MMDA Reforms: Dead & Buried Or Frozen?
Dr. Ameer Ali
In societies where secular officialdom considers it blasphemous to rebel against the power of sacerdotalism, and therefore sacrosanct to remain subservient to their dictates, even tinkering with the most blatantly oppressive elements of what is claimed to be sacred by the hierocracy becomes a virtual impossibility. This seems to be the fate of the long awaited recommendations made by Justice Saleem Marsoof Committee (JMC), appointed at tax payers’ expense, to investigate into the Muslim Marriage and Divorce Act (MMDA). By secular officialdom I simply mean the Muslim political hierarchy and the so called Muslim intellectuals who are advising it. How and why the All Ceylon Jamiyathul Ulama (ACJU), an undemocratic and extra-territorially connected institution of religious functionaries and hierocrats, rather than theologians, has come to wield so much power so that it is able to veto all rational arguments against historical injustices endured by thousands of Muslim women innocently trapped under a male favoured matrimonial system is mind boggling. With some notable exceptions, even journalists and legal commentators on the issue have become unashamedly subtle apologists to ACJU for fear of avoiding its opprobrium. As a result, MMDA reforms remain either dead and buried for ever or frozen until perhaps another generation of agitators and daring intellectuals emerge to take up the cudgels and continue the struggle for Muslim women’s liberation. What follows is not a plea for promoting Muslim feminism an appeal to power holders in the Muslim community to listen to the voice of the aggrieved.
In an earlier piece that I contributed to this journal (January 6 2018) I employed the term ‘pussyfooted reformers’ to describe the behaviour of recoiling by reform-seekers whenever the ulama1hurl in front of them the term shariah, and maqasid al-shariah2 to counter any argument. Conceding for the sake of argument that sharia means Divine Law, who will know that law best except the Divine? That Divine has not sent down a compendium of those laws in any textual or aural form. All that the humans can find in the Quran are some signs of the intentions of the Divine from which humans are expected to derive their own laws to the best of their intellectual ability and needs. Even though the Sunnah of the Prophet has added some specificities to those signs even they have to be contextualised in terms of time and circumstances. That was what the eminent Muslim jurists accomplished in previous centuries through a process of discursiveness and ijtihad (the exertion of mental energy in search of an opinion). These laws are known as fiqh (practical details and rules) and they are man-made, both literally and conceptually. Therefore they can be repealed, modernised and reformed through the same processes.
From the legislative endeavours of early scholar jurists arose a number of schools of legal thought, counting more than a hundred at one stage. However, in the course of time majority of these schools became extinct, largely due to their irrelevance to changing times and context. Today, there are four schools of fiqh that are predominant in the Sunni world of Islam. One of them, the Shafiite School, is the ruling one in Sri Lanka. Yet, none of the originators of these schools, to their credit, ever claimed that their interpretations and derivations from the basic sources were the most accurate and that the others were wrong. Contrary to our modern day integrists and religious purists, those savants were strong believers in freedom of thought and expression. Nevertheless, they were not utopian but practical minded people. Since not everyone in the community is erudite and has the intellectual capacity to engage in ijtihad, they recommended ordinary people to follow one particular School of Law to avoid confusion and conflict. They did not however, prohibit the erudite and knowledgeable who would come after them to undertake ijtihad, to critic and improve existing rules and derive new ones in order to enhance society’s progress and public welfare. As Irfan Ahmad put it pithily, “to reform was to critic and to critic was to reform”3.
