BY RATHINDRA KURUWITA (Ceylon Today)
The opinions expressed in this reproduced interview do not necessarily reflect TW’s views
A few weeks ago the Co-Cabinet Spokesperson declared that a committee will be appointed to amend the Muslim Marriage and Divorce Act (MMDA), which many activists had been claiming for decades to be archaic. Since the announcement, the amendments have become one of the most contentious issues with some Muslim groups protesting this move. However there is little understanding of the MMDA and why a large number of women’s rights activists want the law changed. Ceylon Today met Attorney at Law Ermiza Tegal (Pic) to understand why these amendments are necessary.
?: Can you explain a bit about the Muslim Marriage and Divorce Act (MMDA) and why a lot of women’s rights activists consider amendments to this law is important?
A: MMDA has been around for a long time, from 1951. That is before the current Constitution which has a chapter on fundamental rights. But as the Article 16 (1) of the current Constitution states that ‘all existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter,’ which has allowed, not only MMDA but also other personal laws to be valid even today.
In the MMDA there are certain provisions, in its practice, that cause serious injustices to women. There are serious issues regarding maintenance, divorce, the Quasi Courts system and children, in the form of child marriages. Large number of Muslim women has noted these flaws for decades and the campaign to amend the MMDA is equally long, one must remember that the call for reforms came within the community. In fact if you look back there are several commissions appointed to come up with reforms. The most recent being, the committee appointed by the former Justice Minister Milinda Moragoda in 2009 and had several Muslim leaders and members of the community as members. They have been looking at reforms for the last seven years and still we don’t know what’s going on.
But if you ask me why this issue has become so prominent recently and why a lot of activists are excited, it’s because that there is a new space for reform in general and there is an opportunity to raise these issues because people are ready to accommodate change. When members of the public representative committee went around the country and asked for public views on the amendments to the Constitution, a lot of Muslim women said that they want to see changes to the MMDA. People feel that reform is possible and this applies pressure to those in power to do something, for example a lot of interested parties are asking the 2009 committee on reforms, ‘what is going on?’ Well, this leads to more debate and public interest.
?: From what I know a lot of activists are calling for the changing/repealing Article 16 (1) in the Constitution, which you mentioned earlier. But there are Muslim organizations that say Article 16 is important because it helps in the retention of the Muslim identity. What are your views on that?
A: The fundamental rights chapter clearly states that “all persons are equal before the law and are entitled to the equal protection of the law,” but Article 16 (1) states that ‘all existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter’, and this has allowed personal laws (not only the MMDA but also Kandyan and Thesavalamai laws) to supersede general law. If this article is not repealed, there will continuously be laws that are unfair to groups of people, especially women, and if we miss this opportunity when will we get the next opportunity to see the next constitutional reform?
Getting to your second point, Article 16 (1) is not only about the MMDA. As I mentioned it’s about a lot of laws that were drafted before the current Constitution, which includes the Land Development Ordinance, Penal Code, etc. So when you look at the debate to repeal Article 16 (1), we have to realize it affects a lot more people than Muslim women. I also feel that it’s misplaced to say that Article 16 (1) protects Islamic identity.
There is nothing in Article 16 (1) to ensure Muslim Personal Law is preserved, all it does is leave space for any discrimination caused by these laws, circumventing the promise of the Constitution that fundamental rights are applicable for all Sri Lankans. This article ensures that these personal laws can’t be challenged for discrimination. So removing a provision that protects discrimination is a fair cause that is what we are saying. I was a party to a group of women who made representations to the subcommittee who was looking at fundamental rights section of the new Constitution and what the women said was they only want the discriminatory provisions out. They insisted that they don’t want to lose our Muslim identity or make Muslim law disappear in Sri Lanka because they have a strong affection and affiliation to the Muslim identity. But they also say that they don’t want the law to be used to abuse, to humiliate and to cause any kind of harm to them.
?: When one talks of amendments to the MMDA, right now a lot of attention is placed on the age of marriage. But what are the other provisions in the MMDA that you want changed?
A: The legal age aspect is getting the most publicity because child marriage is such a cut and dry issue and moves people. But there are several other provisions that women want changed because they also have a significant impact. For example there is a need for female quasi-judicial bodies, there are strong calls to revise provisions related to polygamy because at the moment the law just says that a man can marry four wives, but there is no responsibility attached to marrying four women. Muslim women are saying it is being practiced irresponsibly because there are many cases in which a man married one wife, then without maintaining her marries another, then gets tired of her and marries a third wife. That was not the intention of the religion, which states there has to be equal maintenance. But the law does not talk about equal maintenance; it only states a man can marry four wives. This has allowed men to marry four women but without taking any responsibility for their actions. And when they act irresponsibly women can’t take any action because there are no provisions under the MMDA, so responsible polygamy or polygamy with restrictions is another thing they are asking.
?: Wait, do they really want ‘responsible polygamy’ in other words polygamy to continue?
A: You must understand the voices on this issue are several. There are lots of different positions. There are different concerns. There are people who want to abolish polygamy altogether. But there are others who say if polygamy is a part of our culture, let it be, but don’t cause his practice to disadvantage women. Because this is not what women expect from the law because they want the laws of the land to protect them.
