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Engaging With Muslim Personal Law in Sri Lanka: The Experience of MWRAF

--Chulani Kodikara

Sri Lanka lays claim to a plural system of laws which governs family matters and which defines women’s status and autonomy in the private sphere of the family. i.e. The General law, the Kandyan law, the Thesevalami and the Muslim law. These laws were codified during colonial times and successive post independence governments have guaranteed their continued existence. While there have been considerable reform of particularly the General law in Sri Lanka to ensure equality for women, certain aspects of the Muslim Personal law (MPL) continue to discriminate against women. Despite the guarantee of gender equality in the constitution these laws have been immune from scrutiny on the ground of gender discrimination due to the fact that the fundamental rights chapter has no retrospective effect. 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.

This is not to say that there has been no reform of Muslim law in Sri Lanka. Since the codification of Muslim law under Dutch and British rule in Sri Lanka, it has undergone substantial changes. 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 line with the ‘true spirit of Islam’. More recent attempts by Muslim women to reform these laws so as to give justice and equality to women have however met with little success. In the face of identity based politics and the fragile balance of power in parliament, minority Muslim women have been unable to rely on the state to reform MPL in Sri Lanka. For several years now the ruling governments’ majority in parliament has depended on a number of small parties including the Sri Lanka Muslim Congress (SLMC), the self appointed spokesperson for the Muslim community in parliament. The SLMC has refused to take up the issue of MPL reform, for fear that progressive legal reform will alienate its vote bank. For instance when the age of marriage for both men and women in Sri Lanka was raised to 18 years of age in 1995, no corresponding change was made in the Muslim law even though there is no minimum age of marriage for Muslims and child marriages are possible (although rare) under the law. This exclusion was justified by the then Minister for Justice on the ground 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”. The State discourse on the need to preserve the cultural rights of minorities was however an all too transparent mask for the political exigencies behind the exclusion of Muslim women from a universally applicable minimum age of marriage (Pinto Jayawardene and Kodikara: p.471 – 473)

The Agenda for Reform

The movement for Muslim personal law reforms in Sri Lanka from a feminist perspective has been spearheaded by the Muslim Women’s Research and Action Forum (MWRAF), a small group of professional Muslim women who first came together in 1976. At the outset the group met informally to discuss issues of concern to Muslim women such as the low rate of literacy within the community, school drop out rates among girls, the small percentage of professional women emerging from the community and the discriminatory aspects of the personal law. When the government appointed a personal law reforms committee in 1986 to consider reforms to the whole gamut of personal laws, and the Muslim members of the committee broke away to form a separate sub committee to consider reform of Muslim laws, the group felt compelled to formally establish as an NGO in order to be able to engage fully with the reforms process. [i] MWRAF prepared a memorandum and campaigned for signatures through a number of organizations and individuals and presented the memo to the Committee for its consideration. This Committee however was dissolved when its discussion of a minimum age of marriage for Muslims in Sri Lanka, was met with an avalanche of protests from the community.

MWRAF subsequently presented a more detailed and revised memorandum incorporating the experiences of progressive legislation in other countries in the Muslim world to the Muslim Personal Law Reforms Committee appointed by the Minister for Muslim Religious and Cultural Affairs in December 1990. Initially MWRAF had objected to the composition of this Committee. All of its 11 members were male. MWRAF made an intervention to the Minister on the need for women’s representation and nominated two women lawyers who were subsequently appointed to the Committee. The revised MWRAF memorandum was presented to the Committee in February 1991 and addressed the following critical areas of concern for women governed by MPL:

1.                  The need to ensure that the consent of both parties are obtained as an essential condition of a Muslim marriage and to make provision for the bride’s signature, given the fact that there is no space for her signature in the Muslim Marriage and Divorce Registration Form and it is the wali or marriage guardian who conveys her consent on her behalf.

2.                  The recognition of the right to enter into contractual stipulations outlining the terms of marriage, divorce, maintenance, custody, etc in keeping with the Islamic concept of marriage as a contract, including the right to talaq-e-tafweez or the delegated right of divorce [ii]   

3.                  The need to ensure justice and equality in relation to both material goods and comfort as well as love and affection for women in polygamous marriages in conformity with the Quaranic verses on polygamy. Polygamy to be also made conditional on the consent of the previous wife/wives and if such consent is not obtained the previous wife/wives to have a right of divorce.   

4.                  The need to restrict the right of a male Muslim to obtain unilateral talaq divorce. Specifically for divorce by the husband to be made possible only in the presence of witnesses and provided reasons are given.

5.                  To expand and extend the existing grounds of divorce available to a Muslim wife including the right to obtain divorce on grounds of incompatibility.

6.                  The need to give serious thought to the issue of kaikuli or gifts, both movable and immovable, given by the relatives of the bride to the bridegroom to be kept in trust for the bride, but which is often lost to her on divorce or separation.

7.                  The need to make provision for post divorce maintenance for Muslim women as the current legal provisions only recognise maintenance during the period of iddat, i.e. for 3 months after divorce.

8.                  Recognition of the right of a Muslim to belong to any sect or School as a matter of individual and personal choice.

9.                  Review of the appointment of Quazis, including their remuneration and qualifications. [iii]

10.              The right of women to be appointed as Quazis. [iv]

MWRAF was among the seven organizations which gave evidence before the Committee in March 1992, and the only women’s organizations to do so. The Committees’ final report with its recommendations was released in November 1992. The report had incorporated a number of the recommendations made by MWRAF and even quoted from the MWRAF memorandum. A summary of the more important recommendations made by the Committee is given below:

1.                  The Committee recognised the right of both parties in a Muslim marriage to enter into stipulations regarding the terms and conditions of the marriage and recommended that the marriage registration form be amended to enable the parties to include as part of the marital contract any other condition which they consider necessary and which is not in conflict with the Quran and Sharia.

2.                  The Committee recommended the amendment of the Act to allow for written consent of the bride to be recorded.

3.                  In relation to kaikuli the Committee recommended the substitution of the word kaikuli with the word marital gifts where ever the former word appears in the Act due to its commercial connotation, but failed to strongly address the issue of documentation which becomes necessary to make legal claims for such gifts at the point of divorce or separation.

4.                  The Committee accepted the principle of matah or post divorce maintenance awards for a woman divorced without valid reason to enable her to provide herself with the basic necessities of life and recommended suitable amendments to the act to make such claims possible.

5.                  The Committee made a number of recommendations to reorganise the Quazi Court System and including the removal of the prohibition against lawyers appearing in the Quazi Courts.

The committee however did not accept the recommendations relating to polygamy and women Quazis. In relation to polygamy the Committee expressed the view that any amendment that directly or indirectly affects the right of a Muslim male to contract a polygamous marriage maybe a contravention of the principle contained in the verses of the Quran, and that further polygamy is rare among Muslims of Sri Lanka and it is not an acute social problem. On the question of the appointment of women Quazis, the Committee took the position that under Shafie [v] law applicable in Sri Lanka women are not eligible to be Quazis. However the Committee went onto state that whether any laws of the Shafie School can be altered to suit current social realities is a matter for competent jurists to decide and recommended that a fatwa should be obtained from a competent body of jurists in Sri Lanka or from abroad on the eligibility of women to hold positions as Quazis.   

More than 10 years after this report was released it is yet to be presented in parliament and no action has been taken by the State to implement any of the recommendations.

Networking Internationally

In the same year that MWRAF established itself formally, one of the coordinators of MWRAF was among a group of Muslim women from around the world who met in a farmhouse in Aramon, France on the invitation of Marie Aimee Helie Lucas an Algerian feminist living in exile in France, in response to situations that required urgent action, which related to Islam, laws and women. [vi] That group of women went on to form the international solidarity network ‘Women Living Under Muslim Laws’ [vii] . The first Plan of Action (POA) of the Network was also drafted at this meeting. Since then MWRAF has been an active participant in many of the activities of the network and drawn inspiration from the work of the network on every aspect of its work. 

Particularly, the network’s analysis of law, identity and Muslim women has played a crucial role in shaping MWRAF’s own engagement with Muslim personal law in Sri Lanka. MWRAF was among the first groups linked to the Network to implement the ‘Women and Law in the Muslim World Programme initiated by the Network. The Programme started from an understanding that in much of the Muslim world women’s lack of knowledge about statutory provisions and the sources of customs and practices applied in their immediate community impedes their ability to change their circumstances. The W & L Programme set out to investigate and document (through national level studies) the existing law and customary practices, legal trends and lacunae in implementation of laws, contradictions between customs and statute law, as well as the linkages between customs, religion, law and politics from the perspective of women’s lives. It was also designed to gather and share the various strategies used by individuals and groups to protect and promote wome’ns rights and spaces through litigation, individual action or social movements. (Shaheed: p.8, Balchin: p.9). An integral part of each national project was an outreach programme to extend networking within each country and to promote legal literacy and awareness.

