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Muslim law now- Thesawalamai and Buddhist laws to follow?

25 November 2016 12:26 am - 0     - {{hitsCtrl.values.hits}}

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The European Union (EU) in an interim report that received media coverage in Sri Lanka as far back as 2009, on the GSP + (Generalized System of Preferences) had alleged that aspects of the Muslim personal laws in operation in Sri Lanka were in violation of UN conventions.The EU, had in the same breadth said that Sri Lanka was also in violation of international law for continuing to have as a criminal offence ‘consensual sex between the same sex’ and that would be another among several other reasons for not restoring the preferential tariff to Sri Lankan exports to the EU.  


Whether the Muslim law is in violation of UN conventions or the EU is in violation of UN rights based treaties,in its demand for changes to Muslim marriage laws would become evident upon a reading of my previous article (Part 1).  


Regrettably there was no official media release from the EU or any other authority on the demands if any being made on Sri Lanka for the restoration of the GSP+, then or now. A recent statement made by the local head of the EU that the demand is for amending the Muslim law to stipulate only the minimum age for marriage of females to be increased to 16 years ,needs to be supported by an official press release. This is needed in the light of a government decision and media statements speaking of amending the Muslim personal law on a wider basis to help Sri Lanka win back GSP+. It has now become necessary that the EU officially publicize the full set of its conditions and the specific requests if any on Sri Lanka for the sake of transparency and to clear the confusion in the country.  


It appears that the Justice Saleem Marsoof Committee was appointed in 2009 following the EU demand that year on the former government. The Committee comprises both males and females and includes persons who are not adherents of the Islamic faith. The inclusion of persons who are not necessarily believers in the Muslim style of life did come under criticism in Muslim religious and civil society circles. Nevertheless, it is my view that the Justice Saleem Marsoof Committee, now that it had toiled for seven years, should complete its task notwithstanding the criticism. It is for the civil, religious and political leadership of the community to follow up thereafter.   


It is best that the government leaves it to this committee and the community to address the issues which have presently arisen in the public domain. They will need time. Provisions in international treaties relating to minority and religious matters, as pointed out in the previous article (Part 1) do not encourage state interference except at the instance of the protected minority. The State is obliged under the treaties to protect the lifestyle of the community.  


What is hurting the community is why only Muslim law had been picked up to conform to international norms? Questions are being raised within the community whether the EU demand is a by-product of the so-called international war on Islamic ‘extremism’. Most Muslims understand this as a war on Islam. Any genuine attempt within the Muslim community to amend the MMDA could be unfortunately hijacked by external pressures. Several issues are being raised by Muslim youths in this regard. They ask why the EU is being allowed to intervene negatively in Sri Lanka’s process of taking its own democratic decisions on matters related to the community.  


They also ask whether there are no similar issues, of the need to conform to international norms, in the Kandyan Marriage law, the Thesawalamai Law, the General Marriages Ordinance and even the Buddhist Ecclesiastical law. What is there to prevent, they ask, the EU alleging sometime later that the ‘Sisyanu Sisya’ or the ‘pupil to pupil’ law of succession to the Viharadhipathyship of Temples, without elections, is undemocratic or that the robing of children 7 years of age for priesthood is ‘conscription’, depriving them of a free childhood.They also ask, can the EU be allowed to put similar conditions on the country to obtain advantageous terms for trade and commerce. Should any community be compelled to behave, for the country to gain an advantage in GSP plus? They say the government is obliged under the very same international treaties to resist such intrusions.  


They also allege that it is some of these countries, which, tell us to conform to international norms while they had transgressed with impunity the carefully built edifice of international laws and international humanitarian laws, since 1945. Examples of such transgressions of international laws by these countries would run into many volumes. Professor Philippe Sands QC, Professor of Law at University College London (University of London) in his 314 page volume, ‘Torture Team- Deception, Cruelty and the Compromise of Law’ gives a gripping account of the transgressions of human rights and humanitarian laws at Guantanamo and elsewhere by powerful nations. Everyone knows about the illegal and unjustified wars, instead of recourse to dialogue, committed in third world countries by the world’s powers in violation of international law and humanitarian considerations. Our own Justice C G Weeramantry of the International Court of Justice fame has lamented in several books the trampling of international humanitarian laws with impunity by powerful nations. We see the collapse of international standards led by most of those countries which dared to vote against the human rights instruments relating to the oppressed indigenous people. Be that as it may.  


Article 27 of the ICCPR itself prevents the State from denying the right of minorities “…. in community with other members of their group, to enjoy their own culture, to profess and practice their own religion or to use their own language.” This is a human right of the community as a group and those persons who voluntarily accept to be bound by their religious standards. Persons unwilling to be so bound are free to walk away and subject themselves to other systems. Those who seek to ride on controversial so-called international standards such as legitimizing intimate‘same sex’ relationship must recognize the legally supported rights of those willing to be governed by their respective cultural and religious standards. Where there is an apparent conflict, international norms and standards must give way to the treaties which protect the rights of minorities.  


One cannot tinker into the culture, religion or language of any community which is in a minority, according to Article 27 of the ICCPR. Any attempt to meddle with any aspect of the religion, culture or language will be a denial of the rights of the community and its adherents.

 Apart from the ICCPR a number of other provisions in other treaties, covenants and declarations of the UN also protect religion and culture from external interferences.  


The changes have to come from within the community. Those willing to accept and be bound by the cultural and religious practices of the community to which they belong are equally entitled to bring about changes to practices which are inconsistent with the standards laid down in the religion. International norms could inspire the community to bring about acceptable changes. In the light of their current experiences they could educate their fellow members of the fault lines that are affecting men, women and children. The community should be open to learn from the experiences from its own children, women and men and mend its ways. Genuine concerns must be dealt with duly and honestly. These wishing and urging internal changes should refrain from travelling embedded in Trojan horses. Those seeking justice must come with clean hands though no one is perfect. State party to the treaties can effect the changes at the instance of the community.  


The Muslim community is firmly in support of amending the Muslim Marriage and Divorce Act to overcome several deficiencies in the Act. The deficiencies are not merely in the Act but also in the standards of a few appointed under this law .Similar deficiencies exist in other systems as well. These are matters before the Justice Marsoof Committee. The Committee must complete its task even if it requires more time. However, there is no need to rush by sacrificing the need for careful consideration of the issues.  


(mm_zuhair@yahoo.com = The views expressed do not reflect the views of any official position previously or presently held by the writer).   

 

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