lied against the Prophet صلى الله عليه وسلم”[6]
Ibn Taymiyyah makes it clear that despite the harshness with which he addressed those he considered as deviants holding heretical beliefs, he considered them separate and better than the non-Muslims since they share the same fundamental belief in Islam and therefore are part of the Ummah. In this he makes clear the priorities of where allegiances should lie.
b. Praying behind the Rāfidah
In another section, in response to the question about whether it is necessary to investigate the beliefs of the imām before praying behind him, as part of his response Ibn Taymiyyah states:
“And likewise, if the Imām was appointed by those in positions of rule, and there is no benefit in leaving the prayer behind him (such as setting an example in front of the people), then here it is not upon the person to leave the prayer behind him (you should pray behind him, because the importance of prayer in congregation overrides in this instance praying behind an innovator), rather prayer behind the best imām is better (and not a reason to leave the prayer with this person), and all of this is with respect to the one where sinfulness is apparent from him, or innovation which clearly contradicts the Book and the Sunnah, such as the innovation of the Rāfidah and the Jahmiyya and their likes”[7]
As can be seen in this fatwa, ibn Taymiyyah permitted the prayer behind the Shī’ah if there was no other imām appointed to lead the prayer in the area. In the following section he also criticizes those who would refuse to pray behind the rāfidah in such a situation, claiming that they had fallen into the same way of thinking of the rāfidah – which is to make takfīr of those they disagreed with – alluding to the fact that the people of Sunnah did not maketakfīr of those they disagreed with, even if those they disagreed with made takfīr of them.
c. His opinion regarding the Rāfidah Twelvers (Ithnā ‘ashariyyah – who are the majority of the contemporary Shī’ah in Iran, Iraq and Lebanon)
Ibn Taymiyyah knew about the opinions of the Twelver Shī’ah, and specifically their opinion that they believed that their Imāms were free of sin in the same manner as the Messengers. In commenting upon this, he compared the Twelver Shī’ah to the Ismaīlī Shī’ah:
“The Twelvers are much better than the Ismaīlī’s, because in spite of their ignorance and misguidance, there are some who are Muslims in their heart and outwardly – and they are not hypocrites and infidels, since they are ignorant, misguided and followed their desires. As for their leaders, who know the reality of the hidden agenda of their call, they are hypocrites; and as for the lay people who do not know the hidden agenda, they may be Muslims”[8]
And so here it is plain that ibn Taymiyyah is not making explicit general takfīr of the Twelvers, let alone takfīr of specific individuals from amongst them, since even his general takfīr of their leaders would still be reliant upon the conditions of takfīr being met before ruling upon an individual.
d. Cannot rule on specific Rāfidī individuals as being disbelievers
This issue has already been mentioned previously, but it is worth mentioning the specific opinion of ibn Taymiyyah here as well, to explain what has just been mentioned. When discussing the issue of takfīr of innovators and whether they would spend eternity in hellfire, he makes the statement regarding takfīr of a specificKharijī or Rāfidī:
“But to make takfīr of a specific individual, and to rule that they would spend eternity in hellfire, rests upon fulfilling the conditions of takfīr and eliminating all the issues that would prevent it”[9]
In summary – it would be incorrect to attribute the idea of a general takfīr of the Shī’ah, or the Twelver Shī’ah sect, to Ibn Taymiyyah, or his student Ibn Qayyim as mentioned previously. Rather, it has been shown that Ibn Taymiyyah considered them as Muslims in origin, with specific individuals possibly being ruled as disbelievers after investigation. Rather, he explicitly mentions the position that they can be prayed behind, that good can come from them, and that they are to be preferred ahead of disbelievers.
Modern Scholars who did not make takfīr of the Shī’ah
The list of modern scholars who did not make takfīr of the Shī’ah is too long to mention, rather those who madetakfīr are limited to a few from the Arabian Peninsula and the sub-continent. To mention a few of the specific names who did not make or agree with general takfīr of the Shī’ah – includes the Sheikh al-Azhar al-Shaltūt who gave the fatwa recognising the Jafarī school of thought as a legitimate school, Saudi sheikhs Salmān al-Ouda and Ibn Uthaymīn, Syrian scholar al-Bāni, Sheikh Mustafa Ceric, Sheikh Yusuf Al-Qaradawi, Sheikh Wahba Al-Zuhayli, Sheikh Ramadan Al-Buti amongst many others.
