M M Zuhair, PC
The on-going discussions on amendments to the Muslim Marriage and Divorce Act (MMDA) and the extensive coverage being given by the country’s media to the several view-points expressed, require warm appreciation.
When I initiated the move for improvements not only to the MMDA of 1951 but also to the Muslim Mosques and Charitable Trusts or Wakfs Act of 1956 way back in 1970, in my capacity as the President of the Law Students’ Muslim Majlis by holding a two- day seminar and establishing the Muslim Law Research Committee, public discussion in the media at that time on Muslim Law was virtually nil. We were encouraged and supported by the highly respected Principal of Sri Lanka Law College the late Mr. R. K. W. Gunasekera in holding the seminar and in following up thereon for two more years.
Following the two- day seminar and the setting up of the Muslim Law Research Committee (MLRC) a committee was established to recommend amendments to the MMDA, headed by then Registrar- General H. M. Z. Farouque, current Professor of Law at the Monash University and another committee to recommend amendments to the Wakfs Act headed by the late A. M. Ameen, then District Judge.
After two years of continual work the two Committees produced two separate reports in 1972, which were submitted to the government. The Mosques Act was amended by Act No. 33 of 1982 incorporating several recommendations of the A. M. Ameen Committee thanks to the dedicated efforts of the then Wakfs Commissioner the late M. I. M. Nalir. Coincidentally the file relating to the Mosques Act was referred to me by the Hon. Attorney-General in my capacity as Senior State Counsel, which enabled me to expedite the amendments, enacted later by Parliament as Act No. 33 of 1982.
But nothing was heard from the government of the H. M. Z. Farouque Committee recommendations, which received the scholarly inputs of late M. A. M. Hussain, District Judge and late A. M. Ismail, then City Coroner, Late M. Markhani, Advocate and Editor of the Muslim Marriage and Divorce Law Reports (MMDLR) in addition to the Chairman Farouque. The MLRC report on amendments to the MMDA could be referred to in the (1978) 4 Colombo L. Rev. at page 60. Also for a related publication, please refer to (1972) 4 MMDLR 13.
Presently there are many interesting points of view and counter points of view in the print and social media that require the earnest attention of the Justice Marsoof Saleem Committee. It would be a good idea for the Committee to invite all those interested in the amendments to spend time and engage with them. For this the Committee needs time, particularly if what happened to the several previous laudable efforts, post-Farouque Committee, does not happen to the present Committee! Patience plus assistance to the Committee and not angry retorts at incorrectly quoted statements of a few, are what is presently required.
We ought not to forget that Muslim Law in Sri Lanka has a long and distinguished history. It is as long as the history of the Muslims in this country, dating back from the eighth century onwards. According to Tennent, Ceylon 1, page 597, “from Idrisi’s account of the Sinhalese court of the 12th century, it would appear that the Muslims as well as the Christians and Jews were accorded complete freedom of worship and a matter of internal jurisdiction to be governed by their own laws and usages, apart from being actively associated in the royal consultative council.” Dr. H. G. Reissner, Ceylon Historical Journal 111 No. 2 page 141 has stated that ‘in line with their conception that all law was derived from revealed scripture’, these communities must have been governed by their respective legal systems in the ‘whole range of civilian commitments from marriage contracts to commercial obligations’.
Rev. Fr. S. G. Perera, History of Ceylon for Schools, Volume 1, 1947, page 9 quoting Chief Justice Sir Alexander Johnston, says that when the Portuguese arrived in 1505, Colombo which was the chief port and the mart of the island’s trade with a largely Muslim population, had a court of justice to settle disputes according to Islamic Law. For a detailed account of the historical sequence of the Muslim Law in Sri Lanka, one must read “Muslims of Sri Lanka, Avenues to Antiquity” edited by Dr. M. A. M. Shukry, Chapter on “Islamic Law in Sri Lanka- An Historical Survey with Particular Reference to Matrimonial Laws” by H. M. Z. Farouque. For a greater appreciation of Islamic jurisprudence by a Sri Lankan jurist, one may delve into the writings and speeches of Justice Dr. C . G. Weeramantry and for historical perspectives, to the writings of Pro. K. M. de Silva, Dr. C. R. de Silva, Dr. Sirima Kiribamune, Dr. Lorna Dewarajah, Dr. Shirani Ponnambalam amongst several others.
In an earlier article published in the Daily Mirror on November 18, 2016 under the title, “International Treaties protect the Personal Laws of Minorities”(http://www.dailymirror.lk/article/119344.html), reference was made to Article 27 of the International Covenant on Civil and Political Rights (ICCPR) which prevents the state from denying the rights of minorities, “…in community with other members of their group, to enjoy their own culture, to profess and practise their own religion or to use their own language.” Reference was also made to the ‘Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities’. MMDA is reflective of the enjoyment in community with other members of their group the Muslim culture and the practice of the Islamic religion. Enacted by the post independent Parliament of Sri Lanka in 1951, the MMDA has governed the Muslims of Sri Lanka, in their matrimonial matters, for the past 66 years with great acceptance, notwithstanding shortcomings. Under these and other international treaties to which Sri Lanka is a state party, the Sri Lankan state is obliged to protect the MMDA and as per Article 1 of the ICCPR “encourage conditions for the promotion of that identity”. Changes to the MMDA must therefore come from within the Muslim community. MMDA requires improvement both from the legal and administrative perspectives. We need to support the Justice Marsoof Saleem Committee with goodwill and adequate time to achieve the objectives of reform with the fresh experiences of the past 66 years.
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