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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