By Ruwan Laknath Jayakody –
The great irony about common sense is that it may not be all that common after all. However, no one said that getting the lawmakers to wake up to 21st Century realities like individual autonomy and human potential, in a land untrammeled by enlightenment of the political kind, where the commonsensical application of the ‘use your common-sense’ approach may be seen to have deleterious effects in the context of the vicissitudes of the electoral politics of re-election, and where intelligence in its sparsity is an irritant, producing for the most part, reactions akin to poison ivy, was easy.
It is true that the post-21 April Easter Sunday Government has had to contend with the majority of the body politic’s clarion call, including from the ruling faction, and also the Opposition, to reform the convoluted local legal system to a one-size-fits-all utilitarian model, specifically by the eradication of various personal laws, all of which are archaic and most of which are discriminatory in a prima facie sense, whilst also having to contend with, on the one hand, the baying of self appointed theocrats who argue for identity politics, in this case traditional tribalism through the preservation of certain personal laws and thereby the continuation of pernicious aspects of patriarchy, and on the other hand, the braying of the activists and victims who argue for a less invidious form of identity politics, in this case cosmopolitan communalism through the embrace of the social justice doctrines of feminism, gender equality and human rights, and the enactment of progressive reforms founded on such. Yet, in pushing through reforms to the Muslim Personal/Matrimonial Law, in particular Amendments to the Muslim Marriage and Divorce Act (MMDA), No. 13 of 1956, in a hasty manner, in what can only be described as a feeble attempt to pacify some of these disparate forces and satiate others, whilst achieving neither, this Government of depleted political will, has surrendered common sense, and worse still, completely disregarded its responsibility towards non-adults (below 18 years of age), specifically their physical and psychological wellbeing, and made a mockery of the capacity of the judicial system and the aptitude of its officers.
The Cabinet of Ministers, in a decision taken on 20 August, approved a Memorandum [2019/Cab Memo/J/55 and reference: MOJ/I(I)/MUS.COM/2018(II)] cum joint Cabinet paper dated 10 August 2019, and put forward jointly by the Ministry of Justice and Prison Reforms led by Minister and Attorney-at-Law Thalatha Atukorale and the Ministry of Postal Services and Muslim Religious Affairs led by Minister M.H.A. Haleem, to Amend the MMDA.
In the Memorandum, in a section titled ‘Background’, it is noted that ‘there were some concerns in the Muslim community as well as among human rights activists that certain conditions presently existing are outdated and need to be amended’.
The ‘Proposal’ in the Memorandum states that Muslim Parliamentarians, following discussions with all relevant parties, have proposed to Amend the said Act by introducing changes to areas within the law concerning – Annexure I [the Age of Marriage, Registration related Procedures, Sects/Mazhabs (theological schools of thought and law under fiqh, the latter which is Islamic jurisprudence), the Role of the Male Wali (guardian for the bride), Consent for Marriage / the Signature of the Bride, Polygamy, Mataa (a consolatory lump sum compensation payment made to a divorced woman) / Compensation, Kaikuli (form of dowry given by the bride to the bridegroom) / Dowry and Mahar (a dowry from the bridegroom to the bride), and the Maintenance and Custody of Children], and Annexure II [the Qualification of Quazis (a Judge under the MMDA) and the Upgrading of the Quazi Courts and the Restructuring of the Board of Quazis and with regard to making them more accessible to the Provinces].
A highly placed, influential source involved in the process of bringing about substantive progressive reforms to the Muslim Personal Law through Membership in the 18 Member Committee to Consider and Propose Reforms to the Muslim Matrimonial Law and the Upgrading of the Quazi Courts system Chaired by President’s Counsel (PC) and Former Supreme Court Judge/Justice Saleem Marsoof, was of the view that the Cabinet paper “which doesn’t entirely satisfy what is necessary in terms of substantive amendments” and was “very badly drafted” was however a “progressive step forward” in terms of “something being better than nothing”, the first stage in a series of reforms, and an opportunity.
“While it is true that the matter involves the Muslim community, the whole issue comes under the purview of the Minister of Justice as it concerns improving the quality of justice and its administration. The entire responsibility of bringing the Marsoof Committee’s report as a law and its implementation is with the Minister of Justice. There is 90 per cent consensus achieved among the Marsoof Committee’s Membership on the many matters they deliberated on, and on the issues regarding which there is disagreement among the Marsoof Committee’s Membership, any person, and it doesn’t require that one be particularly educated or has an education, can see that what is required is common sense, courage, strength and commitment, which however have been lacking. And the Muslim Ministers who are very experienced and educated politicians, should know better.”
The source also observed that the Muslim community was totally misguided about the recommendations made by the two sets of signatories to the Marsoof Committee report and that those charged with guiding the community were also engaged in misguiding, a situation further aggravated by the fact that the predominantly Tamil speaking Muslim community was not provided access to the Tamil language and Sinhala language translated versions of the report through a link provided on the Justice Ministry’s website (the report is only available on the said website in English), which the source added was essential if there was to be genuine public consultation on the proposed reforms. There is a lot of misinformation on social media regarding this, and one cannot form a common opinion or reach a consensus in a community which has people of varied education levels and social standing with diverse views, based on such misinformation, the source noted.
Another aspect of the Cabinet decision that has come up for strong criticism stems from the manner in which the joint Cabinet paper had presented the Marsoof Committee’s recommendations to the Cabinet, dividing it into Annexure I and Annexure II, of which while the contents of the first annexure is proposed to be sent to the Legal Draftsman’s Department to draft a Bill to be presented to Parliament, the contents of Annexure II are now to be forwarded to the Chief Justice (CJ) and the Judicial Service Commission (JSC) for their consideration. Women activists state that this is intended to subvert the proposal for the removal of the bar that is placed by Sections 12(1) and 14(1) of the MMDA to women being appointed as Quazis, and that this has resulted in severe injustice and the curtailment of the package of reforms.
Retired Justice Marsoof PC, when contacted, whilst noting that the joint Cabinet paper and the Cabinet decision were progressive, observed however that they do not entirely satisfy the demands of the women’s groups, primarily because the Cabinet decision has not clarified what is expected from the CJ and the JSC with regard to the many important matters set out in Annexure II, which are to be referred only “for consideration”. He noted that the failure to refer the contents of Annexure II to the Legal Draftsman was a serious omission, and pointed out that as it stands now, even if the CJ or the JSC took the view that for the upgrading of the Quazi Court system, it was necessary to open up Quazi appointments to women, this cannot be lawfully done without removing the word “male” from Sections 12(1) and 14(1) of the Act.
The Cabinet paper had proposed however that all unanimously agreed upon matters in the said report should also be included in the eventual MMDA (Amendment) Bill.
Age of Marriage
Presently, the only reference to the age of marriage in the MMDA is found in Section 23 which holds that a marriage contracted by a Muslim girl who has not attained the age of 12 years shall not be registered unless the Quazi for the area in which the girl in question resides, has, after such inquiry as he may deem necessary, authorized the registration of the marriage.
The proposed amendments to the age of marriage include – a) to provide 18 years for both sexes, b) to provide exceptions for those in the 16 to 18 age category provided it is with the approval of a Quazi, c) to consider as an offence if a marriage is solemnized without the permission of a Quazi or a marriage is solemnized “below 16 years” (it is not clear at all whether this means a marriage involving any contracting party or both contracting parties, male and/or female, being below the age of 16), and d) to punish such with a sentence of one to two years of imprisonment and a fine of Rs 100,000. The proposal further states that the penal procedure on how to initiate penal procedure and who should initiate penal procedure has to be deliberated on.
Apart from the afore pointed out lack of clarity on whether the below 16 years clause applies to the boy or the girl or both in the context of contracting a marriage, in analyzing the proposed reforms to the age of marriage, it is evident that there is an oxymoron at play in saying that sans sex differences, the age of contracting marriage will be 18 years for both sexes, and in turn following it up by saying that exceptions will be provided for those of 16 years and above yet below 18, if only a Quazi deems fit. What is the point in setting 18 as the legal minimum age of marriage for both sexes if one is going to provide an exception involving a Quazi for the 16 to 18 age category? In short, the proposal is nonsensical and preposterous, and in light of the available established scientific data on children and their physical and mental growth, and the multifarious dangers posed from teen pregnancies and underage motherhood, it is common sense that the law should simply be amended to have 18 years as the legal minimum age of marriage for all sexes and that the solemnization of marriage involving any contracting party below the age of marriage (18) be made an offence punishable by law.
The three amendments proposed to registration include that it will be mandatory that the registration and nikah (marriage contract) ceremony are held at the same time, that the failure to register the marriage or non-registration will be a punishable offence, and that with regard to the status of children, that children born out of unregistered marriages should be considered legitimate and that all their rights must be ensured by law. These amendments are positive and commendable.
Role of the Male Wali
The proposed amendment states that the role of the male wali will remain as is with the addition of the inclusion of the consent of the bride. For the purpose of equality, it can be proposed that a wali be appointed for the bridegroom too, or better still that the wali be done away with completely because an adult Muslim women should not require the legal permission of or from any male guardian, relative or Quazi to enter into a marriage.
Consent / Signature of the Bride
The amendment in this regard proposes to make it mandatory for the consent of the bride to be provided in the form of a signature or a thumbprint in the marriage register, in addition to the consent of the wali, in order to validate a marriage. This is a vital amendment which must be extended to all official marriage related documentation.
Kaikuli / Dowry and Mahar
Kaikuli / dowry is interpreted under the existing law as any sum of money paid, or other movable property given, or any sum of money or any movable property promised to be paid or given, to a bridegroom for the use of the bride, before or at the time of the marriage by a relative of the bride or by any other person. The amendment proposes to add immovable property too and to allow for the said properties to be used by the bride even after entering into the contract of marriage.
The amendment proposed in this context includes the recovery of kaikuli / dowry to include movable and immovable property. With regard to mahar, the amendment proposed is that it is to be determined by the bride, and that it must also be provided for mahar to be recovered subject to the ruling of the sect.
The granting and obtaining of kaikuli without recording during marriage registration should be made illegal and penalized, and the expansion of the dowry to include immovable assets must be expanded to include the recovery of such at the time of divorce. It is also the author’s view however that ideally the concept of dowry, its giving and receiving, should be abandoned completely.
The proposed amendments on the matter of the sect to which the parties to the marriage belong, holds that – a) every Sri Lankan Muslim is presumed to be following the Shafi Mazhab, unless the individual in question declares otherwise, b) if contracting parties belong to different sects, they have the option of mutually agreeing to be governed by a particular sect and mentioning such in their pre-marriage declarations, c) if one or both parties to the marriage do not belong to a sect or if they belong to different sects but have agreed to abide by a particular sect as set out in their pre-marriage declarations, such marriages will be governed by the law within the limits of four Mazhabs, namely, Shafi, Hanafi, Hanbali and Maliki, and d) if any question of difficulty concerning situations such as the validity of a marriage, and the status, rights and obligations of the parties, arises in the context of any Court proceedings including in Quazi Courts that requires that a decision be given or a determination or an order be made, such Court can consult the Muslim Marriage and Divorce Advisory Board and that the Board in turn may consider the applicable principles of law within the four aforementioned Mazhabs. The bottom line is that the law must apply uniformly sans discrimination based on the school of jurisprudence, and if the parties have no sect, or are from different sects, and there is no agreement to abide by one sect, Muslim law should apply and not the law of any particular sect.
The amendments in this connection propose to restrict polygamy by – a) empowering the Muslim women to, at the time of the registration, enter into a prenuptial contract which states that she is entitled as a right afforded to her to apply for a fasakh/fasah/fash (annulment and dissolution initiated by wife where it must be established that the wife was compelled to seek a divorce) divorce if her husband whilst being married to her, contracts another marriage without her consent (an offence tantamount to bigamy in common law) or if she doesn’t give consent, b) making it mandatory for permission to be obtained from a Quazi in order to solemnize the subsequent marriage and for not obtaining the approval of the Quazi to be considered an offence (such non-registration which invalidates such marriage should be punishable by imprisonment), and c) that the Quazi’s approval is subject to the fulfillment of five conditions, namely, adequately looking after the wives, adequately looking after the children, adequately looking after the future wife, possessing the financial capacity to look after all, and informing the present wife/wives.