The Khilāfah is the Solution to remove Sectarianism
The problems of sectarianism have always been used to disunite the Muslim ummah as a whole, and to pit Muslims against each other, keeping them internally divided. This can be witnessed plainly in what is going on in Bahrain at the moment, what has occurred in Iraq recently and what has been happening over Lebanon over the last few decades. This is because the Muslims do not have a united leadership which can represent us globally and project our unity (despite our internal differences – which pale in insignificance compared to the differences between the Ummah of Muhammad صلى الله عليه وسلم and the rest of the people). The call to democracy in these areas is proven to exacerbate the issues, since democracy is based upon majority votes and following the whims of people, and so politicians often utilise the sectarian card in order to win support and power. This is analogous to the Western politician who uses the immigration card to win support from his own constituents.
As a system, democracy will always fail the minorities – which is why modern democracies have had to cope with this through the addition of constitutional restrictions upon their treatment. A look at the sectarianism that has plagued the Iraqi democracy since its inception, and the problems with the confessional system in Lebanon, highlight that democracy is a totally inadequate solution, which only incites rather than coping with differences. This is a systemic issue linked to the basis of democracy, and cannot be solved by piecemeal solutions such as constitutional limitations.
The correct solution for the Muslim Ummah is to understand that she is one Ummah, despite her differences. Indeed, these differences and others like them are unlikely to ever be resolved completely, and the Muslims lived for centuries under the Khilāfah and various states despite their differences in the details of belief. What is required from the Ummah is to accept their differences and unite upon their fundamentals, and this is represented in the Khilāfah. The Khilāfah system is not dependent upon the whims of the majority and constitutional limitations to protect minorities, rather each human being’s rights under the Khilāfah is guaranteed by the revelation, which is used as the basis of law.
All Muslims, whatever their understanding of Islam, believe in the unity of the Muslims and that this unity should be manifested politically. All Muslims, whatever their belief, also believe in the necessity to implement Islām in all of life’s affairs. All those issues which are personal – such as the prayer, the fasting, and the details of the belief – should be left to the individuals by the Khalīfa, and the Islamic State would not try to impose one unified belief upon the whole of the people. Rather, if someone accepts the shahādatayn and what it entails, they are accepted as a Muslim and will be treated as such. Islām did not come as a totalitarian system to impose every last detail upon its adherents, and one of the mercies of Islām is its capacity for differences and to accept those different ijtihāds.
History has shown us, as with the fitnah at the time of Imām Ahmad, that it is not productive for the Khalifah to try to impose one set of beliefs upon the whole ummah as it simply leads to disunity, resistance and is ultimately futile. It has also shown us that when rulers adopt sectarian positions, thus dividing the ummah, the Muslims as a whole become weaker and open to outside exploitation. Rather the Khilāfah is to adopt the necessary rules and laws from the Sharī’ah that are required in the society such as the hudūd punishments, the levels of taxation and so on, and to leave the personal issues to the individual and his own relationship with Allah, and upon this basis a solid foundation for the unity of the Ummah would be established.
With the Muslims unified under a single leadership to run their affairs according to Islām, such sectarianism as being played out in Bahrain and Syria will be minimised. All Muslims will have recourse to the courts and to be judged according to Islām, and will be left alone with respect to the details of their personal worship. The State will clearly define what is a Muslim and delineate those who fall outside of Islam (such as the ‘Alawī and Ismaīlī sects) and will represent Islām on the international stage, not a particular sect. (Islamic system)
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Monday, 31 October 2016

