Image courtesy of Abdul-Halik Azeez.
By Shreen Abdul Saroor*-08/12/2016
Despite volumes of research and recommendations for reform, Sri Lanka’s Muslim Marriage and Divorce Act of 1951 (MMDA) and the Quazi court system remain untouched and continue to oppress Muslim women. Muslim women face domestic violence, exploitation and child marriage, and the prospect of their husbands taking multiple wives, all without means for legal recourse. Although Sri Lanka is a party to human rights treaties like CEDAW, CRC, ICESCR, and ICCPR that ban discrimination against women and protect the rights of the child, Muslim women are not afforded equal protection. Article 16(1) of the 1978 Constitution allows discriminatory provisions under the MMDA to remain in effect despite inconsistencies with fundamental rights provisions.
This article discusses the flaws of the Quazi court system from the perspective of women who have been silently suffering. I interviewed 38 Muslim women who took their cases to Quazi courts and 12 Quazis for this article. The women’s stories revealed a consistent pattern of Quazi courts tolerating violence and injustice against Muslim women. The women I spoke to highlighted the following concerns:
- Quazis lack legal training.
The MMDA allows any male Muslim of good character and position and of suitable attainment to be appointed to serve as a Quazi in a territorial jurisdiction for a specified period. Initially, Quazis were mostly elder, educated individuals with standing in their communities. Today, it is not the case; those with social capital rarely seek this office, and some do for recognition and power.
Most Quazis lack formal legal training. A legal education is not required, and there is no requirement for Quazis to understand the MMDA. Unlike District court judges who begin as lawyers with legal education and training under a senior lawyer and learn by experience as to how formal court judges dispense justice, Quazis lack training either before or after appointment. They receive only a day or two of cursory training by the Judicial Service Commission. Despite their lack of training, Quazis are usually reluctant to refer difficult cases to Magistrate Courts or to the Board of Quazis.
The tradition of appointing lay-persons instead of lawyers as Quazis flows from the notion that Quazis serve as a mediator rather than a judge in informal proceedings. However, the consequence is Muslim women being denied access to their legal remedies, such as under the Domestic Violence Act of 2005 (DVA). Indeed, none of the 12 Quazis I interviewed had any knowledge of the DVA. To improve the Quazi system, some community activists have suggested that only lawyers should be appointed as Quazis or that Quazis should receive adequate legal training in areas affecting the rights of Muslim women.
Quazi courts are hostile spaces for women.
Quazi courts are intended to function as informal, friendly, and non-threatening forums for dispute resolution. In practice, however, Muslim men have used the flexible family-focused system to get away with their criminal behavior in the private sphere. Many women described Quazi courts as extremely unfriendly spaces where women are not allowed to talk. This purported “justice space” is thus used to control women’s private lives and conceal domestic violence.
Quazi courts have no jurisdiction to deal with domestic violence as provided for under the Domestic Violence Act. However, in practice, many women seek redress for domestic violence from Quazis and when they do, are told that they “invited” such violence by raising in public a “normal” aspect of married life. In many cases, Quazis have told women to go back to their husbands, while their husbands are gently told to treat their wives nicely, irrespective of the severity of abuse.
The Quazi system is male-dominated. Women are barred from holding any position of authority as Quazis, jurors, marriage registrars, or on the Board of Quazis (BOQ). There was a strong demand from many Muslim women and community activists I interviewed for women to sit as jurors and judges in the Quazi courts and BOQ. The women felt this would lead to fairer hearings and verdicts.
Half of the women I interviewed highlighted privacy concerns with the open community court system. Men can listen in as women describe their intimate relationships and cruel and degrading treatment by their husbands. A couple of the women said that after discussing “private issues” before Quazi courts, men who listened later tried to sexually exploit them.
Some women said their husbands stopped and blackmailed them when they tried to go to a Quazi court with complaints. Despite informing the Quazi courts about these threats, Quazis did not take any action against these men.
Quazis delay proceedings to deny women’s claims.
If a complaint originates from a woman, especially in relation to a man taking another wife, Quazis often delay giving a verdict. Quazis postpone hearings and fail to provide maintenance settlements in writing, in effect forcing women to accept their husbands’ second or third marriages. In cases where women have filed for divorce, the final settlement is sometimes dragged and prolonged for many years. The cases in this study that settled promptly were the ones in which men filed for divorce to marry another woman. Many women struggled to get a Fasah
[1] even against men who were known in the community to be criminals; by contrast, men accusing women of “unacceptable behavior” could secure divorce (Talaq) within six months.
Enforcement of Quazi verdicts is also a challenge. Women report that their husbands fail to make maintenance payments for many years, with Quazi courts, the Board of Quazis, and Magistrate Courts ineffective in enforcing payment. Quazis lack power to enforce or monitor their rulings. Though Magistrates issue warrants to apprehend the men, police seem to ignore these cases. Women often have to find out their husbands’ whereabouts and inform police themselves.
