Source: https ://www.colombotelegraph.com/index.php/shariyah-modernity/
August 1, 2016
By M A Nuhman –
A Review of the book – Women Claiming Rights and Spaces: Activism to Reform Muslim Personal Law in Sri Lanka, Published by Muslim Women Research and Action Forum
Muslim Personal Law (MPL) in Sri Lanka that governs the family affairs of the Muslims which specifically includes marriage, divorce and inheritance and exclusively applicable to the Muslims is supplementary to the general law of the country. There are such supplementary family laws like Kandyan Law and Thesavalamai Law that governs the family affairs of Kandyan Sinhalese and Jaffna Tamils respectively.
The MPL derived from Shariah, a legal and customary system, that was evolved and finally codified during the 8th and 9th centuries by the four Imaams namely Abu Hanifa (700 – 767), Malik Ibn Anes (710 – 795), Mohamed Al Shafee (767 – 820) and Ahamad Ibn Hanbal (780 – 855) based on the Quran and the traditions of the Prophet. More than a thousand years have been passed since the codification of Shariah and the Muslim communities all over the world, like their other religious counter parts have been experienced tremendous social changes throughout their past history, specifically during the last two hundred years. Consequently there is a demand for a meaningful reform in the MPL from a certain section of progressive Muslim men and women across the country and also there have been specific proposals for such reform from the middle of the 20th century. However, the orthodox religious and community leadership, basically dominated by males is reluctant and also resists any meaningful changes in their personal law, because they think that, it is divine, permanent and not changeable.
Women Claiming Rights and Spaces- Activism to Reform Muslim Personal Law in Sri Lanka
Although, there is a resistance from the conservative majority of the community for any kind of reform in the MPL, if we look at the history of MPL in Sri Lanka, like in many other countries, we can see that it has been changed from time to time even though it was not substantial.
Until the arrival of the European colonizers, particularly the Dutch, the family affairs of Muslims of this country had been governed by the community leadership – the Ulama and the Mosques according to their traditional Shariah law although they did not have any in depth knowledge of that. However, the Dutch, who introduced their legal system, the Roman Dutch Law, incorporated a version of MPL into their legal system in 1770. The British, who captured the coastal area of the country from the Dutch, reintroduced the MPL in 1806 under the new name, the Mohammaden Code with the concurrence of local Muslims. Throughout the 19th century and in the early 20th century it was slightly amended time to time because of the involvement of the concerned Muslims like M. C. Abdul Rahman and M. T. Akbar. The Muslim marriage and Divorce Ordinance of 1929 was a significant change in the history of MPL. Later, a committee was appointed by the Government to recommend changes to the 1929 Ordinance in order to remedy its shortcomings that were pointed out by the concerned Muslims. As a result a new Muslim Marriage and Divorce Act of 1951 was enacted. It is the Act that is still operative with some amendments in 1954, 1955, 1965 and 1969.
Although there have been amendments in the MPL in Sri Lanka, it did not address many issues which are specifically affect the Muslim women. Now it is deeply felt by some progressive Muslim men and women groups that the MPL needs substantial reform appropriate to the present context of societal development and to achieve the Quranic principle of equality.
In this regard, the Muslim Women’s Research and Action Forum (MWRAF), an independent and progressive non-governmental organization, formed by some prominent Muslim Women intellectuals and professionals, have been very active in the field for the last thirty years. MWRAF was formally established in 1986 with the mission “to create awareness among Muslim Women about their status in society and campaign for the just and fair treatment of Muslim women in the social, economic, political, legal and cultural spheres and to form a common front for struggle and support with other progressive groups at national and international levels.”
To achieve these objectives the MWRAF has been continuously engaged in advocacy initiatives and activities, conducting seminars, workshops and training programmes, research and publications. So far MWARF has published more than twenty books mostly concerning Muslim women in Sri Lanka. Some of the titles directly relevant to MPL in Sri Lanka are given below. Parallel Systems of Personal Laws in Sri Lanka (1997), Muslim Family Law in Sri Lanka (1999), Between Two Worlds: Muslim Women in a Multi-Ethnic Society (1999), Muslim Personal Law in Sri Lanka (2000), The Quazi Court System in Sri Lanka and its Impact on Muslim Women (2001), In this series MWARF has recently published a valuable book Women Claiming Rights and Spaces: Activism to Reform Muslim Personal Law in Sri Lanka (2014) and its Tamil Translation separately. This book gives a comprehensive view and the historical background of the MPL in Sri Lanka and their substantial proposal for reform.
