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Islamic Ideology ( 1 May 2017, NewAgeIslam.Com)

Comment | Comment

Islamic Principles of Justice and Human Rights Necessitate Changes to the Muslim Marriage and Divorce Act, Sri Lanka


By Dr. Farzana Haniffa and Others

05/02/2017

Reform of Muslim family law across the globe has taken on-board the need to establish women’s rightful position within the Islamic framework.

The message of egalitarianism in the Quran was an impetus for the progress of women during the period of revelation.

Reforms that give women their due rights have often been stymied by the use of Hadiths without adequate emphasis on Takrij (examination and evaluation).

Sri Lankan Muslim women too must be urgently granted the equitable status guaranteed for them by the Quran and Sunna.

Reform of the MMDA is required to establish the principles of Justice and Human rights that form the bedrock of the message of Islam.

We the undersigned, members of the Lanka Minaret April 6th Group, welcome the renewed interest around reforming the Muslim Marriage and Divorce Act of 1951(MMDA).

The issues faced by those directly affected by the MMDA and the Quazi court system have been well documented[1] and the demand to reform goes back to more than 50 years.[2]  The government appointed Committee led by Justice Marsoof has been working on recommendations for reform since 2009.

The questions that are dominating the current discussion on reforms in Sri Lanka are ones that have been addressed by Muslim communities throughout the world. Many have instituted reforms in consonance with the spirit of the Quran and Sunna that are in keeping with the transformed context of the contemporary world. Tunisia’s Code of Personal Status (1956) instituted the earliest and most far- reaching legal changes to family laws in the Arab world. Turkey adopted 1030 progressive amendments to their Civil Code in 2001 with Morocco adopting one hundred amendments to their Family Law in 2004. The expansion of women’s rights within the family was established in the family laws of Algeria, Lebanon, Egypt, Jordan, Palestine, Kuwait, Bahrain, Syria, Libya, the UAE, Iraq, Qatar, Oman, and Iran. These changes have been driven by movements to establish women’s rightful position within an Islamic framework. The reform process in Sri Lanka, too, must be informed by these international precedents.

We contend that changes to the MMDA and a reformation of the Quazi court system in Sri Lanka are urgent to ensure Sri Lankan Muslim women’s equitable status as granted to them by the Quran and Sunna. Most importantly we contend that the reforms are required to establish the principles of Justice and Human rights that form the bedrock of the message of Islam.

In our support for the reforms we would like to emphasize the following.

The Quranic Message Regarding Women

The message of egalitarianism in the Quran was an impetus for the progress of women during the period of revelation and immediately thereafter. The Quran’s re-positioning of women’s status was radical for seventh century Arabia and the principle of equality was meant to be a seed that would grow and inspire and transform society by according women their due status. However, the reasoning that was required to extend this principle of egalitarianism throughout history into our modern era was overshadowed by interpretations and commentaries that paid little attention to the early positive articulation of women’s social position. In recent times however, the Quran’s promise of egalitarianism is slowly being reasserted globally in the minds, hearts and consciences of Muslims and it is being embraced today by the Sri Lankan Muslim community as well.

The Use Of Hadith In Support Of Positive Reform

Reforms that give women their due rights have often been stymied by the use of Hadiths without adequate emphasis on Takrij (examination & evaluation of Hadith). One of the most controversial issues in Muslim Personal Law is the age of marriage. The debate on this issue has been dominated by a particular Hadith and the position that has been taken based on that Hadith, goes, not just against International Human Rights & the Rights of Children but most importantly goes against the broader implications of individual responsibility outlined in the Quran.[3] The re-examination of secondary source materials has revealed the inaccuracy of the said Hadith and reforms in the light of this new information have taken place in a large number of Muslim countries and communities.

Another Hadith attributed to Abu Bakara has been used against the empowerment of Muslim women.[4] This has recently been mentioned in relation to the Sri Lankan debate as well.  Re-examination of this Hadith has shown that it is questionable on the basis of Isnad or transmission; the reliability of the person transmitting the Hadith being suspect.  Further, its use in jurisprudence is limited by the fact that it is attributable only to one source (Ahad). Analogical reasoning and contextual analysis has also asserted that this Hadith cannot be thought to refer to women in leadership positions in general. The Quran, on the contrary provides the possibility of seeing women as leaders through the example of Bilquis the Queen of Sheba (Sura 27) who is referred to in very salutary terms. The prominence of Muslim female leaders across the world from the early Islamic empires onwards has also demonstrated the fallacy of the argument against female leadership. We therefore invoke the return to the ideals of the Quran and Sunna that saw Muslim women as leaders, engaging equitably in open debate and their full participation in early Islamic society as the principles that should steer contemporary thinking on the position of women in Islam.

Sri Lanka needs to be guided by bold interpretations which embody the principles of equality, individual and collective responsibility and thereby giving Muslim women the most progressive rulings in keeping with the spirit of the Quran and Sunna. This must be done by understanding the Maqasid-al Sharia (objectives of Sharia) and by giving effect to the legal principle of Maslaha (public interest).

The issue of the Madhabs (Islamic Schools of Law)

We also submit that the practice of rigid & dogmatic alignment (Taqlid) to one particular Madhab (Islamic Schools of Law) is a stumbling block to the reform process. The principle of ‘Ra’y’ (rational discretion) has been recorded as approved by the Prophet (sal) and was used to justify strategies such as Takhayyur (exercising preference) and Talfiq (patching) in the early twentieth century, and continue today.[5]

The principles of Ijtihad (critical thinking & independent judgement) and Qiyas (analogical reasoning) are slowly being mobilized for Muslim Personal Law reform in the modern era. These developments have enabled the reinterpretation of source texts and the basing of jurisprudence on lesser known texts when necessary to understand contextual and social changes. Such efforts have been especially important where there is Ikhtilaf (disagreement among Madhabs).

Overt sectarianism is unequivocally condemned in the Quran and Sunna. The four eminent jurists themselves revoked Taqlid or blind following and stated that their rulings are subject to further examination of sources and re-interpretations. As such, the reformation of Muslim personal law all over the world has taken this into account when justifying its move away from some positions taken by the jurists.

Based On The Above, We Support And Call For The Following Reforms:

1. Age of marriage   1.1 The MMDA must reflect the application of the state stipulated age of 18 years as minimum age of marriage for all. In calling for this amendment we also recognise the existence of underage marriages as a social problem among vulnerable communities across Sri Lanka and urge that any review of the age of marriage be undertaken on the basis of the best interest of the individual and as per the license allowed in the Quran and Sunna.

2. Marriage contracts         2.1 Ensure that no marriage can be legally entered into without full and free consent of bride and groom-which is expressed by them in person and in the presence of the authority competent to solemnize the marriage before witnesses

2.2 All Muslim marriages to be registered to be legally valid

2.3 As intimated in principle in the Quran and not disavowed in the Sunna, MMDA should recognize and allow for both parties to the marriage to mutually draw up pre-nuptial contracts prior to marriage registration. Matters such as polygamy or right of a wife to continue in her profession can be stipulated in the contract prior to marriage.

3. Divorce safeguards         3.1 MMDA must make mandatory provision for payment of Mataa in all cases of Talaq and fasah divorces as per Quran verse 2:241.

3.2 All possible measures must be taken to prevent the abuse of the male right to polygamy. Men contemplating multiple marriages must do so with a resource base that meets with the approval of an authorized Quazi and of the previous wives. All previous and active marriages must continue to be recorded in the marriage certificate.

4. Quazi Court reforms       4.1 We call for a complete overhauling of the Quazi Court system. We call for upgrading the Quazi court to the status of a District court and its jurisdiction to include additional related issues such as maintenance and custody of minor children.

2.    The appointment and supervision of Quazis must at a minimum, include the following:

Women should be eligible to be appointed as Quazis as members of the Board of Quazis, Marriage Registrars and Assessors.

Appointments of Quazis should be made on the basis of an agreed set of competencies including that the Quazi be qualified as an attorney at law.

All Quazis should undergo compulsory judicial training in the reformed MMDA with regular updating on issues of gender sensitivity and ethics.

There should be a systematic oversight mechanism implemented by the Judicial Services Commission

We urge that both Sri Lankan legislators and Muslim religious authorities take the above into account and speedily bring about the long overdue changes to the MMDA.

Signatories

Mr. Hanif Yusoof, Dr.Farzana Haniffa, Mr. Faizal Salieh, Mr.Faizel Haddad, Mrs.Silma Ahamed, Mr. Ismeth Majeed, Mrs.Florine Cassim  Marzook, Mr. Adel Hashim, Mrs.Niroza Hussain and Mr. Faiz-ur-Rahman

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[1]See Hyshyama Hamin and Hasanah Cegu Issadeen (2016) Unequal Citizens: Muslim Women’s Struggle for Equality and Citizenship in Sri Lanka. Available at https://www.oursplatform.org/resource/unequal-citizens-muslim-womens-struggle-justice-equality-sri-lanka/

[2] Women claiming rights and spaces: Activism to reform Muslim personal law in Sri Lanka. Muslim Women’s Research and Action Forum (2014).

[3] The Sahih Hadiths quote Aisha(ral) as stating that she was 6 years old when she married the Prophet(sal). However, research and scholarship dating from 1920 re-examining related Hadith, Tafseers and Seerahs has refuted this claim quite comprehensively.

[4] The Hadith is quoted as saying “Those who entrust their affairs to a woman will never know prosperity,” and was first refuted by Moroccan Sociologist, Fatema Mernissi (1991)in ‘The Veil and the Male Elite’ New York: Basic.

[5] These strategies were first used in relation to the 1917 Ottoman Law of Family Rights, they were subsequently used in two early Egyptian personal status laws in 1920 and 1929 with Morocco using them in the formulation of its first Family Law of 1958.

Source: groundviews.org/2017/05/02/islamic-principles-of-justice-and-human-rights-necessitate-changes-to-the-mmda/

URL: http://www.newageislam.com/islamic-ideology/dr-farzana-haniffa-and-others/islamic-principles-of-justice-and-human-rights-necessitate-changes-to-the-muslim-marriage-and-divorce-act,-sri-lanka/d/110986


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