Tuesday, April 4, 2017

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: