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Gender-just laws versus “divine” law in Sri Lanka

The heated debate over reforming Muslim personal law in Sri Lanka has resulted in an unprecedented mobilization of Muslim women across the country calling for progressive and gender-just laws.

The debate over reforming Muslim personal law in social media and the mainstream press in Sri Lanka.

Securing equality within the family remains one of the biggest challenges for women across the world. Central to this is the struggle to rewrite personal status and family laws that are deeply hetero-patriarchal. Sri Lanka’s constitutional reform process has brought this into sharp focus particularly with respect to equality in the family for Muslim women. At its center are Article 16(1) of the current Constitution and Sri Lanka’s Muslim Marriage and Divorce Act (MMDA). 

Sri Lanka’s MMDA, which is applicable to the Muslim minority community, was first codified during Dutch and later British colonial rule as part of a plural system of family laws. Successive post-independence governments guaranteed the maintenance of the MMDA, while recognising the prerogative of the Muslim community to reform these laws at their own initiative. Since then the MMDA was ‘reformed’ by male elites in 1929 and then again in 1956, ostensibly to reflect the ‘true spirit of Islam’. Yet the efforts of Muslim women’s rights activists, who have for more than 20 years, been calling for reform of these laws to reflect the values of gender justice and equality have been to no avail. Political parties claiming to represent Muslims have long refused to push for progressive and gender-just reform of personal law for fear that such reform will alienate their vote bank. Muslim women have also been unable to rely on Article 12 of the Constitution, which guarantees gender equality due to the presence of Article 16 of the Constitution. The latter holds that that all unwritten and written laws at the time the Constitution came into effect (1978) shall remain valid and operative notwithstanding any inconsistency with its fundamental rights guarantees.

An example from 1995 illustrates this point only too well. When the age of marriage for males and females was raised to 18 in 1995, it excluded Muslims. This was justified by the then Minister of Justice on grounds that the ‘Muslim community is entitled to be governed by their own laws, usages and customs and it would not be productive to aim at a level of uniformity which does not recognize adequately the different cultural traditions and aspirations of the Muslim community’. This ‘respect’ for the cultural rights of minorities was however an all-too-transparent mask for a patriarchal bargain between political parties in a coalition government ruled by entrenched ethno-religious identity politics.

However, the present Constitutional reform moment has sparked a fresh debate and discussion around the MMDA and given rise to an unprecedented mobilization of Muslim women across the country demanding its reform. Lead by community-based women activists and a new generation of Muslim women who have come together under the banner of the Muslim Personal Law Reforms Action Group (MPLRAG), they are calling not only on the Muslim community and its leadership but on the State to assume responsibility to ensure that Muslim women and girls enjoy equal rights as citizens of Sri Lanka. 

Social media platforms such as Whatsapp, Twitter and Facebook and increased news reporting on the issue acted as the catalysts for this unprecedented mobilization of Muslim women. It is now manifesting itself in a slew of writings - personal opinion pieces as well as more analytical writing - demanding substantive reform by pro-reform Muslim women, and a (few) men, in the mainstream press as well.

Discrimination under Muslim Marriage and Divorce Act in Sri Lanka

Discrimination under the MMDA takes multiple forms. Under the Act, adult women need the consent of male guardians to marry while men can marry up to four times, without any conditions. Husbands have a right to unilateral and unconditional divorce while wives have to prove fault, show evidence, produce witnesses and go through multiple hearings before Quazis, a position which the MMDA reserves for exclusively for ‘male Muslims of good character’ though it is paid for from public funds.

The current controversy over the MMDA centers in particular on the resistance from powerful and conservative sections within the community to reform on two counts: stipulating a minimum age of marriage and recognition of women’s right to be appointed as Quazis. At the forefront of this resistance are the All Ceylon Jamiyyathul Ulama (ACJU) and the Sri Lanka Towheed Jamaat (SLTJ).  A committee to reform Muslim Law established by the state in 2009 (the Justice Saleem Marsoof Committee), which includes the head of the ACJU, is yet to reach consensus largely on these two issues even after 8 years of deliberations.

Arguments on social media and the press over Muslim personal law in Sri Lanka.

Progressive Interpretations and retrogressive resistance

There is a long history of women rights activists demanding reform within an Islamic framework, presenting progressive reinterpretations of the Quran and evidence from Malaysia and Indonesia, which also follow the Shafi madhab (school of Islamic jurisprudence) followed in Sri Lanka. Yet conservative Muslim groups have consistently rejected this in favour of retrogressive and sexist interpretations. Despite evidence to the contrary, calls for a minimum age of marriage have been dismissed on the ground that child marriages are rare exceptions within the Muslim Community.

The opposition to women as Quazi court judges stems from a range of deeply prejudiced and misogynist views. These include that women are biologically weaker, especially due to menstruation, emotionally unstable, have lower mental capacity, and are less capable of making sound decisions and retaining knowledge and information needed to function as judges. Meanwhile Muslim women have held and continue to hold positions of authority in the judiciary and the legal profession in Sri Lanka and globally.