Muslim Personal Laws Reforms; On Or Not?

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. (Ameer M Faaiz)

*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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Thursday, 27 October 2016

Sri Lanka Puttalam; Men Who Imposed Islamic Shariah Law And Lashed Woman For Infidelity Remanded

Four Muslim men from Puttalam were remanded till November 2 by the Puttalam District Judge after they were arrested on charges that they had lashed a woman 100 times. 

The men, had imposed the Islamic Shariah law themselves against the woman, on charges that she had committed infidelity. 

The men had asked the 25 year old woman to come to a mosque in Nallandaluwa, Puttalam, and had beaten the woman, after accusing her of having an affair with a man. Subsequent to the incident, a complaint was lodged with the police who had then arrested the four men, and had produced them before the district judge. According to the Islamic Shariah Law, married men or women can be stoned to death for having sex outside wedlock, while those who are unmarried face a punishment of lashing. (Colombo Telegraph)

Tuesday, 25 October 2016

The Unfounded Cry For Equality; Perspectives On Article 16 (1) And Muslim Marriage & Divorce Act Reforms

O mankind, indeed We have created you from male and female, and have made you into nations and tribes, that you may know one another. Indeed, the most honoured of you in the sight of Allah is the most righteous. Indeed, Allah is Knowing and Acquainted” ~ [Quran 49:13]

This is a universal statement that clearly wipes out discrimination of all forms. A man or a woman is honoured not because of gender, nationality, colour, race, creed, caste, language or ethnicity but for his/her Righteousness. In Islam, there can never be discrimination between the sexes in relation to their rights and duties. Ipso facto the claim from some quarters about gender inequality is not sustainable.

Prima facie the Western feminist ideology from which even our folks derive inspiration may look attractive and promising. A deeper scientific analysis involving physiology, psychology, morality, socio-economy and other disciplines would reveal some of these ideals as superficial embellishments lacking in real substance. One of the fundamental weaknesses in this development is the lack of proper understanding and appreciation of the differences in the natural dispositions of each. In fact, the struggle in the West is for identicalness or uniformity between man and woman. It is this thought that has been given credence world over under the wrong label ‘Equality’.

Equal or Identical?

Wedding in Islam1One has to distinguish between the terms equality and identicality. To illustrate: The value of two five hundred rupee notes equals a thousand rupees. But, the two five hundreds are not identical to a single thousand rupee note.

Man and woman are equal as human beings but they are not identical. Their individual nature and dispositions are all not the same. These facts have to be recognised and acknowledged when speaking about the rights and duties of women. If not, it will only do harm to the woman and the society at large. This is one area where the Islamic viewpoint on gender equality or women’s rights differ from the Western idea. It is through the appreciation of this distinction inter alia, that Islamic law has based its notion of the rights and duties of woman and man. From this perspective it is fair to say that Islam has not ignored the concerns about the status of women.

Nobel Laureate and world-famous French physiologist, surgeon and biologist Alexis Carrel in his well-known book he acknowledges the fact that men and women, according to the law of creation, have been made differently, and adds that these differences and dissimilarities make their duties and rights dissimilar.

“ …[B]etween the two sexes are irrevocable differences. And it is imperative to take them into account in constructing the civilized world.” (L’Homme, cet inconnu – Man, The Unknown, 1935).
Under the title “Men and Women”, Will Durant writes “The function of the woman is to serve the species, and the function of the man is to serve the woman and the child. They may have other functions also, but wisely subordinate to these; it is in these fundamental and half unconscious purposes that nature has placed our significance and our happiness…. The woman’s nature is to seek shelter rather than war; and in some species the female seems quite without the instinct of pugnacity. When she fights directly it is for her children.” (ibid. p.119)

Harmonising Sensitivities

The relevance of Article 16 (1) (see below) of the Constitution is complex and has an impact on several substantive legislations and Personal Laws predating the 1978 constitution. Therefore, it is a legal provision which cannot be simply ignored without broader consensus. The constitutional pundits are busy debating that Article 16 (1) undermines the supremacy of the constitution. Others are engaged in finding an equilibrium between constitutionalism and a heterogeneous society nurtured on centuries of customs, traditions and a self-identity.