This book is a collection of articles, edited by Faizun Zackariya and Chulani Kodikara with the Forward by Jezima Ismail, a leading Muslim woman intellectual, an educationist in Sri Lanka and a co-founder of MWRAF. The book consists of five chapters written by five different authors and 9 valuable annexure.
In the first brief introductory chapter Chulani Kodikara, a lawyer by profession, who, works closely with MWRAF and has published a commendable book on Muslim Personal Law in Sri Lanka, candidly says that “attempts at legislative reform of Muslim law have been unsuccessful due to a growing Muslim lobby which has preferred to see reform as an interference with the ‘religious identity’ of the Muslim community and an attempt to tinker with the ‘word of God’…. Muslim law in Sri Lanka has been reformed on the initiative of male elites of the community in 1929 and 1956 in an attempt to bring the law more in the line with the ‘true spirit of Islam’. More recent attempt by Muslim women to reform these laws so as to ensure justice and equality for women for however met with little success. In the face of identity-based politics, Muslim political parties which claim to represent the Muslim community in parliament have refused to take up the issue of MPL reform for fear that progressive legal reform will alienate their vote bank” (p.1).
The book provides details of “Recommendations for Muslim Personal law Reform by State led and Independent Committees Since 1951.” Most of the Committees did not have any or sufficient women membership. For example an independent ten member committee for Muslim Personal Law Reform convened in 1970 under the chairmanship on Mr. H. M. Z. Farook didn’t have any women members. A 14 member committee under the chairmanship of Dr. A. M. M. Sahabdeen appointed by the State Minister of Muslim Religious and Cultural Affairs in 1990 had only 2 women members. The Committee appointed by the government in 2009 had 5 women out of 15 total members. The only exception was the 14 member Independent Committee for Muslim Personal Law Reform (ICMPLR) facilitated by the MWRAF in 2005 had 8 women members.
The 2nd chapter by late Mr. S. M. A. Jabbar provides a brief but comprehensive account of the ‘History of Muslim Personal Law Reform in Sri Lanka’. He deals with the reforms or amendments done till 1969 and the attempts to reform MPL after that. He is very cautious in stating that “it cannot be denied that the Holy Quran has been acclaimed as the ‘unchanging text in changing times’ and has to be followed, and any attempt at reform of Muslim Personal Law within an Islamic/ Shariah framework cannot lay down principles which are against the commands of the Almighty. Nor can such an attempt be contrary to the principles explained in the tradition of the Prophet (Sal)”. But he also says that “nevertheless, it may be asserted that reform of Muslim laws within an Islamic framework, can be achieved without nullifying the above principles, since Islamic Shariah Law is flexible enough for implementation till the end of human existence” (p.4). Although he didn’t explain that what are the principles and what is the Islamic framework, he is more positive for reform and supportive for the proposals by MWRAF.
