MMDA: Will The Cabinet Be Judiciously Cautious? By Mass L. Usuf –

This refers to the article titled “MMDA: Will The Cabinet Blink?” written by Mr. Ameer Faaiz which appeared in Colombo Telegraph on 23/08/2021. 

In the greater interest of (1) the rights of Muslim women, men and children (2) the continuation of the Sri Lankan heritage of legal pluralism and (3) the uniquely diverse ethno-religious-cultural composition, the cabinet may be cautioned against injudiciously rushing into decision making on Muslim Marriage and Divorce Act (MMDA). Let it be clear, I support reforms to MMDA. (Please see: Is The Government Being Driven In The Wrong Direction? – Colombo Telegraph – 30.07.2021).

Instead of a refined intellectual presentation backed by rational, logical and reasonable arguments, the narrator had preferred cacophemism. Instances of name-calling, insinuations and imputations are disappointing. Any discourse structure (linguistic structure, intention and attentional state) generally represents what is in the mind. What could one say at the syntax employed in the referred article? Truly questionable language that is not customarily read in this esteemed newspaper. Broad brushstrokes indeed. To pick a few, it states: “To these unrelenting, self-serving, chauvinistic, and condescending men ………  misleading the unsuspecting masses under the guise of mystic beliefs.”. 

A dig at women

The generalizations embarrass and insult Muslim men as a set of misogynists; At whose hands the Muslim women are helpless and vulnerable. This supposition disrespects the dignity of the Muslim woman. The unwary may receive wrong signals of such dramatization. The one apparently speaking for women run down other women who provide alternative views. Read this statement, “the detractors seem to have successfully co-opted some seemingly pro-reformist women too.” Thus, censoriously questioning their sincerity and contemptuously disregarding their choice to be in whichever side they choose to be.

Hyperbole

The writer states: “Those who have abused and enjoyed polygamy have started rabble rousing about the “Qur’anic right” to polygamy.” 

Another sweeping statement which is an absolute lie. It is this type of hyperbole that confuses and deprives the average person from proper understanding. Then he states that the Committee: “Having deliberated for nearly nine years”,…in another place, states, ‘nine long years’. For anyone, this statement will hit like a thunderbolt. What the heck were the Committee members doing for so long?  He fails to say that for these nine years the Committee met only 33 times, which means average less than four times per year. Now remember that this Committee had at least six women representatives.  It was not an ‘all male’ only show. There is no misogyny here.

Unjust inference

The dramatization continues. The writer infers that nine dissenting members of that committee “consciously served on that committee to deliberately scuttle any reform?” Who are these nine, by implication, dissenting misogynists among whom there was also a lady? Some of the scuttle(rs)” were:

1. Former President of the Court of Appeal, Hon. Justice A.W.A. Salam.

2. Judge of the Civil Appellate High Court, Hon. Justice Mohammed Mackie (also former Assistant Secretary to the Judicial Service Commission).

3. Former Attorney General and former President of the Bar Association of Sri Lanka, Mr. Shibly Aziz – President’s Counsel.

4. President’s Counsel,  Mr. Faisz Musthapha

5. Attorney at Law,  Mrs. Fazlet Shahabdeen

6. Director of Jamiah Naleemiah, Dr. M.A.M. Shukri, a reputed Islamic intellect and Scholar.

You, the reader, be the jury. Can these distinguished personalities be associated with such an allegation? I am reminded of Judge Weeramantry’s 96-page dissenting opinion on an important global issue at the International Court of Justice on, “the legality of the threat or use of nuclear weapons”?  He said, “ ….. I profoundly disagree. I have felt compelled to vote against them.“

One Or More

The writer is correct in saying that polygamy is not mandatory.  The Quran is the only religious scripture which tells “then (marry) only one”. However, it permits to marry more than one in exceptional circumstances. This is a clear Quranic injunction and no person calling himself a Muslim can deny this. Allah exhorts stating:

“.. do not prohibit the good things which Allah has made lawful to you and do not transgress.” (Chapter 5 Verse 87).

(Please see: Polygamy: The Argument Between Regulating & Banning Colombo Telegraph – 05.07.2021)

Banned In Muslim Countries

He cites Tunisia and Turkey as Muslim countries which had banned polygamy. Look into the history of these countries. Tunisia was a French colony since 1881. It is a Muslim country only for the record. Although most of the population are Muslims, more than one-third identify themselves as non-religious. The percentage of non-religious Tunisians has increased from around 12% in 2013 to around 33% in 2018. Tunisia is the least religious country in the Arab world according to the Arab barometer survey. 

