MMDA reform process: A step without transparency and in the wrong direction By Javid Yusuf

The Government’s proposals to reform the provisions of the Muslim Marriage and Divorce Act 9 of 1951 (MMDA) by abolishing the Quazi courts has given rise to a loud outcry in the Muslim community.

The MMDA is a piece of legislation that relates only to Muslims and does not in any way harm or adversely affects other communities in the country.

The failure of the State to take remedial action to upgrade the status of quazis, increase the paltry monthly remuneration of Rupees 13,000 paid to them, failure to provide, staff, office and other facilities to quazis as well as failure by the Judicial Services Commission to take action against errant quazis rather than any inherent defect in the quazi system have contributed to the weakening of the adjudication process provided for in the MMDA.

In fact, if the Government had addressed these issues in the one year since it assumed office rather than attempting to abolish the Quazi courts it would have resulted in a qualitative change in the working of the Quazi courts.

Over the years there have been several Government appointed committees which have looked at various proposals to strengthen the Quazi court system. There has never been a call from any section of the community or proposal from any of the committees to abolish the Quazi system nor the permission under the MMDA for Muslim men to enter into plural marriages.

With regard to plural marriages, probably less than one per cent, at most, of Muslim men enter into such marriages which are governed by strict religious guidelines.

The Justice Minister’s claim in the Daily Mirror of August 10, 2021 that there are two groups of people within the community, one of which want to retain Quazi courts and another want the Quazi courts abolished is therefore misleading.

The most recent Committee, the so-called advisory committee to advice on Muslim Law Reforms appointed by the current Justice Minister was instructed that they need not deliberate on several identified key provisions of the MMDA as the Cabinet of ministers had already decided on them.

One member of the above advisory committee, Attorney-at-Law Rushdie Habib tendered his resignation from the committee at its early stages while three other members expressed their dissent to the conclusions of the committee’s report.

The Quazi courts are the mechanism that has been provided for in the MMDA to resolve matrimonial disputes in accordance with Islamic Law.  The Quazi court system is unique in that it is non-adversarial, informal, flexible, and inexpensive and proceedings are conducted in privacy. There are provisions in the MMDA that require the quazi to mediate and attempt to reconcile the parties prior to the final resolution of the dispute.

In the early days the Quazi court system did work well and in Muslim society an individual who held the position of quazi was referred to with respect as ‘quaziyar’ and enjoyed an eminent place in Muslim circles.

Unfortunately in recent times the system has not worked as well as it was intended to. As a result of the failure of the State to address the issue of poor remuneration and inadequate facilities, the best people have not been attracted to these positions thus contributing to the system getting a bad name.

As a result the cause of justice has not been served in this sensitive area of law. Those who suffered most were the women many of whom came from uneducated and impoverished backgrounds and therefore did not have the capacity to hold their own and present their case before the quazis (in the absence of lawyers who are not permitted to appear). When the quazi himself lacked capacity or integrity the plight of the women was rendered even worse.

The Justice Saleem Marsoof Committee did extensive research and produced a report in which agreement was reached on all matters bar six or seven topics. After further discussions the area of disagreement was further narrowed down.

The process adopted by the Government to abolish the Quazi court system and other provisions which strike at the root of the MMDA without any notice to the Muslim community lacks transparency and has therefore taken the community by surprise.

According to reports which are now emerging the Government had first initiated discussions to amend provisions of the Muslim Marriage and Divorce Act as far back as in November 2020 and appointed the advisory committee in December 2020.

Subsequently consequent to a memorandum submitted by Justice Minister Ali Sabri, the Cabinet had decided on significant amendments to the MMDA. Although the decisions to do away with the quazi system were taken by the Cabinet on March 8, 2021 there was no public intimation of any of these Cabinet decisions thus leaving the Muslim community in the dark.

The news of the Government’s decision only came to light at the end of June 2021 following media reports that the advisory committee had handed in its report. If the process that was put in place had gone unnoticed it would have only come to light at the last moment when it was gazetted as a bill as a mandatory constitutional requirement shortly before being presented to Parliament which would have given insufficient time for the Muslim community to express their views on the reforms.

In contrast the Justice Minister in the previous Government, Thalatha Athukorale adopted a more inclusive and democratic process with regard to MMDA Reforms. She requested the group of Muslim Parliamentarians to suggest the necessary reforms based on the Justice Saleem Marsoof Committee’s recommendations rather than the Government itself imposing such reforms. Unfortunately time ran out and the process could not be completed due to the ensuing Presidential elections.

It is significant that none of the Government appointed committees on Muslim Law reforms including the Justice Saleem Marsoof Committee, advocated or recommended neither the removal of the Quazi court system nor abolition of polygamy.

Even women’s groups like the Muslim Women’s Research and Action Forum (MWRAF), Women’s Action Network (WAN) and the Muslim Personal Law Reform Action Group (MPLRAG) who have been in the forefront of the agitation for reforms have never advocated the abolishing of the Quazi system. Instead they have called for upgrading the Quazi court system to become efficient, effective and family friendly.

Two women’s Groups, MWRAF and MPLRAG, have in a recent statement  taken up the position that any judicial system which administers the MMDA must have clear, equal and non-adversarial procedures, efficient case timelines, improved accessibility and affordability, especially for the low income families.

These groups have expressed concern over the Cabinet decision to abolish the Quazi system without available information on what will replace it. They have requested clarity from the Justice Ministry on how the MMDA will be administered.

However no clear clarification on this matter has been forthcoming from the Justice Minister who is spearheading the reforms. Conflicting reports have emerged with regard to what is to replace the Quazi court system.

One report speaks of a Family Mediation Board to replace the Quazi court system although no details have been spelt out. According to another report the District court may replace the Quazi court as the forum for adjudicating matrimonial disputes. This would introduce an adversarial process, increased litigation costs and make such cases subject to laws delays.

According to the group of pro-Government Muslim Parliamentarians, the minister had been talking about replacing the quazis with settlement officers who would play a role similar to the family mediation board suggested by him. According to the Muslim MPs the minister has said that the settlement officers could be paid around 50,000/= a month.

The problem with this proposal is that such settlement officers would be mere administrators and not judicial officers and would be susceptible to all the weaknesses that errant quazis are currently being accused of.

It seems the Justice Minister himself is not clear in his mind as to what will replace the quazi system. The manner in which so called reforms are being imposed on the Muslim community contrary to its wishes has given rise to the feeling that this is one further step in the process of targeting the Muslim community and is in furtherance of the “one country, one law” concept that the Government espouses.

In fact one Cabinet minister gave expression to these sentiments in Parliament last month when he said if the “one country, one law” concept is to have any meaning there cannot be different laws for different religions. According to him those laws promote and give rise to extremist ideologies.

Taking into consideration all the above it would be more prudent and democratic for the Government to withdraw its proposals and let the Muslim community decide on the nature and shape of the reforms that the MMDA needs.