In the 3rd chapter, the longest in this volume, Faizun Zackariya, one of the co-founders of MWRAF, a social activist and an intellectual, provides analytical and detailed insights of their (MWRAF’s) struggle of 25 years to reform the Muslim Personal Law ‘Claiming spaces and voices beyond the notion of legal equality.’ At the outset she states that “women activists, legal and Muslim scholars, researchers, progressives and intellectuals have been grappling with Muslim family law reforms and issues of equity and justice for women in pragmatic and challenging ways. However, promoting equality and protecting the rights of women in Muslim family laws has been a highly contested and uphill task. Experience shows that struggle for reform of Muslim family law is complex, as it is intrinsically interwoven with politics, identitarianism, custom, culture, religion and formal laws.” (P.13)
Although the complexity seems to be ‘intrinsically interwoven,’ in my opinion the basic problem lies in the misinterpretation of religion and Shariah that govern the entire life of the Muslim community. For example, as Faizun point outs, “when the amendment to the Penal Code (1883) was presented in Parliament (September 1995), vehement demands by the ‘Muslim lobby’ that Muslim be excluded from the specific clause which related to violence against women within marriage resulted in a diluted version of the amendment being finally approved” (p.34). The question is why did the Muslim lobby demand the exclusion clause which in fact condones violence against women? It may be because that Shariah permits violence against women although in a limited way. But what the Muslim lobby forgot to consider was the real historical context for the permission of such social behavior and whether the Quran is discriminatory against women. If we read Quran carefully we can realize that the ultimate intention of the Quran was to gradually move towards gender equality in a highly patriarchal social environment. The Quran repeatedly appeals to the men to treat their women justly and kindly. The Quranic verse 33:35 categorically states that men and women are equal in the sight of Allah, if they do what they are expected to do. In this 21st century Muslims should use their independent reasoning (Ijtihad) to interpret Quran in order to reveal its ultimate intention and universalism which are applicable to the modern age. As Faizun rightly points out “aspects of personal laws as they now exist are discriminatory towards Muslim women, and to date, no genuine attempts have been made to reform such laws to make them more equitable.” (p.34)
MWRAF, since its inception in 1986, has continuously been voicing for the reform in MPL, creating awareness among the Muslim community and the general public. In this chapter Faizun attempts ‘a critical understanding of three overlapping factors with implications for MPL reform from MWRAF’s own perspectives. They are: 1. Lankan multi- ethnic identitarian politics and intersections of power, culture and identities, 2. MWRAF’s location within a plural framework, 3. MWRAF’s MPL reforms advocacy trajectory and constituency-building.
The theoretical and pragmatic approach of the author in this chapter gives the reader a comprehensive understanding of the issues in reforming MPL.
Chapter 4 deals with the Independent Committee on Muslim Personal Law Reform (ICMPLR) initiated by MWRAF in 2006 ‘in the absence of a state-led effort to Reform Muslim Personal Law in Sri Lanka’. It is jointly written by Safana Begum and Justice A. M. Mohamed Mackie, both law professionals. Appointing the Committee was one of the most important steps MWRAF took towards reforming MPL in Sri Lanka. The vision of this committee was “working towards MPL reform that is gender equitable and based on Quranic justice that reflects the needs of the Muslim community through an inclusive process and wide intensive consultations” (p.40)
The 14 member Committee of which the two authors also were members, had broader objectives “to highlight to the government and authorities concerned the shortcoming and lacunae in the Muslim Marriage and Divorce Act of 1951, what amendments can be made to the Act, and how such amendments could be made without contravening and infringing on ‘Islamic-equity’ principles and Shariah laws’ as most of the sections in the existing Act are outdated, impractical and do not cater to the present-day needs of the society”(p.41).
In order to achieve this goal, they were mindful that ‘there should be reform not only of the substantive and procedural laws, but also the Quazi Court system, including the enhancement of the status of the Court System and that of Quazis and members of the Board of Quazis’ (p41). Within a two and a half year period of collaborative actions the Committee was able to prepare a comprehensive draft proposal to reform MPL.
The proposal was submitted for further consultation and discussion at a public forum consisting Muslim Judges, members of Board of Quazis, Quazis, Attorneys at Law, religious dignitaries, educationists, politicians, community-based organization representatives, researchers and men and women interested in the subject. Although there were different opinion and controversies in certain aspect of the proposal, most of proposals were agreeable to all the participants. The authors have recorded significant differences that emerged at the meeting and also have explained the Committee’s stands.
Some of the proposals by the Committee that became controversial at the forum were as follows:
Minimum age of marriage: the ICMPLR recommended that the marriage of a bride under 16 years of age should not be registered without the sanction of the Quazi under whose judicial district the bride resides.
Polygamy: the ICMPLR recommended that with regard to polygamy, an application should be made to a Quazi and following an inquiry, whereby he could either accept or reject it.