Legal Literacy and Outreach

Since completing the research under the W & L Programme in Sri Lanka, MWRAF published the research findings in several publications in English and in Tamil. These publications filled an enormous information gap on Muslim law in Sri Lanka and were targeted at academics, lawyers and activists. Some of the material was also simplified and printed as legal literacy booklets for the lay audience. In addition MWRAF conducts workshops and lectures on the law for different sections of the community and uses the media to unravel and distinguish between what is ordained by Islam and what is custom in the hope of dispelling some of the confusion and misunderstanding surrounding these issues. In these discussions we also highlight the diversity in laws and practices within the Muslim world and challenge the myth of homogeneous Muslim world. Almost parallel to the research on MPL, MWRAF initiated a dialogue with Quazis, on the one hand to understand the practical problems and social realities of implementing the law and on the other to enhance their awareness of the law and how the law can be interpreted and applied in a progressive and woman friendly way. [viii] These meetings with Quazis since 1994 have served to build an important link with a key actor in relation to Muslim law in Sri Lanka and have been a learning and sharing experience for both parties involved. A few Quazis are now close and important allies of MWRAF. Since 2002 MWRAF has also been providing free legal aid and counseling services for women on MPL issues. Given womens lack of knowledge about the law, the bar against legal representation at this lowest level of the Quazi Court System, and the tendency for some women to be insulted and intimidated by their male respondents/petitioners acting in tandem with misogynistic Quazis, the counseling service has become one of MWRAFs most important outreach activities. [ix] As MWRAF is based in Colombo and has no offices outside of Colombo, the challenge now is to effectively expand these services to the provinces.

The agenda for reform of MPL in Sri Lanka advocated by MWRAF has consistently been reform from within the framework of Islam. However, as Farida Shaheed points out questioning, rejecting or reformulating ‘Muslim Laws’ is a major undertaking for women of any Muslim country or community.  Muslim women are often isolated, and collectively they have little power both in terms of socio-political and economic structures and in the fields of jurisprudence and Islamic scholarship which militates against initiating positive action for change (Shaheed: p.5).  Where reform of MPL is undertaken within the framework of Islam, it necessarily means engaging with the sources of these laws – primarily the Quran and the hadiths (the sayings of the Prophet), traditionally the domain of men. Throughout history, Islam has been presented to women through the lens of men and the interpretation of the textual sources of Muslim laws has been a task monopolized by men. 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 a very real threat. But more and more Muslim women are now reclaiming, reading and reinterpreting the texts for themselves. In 1990 MWRAF was part of a group of 30 women activists and scholars brought together by the WLUML network to read for themselves the verses of the Quran relating to women. Drawing from this experience, in 1991 MWRAF organised a meeting in Colombo on ‘The Principle of Ijtihad and the Need for Islamic Scholarship’. The meeting brought together Muslim Sri Lankan scholars from diverse disciplines to discuss the need to revive the tradition of intellectual reasoning or Ijtihad to resolve juristic questions and dilemmas, which in Islam, has been considered closed since the 10th Century. Despite the lack of political will and the apathy in the general public, MWRAF is currently aiming to revive the reforms process by mobilising groups that we have worked with as well as leaders of the community both in the provinces and in Colombo and together dream of a different reality for Muslim women in Sri Lanka. It is heartening to note that these groups are now able to identify and analyse how religion is being used and manipulated for narrow political ends.   

References

  1. Balchin, Cassandra (Ed). Reaching Out, Changing Our Lives: Outreach Strategies and Women Living Under Muslim Laws, MWRAF, 1999.
  2. Helie-Lucas, M.A. The Preferential Symbol for Islamic Identity: Women in Muslim Personal Laws, Dossier 11/12/13, WLUML, 1st Quarter 1991.
  3. Pinto Jayawardene, Kishali and Kodikara, Chulani, Sri Lanka Chapter in Women and Governance in South Asia: Re-imagining the State, Yasmin Tambiah (Ed.), ICES, Colombo 2002.
  4. Report of the Committee Appointed by the Honourable Minister of State for Muslim Religious and Cultural Affairs to Recommend Amendments to the Muslim Marriage and Divorce Act and the Wakfs Act.
  5. Revised Memorandum by the Muslim Women’s Research and Action Forum  to the Committee on proposed reforms to Muslim Personal Law, 11th February 1991.
  6. Shaheed, Farida. Controlled or Autonomous: Identity and the Experience of the Network Women Living Under Muslim Laws, Occasional Paper No.5, WLUML, July 1994.

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