The problems and challenges with Sri Lanka’s Muslim Marriage and Divorce Act (MMDA) and Quazi court system is well known and well documented. It is undeniable common knowledge that Muslim women are the most affected by discriminatory provisions, procedures and practices of the MMDA, and the Quazi court system, since its enactment in 1951.
The past few years has seen heated debates at the national and community levels on reform of the MMDA. But many are unaware of the progress to date. Below are the most frequently asked questions about MMDA reforms:
When did the 2009 Committee release its report? Did all the Committee members agree on a set of recommendations?
In February 2018, after nine years of prolonged deliberations, Justice Saleem Marsoof, Chairperson of the 2009 Committee appointed to ‘suggest amendments to the Muslim Marriage and Divorce Act (MMDA)’ submitted a report to then Minister of Justice, Thalatha Athukorala.
Unfortunately, half the members of the Committee including the All Ceylon Jamaiiyathul Ulema (ACJU) and Faisz Musthapha PC had at the last minute and far from constructively submitted a second set of unreasonable and poorly reasoned recommendations which served to stymie the reform process and was also included in the report. In July that year, the report containing both sets of recommendations were officially released on the Ministry of Justice website following public demand for its release.
Did the disagreeing groups try to reach a ‘consensus’?
It is well known that the recommendations by Chairperson et. al were watered down and compromises were made with the intention for the Committee to reach consensus in the face of severe and relentless opposition to reforms from the All Ceylon Jamiyyathul Ulama (ACJU) who carried out a concerted campaign against much needed reforms. Ironically, the compromised positions in the Chairperson’s recommendations were of no consequence, since ACJU et. al withdrew support from the final report and submitted a separate set of poorly argued recommendations for inclusion in the final report.
In the subsequent months following the release of the report, there were multiple meetings between Muslim MPs and male leaders within communities and religious groups to barter the positions and reach a ‘consensus’ on the recommendations. These meetings often excluded Muslim women, community members and activists who advocated for reform. These meetings did not yield any progress on MMDA reform primarily because they intended to appease male-led groups, without focusing on the main issues and concerns affecting Muslim women and children.
MPLRAG has previously cautioned and will continue to caution any attempt to reach a ‘consensus’ that does not center the experiences of Muslim women and girls, and is intended to compromise on key issues of concern.
What does MPLRAG think of the Chairperson’s recommendations? Does it include all the demands Muslim women’s groups are asking?
Upon studying the report submitted by Justice Saleem Marsoof (Chairperson’s report), we identified many positive recommendations by the Chairperson and several members. However, MPLRAG noted a few key recommendations that failed to adequately address some of the highly discriminatory and longstanding concerns of Muslim women on the ground. Some examples below:
- On child marriage: Their recommendations in the report while raising the minimum age to marry to 18 years concedes to exceptions. The absolute minimum age to marry recommended is only 16 years. This fails to address the lived reality of forced marriages of 16 and 17-year olds. The justifications given by Justice Saleem Marsoof et.al. for introducing a minimum age to marry could have very easily justified raising it to 18, yet 16 appeared to be a compromise due to internal pressure.
- On polygamy: The report also did not recommend abolishment of polygamy, nor did it make the consent of existing wife/wives a mandatory prerequisite for husbands to contract a subsequent marriage.
- On divorce and divorce procedures: The report did not address or abolish the archaic practice of unilateral ‘talaq’ divorce by husbands, which is one of the main issues causing significant injustice to Muslim women in Sri Lanka. Furthermore, the procedures suggested by the Committee for wives to obtain divorce on grounds of fault (fasah) had almost twice as many steps as the procedure for husbands seeking talaq divorce for which no reasons are required.
- On child custody: It was of great concern that the Chairperson’s report recommended that child custody for Muslim families to be placed under the jurisdiction of Quazi courts. Given the prevailing record of the Quazis and Quazi court experience this amendment is likely to lead to devastating consequences for women and children. MPLRAG holds the view that child custody for all Sri Lankans must continue to be under the jurisdiction of civil courts.
In June last year, Muslim MPs tried to propose amendments. What happened to that process?
Following the tragic Easter Sunday attacks and increased attention on issues pertaining to the Muslim communities, the MMDA was cast into the spotlight. With increased public pressure, Muslim MPs scrambled to support many reforms including on the MMDA. In July 2019, they came up with a set of recommendations which included progressive positions including raising minimum age of marriage to 18 years and removing the restricting on women to be Quazi judges.
However over the next month, conservative elements prevailed on the Muslim MPs and flurry of meetings were convened to get everyone on the same page. MPLRAG and other Muslim women’s groups insisted on a seat at the table and made it to a few of the discussions with Muslim MPs, the conservative groups and some progressive religious scholars. The meetings often involved heated debate.
Disappointingly, the final document forwarded to the Ministry of Justice by the then Ministry of Muslim Affairs on August 6th, 2019 was severely watered down. The recommendation for permitting women to hold the position of Quazi was dropped. Appeals to MPs from women that these weak and sometimes detrimental reforms, is no reform at all, went unheard.
On August 22, 2019 Cabinet approved the recommendations of the Ministry of Muslim Affairs and is currently with the Legal Draftsman’s Department for drafting into a MMDA amendment bill. An update on progress has not been made public since.
Here is a timeline of the main events since 2018:
What does MPLRAG think of the Cabinet approved amendments? Does it address the main concerns?
The Cabinet approved recommendations fall significantly short of amendments advocated for by women’s groups as well as the recommendations in the Chairperson’s report. The proposed amendments included exceptions to the minimum age of marriage, does not provide for equal divorce rights, nor abolishes polygamy. It also does not recommend allowing women to be Quazi judges nor specify the nature and extent to which the standards within the Quazi courts would be improved.
Our analysis of the Cabinet approved recommendations can be found here.
What about the opposition to MMDA reform and the call by some to repeal the MMDA?
The past few years has seen the pressures and threats from conservative community groups with the ACJU being particularly vocal and active against reform. These measures triumphed over principles of equality and justice and basic fundamental rights of Muslim women.
Last year, we also saw a parallel response from nationalistic anti-Muslim voices calling for the abolishment of the MMDA. This call which promoted a policy of ‘one law, one country’ appeared to use Muslim women’s concerns to justify broad-based disentitlement of minorities and curtailment of expressions of religious and cultural rights of minority communities.
It failed to appreciate that the concept of ‘one law’ within a majoritarian context must strive to positively recognize minority rights and concerns. If ‘one law’ is simply effected, a number of special laws in Sri Lanka that protect the rights of multiple ethnic groups and geographic communities will be negatively affected.
What about reforming the MMDA ‘gradually’ on a piecemeal basis?
In light of multiple and often contradicting viewpoints, piecemeal reform that addresses only some discriminatory aspects of the MMDA is a tempting option for lawmakers. However, we reiterate again that piecemeal reform renders the purpose of reform ineffective as Muslim women will continue to suffer at the hands of a repressive system, as well as at the hands of partners who abuse the law and the loopholes in the law.
The MMDA must be reformed comprehensively. There is no other way to ensure justice for Muslim women of Sri Lanka.
Therefore, the recommendations suggested by the 2009 MMDA Reforms Committee, must be taken as a starting point and improved upon to ensure all gaps are meaningfully addressed.
So what are the MMDA reforms MPLRAG wants to see?
We re-emphasize that the main objective of MMDA reform is improving the lives of Muslim women and ending the many grievances faced by them.
MPLRAG reiterates that our reform priorities are as follows:
1. CHILD MARRIAGE – Minimum age of marriage for all Muslims must be 18 years without any exceptions.
2. WOMEN QUAZIS – Women should be eligible to be appointed as Quazis, Members of the Board of Quazis, Marriage Registrars and assessors (jurors).
3. UNIFORMITY – The MMDA must apply uniformly to all Muslims without causing disadvantage to persons based on sect or madhab (schools of jurisprudence).
4. BRIDE’S CONSENT & AUTONOMY – Signature or 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. REGISTRATION – Mandatory registration required for legal validity of marriage.
6. MARRIAGE CONTRACTS – 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. DOWRY – Abolish dowry/kaikuli – or, at a minimum, it must be mandatory to record the details of movable and immovable property given in trust and it must be recoverable on dissolution of the marriage.
8. POLYGAMY – Abolish polygamy – or, at a minimum, make polygamy permissible only under exceptional circumstances, and under specific conditions including: financial capacity, consent of all parties involved, and under the supervision of court that fairness is achieved.
9. DIVORCE – Provisions of divorce must apply equally to women & men. 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. Types of divorce (including mutual consent divorce), grounds for divorce and effective and efficient process of divorce should be applicable to all who are governed by MMDA.
10. MAINTENANCE & COMPENSATION – The MMDA must provide specific guidelines for assessment /calculation of maintenance payments for women and children. The MMDA must make mandatory provision for payment of mata’a (compensation) by the husband to the wife in cases where fault of the husband has been established.
11. QUAZI COURTS – Improve the quality of the Quazi court system and qualification of Quazis, to ensure competent, efficient access to justice for women and men, as well as a robust monitoring mechanism.
12. MONITORING QUAZI COURTS – Establish a system for robust and regular monitoring of Quazi court proceedings and records;
13. OPTION TO OPT OUT – Grant Muslim couples the option to marry under the General Marriage Registration Ordinance (GMRO) if they so wish.