• Those who seek reforms are intimidated: Hamin
• Gradual acceptance by many in community on the need for reforms
• MMDA to be reformed, not repealed: Haleemdeen

By Skandha Gunasekara With the long-awaited reforms to the Muslim Marriage and Divorce Act (MMDA) likely to be presented to Parliament in January next year, The Sunday Morning looked at what amendments could possibly be on the cards, such as the abolition of polygamous and child marriages. Civil rights groups and Muslim women activists have been battling for reforms for decades, amidst much resistance from the male-dominated Muslim community and a lack of political will to enact reforms. The reforms movement sought to protect the rights of women in the Muslim community over the years, resulting in several committees being appointed at various levels to propose legislative changes, with the Justice Saleem Marsoof Committee being of notable importance. The said Committee was appointed in 2009 by then Minister of Justice and Law Reforms Milinda Moragoda, but its final report with recommendations for reforms was only handed over in 2018 to Thalatha Athukorala, the Minister of Justice at the time. Nonetheless, following the arrival of the incumbent Government, yet another committee – a 10-member advisory committee headed by Attorney-at-Law Shabry Haleemdeen – was appointed by Minister of Justice Ali Sabry in December 2020 to advise the Minister on areas in Muslim personal laws in Sri Lanka that needed reform. Following half a year of deliberation, the advisory committee report was handed over to the Justice Minister on 21 June this year. In a statement issued soon after the submission of the report, the Committee noted that several decisions were taken by the Cabinet of Ministers on proposed reforms and that it had been mandated to deliberate concerns excluding those decided upon by the Cabinet. The statement read: “At the outset, the committee was advised that the Cabinet of Ministers had decided that the minimum age of marriage would be 18; the consent and signature of the bride for the marriage was to be obtained; and women were also eligible to be appointed as quazis. Thus, the committee was not required to deliberate on the above issues decided (upon) by the Cabinet of Ministers. The committee’s deliberations were, accordingly, centred around other aspects of the MMDA within the Quazi system. “Later, on 29 April 2021, the committee was informed that, in addition to the above decisions of the Cabinet of Ministers, a further decision had been taken by the Cabinet of Ministers on 8 March 2021. (This included) to abolish the Quazi system and to prohibit polygamous marriages of Muslim males. The committee’s advice was sought on suitable reform, in the event the above decisions were implemented.” A need of the hour Attorney-at-Law Ermiza Tegal, while noting the significance of the recommendations, urged lawmakers to bring in the amendments “without further delay”. Tegal said: “The Advisory Committee on Muslim Law Reform submitted the advisory report on the MMDA on 21 June 2021. The recommendations unanimously propose some much-needed reform to the MMDA, including mandatory registration for legal validity of marriage, marriage conciliation, recognition of prenuptial agreements, fair claims to property including dowry and other marriage transactions when a marriage is dissolved, fair and private procedures for divorce hearings including recognising mubarat (consent) divorce, recognition of mata’a (alimony), making maintenance accessible and orders easily enforceable, and updating the law to permit marriages where at least one person is an inhabitant of Sri Lanka. “The recommendations have taken all aspects including religious, constitutional, and others into consideration. This law needs to be updated urgently and without any further delay so that all issues, including the issues faced by the women and girls in the community, are addressed and all Muslims will be benefitted.” The Muslim Personal Law Reforms Action Group (MPLRAG), which was formed in 2019, is among the civil rights groups fighting for reforms and has been carrying out public advocacy work to this end. MPLRAG Co-Founder Hyashama Hamin said that several changes to the legislation were essential. Hamin noted: “We are looking at the minimum age of marriage to be raised to 18 years of age without any exception, for women to be able to hold any position that is created within the administration of the MMDA – whether it’s Qauzi, registrar, or the board of the Quazi, women should be allowed to those positions. “We also say that the marriage has to be registered in order for it to be valid and that a woman should have full autonomy to enter into marriage without requiring the permission of a male guardian to marry. Because, right now, a woman needs the permission of a male guardian. Basically, a woman should be able to enter into marriage the same way a man can. She should also be able to sign a marriage document. We are also calling for equality in the types of divorce – which would be applicable for both women and men – and the procedure for divorce and the process for divorce should be the same for women. “There should be a way to calculate the maintenance that is given to women, taking into consideration the husband’s financial situation, because right now, it’s very haphazard and there’s no guidelines to calculate maintenance. We also are of the stance that polygamy should be abolished. Those are the substantive reforms that we are asking for.” She stated that pro-reform groups had to face a multitude of challenges while advocating their cause, including various degrees of intimidation by those in the Muslim community who were against the change. “Over time, in the past many years, we faced a lot of intimidation from conservative groups from within their own communities and we see a lot of