One who accepts the Oneness of God and Prophet Muhammed as Messenger is a Muslim. How can the non-religious be called Muslims? The country has a secular culture where religion is separated from not only political, but also public life.

The population of Tunisia is circa 11.69 million. He fails to mention Bangladesh (165 million) and Indonesia (270 million) totalling 435 million people practising polygamy. I am not including the 1.53 Billion combined populations of approximately 57 countries which permit polygamy. Gentleman, to present relevant facts in a just and reasonable manner reflects erudition.

Foreign when it suits

Turkey is the other example. She is a Muslim nation which abolished polygamy by adopting the Turkish Civil Code in 1926. A milestone in Ataturk’s secularist reforms. Who is Ataturk? He was the colonialist lackey who dismantled the Islamic Caliphate in 1924 and expunged religion and Islamic piety from the public space. Nothing can be done against him because of the infamous Turkish law No. 5816 (“the law concerning crimes committed against Ataturk”). None dare speak against Ataturk, lest risk a jail sentence of three years. British journalist, Alexander Christie-Miller, has described it as the “world’s longest-running personality cult”.

One is forced to think about intellectual dishonesty when clear facts are not presented for citations. Turkey is trying for European Union membership since 1987. She does not want to upset her EU bid by doing things that would displease Europe. Kader Sevinç, EU representative for the opposition Republican People’s Party, said the polygamy trend in Turkey was a ”serious concern” for Ankara’s European aspirations. (Polygamy widespread in Turkey, study shows, Jan 21, 2011). Two unconvincing examples, to support abolishing polygamy in Sri Lanka.

Since the writer is urging the Cabinet by quoting foreign countries, he may be reminded about the cremation saga. Why this double standard? When 190 countries permitted burial of Covid-19 deceased, how many of the writer’s brothers and sisters in faith were burnt. I hope the writer may appreciate the need to contextualise the local ethno-political equations before arriving at any form of evaluation. 

Polygamy Around the World

Polygamy is often incorrectly connected with Islam. Polygamy is not a Muslim phenomenon. Several countries and societies around the world, who are not Muslims, practise polygamy.  Many countries recognise it under various classifications.

1. Polygamous marriages recognized under civil law.

2. Polygamous marriages recognized under civil law in some regions/demographics.

3. Polygamous marriages performed abroad recognized.

4. Customary law recognizes polygamous unions.

5. Issue under political consideration.

6. No recognition, polygamy legal.

7. Polygamy illegal but performed.

Sweden recognizes polygamous marriage performed abroad. Switzerland considers polygamous marriage conducted in another country on a case-by-case basis. Polygamous marriages entered into abroad in Australia are recognized for limited purposes only. “At present one must assume that polygyny will be around for an indefinite future, even if it continues to decline in gross terms.”(Australian Law Reform Commission).

Juristic differences

“There are differences of opinion, even amongst jurists, as to the permissibility, acceptability, and applicability” the writer claims.

In Islamic jurisprudence (usul al-fiqh) differences of opinion (Ikhtilāf) among jurists is a welcoming phenomenon. It is one of the hallmarks of the diversity and dynamism of Islamic jurisprudence. This Ikhtilāf in jurisprudence witnessed the emergence of four legal schools: Maliki, Hanafi, Shafi and Hanbali, within each of which there have been diverse interpretations of the same religious texts. There are differences of opinion on hundreds of matters among the Mujtahids (those doing ijtihad – independent reasoning). Therefore, one need not unduly get excited by such differences in opinion relating to polygamy.

“Islamic law has natured a rich tradition of diversity and disagreement” writes Professor M.H. Kamali, Kulliyah of Laws of International Islamic University of Malaysia.

Child Abuse

The writer suggests to look into “the realities of child abuse, spouse abuse etc.” Noble suggestion. However, the only concern is why has the writer narrowed these down and directing them at the MMDA. It creates an impression that everything else is perfect except for the MMDA and polygamy. For clarity, let us widen this scope. How about one in four girls being sexually abused before they turn 18 years old?  How about 30% of women being between the ages of 11 and 17 when they were first rape victims. How about 91% of the victims of rape and sexual assault being females?  (National Sexual Violence Resource Center). Fortunately for the ‘misogynistic’ Muslim men, these statistics belong to the United States of America.

The Attorney General’s department on 18.08.2020 announced that it concluded 12,968 cases of child abuse from January 2019 to July 2020. (Newsfirst). A local newspaper reported that there were 2,055 child abuse cases in 2020 alone. (Ceylon Today, 16.06.2021). Now, how many of these can be attributed to Muslim polygamous marriages? May be, on a statistical probability, there would not have been even a hundred polygamous marriages in 2020. Therefore, child abuse is a mainstream issue with a minutely insignificant number from polygamous marriage.