The harmonisation of customary laws, personal laws and gender equality is a delicate exercise. It may even extend to the conflation of a number of different sociological, economic, political and community issues. A precise mechanism, respecting cultural sensitivities, community histories and relationships, will have to be developed with care and caution.

When linking 16 (1) (see below), as advocated via the media, to the Muslim Marriage and Divorce Act of 1951 (MMDA) some factors of greater relevance have to be identified. Firstly, not to constrict it to a ‘Muslim’ only view but to a broader national level concern. Secondly, taking cognisance of the sensitivities of the historical, cultural, customary and traditional beliefs of other communities viz. the Jaffna Tamils and the Kandyan Sinhalese. Thirdly, the MMDA and the much hyped gender inequality.

Distinct Personal Law

The Muslim Marriage and Divorce Act has to be distinguished at the outset from the other two Personal laws namely, The Thesavalamai Law and the Kandyan Law. Of the three, the MMDA is the only personal law that is derived from the principles of another jurisprudence, the Islamic Law, eclectically incorporated into the MMDA along with some customs e.g. Kaikuli (Section 97 of MMDA). So the MMDA is not a totally pure representation of the Sharia law relating to the subject. While harmonising the personal laws by themselves present enough complications, to find a workable solution between two divergent jurisprudences compounds the efforts.

Without indulging in a constitutional evaluation of Article 16 (1) (see below), it is relevant at this point to address some of the concerns raised by those who feel that their gender equality rights are being violated by the MMDA.

1. Women are often mistreated by incompetent Quazis and the jurors of the courts; Women are verbally abused and threatened. Quazis are sometimes biased against women.

This is a valid grievance. In fact, many a times even men are abused by them. Some of the Quazis are unfit to serve in that capacity which according to Islamic law is a highly responsible and dignified position. One wonders if the Judicial Service Commission which appoints Quazis is aware of this? However, it is not the end of the road for the women. There is an appellate procedure starting from the Board of Quazis up to the Supreme Court. Moreover, under Section 43 of MMDA, the Board of Quazis have the power to call for the records of the proceedings and examine it for any illegality, impropriety or irregularity. There are several instances when the order of the Quazi has been quashed upon appeal. For example, in Mohamed Afzal v Saeeda Banu BQ/4439 (2009) a de novo inquiry was ordered because of the likelihood of bias on the part of the Quazi as he was related to the Respondent. Ironically, in this case the bias was against the man.

Verbal abuse and threatening are more of an ‘administrative’ issue. Even in the Police Station such harassments take place. In fact, men are more harassed than women. Whether in the Quazi court or the Police Station such acts should be condemned. The victim can make a complain to the Judicial Service Commission.

Article 16 (1) of the Constitution states:

“All existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter.”

It is not written or unwritten law in the MMDA that a woman may be mistreated by Quazis and jurors. Nor is it the law that a woman can be abused or threatened. As such, 16 (1) is no bar for the assertion of anyone’s rights. There is clearly no violation of any gender equality rights. If one can establish sufficient, valid and substantial grounds, even the prospect of an infringement of fundamental rights application can be explored.

2. Another grievance is that the Act does not stipulate a minimum age of marriage.

Marriage of those under 18 years may raise eyebrows. This is the emotional response to it. Let us analyse it realistically and objectively. It is clear that sexual maturity should determine readiness for marriage and not the age. An immature 18-year-old girl is not fit for marriage while a matured 16-year-old girl would be eligible for marriage. Matured or immatured, how many girls under 18 years have had sexual encounters with friends, relations, neighbours, even incestuous relationship. Is not this the reality? In this case, which is the better option illegal sexual intercourse with no rights whatsoever or a legalised relationship which also gives her rights and protection of the law. In addition, they get social recognition and the reputation of the family safeguarded.

In the United States, 46 percent of all high school age students, and 62 percent of high school seniors, have had sexual intercourse; Almost nine million teens have already had sex. According to the National Center for Health Statistics, USA in the years 2011–2013, 44% of female teenagers (4.3 million) aged between 15–19 had experienced sexual intercourse. UK ranks first and has the highest teenage pregnancy rate in Western Europe. Number of birth rate: 30 per 1000 population.

