The Panelists. Pics sourced from Hashtag Generation
Sri Lanka is home to 1,967,523 Muslims. Muslims of Sri Lanka are of various ethnic groups: Sri Lankan Moors, Coastal Indian Moors, Malays, Memons and Bohras. The Muslim Marriage and Divorce Act (MMDA) is a law that affects all Muslims and in need of crucial reforms. For years, women’s rights activists and activist groups such as Muslim Personal Law Reform Action Group (MPLRAG) have been lobbying for MMDA reforms. Since 1956, three government committees were appointed to submit proposals for reforms. However, until August 20 this year, none of the reforms received Cabinet approval. The reforms that were proposed and approved by the Cabinet in 2019 were a step in the right direction yet did not adequately address the issues of MMDA.
Sri Lankan Muslim females are treated as second-class citizens: Hyshyama Hamin
According to ‘Unequal Citizens: Muslims Women’s Struggle for Justice and Equality in Sri Lanka’ by Hyshyama Hamin and Hasanah Cegu Issadeen, there are 65 Quazi courts in Sri Lanka, encompassing an all-male board of Quazis and male Quazi judges. This is due to Section 12(1) of MMDA which states the Judicial Services Commission (JSC) “may appoint any male Muslim of good character and position and of suitable attainments to be a Quazi.”
Speaking at a panel discussion titled ‘Sri Lanka Quazi Courts - Where are the women judges?’ held on November 6 at the International Centre for Ethnic Studies, Hyshyama Hamin, a women’s rights activist said Sri Lankan Muslim females were treated as second-class citizens due to implications of MMDA’s discriminatory laws extending to every aspect of a Muslim
“Any law that deems adult women as minors, imagines us weak, insufficient and less than a man and allows for a culture that places limitations on women’s citizenship, socio-political, economic and cultural rights is not correct,” she opined.
We need female Quazis: Cegu Issadeen
“This provision in law is unfair and it allows space for malpractices and injustice to take place in Quazi courts,” said Ermiza Tegal, a human rights lawyer.
Hasanah Cegu Issadeen, Co-founder of MPLRAG, described many harrowing incidents women faced at Quazi courts and at the hands of male Quazis.
“Recently, there was a divorce case filed by a husband on the grounds that his wife was ugly and that he didn’t want to live with her. The wife was observing the face veil and the Quazi asked her to remove it so she could show her face. He said he wanted to see if the husband was justified in his opinion that the woman was ugly. The woman refused multiple times and then the Quazi insulted her. The woman couldn’t bear it and ran out of the court. The divorce was granted,” recounted Ms. Cegu Issadeen.
"Will SL be left behind as world advocates for female Quazis?"
Recalling another incident, Ms. Issadeen narrated how a woman who filed for divorce due to domestic violence was asked to show proof of violence. “She said she was limping because her husband burnt her thigh. The Quazi told her to show the wound. After much hesitation, the woman lifted her dress and showed the wound on her thigh. This angered the Quazi who said she was immoral to lift up her dress and expose her thigh in front of men. He had also stated that she deserved the violence imposed on her by her husband because she was immoral,” said Ms. Cegu Issadeen.
She went on to say that these were just glimpses of horrific incidents many women had to encounter in Quazi courts. She revealed that certain male Quazis took personal contact details of these hapless women and manipulated them on the promise of granting their divorces. “These women are harassed, insulted and humiliated in Quazi courts and by Quazis. This is why we need female Quazis,” she claimed.
"Sri Lanka home to 1,967,523 Muslims"
She also described the Quazi court system as “a structure biased to men and creates fear in the minds of women.” She revealed that most Quazis belonged to administrative societies of mosques and wielded a certain power over the society which made it nigh impossible for a woman to complain about a Quazi on harassment. The panelists also emphasised that no female is consulted in the decision-making process in the Quazi court system thus leaving room for gender bias and discrimination.
Ms. Tegal said the divorce process could be tedious for women that even if decisions were unfair, women tend to not appeal against them because they did not want to prolong their humiliation.
"65 Quazi courts countrywide encompass all-male boards"
Ms. Hamin opined the state was convinced that Quazi court issues were community-based and therefore turned a blind eye to them. “MMDA and the male-dominated Quazi court system have created a culture of impunity under which violations are breeding and thriving,” she said.
The panelists echoed these sentiments and stated that it was vital to reform MMDA to prevent further injustice being meted out to Sri Lankan
MMDA reforms urgent and must be prioritised: MPLRAG
Issuing a joint statement with Hashtag Generation at the panel discussion, MPLRAG requested the future President to prioritise MMDA reforms and ensure it was reformed in a fair and just manner. They urged presidential contenders to focus on these crucial amendments, not limited to the following:
1. Women as Quazi judges, marriage registrars, jurors and board of Quazi members
2. Raising the minimum age of marriage to 18 years WITHOUT any exception
3. Allowing women to enter into marriage with the same autonomy as men
4. Granting women equal divorce process and procedures
5. Improving the standard of the Quazi court system, among other important amendments.
Ms. Tegal revealed that the origin of MMDA could be traced back to a 1770 Batavian (Indonesian) code of law dealing with marriage and divorce. After various modifications, the present day MMDA was enacted in 1951. “However, since the 1970s, Muslim women have been asking for reforms on MMDA, and one of the long-standing demands is to appoint female Quazis,” said Ms. Tegal.
She further pointed out that Section 12(1) of MMDA violated Article 12(2) of the Constitution which states “No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such one group.” MPLRAG noted that Quazi position was the only judicial position a Muslim woman could not hold in Sri Lanka.
Against this backdrop, the 2009 MMDA Committee had contrasting opinions regarding the appointment of female Quazis. The faction comprising Justice Saleem Marsoof PC, Mrs. Safana Gul Begum, Deshabandu Mrs. Jezima Ismail, Mr. Razmara Abdeen, Mrs. Faleela Be Jurangpathy, Dr. Sharya Scharenguival, Mrs. Sharmeela Rassool, Mrs. Dilhara Amarasinghe and PC Suhada Gamlath proposed the appointment of female Quazis but the faction consisting Mr. Faisz Mustapha PC, Mr. Shibly Aziz PC, Justice A.W.A. Salam, Mrs. Fazlet Shahabdeen, Justice M. Mackie, Dr. M.A.M. Shukri, Mr. Nadvi Bahudeen, Mufthi M.I.M. Rizwe and Ash Sheikh M.M. Ahamed Mubarak were vehemently opposed to it.
Opposition for women as Quazis
The All Ceylon Jamiyyathul Ulama (ACJU) had brought forward the following religious reasons to justify its opposition:
- “Men are protectors and maintainers over women because of what Allah has given over one other and because they spend (to support them) from their means.” (Quran, verse 4:34)
- A narration by a companion of the Prophet, Abu Bakrah that the Prophet had stated “no people will ever prosper who appoint a woman in charge of their affairs”
Islam doesn’t support inequality against women: MWRAW
The Muslim Women’s Research and Action Forum (MWRAF) has been demanding the establishment of female Quazis since its inception in 1986. Anberiya Hanifa of MWRAF spoke about the reasons ACJU
had forwarded. “The ACJU is quoting these verses out of context. The Quranic verse they are stating was revealed 1400 years ago. Back then, men were breadwinners of the family. But now, women too contribute to the family economy. Certain verses in the Quran are contextual, they cannot be applied now,” she said.
In a study conducted by Faizun Zackariya of MWRAF, it is stated that verse 4:34 was only valid under certain circumstances where the male possessed an ability or feature the woman needed but lacked at the time and the male was maintaining that particular woman. Only under these conditions can the man offer guidance and advice to the woman. She asserts the view of scholar Amina Wadud who stated verse 4:34was a descriptive passage and not meant for prescriptive purposes as an irrefutable and irreplaceable commandment to be encoded in law.
Ms. Hanifa also went on to explain that the narration stated by Abu Bakrah was found by scholars to be an unreliable narration (ahad), therefore it cannot be a basis for binding rules and not necessary to be acted upon.
Sri Lanka has no excuse; female Quazis are seen internationally: Ms. Hamin
Ms. Hamin revealed that Indonesia, from where MMDA had derived from, had already appointed female Quazis under the 1974 Marriage Law. Female Quazis are also seen in Malaysia, Yemen, Bangladesh, Pakistan, Sudan, Morocco, Egypt, Tunisia and Palestine.
“Sri Lanka has no excuse for not appointing female Quazis,” she said. “Muslim male leaders have failed us by allowing themselves to be influenced by patriarchal, outdated opinions.”
She further stated that family laws were manmade, changeable and diverse as they were based on human understanding of divine Islamic law. “Reforms of family laws towards justice are necessary and possible, but what it requires is political will,” she said.
Some of the detrimental amendments as identified by MPLRAG:
- Age of marriage: 18 years for both men and women but with approval of Quazis, exceptions are provided for those from 16-18 years. - MPLRAG concerns: Data on registered Muslim marriages of girls below 18 years show that most under-aged marriages involve girls between 16 and 17 years. In some districts, 80-100% are from this age group, leading to dropping out of critical education years (O/Ls and A/Ls). MPLRAG requests for 18 years of age for both genders with no exceptions.
- Registration and Nikah are mandatory to be taken place at the same time; failure to register is a punishable offence. - MPLRAG concerns: Under the proposed amendment, unregistered marriages continue to be valid leaving loopholes for secret marriages, marriages of minors to occur without the option of nullifying these marriages.
- No amendment on Section 12(1) in appointing females to Quazi post - MPLRAG concerns: A direct violation of fundamental rights of Muslim women to uphold judicial professions for which they are qualified.