What about a case where if the first wife objects to polygamy and is given the option of divorce but doesn’t want to be divorced, if so why should she have to initiate divorce. The problem is that no one sets out on the path of marriage intending to get divorced. Some may prefer to not get divorced despite being given the option because it fundamentally goes against their very being and sense of self. Also, this proposed Amendment presumes that there are no major social repercussions to be faced specially by divorced women, and especially so by divorced Muslim woman. Further, ‘adequately looking after’ and ‘financial capacity to look after all’ are vague turns of phrase and not phrases that can be legally quantified. In the interests of equality, one may also argue that polyandry should then be permitted. Therefore, in the best interests of all, polygamy should be abolished.
Conditions to be imposed for obtaining talaq (repudiation of marriage by husband) and fasakh divorce, and procedures for divorce initiated by husband and wife (including mubarat – mutual consent) should be recognized as the same for both sexes, including for the appeal process. It must also be noted that three Judges of the Indian Supreme Court in Shayara Bano v. Union of India and Others held that the triple talaq divorce was unconstitutional while two Justices held that a law should be enacted to ban the practice.
Mataa / Compensation
The amendments in this connection propose to provide mata’a compensation payment for talaq and khula’a (as agreed by the spouses or the decree of the Quazi, the wife can divorce the husband by returning something given to her by the husband including also from the mahr) divorces, and for a consolatory payment of compensation to be made in the case of fasakh divorce, only if it is proved that the wife had been compelled by duress exerted upon her by her husband to seek a fasakh divorce in order to evade the payment of mata’a.
Mata’a should be available in the case of fasakh divorce. The Marsoof Committee also proposed to establish a maintenance fund to benefit destitute divorced women who are not adequately maintained. Maintenance should ideally be taken out of the Quazi jurisdiction and brought under the District Courts.
Maintenance and Custody of Children
Amendments have been proposed for the custody of children to be brought under the powers and within the purview of the Quazi Courts in the event such Courts are upgraded as proposed and to set up a maintenance fund for such. These are sound moves.
Role of Women
Amendments have been proposed to provide adequate representation for males and females in the MMD Advisory Board and the Board of Quazis, and allow women to be Registrars of Marriage. It is absurd to prevent women from being Quazis, when females have helmed the country’s judiciary and Executive branch, as a CJ, as Acting CJs, an Attorney General, as Solicitor Generals, as a Prime Minister and also the President. Therefore, women should be eligible to be appointed as Quazis, Assessors (Jurors) and Registrars. The word “male” must therefore be deleted when it comes to reference to Quazis.
Qualification of Quazis and the Upgrading of Quazi Courts
Among the amendments proposed in this regard, is to elevate the institution of Quazi to the status of a Court which is part of the judiciary, and to enhance the status of a Quazi to that of a permanent and fulltime judicial officer of a class and grade which is to be determined by the JSC. This amendment follows the recommendation of the Marsoof Committee made in the wake of the recent call to transfer the powers and functions of the Quazis to secular Courts following the dismal record of part time Quazis. The Marsoof Committee had also proposed that the number of Quazis be reduced from the current 64 to a number that maybe considered adequate by the JSC.
Importantly, it has been proposed that being an attorney-at-law (AAL) with sound knowledge of Muslim law is a prerequisite to be eligible to be appointed as Quazis, Temporary Quazis and Special Quazis. Yet, in a caveat, it has been also proposed to keep Section 74 of the existing Act intact in that no AAL is entitled or permitted to appear, in their professional capacity, on behalf of any party or witness in any proceedings before a Quazi or Quazi Court. This is a ludicrous premise as it is a known fact that in judicial proceedings, the parties have the best chance of being adequately represented, only if they are represented by legal counsel owing to the nuances involved in making and presenting a case, a task for which a layman professionally untrained in the law would simply not only not be up to the task for, but a premise which would also have catastrophic consequences for certain parties.
Restructuring of the Board of Quazis and making it more accessible to the Provinces
Through the amendments, it has been proposed to designate the Board of Quazis as the Quazi Appellate Court and to increase its Membership from five to nine and that its Chairman (which should be changed to Chairperson) should be appointed as a fulltime judicial officer of such class and grade as determined by the JSC with such qualifications and attainments as prescribed by the JSC. It has also been proposed to facilitate more regular sittings in at least three outstation centres. These suggestions are fine.
Muslim couples should also be allowed the option to marry under the Marriage Registration Ordinance.