The Women Action Network
(WAN) has called for the rectification of the Muslim Marriage and
Divorce Act (MMDA) of 1951 citing that the Act renders Muslim women as
second class citizens and does not guarantee them equal protection under
the law. The Network has also called on authorities to ensure that the
new Constitution rectifies this which will ensure Muslim women will have
equal rights in the eyes of the law.
“Fundamental
rights are central to the constitution and if the new Constitution
cannot guarantee equality and equal protection under the law for all
citizens then all efforts towards constitutional reform would be futile.
The reforms process must ensure a constitution that is supreme under
normal circumstances. Thus the concern emerges regarding Article 16 of
the 1978 Constitution, which makes all written and unwritten laws in
existence before the promulgation of the constitution valid and
operative despite inconsistencies with fundamental rights,” WAN said in a
statement issued today.
Emphasizing their statement further, WAN which comprises of activists
and human rights organizations across the island, has drawn the
attention of authorities to the significant impact the Article 16 has on
Muslim women in relation to the Muslim Marriage and Divorce Act (MMDA)
of 1951.
“Article 16, by upholding the MMDA sans reforms, renders Muslim women
second-class citizens by not guaranteeing them equal protection under
the law. Muslim women, including victims of child marriage, have
articulated very strongly to the Public Representations Committee on
Constitutional Reform that the constitution must guarantee that their
human and citizenship rights are not violated in the name of ‘cultural
and religious rights’ and that every woman and girl in this country
should enjoy equality and basic human rights regardless of religion or
ethnicity. This includes either the removal of Article 16 in the new
constitution, or amendments that allow Constitutional supremacy above
discriminatory customary laws,” the statement said.
The statement said that for decades, Muslim women and groups working
closely with victims have been advocating for reform to the MMDA and the
Quazi court system. Women’s groups documented numerous cases of
injustices faced by Muslim women under the MMDA enabled by
discriminatory provisions within the Act such as lack of minimum age of
marriage and agency to consent to marriage, unequal process of divorce
for men and women, polygamy without conditions, arbitrary process of
compensation, to name a few. “Multiple cases of child marriage have been
documented all over the island in Muslim communities, which is enabled
by the MMDA and Article 16,” they said.
In addition to case data, information from marriage registration,
maternal units in hospitals and research on child marriage shows both
child marriage and child pregnancies are prevalent, with the lack of
legal protective mechanisms as a key contributing factor. “Data
collected of registered Muslim marriages from four DS divisions in two
Eastern districts indicates over 143 cases of underage marriage in 2014
and over 118 cases for the first few months of 2015 alone,” the
statement said.
“Muslim women around the country have also articulated in multiple
forums that they are discriminated against by the sub-par Quazi court
system, which is significantly different from the civil court system and
doesn’t allow for affected persons to have legal representation. Women
are often mistreated by incompetent Quazis and the jurors of the courts;
not given equal treatment as their husbands; are unable to express
their side without fear of being verbally abused, threatened and
humiliated in courts throughout their case processes. It is notable that
the Quazi court system, while being a government sanctioned system
funded by tax payer money, prohibits women from holding any position of
authority, either as marriage registrars, Quazis, jurors, or Board of
Quazi members and thus is marked by systemic gender discrimination (MMDA
Section 8,12,14,15),” the statement said.
According to WAN, the opposition to the amendment or removal of
Article 16 has come primarily from conservatives who want to maintain
the status quo by claiming to have the best interest of the Muslim
community at heart. “The arguments put forward by said groups include
that the MMDA is based on Shariah law and cannot be reformed; however
the Sri Lankan MMDA is a combination of multiple imports of versions of
Shariah law and local customs, and also includes anti-Shariah provisions
such as the recognition of kaikuli (dowry) which is forbidden in Islam.
Others claim that the Muslim community is under threat from
anti-pluralist elements and as such the MMDA must be protected; however
protection in the constitution for minorities does not mean that
discriminatory family laws are allowed to supersede the constitution
merely to guarantee cultural/religious rights at the expense of
fundamental rights of women,” WAN said.
WAN called on the authorities therefore to ensure that the new
rights-based constitution must guarantee that Muslim women have equal
legal status and protection under the law. “Making the constitution
truly supreme by removing or amending Article 16, will provide space for
the Muslim community to reform the MMDA to be equitable and address
contemporary issues of the community. There are different approaches to
addressing Article 16, but leaving it unchanged is not an option,” the
statement added. (Colombo Telegraph)
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