Quazis pressure women to accept their husbands’ conduct.
Quazis pressure women to accept their husbands’ conduct, such as a second or third marriage, rather than help the affected woman get a divorce with compensation and maintenance. Some women have been accused of not fulfilling their “wifely” duties (could be as trivial as not cooking on time), thereby justifying the husband marrying another woman. Quazis have told women that if they are unwilling to accept their husband’s second or third marriage, they cannot ask for compensation or maintenance. The women I interviewed questioned how Quazis could be expected to challenge their husbands’ behavior when they themselves have multiple wives.
Several women I interviewed said they would not seek divorce despite facing severe domestic violence and instead sought reconciliation or maintenance from the Quazi courts. Among their reasons, these women feared that if they initiated divorce, they and their children would lose the right to maintenance and compensation. When women do seek divorce, Quazis have on several occasions advised them to take Fasah, a type of divorce that disqualifies them from compensation or maintenance.
Quazi mechanisms lack accessibility.
All districts
[2] except Killinochchi and Mullaitheevu have at least one Quazi, and Puttalam has a specially appointed Quazi for the evicted Northern Muslims. Now that Northern Muslims are returning, Muslim women in Killinochchi and Mullaithivu have to travel to Vavuniya or Puttalam for Quazi court hearings. In Mannar Island, Quazi hearings are conducted only thrice a month, while in Jaffna, they are conducted fortnightly. This renders the justice system inaccessible and expensive for returnee women, who are already struggling to restart their lives. Women with children find it particularly difficult to leave their children and travel alone to Quazi courts.
Women also face difficulty accessing the Board of Quazis (BOQ) for appeals, and thus cannot remedy incorrect or unfair Quazi court rulings. Women find it difficult and cost-prohibitive to travel alone to Colombo to access the BOQ. As a result, the women I interviewed said that mostly men were able to use the BOQ and that they used it to drag out cases and avoid a final settlement, delay maintenance payments, and delay divorce agreements. To increase accessibility, one community leader suggested mobile BOQs to service each district every three months. Alternatively, there is a circuit sitting of the BOQ in Kalmunai to hear the appeals from the Eastern Province, which the writer feels should be extended to other districts.
Conclusions
Muslim women are doubly oppressed by the legal system. As has been written
elsewhere[3], the MMDA facilitates discrimination against Muslim women. The Quazi system sharpens the blow, with Quazis lacking proper legal training or gender sensitivity to make the pronouncements that deeply impact Muslim women’s lives.
The women I interviewed felt that women in other communities had better access to relief under general Sri Lankan laws
[4], particularly the Domestic Violence Act (DVA) than they did in Quazi courts. They stressed that Muslim women should be given legal assistance to challenge Quazi verdicts and avail of protections under the DVA rather than be compelled to live in violent relationships and life-threatening environments.
The women I interviewed welcome reform initiatives to the MMDA and Quazi courts that are currently being debated at the local and national levels. Their stance dispels any notion that reforms are being driven by the international community rather than by Muslim women themselves. However, as the group most-affected by the proposed reforms (and the ones that have to live with the future system), the women I spoke to demanded that Muslim women be consulted in shaping reforms. As stakeholders, they seek a system that is fair, easily accessible, efficient, procedurally flexible, and sensitive to their needs. With careful reforms, informed through consultations, Muslim women can finally gain equal legal status and access to justice in Sri Lanka.
*Shreen Abdul Saroor is women’s rights activist and founder member of Mannar Women’s Development Federation and Women’s Action Network.
[1] Fasah is a kind of divorce allowed in the MMDA based on fault of the husband (e.g., ill treatment, failure of maintenance, desertion, insanity, impotency). This type of divorce disqualifies the woman from receiving compensation (Matha) or maintenance.
[2] Currently there are 65 Quazi courts operating island wide
[3] http://scroll.in/article/817034/in-sri-lanka-muslim-women-are-fighting-back-against-unfair-marriage-laws
[4] Sri Lankan General Marriage Ordinance (GMO) prohibits Muslim marriages taking place under GMO.
South Asia correspondent
Mahinda Rajapaksa sits at a desk in his party office beneath a photo of himself. He’s not especially tall but solid in the chest and arms; like an old rugby prop, his head seems to rest on his shoulders without much need for a neck. He’s never seen in public without his brown scarf, supposedly signifying the sweaty rags of Sri Lanka’s hard-toiling farmers. On his fingers this man of the people wears three chunky gold rings and on his wrist a bracelet of jade balls. Everyone here still calls him Mr President.
Tension in the camp has run high as the Lebanese Army attemtps to build a wall (AFP)