Love Affair And Pregnancy

Take for example a girl 15 years of age and a boy nearly 18 years. They had a love affair which culminated in sexual intercourse. Now the girl is pregnant. Both parents come to know about this and want them to get married. American colloquialism would call it a typical shotgun wedding to avoid embarrassment. Though both their parents and families are willing to take care of them and support them tragically, the law will not allow them to get married because they are not 18 years old.

The law is not only denying this young couple the opportunity to legitimise their relationship but also depriving the baby to be born from being a legitimate offspring. How can the mental state of the boy, the girl, their respective parents, their friends, relations and the society be reconciled when the law is standing between the boy and the girl? The Appeal Court case of Gunaratnam V The Registrar General (CA NO. 1031/01) would be an interesting read.

If they were Muslims, they could have married under the MMDA which does not specify a minimum age of marriage. Which law is then more beneficial? However, Section 23 of the Act prohibits the registration of marriage of a Muslim girl below the age of 12 years except with the approval of the Quazi.

In a report submitted by Sri Lanka to the Committee on the Elimination of Discrimination against Women (Convention on the Elimination of All Forms of Discrimination against Women – CEDAW) it states: “On a positive note, although there is no minimum age of marriage recognized by statute (MMDA) under the Muslim personal law, instances of child marriages among the community are not known to be frequent in current times. Between 1996 and 2003 there was a steady decline in the number of Muslim females under 16 years who contracted marriages. (13 November 2009, CEDAW/C/LKA/5-7)

In fact, in 2003 out of 17,593 Muslim marriages only 80 were 16 years of age. Percentage wise it is much below 1%. In fact, not even 0.5 %. (Source: Registrar General’s Department)

Child Marriages

A study on, ‘Post war trends in child marriages in Sri Lanka’ lists several causes namely: Adolescent teenage pregnancy, poverty, breakdown of the social structure, multiple displacements and communities in IDP camps. (Fokus Women, January 2015). The special interest category for such marriages are love affairs. A study conducted by Viluthu showed that 62.9% of underage marriages stemmed from love affairs between the couple.

It is relevant to note that all of these marriages are not from the Muslim community. Nor does the non-stipulation of minimum marriageable age in the MMDA anything to do with this. This is a purely socio-cultural phenomenon evolving based on the need and circumstances of the different communities. It also has nothing to do with religion. In passing, the 62.9% underage romantic couples in the above study were all not necessarily Muslims. As per the study, 12 percent of unmarried males between 15 and 17 favoured pre-marital sex.

Some people are painting a demonic picture about the MMDA under the guise of gender inequality. MMDA reforms, is it required? Of course, it is required. More about reforms will follow in the next part. (Mass Usuf)

To be continued…

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Wednesday, 21 September 2016

Muslim Law Reform Group Says Muslim Marriage And Divorce Act Violates Women’s Rights, Calls For Equality In New Constitution


While emphasizing that the Muslim Marriage and Divorce Act (MMDA) violates the rights of Muslim women, Muslim Personal Law (MPL) Reforms Action Group has appealed to the leaders of Sri Lanka and those formulating the new Constitution to uphold a clear vision of equality for all citizens.

“Do not deny Sri Lankan Muslim women and girls from fully enjoying their fundamental rights as full citizens of this country. Ensure that the new Constitution is in-fact the heart and soul of a progressive nation that refuses to exclude any citizen,” the group which consists of human rights advocates, lawyers, affected women, as well as community and women’s rights groups said in a statement.

According to the group in 2014, a 14-year old Muslim girl in the Eastern province was given in marriage and her schooling was stopped as a result. After a few months of marriage she applied for fasah divorce (initiated by wife) at the Quazi courts, due to severe sexual torture by her husband. The Quazi judge instead of dealing with the case in a sensitive and appropriate manner chose to interrogate her for over two hours asking her specific details about the sexual violence. This in turn caused the girl serious psychological trauma that she attempted suicide and faced severe depression thereafter.