Women Marriage registrars: the ICMPLR recommended that women should also be appointed as Registrars of Muslim Marriages.
Women Quazis and Women Members of the Board of Quazis: the ICMPLR proposes the appointment of women as Quazis and the members of the Board of Quazis to administer justice under the MMDA.
The authors reasonably justify these and other recommendations of the ICMPLR and according to them “if the Muslim Marriage and Divorce Act of 1951were in conformity with Islamic doctrines and in strict adherence to Quranic principles, then the question of reform or amendment would not arise. The Quran is a complete code of life giving detailed rules and regulations regarding social, cultural, political and economic problems. But the present Act has many flaws and loopholes. There is therefore an urgent need to amend the Act in accordance with Islamic equity norms and codes. The reformed document should provide ways, means and solutions to problems experienced and faced by the present society. The criteria should strictly be in accordance to our Dhean” (P.56).
It is obvious that MWRAF and the ICMPLR want to reform the MPL strictly within the Islamic framework. They do not want to cross the boundary, although strategically. The problem is that those who oppose any vital reform of MPL also claim that these reforms are against the Islamic doctrine, the Shariah. What is the way out? It is to provide a rational and progressive interpretation of Shariah in its historical perspectives and relevant to the modern context as it has done in several Muslim countries. It is with the rational interpretation some of the Muslim countries banned polygamy and increased the minimum age of marriage to 18. The ICMPLR could have also proposed such reforms instead of their above mentioned proposals of 1 and 2 that seem to be a compromise.
The final chapter on ‘Strategies for Reform: Engaging with Muslim Personal Law Reform from within an Islamic framework’ by Chulani Kodikara provides a brilliant account of the subject. As she stated, “from a historical perspective, Islam was way ahead of its time in uplifting women’s status. Many of the revelations in the Qur’an are by nature reform-oriented, transforming key aspects of pre-Islamic customary laws and practices in progressive ways and address the changing needs of society. With the spread of Islam deeper into Africa, Asia and Europe, it has continued to evolve and be influenced by the social, political, economic and cultural conditions obtaining in the areas where it gained a foothold, giving rise to a diversity of socio-legal practices” (P.57). As she also noted, “a close look at Islamic socio-legal system around the world reveals an immense range of interpretations of laws and traditions…in relation to family laws and women’s rights where it is often the case that the laws were archaic or unjust, a common practice has been to argue for reform from within the framework of Islam…what is noteworthy is that in some countries radical reform of family laws has been possible from within the framework of Islam. Examples of such reform include: Tunisia, which banned polygamy; Malaysia, recognized a homemaker wife’s right to claim a share of matrimonial assets upon divorce; and Morocco which set a minimum age of marriage at eighteen for both men and women” (pp.57 – 58).
Kodikara explains three strategies used in several Muslim countries to reform Shariah laws related to family affairs. They are, 1) Siyasa Sharyya, public policy, decision of a ruler or an authority in a legal matter, 2) Thakkhayyur, reform by means of an eclectic choice made from among the wide range of opinions present in Islam and 3) Ijtihad, a progressive reinterpretation of Quran. Of these three, in my opinion Ijtihad is more important in the modern context. Kodikara provides a number of examples of reforms that were possible under each category in different Muslim countries.
In her concluding remarks Kodikara states that “notwithstanding these possibilities of reform, Muslim laws continue to be bedeviled by questions of gender, identity politics, ignorance, and anti-women interpretations of the Quran”. She also points out a possibility of a repercussive reaction towards women that, “when women begin to challenge particular interpretations of Muslim laws and the existing status quo, the possibility of being alienated from one’s community as an apostate or a feminist inspired by Western values is very real threat… in addition, the rising tide of identity politics, the lack of state commitment to protect minority rights or women’s rights and the lack of a broad based movement for reform continues to pose enormous challenges to realizing meaningful reform of MPL” (p.65).
