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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