Gender-just laws versus “Divine” law in Sri Lanka by HYSHYAMA HAMIN and CHULANI KODIKARA
The
heated debate over reforming Muslim personal law in Sri Lanka has resulted in
an unprecedented mobilization of Muslim women across the country calling for
progressive and gender-just laws.
Securing equality within the family remains one of the biggest challenges
for women across the world. Central to this is the struggle to rewrite personal
status and family laws that are deeply hetero-patriarchal. Sri Lanka’s
constitutional reform process has brought this into sharp focus particularly
with respect to equality in the family for Muslim women. At its center are
Article 16(1) of the current Constitution and
Sri Lanka’s Muslim Marriage and Divorce Act (MMDA).
Sri Lanka’s MMDA, which is applicable to the Muslim minority community,
was first codified during Dutch and later British colonial rule as part of a
plural system of family laws. Successive post-independence governments
guaranteed the maintenance of the MMDA, while recognising the prerogative of
the Muslim community to reform these laws at their own initiative. Since then
the MMDA was ‘reformed’ by male elites in 1929 and then again in 1956,
ostensibly to reflect the ‘true spirit of Islam’. Yet the efforts of Muslim
women’s rights activists, who have for more than 20 years, been calling for
reform of these laws to reflect the values of gender justice and equality have
been to no avail. Political parties claiming to represent Muslims have long
refused to push for progressive and gender-just reform of personal law for fear
that such reform will alienate their vote bank. Muslim women have also been
unable to rely on Article 12 of the Constitution, which guarantees gender
equality due to the presence of Article 16 of the Constitution. The latter
holds that that all unwritten and written laws at the time the Constitution
came into effect (1978) shall remain valid and operative notwithstanding any
inconsistency with its fundamental rights guarantees.
An example from 1995 illustrates this point only too well. When the age
of marriage for males and females was raised to 18 in 1995, it excluded
Muslims. This was justified by the then Minister of Justice on grounds that the
‘Muslim community is entitled to be governed by their own laws, usages and
customs and it would not be productive to aim at a level of uniformity which
does not recognize adequately the different cultural traditions and aspirations
of the Muslim community’. This ‘respect’ for the cultural rights of minorities
was however an all-too-transparent mask for a patriarchal bargain between
political parties in a coalition government ruled by entrenched ethno-religious
identity politics.
However, the present Constitutional reform moment has sparked a fresh
debate and discussion around the MMDA and given rise to an unprecedented
mobilization of Muslim women across the country demanding its reform. Lead by
community-based women activists and a new generation of Muslim women who have
come together under the banner of the Muslim
Personal Law Reforms Action Group (MPLRAG), they are calling not only
on the Muslim community and its leadership but on the State to assume
responsibility to ensure that Muslim women and girls enjoy equal rights as
citizens of Sri Lanka.
Social media platforms such as Whatsapp, Twitter and Facebook and
increased news reporting on the issue acted as the catalysts for this
unprecedented mobilization of Muslim women. It is now manifesting itself in a
slew of writings - personal opinion pieces as well as more
analytical writing - demanding substantive reform by pro-reform Muslim
women, and a (few) men, in the mainstream press as well.
Discrimination
under Muslim Marriage and Divorce Act in Sri Lanka
Discrimination under the MMDA takes multiple forms.. read more:
