Muslim personal law reform: Quis custodiet ipsos custodes?

Muslim law reveal a protectionist element that tilts towards women.

By Naazima Kamardeen

Much has been written about the efforts to bring about reforms related to Muslim personal law, most specifically in the areas related to marriage, divorce, and maintenance. The proponents of such reforms do so on the basis that these are in keeping with the spirit of Islam and do not violate any of its foundational principles. Opponents of reform do so also on the basis of a spiritual moral high ground that views any reform as innovation – something explicitly forbidden in Islam.

To ascertain which argument has the greater merit, it is important to analyse some of the fundamental premises on which these arguments are built.

In a multi-ethnic, multi-religious society, minority groups view interference by the majority with great suspicion, and quite rightly so. It is the prerogative of a particular community to decide on its governing rules, provided they do not conflict with the general laws and norms of the land. The State has an interest in maintaining certain levels of uniformity in the administration of justice, both to maintain equilibrium in the domestic setting and to fulfil its international obligations.

It is a well-established principle of international law that a state that has undertaken international obligations cannot use provisions of domestic law as an excuse to refrain from giving effect to those obligations. Here we find the first problem in relation to Muslim law reform. Continuing with the current status quo of Muslim law prevents the state from recognising the right to equality and equal treatment. It also causes the state to violate undertakings given on the basis of the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW).  These obligations are not radical and have also been subscribed to by many other countries, including nations that identify as being Muslim nations or have Muslim populations numerically greater than our own. The Kingdom of Saudi Arabia and the United Arab Emirates are two notable examples.

The main argument advocated in the resistance to reform is that the principles of Muslim law found in Sri Lanka should not be changed as that would be a form of innovation. But what exactly is the law found in the Muslim Marriage and Divorce Act (MMDA) and how did it get there and when? Prior to its codification, Muslim law evolved through custom and is generally regarded to have kept abreast with the times. When the British codified the law as they found it then, it was contemporary by the standards of the time but it was not timeless and immemorial by any means. It is this 19th-century statute that is being relied on as dogma by those who are resisting its reformation. It is not Shariah by any stretch of the imagination.

Foundational principles of Muslim law reveal a protectionist element that tilts towards women. While full and equal rights are guaranteed to women in many spheres, there are instances where men are charged with the guardianship of certain interests of women. This is what has led to the quandary we are faced with today. The role of the guardian has been misinterpreted to be one of power over the woman, as opposed to one of responsibility. Thus, the debate over Muslim personal law reform has seen the polarisation of views along gender lines (with a few limited exceptions) – a position highly unfavorable to women in Sri Lanka, for reasons that are highlighted below.

Opponents of reform have consistently sought and received the support of religious hardliners, who view women with suspicion and in most cases will not even condescend to sit in the same meeting with women advocates. Muslim women who advocate for change are often subject to personal attacks on their attire, character, personal lives and choices. Muslim women in politics are noticeable by their absence and are also severely constrained in the stance they can take publicly, due to their answerability to their constituencies. For the larger Muslim community, such reform is not a high-priority area since the power balance has shifted over the years to make Muslim women virtually subservient and powerless. This has rendered women unable to speak out for reform and men unwilling to accommodate those views.

This unfortunate state of affairs has culminated in tensions in recent times over the recommendations made by some male Muslim parliamentarians in response to the draft Bill on MMDA reforms. The recommendations undermine all reform agreed on after decades of consultation. Worse, they reflect the utter contempt felt by one half of a community for the other. In such a scenario, it is fitting to raise the question, using the phrase used by the Roman poet Juvenal in his Satires: Quis custodiet ipsos custodes? (Who will watch the watchmen?)

(The writer is an academic attached to the Faculty of Law, University of Colombo)