ARTICLE: Equality Before the Law — Not for Sri Lankan Muslim Women

Published: July 12, 2016, Colombo, Sri Lanka Guardian)

In the weeks following the period of Ramadhan and the traditional Muslim holiday of Eid, it is an important moment to reflect; Ramadhan is a time for strengthening one’s faith, practicing compassion for community and family, and reflecting on our gratitude for the blessings that fill our lives. However, for many Muslim women in Sri Lanka this year legal redress is still awaited, justice is still denied and equal protections under the law are merely a prayer instead of a right.

In the light of some serious cases of violations faced by Muslim women under the Muslim family law, we need to reflect on whether or not Sri Lankan Muslim women are equal to all other citizens under the law, or whether laws in the name of minority rights are causing them to be second class citizens, failed by the State and community.

Sri Lanka has a dual legal system with regard to marriage and divorce. Kandyan Sinhalese have the option of marrying under either the 1952 Kandyan Marriage and Divorce Act or the 1907 General Marriage Registration Ordinance (general law). A Muslim couple marrying in the country is solely governed by the Muslim Marriage and Divorce Act of 1951 (MMDA), which also established a parallel Quazi (Muslim judge) Court system to administer the Act.

Since the implementation of the MMDA, there have been serious concerns raised by women’s groups and individuals with regard to discriminatory provisions in the Act 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.

Despite the 1978 Constitution guaranteeing equality before the law, provisions of the MMDA contradict and supersede the fundamental rights of Muslim women as Sri Lankan citizens. For instance, it treats Muslim women as minors, who even as adults are unable to marry without the permission of a male guardian. The MMDA also legally allows for child marriage of Muslims since it does not specify a minimum age for marriage. The State mandated the minimum age of marriage of 18 years does not apply to the Muslim community. Neither does the Penal Code statutory rape provisions for married Muslim girls between 12 and 16 years of age.

Other unequal provisions include the lack of guaranteed consent of bride, different conditions for divorce for men and women, arbitrary nature of maintenance and compensation for different types of divorce, polygamy and the lack of conditions for it. Furthermore, while Muslim women have no legal restriction whatsoever to become judges of Civil Courts, they are restricted from being Quazis, marriage registrars, adjudicators or members of the Board of Quazis under the MMDA. As these are State-salaried positions, this directly violates the constitutional right of non-discrimination for Muslim women.

The bottom line is that the MMDA inhibits Muslim women from enjoying full citizenship rights on par with their fellow citizens. This is also attributed to the special provision Article 16 of the Constitution, which protects pre-existing laws such as the MMDA regardless of inconsistencies to the fundamental rights chapter. A provision that has granted the government almost explicit permission to ignore concerns with regard to the MMDA as ‘Muslim issues’ which must be dealt with within the community rather than at the national level.

State complacent and MMDA reformers dragging their feet

Muslim women’s groups have advocated for reforms of the MMDA for over two decades, despite receiving severe pushback from other community representatives in leadership positions. Earlier this year community-based women’s organizations even called for the government to remove certain provisions such as the minimum age of marriage out of the jurisdiction of the MMDA and make 18 the minimum age of marriage for all citizens.

The argument is on the basis that a child rights issue such as lack of minimum age of marriage should not be left to the arbitrary decision making of a few individuals, especially given that there is lack of consensus from within the Muslim community about the matter. Also of import is that Sri Lanka, as a democratic country, has national and international child protection and gender equality commitments and cannot possibly deem allowing child marriages as a ‘minority or religious right’ regardless of prevalence.

At least three national level committees have been set up since the 1970s to look into matters of Muslim family law, with little result. The most recent is the Muslim Personal Law (MPL) Reforms Committee (2009), which was commissioned by the then Minister of Justice Milinda Moragoda with the aim of recommending reforms to the MMDA. The committee report, which has taken over six years in the making, is expected to be completed and handed over to the government in July 2016. However, little information is known by the broader community about the recommendations for reforms decided (or left undecided) by the 16 member committee.

There are grave concerns with regard to whether or not provisions such as the minimum age of marriage will be made on par with the State and whether women will be able to be Quazis, among other recommendations proposed previously by Muslim women’s groups. There is also little information about the consultations and engagement with the diverse Muslim groups in Sri Lanka such as the different ethnic communities in preparing the recommendations.

Therefore despite the government conveniently putting the onus of responsibility of reforming the MMDA in the hands of the Muslim community, the fact of the matter is that there is no consensus on these issues, which include rights and responsibilities the state is obliged to guarantee.

Role of Sri Lankan Muslims

While the efforts for constitutional and family law reforms are ongoing – it is an opportune time for Sri Lankan Muslims to ask whether we have allowed ourselves to be marginalized and subjected to a sub-par legal system, simply on the basis of our religious affiliation. And whether we have allowed for token cultural and religious rights in namesake ‘Islamic law’ to trump justice and equality as articulated and promoted in the Quran and practices of the Prophet (PBUH).

In light of the ongoing conversations about constitutional reforms, it is time for Sri Lankan Muslims to seriously reflect on whether or not Sri Lankan Muslim women and men are equal to all other citizens under the law, or whether laws in the name of minority rights are causing specially Muslim women to be second class citizens, failed by the State and their own community.

Younger Sri Lankan Muslims in particular must engage in a parallel thought process and deliberate on some key questions if we really care about the laws that govern our rights and lives.

  • Who are the decision makers about reforms to the Muslim Marriage and Divorce Act?
  • Do these individuals represent the diverse viewpoints of the Sri Lankan Muslims and ethnic minorities within?
  • More importantly, do they really hold the best interest of Muslim women, men and children or are they seeking to protect the law on the basis of perceived ‘religious rights’ and/or male privilege?
    It is also time to acknowledge as a community that there are serious problems within the MMDA that reforms may not be able to address, and for which alternative state mechanisms need to be discussed and pursued.

The next few months will determine the state of affairs for Muslim marriages in Sri Lanka. The Muslim community also needs to consider all its options, beyond just MMDA reforms, with regard to ensuring equal legal protection for Muslim women, men and children and a restoration of fundamental and citizenship rights. It is about time we acknowledge that archaic practices do not benefit the community nor address current issues – and that we determinedly choose legal systems and processes that will contribute to a just society for everyone. After all family life is where the individual sense of religious and cultural identity is most strongly imbued and it is there that justice, equality and fairness should begin.

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