MMDA Committee Report: Are we asking the right questions?

Friday, 7 September 2018 00:00 -     - {{hitsCtrl.values.hits}}

This article outlines Muslim Personal Law Reform Action Group (MPLRAG)’s opening statements in the conversation on MMDA Committee Report and is Part 1 of a series of articles on the report(s) and reform process

By Muslim Personal Law Reforms Action Group

Ever since the long-awaited report of the committee appointed to recommend amendments to the Muslim Marriage and Divorce Act (MMDA) was officially released, much has been said and written about the divided views of committee members, the contents of the report and what needs to happen.

One of the main focus in these conversations has been about how best a ‘compromise’ can be reached between what is pitched as the ‘JSM report’ and what is being referred by the All Ceylon Jamaiyytul Ulama (ACJU) as the Faisz Mustapha or ‘FM Report’ report. To be clear what is referred to as the JSM report is approximately 200 pages detailing contextual analysis and reasoning for the recommendations, and eight pages of ‘FM report’ with points on some of the key issues with little or no contextual analysis. It is surprising that people are able to compare both side-by-side given the extreme incompatibilities in language, evidence, framing and the recommendations themselves.

For many the drive for compromise appears to be a solution to prevent further divisions among the Muslim communities on this issue. This has seen some individuals attempting negotiations with the ACJU, and yet others are organising multiple events on trying to reach this elusive compromise between the two reports.

But a compromise at what expense and on what issues?  Between minimum age of marriage as 12 and 16? Between ‘No’ women Quazis and ‘Yes’ women Quazis? Between ‘No’ sect law and ‘Yes’ sect law? And the list goes on…

The discussions on compromise are usually followed by the sentiment that the compromised amendments must be ‘according to Shari’ah’. Throwing the word around in conversations, or on the pulpit does not prove someone knows what it means. Ironically, both JSM and FM reports claim to be based on ‘Shari’ah’, despite contradictory recommendations.  

But what does ‘Shari’ah’ mean exactly? 

Among Sri Lankan Muslims there appears to be lack of clarity on what constitutes Shari’ah and the term is often confused with ‘Islamic law’. But Shari’ah is much broader than our narrow and mundane understanding of ‘law’ or ‘practice’. ‘Shari’ah’ is an all-encompassing term that literally means ‘the path to the water’. A system of guidance, a way of being, a source of ethics and fairness in Muslim belief. Shari’ah is the compass of a moral universe, and it points towards justice and equality.

The Maqasid al-Shariah or purpose of Shari’ah include the right to protection of life, family, education, religion, property/resources and human dignity. The scholar of Islam, Ibn Al-Qayyim defined the four principles of Shari’ah as justice, mercy, wisdom and common good. According to him the objective of the Shari’ah is the establishment of justice between and fairness among the people, so whichever path leads to justice and fairness is part of the religion and can never oppose it.  

Clarity on Shari’ah, Fiqh and Islamic law is vital in this process

 Sri Lankan Muslims must get clear on these different terms. Shari’ah is different from ‘Fiqh’ which is the basis of Islamic or Muslim family laws such as the MMDA. Fiqh is the human understanding and subsequent interpretations of Quran and Sunnah. The legal rulings that were given by various Islamic scholars on a plethora of different matters – from how to pray and fast, to how to marry and divorce – these are all ‘human’ efforts of Fiqh.

Muslim law such as the MMDA is based on Fiqh – essentially man-made interpretations, which differ between primarily male scholars and schools of law (madhabs) sometimes to such an extent that some of the rulings of the same sect (e.g.: Shafi’i and Hanafi madhabs of the Sunni sect) are directly contradictory to each other on the exact same issues (e.g.: the requirement of wali/guardian).

This has led to a multitude of Muslim family laws globally; 48 or more countries around the world have some form of Muslim family law or practice, and no two such laws are exactly the same. This proves that diversity of opinion is a part and parcel of Islamic legal tradition which is flexible and fluid to respond to emerging issues and challenges. 

So the difference in opinion about amendments does not mean the Sri Lankan Muslim communities are divided, it means we are diverse – and this is a ‘good’ thing! It is what enables us at this point in time, in the tiny Island of Sri Lanka, to decide on the best possible amendments to our Sri Lankan Muslim family law, given contemporary context.

So on the MMDA report – Are we asking the right questions?

 The problem with current discussions on the Committee report is that we are ‘not’ asking the right questions. In fact the questions the Muslim community is currently asking – “How to reach a compromise? How to choose between recommendations of the two reports?” – are fundamentally flawed. It assumes that the different recommendations of the Committee are the only possible options to choose from.

In asking these, we are forgetting why we are here in the first place – discussing the MMDA in 2018!

It is because and only because well over 20 years ago, and more so in the recent past, there was and is an acknowledgment and understanding that the provisions of MMDA discriminate against ‘Muslim women’! Muslim women are asking for this change because the evidence is overwhelming – the current MMDA as it exists now is causing Muslim women grave injustices. It is resulting in broken families, denying women and children their dignity, robbing Muslim girls of their education, which one can say goes against the purpose and principles of the Shari’ah. 

So the ‘only’ questions that we must be asking are: 

nAre the recommendations of the committee going to address the issues of discrimination faced by Muslim women?

nAre they going to protect the rights of women and children? Will they ensure wellbeing of children?

nAre the provisions and procedures fair to all? Do they guarantee equality in marriage and divorce?

nAre the recommendations going to ensure dignity of all persons, especially those who are currently most affected?

In asking these questions for each of the issues, we will see that what Muslim women’s groups such as MPLRAG are demanding is precisely what we believe a Muslim family law based on Shari’ah principles must be. A MMDA that is just and fair in the provisions, process and procedures of marriage and divorce. A MMDA that grants Muslim women and men autonomy as full human beings that God created. A MMDA that restores and guarantees our dignity in all matters of marriage and family. A MMDA that ensure children’s wellbeing and opportunity for education. A MMDA that considers Muslim men and women as equal partners in building and sustaining strong families and communities. 

Hence in our view – there is no ‘compromise’ to be reached between the JSM and FM reports. Each and every one of the recommendations of both groups needs to be scrutinised and assessed against whether or not they will ‘solve’ the problems and not continue or cause more discrimination against Muslim women and children. If they don’t then we need to discuss improvements – What kind of amendments will address the issues faced by women today and going forward?

MPLRAG strongly believes that an egalitarian MMDA that protects our rights as human beings and citizens of Sri Lanka, is a Shari’ah compliant MMDA!

Therefore, any recommendation for an amendment that continues to violate our rights and/or further perpetuate injustice towards us, cannot and will not be accepted. Because as Muslim women, our faith in a just, fair and equal Islam, will not allow us to stop fighting for justice and dignity in every aspect of our lives – especially the family.