Following the deadly Easter Sunday terror attacks, which killed more than 250 people, many topics have been widely discussed in Sri Lankan society by both citizens and the legislators.
Many people demand to establish a common law for all the citizens, irrespective of their religions and communities. One such topic is the Muslim Marriage and Divorce Act of 1951 (MMDA).
In late May, Prime Minister Ranil Wickremesinghe reportedly had told foreign diplomats that the MMDA would be amended to increase the marriageable age to 18 for Muslim women, to unify customary laws as much as possible.
This is not the first time that Sri Lankan politicians who have the power to make better laws for the benefit of citizens raised the matter of amending the MMDA. However, their concerns did not last long and the proposed amendments have not even been presented to Parliament yet.
Why should MMDA be amended?
Although it is illegal for persons in other communities in Sri Lanka to enter into marriage before 18, the MMDA legally gives permission to the Muslim community for child marriages because there is no pre-decided minimum age for Muslims. A Quazi can permit the marriage of even a small child.
On the other hand, according to the MMDA, the consent of the bride is not required for a marriage.
It also allows the husband to be polygamous, without obtaining the consent of existing wives. There is no verification method to check whether the husband is financially fit to maintain multiple families as well.
It is alleged that women are heavily restricted from accessing justice through Quazi Courts because of the absence of equality between men and women. The women, no matter how much they are qualified, cannot work as Quazi Judges, marriage registrars, Jurors or Board of Quazi members.
Only men can hold these positions according to the current laws. Since there are no specific recruitments or qualifications mentioned in the MMDA for the Quazis, there is a possible threat that unqualified people can be appointed as Quazi Judges as well.
When it comes to the divorces, different conditions apply for men and women. For example, the husband can divorce the wife without giving any reason.
Under some Shia sections, the wives on the other hand have no right to obtain a divorce on their own will. They must obtain the husband’s approval for that. Even the process of getting a divorce through Shafi schools by wives is lengthy and the women should provide reasons and evidence etc. and thus exhausting.
All these situations come as blunt violations of the Right to Equality guaranteed in Article 12 of the Constitution of Sri Lanka. However, Article 16 (1) in the Constitution states that existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter (Fundamental Rights Chapter).
Hence, existing written and unwritten laws such as the MMDA cannot be challenged in a Court.
"The biggest hurdle we face when we are fighting for the MMDA reforms comes from our own community."
Demand of Muslim women activists
Muslim women activists for years have been demanding to make 18 years as the minimum age of marriage for all Muslims without any exceptions. Also, they say that women should be eligible to be appointed as Quazis, marriage registrars and assessors.
MMDA must apply uniformly to all Muslims without causing disadvantage on persons, based on schools of jurisprudence, sect or madhhab.
The activists say that the consent of both the bride and groom should be mandatory and their signatures or thumb prints should be taken on official marriage documents.
Also, adult Muslim women are entitled to equal autonomy and therefore need not require the permission of any male relative or a Quazi to enter into a marriage.
The marriage registration should be required for legal validity of marriage and the couple must be able to form their marriage contracts before the marriage.
Under the current Laws, a Muslim man can enter polygamy without obtaining the consent of the wife. This should be changed.
So the polygamy must be completely abolished or in an alternative the consent of existing and intended wives would be mandatory and the husband should have enough financial strength to maintain multiple families.
If a couple wants to get divorce, the rights of men and women must be equal. The procedure of getting a divorce including the appeal process should be equal to both parties.
The activities also demand to revise the Quazi Court system and they say Muslims must be given the option to marry under the General Marriage Registration Ordinance of 1907 (GMRO) even if the MMDA is reformed in the future.
Reform committees appointed so far
Five committees have been appointed so far to recommend Amends to the MMDA since 1970. The most recent one which compromised with 18 members headed by Supreme Court Judge Saleem Marsoof was appointed in 2009 by then Justice Minister Milinda Moragoda. The report of this committee was handed over to Justice Minister Thalatha Atukorale in February 2018.
However, it is reported that the committee members have unable to come to a common conclusion even after a year on certain topics such as appointing women as Quazi Judges, minimum age of marriage etc.
In other words, there are two split reports of Justice Saleem Marsoof and All Ceylon Jamiyyathul Ulama (ACJU) and both these parties have not been able to come to a common ground until now. Atukorale also confirmed this in Parliament in May.
However, Muslim women activists are critical about the role of the ACJU when it comes to amending the MMDA. In a statement issued after the Ester Sunday terror attacks a lobby group Muslim Personal Law Reforms Action Group (MPLRG) stressed that they do not consider the ACJU as representing the interests of the Muslim women and girls as its past conduct demonstrates that they have contributed to the control and oppression in self-interest.
Obstacles
“The biggest hurdle we face when we are fighting for the MMDA reforms comes from our own community,” Hyshyama Hamin, a women activist of the MPLRAG is raising a voice for these reforms for decades.
There is a misconception within the community that only scholars who have expertise knowledge on Holy Qur’an can participate in this reforming process. Women have been silenced from speaking out because of these misconceptions.
But that is not true. These reforms must address the issues faced by women. Therefore, any woman who has been affected by the current Law should be given the right to participate in the MMDA reforms, she pointed out.
She elaborated, “Furthermore, the Ministry of Justice’s stance on the reforms is also questionable to some extent.
That is because it keeps putting that the MMDA reforms as a matter of the Muslim community. The people who get invitations from the ministry for discussions are mostly men. Women are very much restricted from accessing the ministry channels about this matter.”
Including customary Laws under the Fundamental Rights Chapter
UNP National List MP Dr. Jayampathy Wickramaratne (PC) on 10 May told Parliament that attempts to amend the customary Laws in Parliament would most probably be in vain and therefore, such Laws should be included under the Fundamental Rights Chapter in the Constitution of Sri Lanka.
He said, “There are aspects in Kandyan Law which discriminate women. But there are some progressive elements in that Law. Same thing goes with the Muslim Law. Many Muslim women complain to us that it is unfair to them.
And I should say that amending these Laws are highly unlikely to be able to be achieved in Parliament. Therefore, what we should do is include all these Laws under the Fundamental Rights Chapter of the Constitution.”
Then they will fall under the jurisdiction of the Supreme Court (SC) and the SC will decide on which sections of these Laws are in line with the Fundamental Rights Laws and which are not. Parliament will have to accept the SC’s rulings, he added.
When asked about this, Hamin said that they were in full agreement with including customary Laws under the FR Chapter of the Constitution.
“It is all about ensuring equality and eliminating discrimination. All the personal Laws in Sri Lanka should come under Article 12 of the Constitution where it says that all persons are equal before the law and are entitled to the equal protection of the Law.
Also, we recommend to repeal the Article 16 (1) of the Constitution completely. It says that all written and unwritten law that existed prior to the 1978 Constitution is ‘valid and operative’.
This means that these laws are valid even if they are ‘inconsistent’ with fundamental rights granted to all citizens. By repealing it all people will be access all the FRs guaranteed by the Constitution.
Everyone is in complete agreement that customary laws cannot be in violation of other fundamental rights enshrined in the Constitution”
Although the government picks up this issue from time to time, what it should be noted that Muslim women are fighting for MMDA reforms at least from 30 years.
The government should focus on address Muslim women’s issues in grass root level. It should consider what women have been asking. Saying things such as these reforms are needed to build harmony between communities will not solve the real issue.
Saying that reforms are need to build harmony between communities alone is not enough, reforms must address long-standing discrimination against women and girls in order for sustainable equality and justice for everyone.” she pointed out.
This article was originally published on Ceylon Today newspaper on 9 May 2019.
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