Featured image by Hafsa Razi
“Fear Allah! Do not do injustice to your own community women and girls”
This was the plea on placards held by many of the women who stood near the Parliament opposing Muslim (male) MPs discussing the Muslim Marriage and Divorce Act (MMDA) reform report with All Ceylon Jamiyyathul Ulama (ACJU- yet another male only body) on 24thJuly 2018. Many of the protestors knew what MMDA could do to women because they had been victimised by it. For most of the women standing there, it was a first – the first time they were protesting in public, the first time they were publicly questioning a religious body which has nominated itself as the sole guardian and sole arbiter of Islamic affairs.
The MMDA reform report was handed over in January this year to the Justice Minister Hon. Thalatha Atukorale. The 18-member committee had deliberated for 9 years before finally producing the report. It took almost 06 months for the Justice Ministry to release this report officially in the justice ministry website.
When it came to offering recommendations for reforming the Muslim Marriage and Divorce Act, the Committee could not achieve unanimity. The committee split into two and each group gave its own set of recommendations. Since then there had been many arguments about which set of recommendations complies with Sharia principles and Islamic jurisprudence. Though the committee did not reach unanimity on all the recommendations, on some extremely important issues they were in total agreement. For instance, all members agreed on making conditions to polygamy, seeking women’s consent for marriage, compulsory compensation to women for unilateral Thalaq etc.
The four main areas on which the committee failed to reach unanimity were:
- Ending child marriage and fixing age of marriage as 18 as it applies currently to other women in this country.
- Equal representation of women in the structures that implement the MMDA specially women to be appointed as Quazi judges.
- Compulsory registration of Muslim Marriages.
- Taking out reference to Sect or Madhab, so that all matters fall under “Muslim law” and for opinions of all recognized schools of thought to be considered in making orders and decisions of the Quazi Court and the appellate courts.
The committee comprises of 9 including the chairperson (Justice Saleem Marsoof) who have recommended all the above changes as part of their reform recommendations. However the other half of the committee, led by ACJU president M. I. M Rizwe, has not agreed on these key issues and submitted a 8 page document with conservative recommendations specially taking the Shafi Madhab stance. The Holy Quran prohibits dividing religion into sects and depriving women of equality, justice and fair play.
Given this context, the ACJU’s attempts to monopolise the conversation is worrying. The organization is being helped by a cabinet minister who has been opposing the reform of MMDA. His opposition is based on the spurious argument that the MMDA is a divine law and therefore must not be changed. On the contrary, the MMDA is part of our colonial legacy and no longer reflects current realities of Sri Lankan Muslims nor the advances made in the interpretation of Muslim personal law in Muslim communities and countries across the world. The origin of Sri Lankan MMDA stems from a code of law on marriage and divorce imported from Batavia (present day Indonesia) in 1770 during the Dutch rule. Between 1806 and 1951, this code of law went through a process of codification, review and modification thus it is a combination of some aspects of Sharia and customs practiced then. Ironically as it stands today MMDA accommodates features that are contradictory to Sharia stipulations. One such example is kaikuli (dowry given from bride’s side to bridegroom) followed by Sri Lankan Muslims at the time. Among certain religious schools of thought, kaikuli is considered haram/forbidden in Islam.
In 2009 the then justice minister Milinda Moragoda would have had the same concerns as the current justice minister Thalatha Athukorale. He would have regarded the MMDA as an issue that concerns a religiously identified community and therefore appointed mostly Islamic scholars, legal professionals and community representatives and 2 ACJU members (President and General Secretary) to look into the reform within the religious framework. The committee has done exactly that. The 313-page report and another 302 pages of annexures in the form of Vol. 02 stand evidence to that. It draws examples from other Muslim countries’ reforms, applicability of Islamic Jurisprudence (Fiqh), draws conclusion based on contemporary studies here and elsewhere. And most importantly it has the annexures of submissions made by many community representatives & organisations, Muslim academics, Islamic scholars, religious groups and most importantly affidavits of the affected women.
The report provides Minister Thalatha Athukorale with a blueprint for action. She has a chance to correct a historic injustice, and turn Muslim women of Sri Lanka into citizens in the full sense of the world.
Will Minister Atukorala follow the due process? Will the draft she submits to the cabinet and table in parliament respond to the concerns of Muslims women and girls? Will she remember that the Lankan constitution grants equal rights to all the country’s citizens and as the Minister of Justice it is her responsibility to ensure that Muslim women are not excluded from this? Will she ensure that the MMDA reform is guided by the principles of equality and justice enshrined in our constitution?
Editor’s Note: Also read “Muslim Women Protest Exclusion from MMDA Talks” and “The MMDA and Muslim Women’s Right to Shape an Egalitarian Law”