Muslims all over the world are in a dilemma, in a state of split mindset, concerning tradition and modernity. As far as the material life is concerned they are in the 21st century, enjoying the benefits of modern science and technology which were not imaginable during the time of the Prophet and his companions. On the other hand, as far as the religion is concerned they are still in the 7th century. They believe that the laws of Shariah are divine and permanent although the society is continuously changing from one stage to another. This contradiction continues to prevail in the Muslim societies from the beginning of the modern era.
There are three opposing trends to solve this contradiction in the Islamic societies. The first one is complete modernization or Westernization like Turkey under Mustafa Kamal Ataturk in the early 20th century. The second one is total rejection of any change in the socio-cultural and political institutions and complete Islamization; that is going back to the past like the Taliban of Afghanistan. The third one is a mixture of Islamization and modernization of various kinds and degrees as propagated by some modern Islamic scholars like Jamaluddin Afghani, Muhammad Abduh and Seyed Ahamed Khan. However, the second one is becoming more influential in varying degrees in the Muslim world mainly because of the reaction and resistance to the political, economic and cultural imperialism of the West and the emergence of various kinds of Islamism.
In this context it is important to insist that progressive Muslim intellectuals and organizations have a role to play in moderating the society providing rational interpretations to Shariah placing it in its historical context. In this regard, it is important to note a distinction between Deen and Shariah made by Maulana Abul Kalam Azad, a respectable Islamic scholar and a rational interpreter of the Quran. According to him Deen represents the basic principles and value system of Islam which are universal and Shariah represents the laws and codes of conduct of Islamic communities which are not universal and vary from time to time and place to place according to the historical and social conditions of the Muslim communities.
For example, the Shariah on slavery is not applicable in the present social context because as an accepted social institution it has been totally abolished from the globe although it can be seen here and there as residual of an age old practice. At the time of the Prophet the slavery system had been firmly rooted as a social institution in Arabia as in the other parts of the world. Slaves as commodity can be bought and sold in public; war captives became slaves; the masters of the slave women had the right to use them for their sexual pleasure. Although Islam did not abolish slavery, it neither approved nor encouraged it. However, the Quran and the Prophet insisted the people to treat the slaves justly as human being and encouraged them to free slaves. The Prophet himself, his family members and his companions freed more than 39 thousand slaves at that time. It was a remarkable initiative in the history to abolish slavery from the globe. It is obvious that the intention of Quran and the Prophet was to abolish slavery although they did not legally prohibit it; they left it to the human conscience in the future as the historical condition was not conducive at that time. It took more than a millennium to abolish slavery. Logically it could have started from the Muslim world but they were very late to do it. Britain, America and Russia abolished slavery in the late 19th century and the other Western countries followed them. Turkey, the centre of the Ottoman Empire, abolished slavery in the early 20th century under the influence of the West. Saudi Arabia was one of the last Muslim countries that legally abolished slavery in 1965 under the pressure of the US; although an influential imam stupidly issued a fatwa that abolishing slavery was against Shariah. There are some kind of bonded labour and human trafficking in many parts of the modern world including Muslim countries but the old system of slavery is no more in existence and the Shariah related to this system is totally defunct.
Like the Shariah related to slavery, a number of provision in the MPL, based on Shariah, also not relevant and inapplicable in the modern context due to the current needs and social change.
That is why most of the Muslim countries changed a number of provisions in their Personal Laws since they are not suitable to the modern social context.
In this background MWRAF’s proposals to reform MPL in Sri Lanka is vital and timely. The 15 member committee appointed by the cabinet in 2009 to bring substantive reform in the Muslim Marriage and Divorce Act of 1951 is yet to finalize their report. If the Committee submits their report to the government it will be the base for a Bill in the parliament soon. Therefore the Committee should seriously consider the proposals put forwarded by the MWRAF before they finalize it. The book under review has provides ample evidence for their proposals and substantiates them with the fundamental Quranic principle of social and gender equality.
Further, the Muslim community should respond positively to implement the proposal without any delay and they have the obligation to demand the Muslim political leadership and the government to take immediate actions to make the proposals as a legal reality. The Muslim community has waited for more than half a century for meaningful reform in their personal law and it is the time to act wisely to achieve this.
*M A Nuhman, Retired Professor, University of Peradeniya