“This case is one of many in which Muslim women and girls are not only affected directly by discriminatory provisions within the 1951 Muslim Marriage and Divorce Act (MMDA), but also as a result of the sub-par Quazi court system set up under the Act, which has untrained and many unqualified Quazi judges,” the statement said.

“There are major concerns that the MMDA violates the rights of Muslim women and limits access to justice, due process and redress. These concerns are with regard to provisions within the Act itself as well as practical problems with procedures and implementation via the Quazi court. Some examples below:

● The Act legally allows child marriage by not stipulating the minimum age of marriage for Muslims as 18 years (under the Act a Quazi judge can even permit the marriage of a child under the age of 12);

● There is no requirement of mandatory and written consent from the bride therefore forced marriages are technically legal;

● There are different conditions of divorce for men and women:

o Only husbands are granted the right to unilateral divorce without reason;
o Process of divorce for wives lengthy, requiring reasons and evidence, witnesses and case hearings;

● The provision for wife and child maintenance is decided arbitrarily by Quazis;

● Under the Act qualified women are not allowed to be marriage registrars, Quazi judges, jurors or Board of Quazi members. These are state-salaried and tax-funded position that legally discriminate against women simply on the basis of sex;

● There is no mandatory requirement of qualifications or mandatory training for Quazis on MMDA;

● The Act allows the practice of polygamy without requirement of consent from the wife/s or wife to be (and often without their knowledge) or without conditions of financial stability,” the statement said.

Justice Saleem Marsoof
Muslim women’s groups have been advocating for reforms of the MMDA for over 25 years and there have been at least four official committees set up since 1970’s with no progress on reforms. The current 16-member Muslim Personal Law (MPL) Reforms Committee headed by Justice Saleem Marsoof was set up in 2009, by the then Minister of Justice Milinda Moragoda in view that “certain reforms to the Muslim personal law was urgently needed”. Seven years later, the report is still pending.

During the consultations conducted by the Public Representations Committee (PRC) on Constitutional Reforms around the country, many women’s groups and women affected by discriminatory provisions under the MMDA and practices of the Quazi courts brought up concerns regarding the Act. Their submissions were with regard to the fact that the current Constitution grants an exemption for personal laws to violate fundamental rights though the existence of Article 16(1).
“On August 24th 2016, a group of fifteen Muslim women made an appeal to Minister Mahinda Samarasinghe and the rest of the sub-committee drafting the Fundamental Rights Chapter of the new constitution. The appeal was simple – that Article 16(1) is repealed to ensure that the new Constitution is the supreme law of the land and that fundamental rights and gender equality is ensured for all citizens regardless of religion or ethnicity. They avered to the State’s responsibility to protect the fundamental rights of all its people irrespective of age, gender, ethnicity, religion or any other identity markers,” the statement said.

However, the group noted that certain conservative groups among the Muslim community – while acknowledging that there were major problems with the MMDA and its implementation – claimed that repeal of Article 16(1) is not necessary because the Muslim community will reform its own personal law “from within”, in order to address concerns of women and girls.

Therefore, the group said that it is important for the community in general and Muslim women in particular to know the outcome of the committee’s deliberations and as to how it compares with the protection and equality that Muslim women and children can avail of by calling for repeal of Article 16(1) in the new Constitution.

“We appeal to the members of the MPL Reforms Committee, Minister of Justice and Judicial Service Commission to inform the Sri Lankan Muslim community as to when the report is expected to be finalized. Also given its relevance to the constitutional reform discussion outlined above, we kindly request that they immediately share the salient outcomes of the reform discussions to date pending the release of the final report. As the group that had been most intimately involved in this issue over the past seven years their informed intervention at this juncture will be invaluable. Of particular interest will be to see how the recommendations address discriminatory provisions currently in place that violate fundamental rights of Muslim citizens,” the statement said. (Colombo Telegraph)



More Readings>>>

Scrap Sri Lanka’s Archaic Underage Muslim Marriage Law: WAN

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Forced Marriage And Islam: Forced Marriage Is Not An Issue Of Religion
  
Shariyah & Modernity


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