pushback and intimidation that is happening currently against those who are voicing out in favour of the reforms. It is serious, because they name-call and make accusations. However, our stance as Muslim women activists has always been that if this law applies to us and applies to our lives, then we have a right to talk about it,” Hamin added. Furthermore, a misinformation campaign claiming that the reform movement is seeking to fully repeal the MMDA was also being carried out, Hamin charged. She stressed: “So, while there was some opposition from the ACJU (All Ceylon Jamiyyathul Ulama), we are also seeing it from other conservative groups within the Muslim community and civil society as well. I’d rather not name any one in particular. However, there are certainly efforts to misguide the community by saying that the Act is going to be repealed, whereas every single indication we have obtained from the current Minister of Justice is that it would be reformed. “So, there are groups that are creating and causing fear among the Muslim community, particularly those who are coming into the debate very freshly, to oppose reforms through fear. They don’t understand that every single positive, comprehensive reform is going to be beneficial for Sri Lankan Muslims as well as Sri Lanka in general. How can child marriages continue in Sri Lanka? That’s bad for the entire country.” Hamin noted, however, that while there were objections to a number of changes initially, organisations such as the ACJU had gradually accepted the proposed recommendations – an indication that the outlook of the Muslim community was open to change. She added: “Previously, there was pushback on the minimum age of marriage being raised, but now, suddenly there is no longer pushback. Previously, there was resistance to women being Quazis, but now, apparently there is no longer such resistance, as the ACJU is okay with that stance, from what we’ve observed. “This definitely shows that (the) community perspective is changing and can change. Right now, the biggest debate is abolishing polygamy and Quazi courts, and there is a lot of ongoing debate on those two matters.” Women’s rights groups called on the legislature to ensure that the rights of Muslim women were ensured, as this was the key goal of the reforms. Speaking to The Sunday Morning in this regard, Women and Media Collective Senior Consultant Dr. Sepali Kottegoda said: “MMDA reforms have been advocated by Muslim women’s rights organisations for several decades and supported by women’s rights groups around the country. Hence, these reforms are a step in the right direction. “One of the issues advocated for was the appointment of women as well into the Quazi system to introduce a gender balance in its deliberations. The proposal to replace the Quazi system with (the) district court (system) needs to be reviewed critically. “Further consultations with women’s rights organisations need to be carried out, as the primary issue is that of ensuring the protection of Muslim women’s rights through gender responsive legal reform.” Clearing misconceptions Meanwhile, Advisory Committee on Muslim Law Reform Chairman Attorney-at-Law Shabry Haleemdeen told The Sunday Morning that among the recommendations made by the committee were those with regard to changes within the Quazi court system as well steps to be taken if the Quazi system was abolished. Haleemdeen explained: “Our deliberations were on matters other than those five issues that were decided upon by the Cabinet. Some of the matters we did deliberate on were the Quazi court reforms and family courts. The Minister informed us of the decision to abolish the Quazi system in April this year. By that time, we had discussed reforms within the Quazi system, not about abolishing it. It was never on the cards. This is because when we were entrusted with our job, it was to propose reforms within the Quazi systems, on which we held deliberations. Later on, the Minister said that the Cabinet had decided to do away with it. Nevertheless, since we had already discussed those matters, even those reforms within the quazi system (that we proposed) were also embodied in our report. As such, our report has two parts. “One part covers reforms within the Quazi system as well as all the other ancillary matters. Then, after the Minister communicated the Cabinet’s most recent decisions, we developed the second part; supposing the Quazi system is to be abolished, we proposed the family court. If the family court is not going to be established, such matters will have to go to the district courts.” Responding to alleged efforts by conservative Muslim groups to mislead the community on the reform process, Haleemdeen asserted that it was definite that only amendments would be made and that the MMDA would in no way be repealed. “That is a misconception, and I don’t know why they are doing it. I feel it is being done deliberately. It is not a case of the MMDA being repealed. It’s only an amendment to the existing MMDA. Otherwise, if it is going to be repealed, there is no question of it being sent to the Legal Draftsman at this point of time. A repeal would entail just two lines stating that the ‘MMDA is being repealed’, and that would be the end of it,” Haleemdeen said. At present, the proposed amendments have been sent to the Legal Draftsman’s office to be drafted into the bill. “It’s now with the Legal Draftsman’s office, who will formulate the final draft, and thereafter, it will be presented to the Cabinet of Ministers,” Minister of Justice Sabry told The Sunday Morning. The Minister said that it would take roughly three months before an amendment bill would be presented to Parliament. “After the Cabinet receives the final draft, then it would be gazetted for the public to view. Only then will it be presented to Parliament. The whole thing should take around three months.”