Piecemeal reform will perpetuate discrimination and hardship under the MMDA

Following MP Faiszer Musthapha’s statement on July 12, we note the increased attention that the subject of MMDA reform has received. We also note the unprecedented momentum in political will which was long needed to address the discrimination and hardship Muslim women face. According to MP Musthapha, the reforms agreed upon by Muslim politicians cover the following:

  1. The legal age of marriage for the bride and groom should be 18 years of age
  2. The requirement of the bride to sign the register of marriage (to signify consent to the marriage)
  3. Upgrade the qualification of Quazis to Attorney-at-Law
  4. Allow for women to be Quazis

We are cautiously encouraged by the unanimous agreement on these basic reforms to the MMDA reached by Muslim parliamentarians. We are also deeply disappointed and apprehensive that this selective approach towards reform overlooks many crucial concerns in the MMDA. Therefore, we strongly call for a comprehensive solution.  All demands of Muslim women must be taken into account, given due consideration and addressed urgently.

Several groups  of experienced activists, lawyers, and researchers have been studying the MMDA and working directly and together with women affected by this law, for over three decades. They have brought these issues to the attention of all political representatives, to the attention of the government and raised public awareness. As political representatives, to not respond to these problems for so long, and now due to politically and also personally precarious contexts, cherry pick from the most public of demands for reform, demonstrates a lack of genuine commitment to uplifting the lives of Muslim women and the Muslim community. It is symptomatic of the political culture Sri Lankans have to deal with, where the rights and dignity of constituencies are bartered in political games. Muslim women have lost too much for too long.

The current momentum on reform is not motivated in the right spirit and yet it appears the most likely to yield reform. With much of the knowledge of the extreme injustice suffered by Muslim women at their fingertips, there is no reason or excuse for Muslim political representatives to fail to address these issues comprehensively. The limited reform that has been unanimously agreed is in short a failure, constitutes blatant disregard and a deliberate avoidance of resolving pertinent problems of Muslim communities in Sri Lanka. 

We take this moment to highlight a few of the other blatantly discriminatory matters in the MMDA that require urgent attention: 

  1. Unilateral divorce by husbands and unequal divorce procedures for women and men
  2. Unconditional polygamy without proof of financial capacity of husbands or consent of all parties
  3. The requirement of women to obtain permission from male guardians to marry
  4. The lack of uniform application of MMDA across sects & madhabs (schools of jurisprudence)

In immediate response, it was reported that the ACJU will meet with the political representatives. This privileged access to political representatives to the exclusion of women and the concerns women have been raising, is a long standing ongoing concern. The weakness of political representatives to patriarchal, exclusivist and at times extremist voices is deeply worrying. Political representatives and community leaders should not forget that ACJU has been one of the main blocks to MMDA reform. Their approach to MMDA thus far has been highly patriarchal and uses a very limited and rigid purported interpretation of Islamic law. 

There has also been a parallel response from nationalistic voices for abolishment of the Muslim family law. This call fails to fundamentally appreciate that the concept of a common law cannot be arbitrarily used to suppress or used in retaliation against minority communities. It breeds fear and hatred. It also fails to understand that one law in the true sense would affect existing recognition of a number of special laws in Sri Lanka.

We posit that the one law applicable to all should be the constitution of the country. Under this equalizing law, diversity and respect for diversity encourages recognition of different communities, their beliefs, ways of life and practices. Traditional and personal laws are not per se offensive, it is only the discriminatory provisions within them that must be struck down.

Muslim women demand justice without any further delay. As Sri Lankans, Muslim women call out this political culture that fails its people for personal and political gains. Comprehensive reform is the only way, it is the right thing to do and is long overdue.

Piecemeal reform  which address only a select few issues as demonstrated by the recent reforms proposed by Muslim MPs, renders the purpose of reform ineffective as Muslim women will continue to suffer at the hands of a repressive system as well as partners who abuse the law and the loopholes in the law. We are particularly concerned about the timing and current political climate in which these decisions are being taken.

While we welcome the urgency with which MMDA reform is being approached after many years, we continue to emphasize that all reforms must ensure a positive change for the lived realities of Muslim communities. We call on the Muslim political leadership to provide true leadership, to support meaningful and comprehensive reform and work in the interest of the people, which must include interests of women and children. 

We present the priority reforms to the MMDA as follows: 

  1. Minimum age of marriage for all Muslims must be 18 years without any exceptions.
  2. Women should be eligible to be appointed as Quazis, Members of the Board of Quazis, Marriage Registrars, assessors (jurors) and registrars.
  3. The MMDA must apply uniformly to all Muslims without causing disadvantage to persons based on sect or madhab (schools of jurisprudence).
  4. Signature/thumbprint of bride and groom is mandatory in all official marriage documentation. Adult Muslim women are entitled to equal autonomy and need not require the ‘permission’ by law of any male relative or Quazi to enter into a marriage.
  5. Mandatory registration required for legal validity of marriage.
  6. Introduce, recognise, and facilitate the concept of the marriage contract to be entered into by Muslim couples prior to marriage, where they can opt for monogamy among other mutually agreed conditions.
  7. Abolish polygamy or, at minimum, make polygamy permissible only under exceptional circumstances and just cause, and under specific conditions including:  financial capacity, consent of all parties involved, and with court authorisation.
  8. Conditions to be imposed for obtaining Talaq and Fasah divorce. Procedures for divorce initiated by husband and wife must be the same, including appeal process. MMDA to recognise Mubarat (mutual consent) form of divorce.
  9. Granting and obtaining kaikuli (dowry) without recording during marriage registration to be illegal and attract a penalty. Kaikuli (dowry) expanded to include immovable assets and recovery at the time of divorce. 
  10. Upgrade the quality of the Quazi court system and and qualification of Quazis, to ensure competent, efficient access to justice for women and men, as well as a robust monitoring mechanism.
  11. In the event all areas of discrimination under MMDA are not addressed, allow Muslim couples the option to marry under the General Marriage Registration Ordinance (GMRO).