Featured image courtesy Maatram

This is an attempt to engage with the current arguments and counter arguments, debates and contestations over Muslim women’s rights in Sri Lanka and the need to reform Muslim Personal Law in light of the mandate given to the Muslim Personal Law Reforms Committee appointed by the cabinet in 2009 and headed by Justice Saleem Marsoof. After more than 8 years of deliberation, we are concerned that this Committee is still unable to conclude its work and keeps extending the date of the release of its final report.

We write from the perspective of the Muslim Women’s Research and Action Forum (MWRAF), a Muslim women’s organization which has a long engagement with Muslim Personal law in Sri Lanka, including research, publications, training of Quazis, para-legal trainings and legal counseling. Moreover, we write in solidarity with a number of other progressive individuals, groups and organizations who are calling for reform of Muslim Personal laws to ensure equality and justice for Muslim women in Sri Lanka. Our work of more than 35 years with community women and men across the country and our knowledge of the workings of Muslim Marriage and Divorce Act (MMDA) – its inherent weaknesses – provide us with ample ground evidence that the MMDA needs to be reformed.

The Muslim Marriage and Divorce Act, which is at the centre of these debates and contestations is now almost 65 years old.  For more than three decades of struggle to bring reforms to the MMDA in line with Qur’anic justice and women’s lived realities, we have experienced many missed opportunities due to successive governments abdicating its responsibility to uphold Muslim women’s rights to so called leaders of the Muslim community. We are again confronting the same – recurring,  ‘traditional’ arguments by the Muslim extremist lobby to thwart the efforts of progressive voices thus suppressing Muslim women’s legitimate access to rights and justice.

We focus here on the historical roots of Islamic jurisprudence, the diversity and plurality of Muslims laws in local contexts, and the rights of Muslim women to shape the laws that affect their lives and destiny and the ways in which reform of Muslim laws are being resisted primarily by politically powerful male members of the Muslim community through selective interpretation of Qur’anic verses.

Diversity Across the Muslim World and Understanding Muslim and Islam

The several schools of thought of Muslim laws were started more than 100 years after the revelation of the Qur’an and the death of the Holy Prophet.  These are not direct divine revelations but developed through human judicial- reasoning. The 4 main Sunni schools of Fiqh/thought [Hanafi, Hanbali, Maliki, Shafi] were formed through personal allegiance to legal scholars/jurists. Though those scholars had no intention of making their views final and binding on all Muslims, gradually the freedom and the science of interpretation (Ijtihad) were closed.

Moreover, the Muslim Law obtaining in countries such as Sri Lanka has to be traced to colonial law making processes. The codification of laws by the colonial powers involved a process of selective interpretation and application leading to distortion and even elimination. They made the mistake of treating some of the classical texts on Islam as binding legal texts. In Sri Lanka, it is during colonial times, that Shafi Law came to be recognized as the predominant school of law. It is an accident of history that all Sri Lankan Muslims  are presumed to be adherents of the Shafi school of thought.

Therefore, Muslim personal laws have varied histories, according to different schools of law, local customs, colonial codifications and solutions by judges based on the realities of their time and space. Let us take the example of polygamy and the multiple positions and opinions on it. The spectrum extends from the progressive Tunisian Family Code (Maliki school, which has banned polygamy) to the direct application of medieval Hanbali law as in Saudi Arabia where polygamy is allowed.  In between this, we have the middle ground where polygamy is conditional upon formal permission based on specific conditions through an Arbitration Council or court, as in Indonesia, Malaysia, Pakistan, Bangladesh & others.  In Sri Lanka, we have minimal regulation and enforcement is weak, as registration/non registration does not make the marriage valid/invalid.

Let us consider the question of Kaikuli in Sri Lanka. Dowry is not recognized in Muslim Jurisprudence or any schools of thought. Yet how is it recognized by the Muslim Marriage and Divorce Act in Sri Lanka?  The simple answer is that it has been a customary practice that became recognized by law.

Thus, we have to understand that the texts have come down to modern Muslims wrapped in layers of interpretation.  Progressive scholars have recognized that family law is man-made and changeable in the light of changing social conditions and better understanding of religious sources.

