| by R.M.B. Scnanayake
( September 10, 2014, Colombo, Sri Lanka Guardian) I attended the launch of a book titled "Women Claiming Rights and Spaces" by the Muslim Women's Research and Action Forum recently. I was pleasantly surprised since I least expected the discourse in terms of gender equality, fundamental rights and liberal values from such a Forum. Of course the Forum consisted of highly educated Muslim women quite unlike the usual Muslim stereotypes we often meet with. They had organized themselves to canvass for the reform of the Muslim Personal Law which applies to them instead of the General Marriage Ordinance applicable to the majority of people. Of course there are also the Kandyan Marriage Law and the Tesawalamai applicable to particular groups of women covered by their being born into such a community.
Gender Equality is a universal right today
The position of women in society and the principle of gender equality are now included in the United Nations Mandate. The UN expects its Member States to ensure gender equality. Our Constitution provides for equality of all persons before the law and for equal rights for both men and women. But the Muslim women have been subject to a separate law of Marriage and Divorce which does not treat women and men on an equal footing.
The Foreword to the book by Human Rights Commissioner Jezima Ismail refers to the work of a group of educated Muslim women who have made it their task to campaign for equal rights for Muslim women. They have published this book after an exhaustive study of the Muslim Personal Law for nearly three decades. They have now chosen to go public and to solicit the support of the liberal elements in other communities in their campaign. They have studied and quoted the teachings of Islam and find that the problem of gender equality does not go against the true spirit of the teachings of Islam except that they have been interpreted or misinterpreted by males and applied throughout the ages by custom. Even then there have been reforms in other Muslim majority countries like Indonesia which they cite in their work. In fact the Government has established several Committees headed by eminent lawyers and judges over the years since Independence. But the Muslim politicians invariably males, have opposed changes on the ground of preserving the cultural and religious identity of the Muslims. But the Forum has pointed out that they have been catering exclusively to the male political electorate and the majority community representatives have swallowed their argument about the need to protect the Muslim cultural identity.
Some of these Committees have been headed by Muslims as in the case of the Sahabdeen Committee or the reform proposals of H.M.Z Farouque CCS. The majority community politicians did not want to antagonize the Muslim community during the long period of the ethnic war perhaps not wanting to displease the Muslims who were with the majority community. I remember the late Felix Dias Bandaranaike in the early 1970s talking of reforming the Waqfs Ordinance but he was dissuaded by the Muslim MPs of the SLFP.
The Struggle for Reform
The Muslim Women's Research and Action Forum (MWRAF hereafter) says their struggle has been long and arduous. They had first sought to educate the Quazis and equip them with modern legal knowledge. It is the Quazis who adjudicate in matters of Muslim marriage, divorce and administer the Muslim Personal Law. They managed to bring about some reforms in administrative procedures. The Quazi courts were brought under the Judicial Service Commission and their salaries and status upgraded by raising the minimum qualifications to be appointed as Quazis. But no woman could be appointed as a Quazi and their campaign to change the law in this respect had failed. They had discussed women's issues with the Quazis and sought to educate them on such issues. But on the Law itself they had failed to carry out their reforms, despite the availability of several enlightened and scholarly reports by several government appointed Committees.
Right to Equality in our Constitution
They have pointed out in the book that the right to equality of the sexes enshrined in our Constitution has been subordinated to another right provided for in the Constitution namely the right to religion and culture. But they point out that the State should not be protecting special rights and collective rights "at the expense of fundamental rights and human dignity of individuals within the community in the name of religion and culture".
They refer to various attempts at the reform of the Muslim Personal Law since independence in 1956, 1978,1984 and 1990 and point out that all these efforts were thwarted by the Muslims conservative lobby on the basis of 'religion and culture'. But they say that the concept of one homogeneous Muslim world is a myth as social formulations have overloaded the power of Islam in the lives of women glossing over their complexities.
The Muslim women like other women in our society have been affected by the various ideas and practices of modern liberal thought elsewhere in the world, which have led to the reform of the General Marriage and Divorce Law. For example the Muslim Personal Law provides for plural marriages for men but does not allow the same right in the same way to women. It excludes the need for the Muslim woman's consent in marriage for the registration of the marriage; nor is the woman's consent required for the easy divorce procedure available to Muslim men. The marriageable age restriction of 18 years applicable to other Sri Lankan women doesn't apply to Muslim women although child marriages among them are not common. The Forum is however cautious in the reforms suggested, not wishing to tread on the toes of Muslim orthodoxy. Thus while they want the marriageable age for Muslim women to be the same as for other women they are prepared to allow girls of 12-14 to be married with the special permission of the Quazi. They also do not oppose plural marriages by men but seek to impose restrictions on such right of the men. Some of the other issues the MWRAF have taken up are set out on page 44 of the book. They include among other recommendations the following;
" At the time of registration of a marriage, arrangements should be made to obtain the signature of the bride in addition to the signature of the "Wali", this gives an opportunity for the bride to give her direct consent to her marriage
" The status of Quazis should be elevated to that of other judicial officers
" Muslim women should have the right to be appointed as assessors or advisers to Quazi Courts
" The present name "Board of Quazis" must be changed; it should be designated as "Quazi Appeal Court"
" With regard to maintenance payable to the wife/children, if the incapacity of the husband to earn and/or make any payment under the Act is proved, or if he is not available to take responsibility or to make payment, 'a special trust fund' must be established to help the wife/children who are deprived of their dues in the aforesaid manner.
Other suggestions are to add a pre-emption clause in respect of properties exchanged by the parties on account of the marriage and the details or properties exchanged to be recorded in the Marriage Register.
Compensation to be made to the wife when she is divorced without any fault by the wife. The wife doesn't have the right to divorce on the same lines as the husband who does so by invoking the words 'talak" and he can do without the consent of the wife. There is no similar right for the wife to do so without the consent of her husband.
With regard to polygamy the recommendation is not to do away with it but to require an inquiry by a Quazi with the right to accept or reject the application for a subsequent marriage. There are recommendations regarding the division of property in the event of separation or divorce. The history of changes in Muslim Law by legislative action from the colonial times to the present day, have been documented by Mr. S.M.A Jabbar in Chapter 2. There are enough precedents for reform through legislative procedures. Modern human rights workers and all liberal minded people would agree wholeheartedly with the recommendations of the Muslim Women's Forum.
The book says that "for two and a half decades of advocacy grounded in experiential learning MWRAF has attempted to build allies within the community, at national and international levels with women and (some) men not only within the Muslim community but also among non-Muslims". It is time that the rest of Sri Lankan society should support these efforts without merely lumping all Muslims together and blaming local Muslims for the excesses of Muslim extremists in the Middle East. The Muslim Women's Campaign deserves the support of liberal people in all communities.
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