Resolving The MMDA Reform Dilemma – A Priority For the Muslim Community!
Lukman Harees
‘Certainly We have sent Our messengers with clear guidance; and We sent down to them the Book and the scale so that humans may conduct themselves with justice.” (Quran : Surah al-Hadid, 57:25),
When Justice Saleem Marsoof (JSM) handed over his Committee Report on Muslim Marriages and Divorce Act (MMDA) Reforms to Hon. Minister of Justice in December 2017, ending a long period of wait and suspense, the Muslim community in particular and the country in general eagerly expected that its’ recommendations will carry much hope and promise for those affected by certain aspects of this legislation. However, shattering all such hopes, it came to light that the Report was not ‘unanimous’ as it was initially thought to be; in fact there were two separate reports in one, with another ‘rival’ Report being also submitted alongside by another prominent member of the Committee Faisz Mustapha PC (FM) representing a dissenting group within, including the powerful ACJU, which basically challenged and disputed many key recommendations in the Main Report. This state of affairs obviously reflected adversely on the ability of the Muslim community to resolve its’ own issues amicably even after a long period of time.
Ever since then, much debate and discourses have ensued in the public domain, with various parties even washing dirty linen in public, which have unfortunately generated more heat than light. Frustratingly, both the Justice Minister, the Government and even the Muslim Parliamentarians will therefore drag their feet in proceeding further in the absence of a consensus due to the political risk involved in taking sides/ implementing unilaterally. It would have been much nicer and productive for JSM as Chair if more time was taken to resolve contentious issues with the dissenting sub-group to come up with a unanimous set of recommendations in the several areas which are in dispute , rather than creating this quagmire, which many believe, arose out of egoistic reasons on both sides.
The general law administered through civil courts governs marriages of other ethnic and religious communities – the Sinhalese, Tamils and Burghers, while the MMDA established a parallel Quazi (Muslim judge) court system to administer the Act. Throughout the period in which the MMDA has been implemented, there have been serious concerns raised by women’s groups with regard to discriminatory provisions as well as the quality of service and practices of the Quazi courts, which put Muslim women and girls in socially and economically vulnerable situations. Many Muslim women’s rights groups have therefore been highlighting this dire plight of multitude of affected Muslim women. Thus, there is definitely a dire need to reform this piece of law, and Muslims should seriously reflect whether to allow token cultural and religious rights embedded in the present MMDA , which has been traditionally passed off over the years as namesake ‘Islamic law’ to triumph over concepts of justice and equality as articulated and promoted under the objectives of Sharia (Maqasid Sharia) as laid down in the Quran and practices of the Holy Prophet of Islam (OWBP). However, as it stands now, many community initiatives to reconcile both positions taken up by both JSM and FM groups have not been as effective as they should be.
A cursory look at the general acceptability of the JSM-FM reports shows mixed reactions. On the one hand, the Muslim women’s groups and human rights groups which demanded drastic reforms showed an inclination to favour JSM recommendations, which appears to address the main concerns of the affected people to a greater extent and therefore they hailed this report as progressive and forward looking. They in fact even referred to FM as the distractor in chief. On the contrary, the FM-led dissenting report which was backed to the hilt by the influential ACJU, found favour with the conservative sections of the Muslim community, visibly due partly to intense lobbying at grass-root levels by the ACJU and partly as a result of misinformation , as the report sought to basically maintain (almost) status quo in respect of substantive law and major areas which generated controversy, however suggesting administrative changes. They took up the position that JSM Report, sacrificed some aspects of the Sharia to appease those demanding drastic reforms to the MMDA without thoroughly thinking through the implications- a measure which may have long term impact on the religious and cultural sensitivities of the Muslim community. However, it has been fact that JSM Committee (JSM) has even authored books and written many research earlier on this area), has clearly done lot of research based on Sharia and comparative study about the law reform process even in other Muslim countries as well and his report was a comprehensive one. Thus any attempts to brand his Report as ‘anti-Sharia’ is both misleading and erroneous. The blame about his Report has been that there are no Religious scholars who has signed his report.