The realities of abuse and corruption is not an MMDA curse. It is a common phenomenon. The police stations, our hospitals, our bureaucracy all function with their own positives and negatives. The unequal application of traffic rules on the road by the traffic policeman is also part of this overall problem.

Violent Treatment Of Spouses

The writer again narrows down a mainstream social malady to blame polygamy. These sweeping assumptions are incorrect. The reality is that Sri Lanka is a male dominant society. Research indicates that up to 97% of Sri Lankan men believed women should obey their husbands, and the majority of participants (both men and women) consider men to be the decision-makers in the family. Another study found that obeying the husband was associated with a lower risk of intimate partner violence (IPV). (Ceylon Medical Journal 2015; 60: 133-138). So, gentleman, accusing only the Muslim men as being patriarchal is perpetuating a misleading impression isn’t?

Are all the affairs of the Muslim women hunky-dory? “No.” Just like any other woman, the Muslim woman, too, has her share of issues but, not to the extent that is disproportionately overblown. Women from all communities face problems relating to marriage, divorce, maintenance, domestic violence, adultery, drunkenness, drug addiction, child abuse etc. The above research indicates that intimate partner violence is a widespread problem in Sri Lanka affecting 1 in 3 women in the country. Based on the recent, most representative data, the overall prevalence of intimate partner violence in Sri Lanka is about 25–30%. The number of Muslim women who are subjected to IPV must certainly be very less especially, since alcohol abuse is less prevalent among Muslims.

I passionately support the need to strictly regulate and closely monitor polygamous marriage. No man should be permitted to exploit women under whatever pretext. Justice Saleem Marsoof (JSM) report have made recommendations.  A humble appeal to the writer and those wanting reforms is please do not exaggerate the cause unfairly and unjustly. 

The Quazi Court

The writer is tying the hands of his opponent behind the back and challenging him for a fight. This he calls reforms in the name of equality in his utopic civilised worldview. There is no doubt that the Quazi court is in a pathetic state; “rotten to the core” says the writer.  Wait a minute. Who is responsible for this rot?  Is it the justice system or the Muslims or the MMDA or Polygamous marriage?  The writer further states “the institution of the Quazi courts …… It has no proper infrastructure, physical or administrative.” He repeatedly fails to ask the question who is responsible for all of these.

Justice pivots on fairness and reasonableness. Dear readers do you know how much the Quazi is paid for his job? Shameful to say a daily waged labourer earns more. The Quazi is paid a meagre Rs. 7,500 per month.  And an amount of up to Rs. 6,250 only is paid against bills for administrative expenses and secretarial work. The Quazi is not given an office for his court work. No place to store the hundreds of files of the cases he hears. He works enduring all these hardships. The writer speaks nothing of the travails of these Quazis but cantankerously launders them.  Not fair, isn’t?

Does the writer at least tell as to who is responsible for the appointment, removal and discipline of Quazis? They are handled by the Judicial Service Commission. The website of the Judicial Service Commission inter alia, states: “ensuring prompt and equal protection of the law to every citizen through providing infrastructure services required for administration of justice”. There are around 65 Quazi jurisdictions.  Of these, there are a few Quazis who are corrupt. They need to be weeded out. No one denies this fact. But, to put the entire blame solely on the Quazi court system is deception.

The social media is rife with allegation that Parliament is rotten. So, by the convoluted logic of the writer, let’s scrap the Parliament. Look for an alternative form of governance. Of the nearly 84,000 police personnel, many are abusive and corrupt. Let’s abolish the Police Department. Give away its functions to the military and repeal the Police Ordinance. Sounds ridiculous isn’t? Then, is it reasonable to scrap the Quazi court system which has been functioning for so long.

Wrath And Curse 

Pay the Quazis a decent salary, provide proper office, storage facilities, secretarial assistance etc. Recruit qualified personnel. Address the administrative and regulatory issues. Without doing these, to abolish the Quazi court will be an unpardonable act which will incur the wrath and curse of the entire Muslim community. Of course, barring a few disgruntled community offshoots.

The writer speaks of injustices in the Quazi court. Again, a gross misrepresentation. Injustice takes place even in the regular courts. A hierarchy of courts is there to seek justice by way of appeal. So, why dishonestly represent as if everything is super except for the Quazi court. Those advocating justice should observe some semblance of justice themselves. 

Comprehensive reforms to the Quazi courts have been agreed upon in the JSM report. Remember, none of the Committees ever recommended the abolition of the Quazi courts. To abolish it will be against the recommendations of these Committees and without justification.