Muslim Family Laws and Women’s Demands for Reform

We all know that personal/family law regulates the closest ties of men, women and children.  We also recognize that while other laws have been changed/codified –  especially areas of commerce, public service, administrative, army,  it is only family law that is retained by many    countries that follow Islamic Jurisprudence. as it symbolises an overarching ‘collective Muslim identity’. But what is problematic is that this collective identity is dependent on women’s unequal status, justified on selective interpretations of the Qu’ran and Hadiths. We have enough examples across the Muslim world where religious tenets/interpretations that support women’s rights are overlooked, ignored or left suspended in relation to the appointment of female Quazis judges, Matah, consent, etc. Moreover, when state law and custom and religious tenets have different opinions, in practice the one least favorable for women is applied and maintained, and privileges given to men are retained.

Reform of discriminatory laws to ensure equality and justice for Muslim women all too often tends to be resisted on the basis that the law is God given. But who is resisting reforms and who is demanding for reforms? Whose demands are to be privileged and whose ignored? Are men’s voices to be privileged over the larger community of women’s voices?

We know only too well that for many centuries and generations, stereotypical beliefs [which are irrational, dependent, impulsive] that women are the inferior sex emanates from a patriarchal reading of socio-cultural- religious norms and fundamental social and political assumptions. These are deeply rooted in Islamic jurisprudence too. Yet, we argue that the  Qur’anic ethos and ethic was to gradually ensure full-fledged citizenship to Muslim women.  The Qur’anic philosophy is based on the principle of gradualism in social change and also on wisdom thus fostering human democracy ie, – society’s collective ability to make own choices.[1]

Shariah literally means – the path or the road leading to the water – the way to a good life based on the values of justice, equity (is-tihsan), kindness, common good (maslaha), and wisdom. These are absolute tenets, and whatever action whether in the legal, economic, or social field should observe these principles. It is now widely agreed and accepted that these principles are best realized when many people as possible have the ability to exercise their political rights in a democratic way. Today, many scholars of Islam, both men and women are reading the sacred texts to give effect to these fundamental principles. They include scholars such as Ziba Mir Hosseini, Asma Lamrabet, Amina Wadud, Farid Esack, Khaleed Masud and Fazlur Rahman. What MWRAF is  looking at is the manifestation  of these ideals in practice. Wherever these principles are negated reform is necessary as in the case of the MMDA.

This is the fundamental right of Muslim people, including Muslim women. A few religious leader/s or jurist/s who purport to represent the views of the majority of the community do not have the prerogative or birthright to dictate terms to the whole community, much less on matters which overwhelmingly concern women. Women’s voices, as those who are most affected by the MMDA must be taken into account in the reform of Muslim Personal Laws.

The logic of usul-al- fiqh – (Islamic jurisprudence, its roots and its basic principles of reasoning) and fiqh[2] – Islamic laws, and women’s role, involvement and contribution to Islamic jurisprudence has been radically abrogated through centuries of patriarchy and its pervasiveness. The law and the judiciary have become the domain and privilege of menDuring the time of the prophet, women were actively involved in every aspect of life. It will be a shocking revelation for many a Muslim woman and man to know that they were even warriors. In the ensuing years women were also active as jurists and religious leaders. Most interesting is that many of the great jurists of Islamic history were women or taught by women including Imam Shafi’, the father of the Shafi School of thought.[3] Today, we are seeing an increasing trend taking over Muslim countries and communities to deny women’s rights and capacities. Sri Lanka is experiencing this same pattern, which has to be challenged. This is not simply a religious question. It is a question of power and privilege and a question of democracy and citizenship. The final arbiter on the question of reform of the MMDA has to be the Sri Lankan state.

Editor’s Note: For more content, including personal narratives from women impacted by the current discussions around Muslim personal law, click here

[1]   Azizah al Hibri. (1997). Islam, Law, Custom: Redefining Muslim Women’s Rights, American University International Law Review 12(1): 1- 44, Qur’an 2:256

[2]  Fiqh – means human understanding/interpretation of Sharia  – rules regarding human transaction and worship. 

[3] al Hibri, (1997).