As I said there are various positions regarding polygamy and there is a strong voice that say they are not opposed to polygamy. I mean in the pre British era codification, there were all forms of married life in Sri Lanka and in a way the current marriage law in a way is Victorian. Divorce in the ordinary law is based on fault, you can’t divorce unless in the instance of cheating, malicious desertion or impotence. But under Muslim law you can give reasons and divorce, you are not only limited to those three.
The men have the Talaq Procedure while the women will have the Fasah Procedure, which changes from sect to sect. Under the Hanafi Sect women can’t ask for divorce, the husband has to initiate the process. That means if the wife wants to get out of the marriage she has no options. She would have to change her identity if she wants to go ahead without the permission of the husband. Women have done that. Anyway Talaq needs no reasons, so men divorce easily under that. But for Fasah a woman has to give reasons. There is nothing wrong with needing to give reasons but because there are no female quasi-judicial bodies, women find it difficult, especially to talk about sexual assaults and to disclose sensitive information. That is why they are asking for female quasi-judicial bodies.
However, based on how destructive the practice of polygamy has been in certain societies, some Muslim countries such as Turkey has even seen it fit to prohibit it. Personally I think this is a route that Sri Lanka should take with MMDA Reform, but this my personal view and there are others to be accommodated.
?: Some say that training female quasi-judicial bodies will take a long time and if that is the case what can we do as an interim solution?
A: One of the key issues is that current male quasi-judicial body must also be properly trained. I think a reform of the quasi-judicial bodies system has been agreed by almost all because there have been complaints about the behaviour of the quasi-judicial bodies. Sexual favours have been asked, bribery is prevalent and there have been a lot of complaints of insensitivity. There are plenty of women who are in the legal practice that can be made female quasis; they can even take up the position now.
?: A lot of groups who want to maintain the status quo allege activists working on personal law reforms as those carrying out a secular attack on Sharia Law. So are some of the reforms you seek contravening Sharia Law?
A: We can say that what the Muslim women ask is not alien to Islamic Law. From what we have studied and from those in our groups that have studied the Islamic Law and are able to quote the Koran and the hadiths, our demands are justified even under the current interpretations of Islamic Law.
Therefore saying that MMDA is Sharia Law and that it can’t be touched is a digression of the issue. The demands that are being made are within Sharia principals and the provisions of MMDA are bits and pieces of different interpretations of Sharia Law. A lot of individuals have shown that a number of provision of the MMDA do not conform to Sharia principals, we can engage in an intellectual exercise on this but in terms of the issues that women are facing now, addressing the real physical, emotional and security issues are fairly urgent.
?: When announcing the appointment of the committee to look at amendments to the MMDA, the government initially said this would help the country to obtain GSP + concessions, which has allowed certain segments to portray these amendments as yielding to the dictates of the west. And EU has now stated that they have not insisted on amendments to the MMDA. Why do you think the government gave this excuse instead of plainly stating that Muslim women deserve equal treatment that other citizens of the country enjoy?
A: Yes there have been recent attempts to portray this as a western effort. The only thing I fear about bringing GSP + into the argument is that this might drown out all the efforts and voices of women for the last 40-50 years. As you said I would prefer if they said the real need to reform, the reason why it’s on every human right agenda is because a lot of women have raised this issue when they had the space. If it wasn’t for this space created by constitutional reforms and the international obligations Sri Lanka has, no one would have been interested. Now because there are international obligations is because they can reign in support from various quarters but this does not mean that we should resist these international obligations because they come from outside.
There is a stronger call from the women and we must not allow anyone to detract from the legitimacy of the cause. As a community we can’t be stuck in practices that are holding women and children back in terms of security, in terms of educational opportunity, etc. Women are suffering and they are afraid to come out because it’s a close knit community. But if the call for reform had been heeded by the community there wouldn’t be a need to come out and request the government for reforms. That also people should recognize. These calls are not made in the easiest of environments, there is a backlash but people are making the call despite all this. The strength, energy and effort taken by the women must be recognized.
?: There is somewhat of a unanimous voice for reform among women. What is the biggest block against reforms?
A: I don’t know why there has been such a big block, given the reasonableness of the demands that have come from women. However, I have not seen many men coming out and backing these demands, maybe that’s the biggest block. The main thing is that there are more divided views from men within the community, but I can’t understand how that can be so because these are black and white issues.
Unfortunately Muslim women are a minority within a minority. So while the Muslim community has to struggle with the majority for their rights, it drowns out the concerns of Muslim women. But if the needs of the women are also addressed, the community will have a stronger base.
?: Ironically hundreds of women joined this protest by the SLTJ against reforms to the MMDA. Why do you think they took part in a protest against an endeavour that will help them greatly?
A: It’s true. I saw the pictures of women raising placards. But the voice of women who are saying otherwise shouldn’t be delegitimized. You can’t expect a community to have one voice and accommodating voices is the goal. Making sure everyone is heard and concerns are responded to be important. Everyone has a right to opinion and everyone has the right to express themselves but that shouldn’t be the reason why the problems we have seen are not accounted for.
?: Do you think that without a strong political will from the State, do you think this reform can be pushed?
A: The government has both the role and responsibility to ensure the civil liberties, security, rights of all the citizens. Political will is important for anything. Muslim women are saying that it is not only the concern of the community, but when things are going so wrong, it is the responsibility of the state to step in and someone needs to protect at some point. Why are the Muslim women removed from these protections in the name of personal law? If your community is not protecting them what avenues do Muslim women have but to appeal to the state and say provide us also the minimum guarantees that you provide all your citizens.