CEDAW, GSP plus and MMDA Reforms

In February this year, Muslim women took their struggle before the UN, although not for the first time. Sri Lanka’s eighth periodic review by the UN Committee to monitor state compliance with the Convention on Elimination of all forms of Discrimination against Women (CEDAW) provided another platform to push for equality. Muslim women’s rights activists not only highlighted the lack of progress on reforms, but also the increasing intimidation faced by them and women who have shared testimonies, from conservative actors within the community.

The Committee’s concluding observations, released in March, makes several recommendations including calling on the Government of Sri Lanka to: a) eliminate restrictions on women’s eligibility to be appointed as Quazis, Members of the Board of Quazis (the Quazi appellate body), Marriage Registrars and adjudicators; b) raise the age of marriage to 18 years for all citizens; and, c) amend the Penal Code statutory rape provisions to apply to all children without exception. Moreover, the Committee has called on the government to amend the General Marriage Registration Ordinance (GMRO) to give Muslims the choice to register marriages under the general law and for the repeal of Article 16(1) of the Constitution to allow for judicial review of all legislation including the MMDA.

These recommendations give an opportunity for the State to address discrimination under the MMDA and the Quazi court system and establish basic non-negotiable rights for Muslim women. However, can Muslim women rely on the Sri Lankan state to rise to this challenge?

In November 2016, a senior minister told the media about a proposal to appoint a Cabinet Sub-committee to consider suitable amendments to the MMDA (ignoring the existence of the Marsoof committee). The reason he advanced was that “Muslim Law in Sri Lanka is not in conformity with international norms” and amending “the Muslim Marriage and Divorce Act is also a part of international protocol, which is a requirement to obtain trade benefits under the Generalized System of Preferences (GSP plus)”.

This sparked a storm of protest by those resisting reforms. The ACJU issued a press statement that it “strongly opposes bringing changes in the Muslim Personal Law either due to international pressures or stimulation of any evil forces acting against the Muslims”. This year, associations such as the Colombo District Masjid Federation (CDMF) with a network of 175 mosques, carried out signature campaigns against reforms in various mosques. The CDMF issued an open letter signed by 15,000 signatories including the religious heads of the ACJU stating that to their knowledge no public consultations had been undertaken by the Marsoof committee and urging that any amendments to the MMDA “should not be, in contravention of Divine Law”. 

This conflation of ‘divine law’ and the MMDA is a common tactic of those resisting reforms. That ‘Sharia or divine law cannot be touched’ is frequently deployed as a conversation stopper on MMDA reforms. This of course completely ignores the fact that local cultural practices and secular laws in fact make up the provisions of the MMDA, as well as the rich diversity in Islamic jurisprudence, legal tradition and practice on this issue, which is globally evidenced.

Conservative actors have benefitted from the lack of awareness about the MMDA, its origins and its problems among vast segments of Sri Lankan Muslims. Many who believe that the MMDA is based entirely on divine and unchangeable Sharia are most likely also unaware of the daily-lived realities and violations against women and girls because of the MMDA. Narratives of injustices faced by Muslim women documented by activists and citizen journalism websites are now attempting to address this gap.

Many mainstream human rights actors also fail to understand the extent of the divergence of viewpoints on MMDA reform within the Muslim community and tend to perceive that consultation to reach consensus within community is the solution. This lack of awareness all around has been debilitating for those struggling for reform.

Following the GSP plus fiasco, the Muslim Personal Law Reform Action Group pointed out that linking reform of MMDA to GSP plus gave room for those who had been resisting change to characterize any change as an international imposition while erasing the long standing struggle of Muslim women demanding for changes to this law. This also raises the question whether CEDAW recommendations are now going to be characterized as more international pressure to be resisted? And with this pushback, will the Sri Lankan State acting in concert with male elites of the Muslim community continue discriminating against Muslim women and girls and be party to these injustices?

Read more articles on openDemocracy 50.50's platform Frontline Voices Against Fundamentalism

About the authors

Hyshyama Hamin is a Gender Consultant and Independent Researcher. She is the co-author of 'Unequal Citizens: Muslim women's struggle for justice and equality in Sri Lanka. She is also associated with the Muslim Personal Law Reforms Action Group - a lobby group of activists, lawyers and researchers working towards reforming the Muslim Marriage and Divorce Act (MMDA).  

Chulani Kodikara is reading for her PhD at the University of Edinburgh. She was previously senior researcher with the Consultation Task Force on Reconciliation Mechanisms conducting public consultations on the design of transitional justice mechanisms in Sri Lanka. She is the author of Muslim Family Law in Sri Lanka: Theory, Practice and Issues of Concern to Women and Women and Governance in Sri Lanka (with Kishali Pinto Jayawardena).

 

 


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