Historically, Muslims in Sri Lanka observed their personal laws and courts even during the time of Sinhala Kings. Prior to 1770 we followed an uncodified customary law which after the Dutch colonised Sri Lanka, led to the laws of all communities to be codified. Muslim marriage laws have been amended based on time, need and context but within Islamic principles (see image at end).
Islamic marriage laws are practical, liberal, and cover a range of relationships that even secular laws barely grasp. They respect the emotional, financial, and physical needs and responsibilities of all parties. In Islam, marriage is a contract based on mutual consent and equitable terms. Islam recognises the right of couples to divorce on wider grounds than Sri Lanka’s current general law. The courts are of arbitration, with a speedier process that does not require lawyers. In fact, the Quazi court system was set up in the 1930s after Muslim women found the civil court proceedings not conducive to their needs. However, since 1951, the MMDA and the Quazi court have not been sufficiently updated to meet current context.
This article (and the rest of this website) hopes to address some of those misconceptions, as well as uphold the justice the community – particularly its women and children – deserve.
The rumour that MMDA reform is a result of pressure from the West is a misconception. Reform has been called for from within the community, both by those who have been adversely affected by it, and those who have studied religion and law and know the current MMDA requires substantive changes.
Dr Hamid Farouque, who chaired the independent committee in 1973, understood changes had to be made to the MMDA, 46 years ago. According to Dr Farouque, “Before I came to Australia in 1972, the Muslim Law Research Committee comprising of a number of Muslim lawyers and with consultation of an Alim handed over our recommendations to the government.”
In 1990 the Sahabdeen Committee was set up to propose reforms. They submitted a report and again, the reforms did not materialize due to lack of political will. The last report chaired by Justice Saleem Marsoof, which was made after 9 years of study and consulation was handed to the Justice Minister Thalatha Atukorale in January 2018. However there were a few areas of contention, both valid opinions that exist within Islamic law, that made moving forward a slow process.
Finally, after years of the Muslim community calling for MMDA reform, Muslim MPs have finally agreed to consult the report and have chosen the best opinions within it to meet the context of Sri Lanka.
There are obstacles to this coming from within and outside the community. The ACJU in particular is opposed to women being appointed as judges (Quazis). A position that has been challenged by others in Islamic scholarship. They are also opposed to making registration a requirement of validity of marriage if it meets the basic requirements. However there is opinion from classical Islamic scholars to show that meeting the bare requisites of a marriage is insufficient for validity unless it is announced.
Others outside the community believe Sri Lanka’s Muslim community has regressive laws, and that all communities should follow one law, not understanding the complexity of law-making and the benefits of plural law systems in a diverse country. They are also unaware of some of the inconsistencies in the MMDA also exist in the GMRO and Kandyan law, particularly where the recognition of customary marriage is concerned.
The Muslim public also have been misinformed that some of the rulings have no basis in Islamic Law. This is a misconception as Islamic jurisprudence offers several perspectives and is rich and diverse in its rulings.
Famous jurist, Ibn al-Qayyim, may Allah have mercy on him, said, “Verily, the Sharia is founded upon wisdom and welfare for the servants in this life and the afterlife. In its entirety it is justice, mercy, benefit, and wisdom. Every matter which abandons justice for tyranny, mercy for cruelty, benefit for corruption, and wisdom for foolishness is not a part of the Sharia even if it was introduced therein by an interpretation.”
Source: I’lām al-Muwaqqi’īn 3/11
On 11 July 2019, Muslim Parliamentarians met to discuss what areas of MMDA reform they would support. The report by the Justice Saleem Marsoof Committee (2009 to 2018) was reviewed by Muslim MPs after having consultations with members of the committee and other interested parties over the course of the year. The points of contention in the report, both having basis in Shariah, were therefore carefully considered in the light of which would best suit the culture and context of the Muslims of Sri Lanka.
- Minimum age of 18, similar to the GMRO.
- Mandatory signature of the bride to make the marriage valid.
- Mandatory registration to make the marriage valid.
- Position of Quazi available to qualified women.
- Role of Wali still necessary, with provisions for a male Quazi from another jurisdiction to deputize for this role in the instance the Quazi is female.
- Upgrade the Quazi court similar to magistrate court.
- Requiring a qualification of Attorney of Law and sound knowledge of Islamic Law for Quazis.
- Those who prefer not to follow a particular school of law to declare as such.
- Stringent and comprehensive limits on polygamy.
- All matters reached consensus in the 2018 report.