By Mass L. Usuf
The response to the subject query is that it has a little of each of these attributes. The reality of experience dictates that nothing is perfect in which there is human intervention. Here are some illustrations before delving into the crux of the matter.
Very recently, it was reported that the Human Rights Commission of Sri Lanka had urged the Bar Association of Sri Lanka to take action against racist lawyers in certain regional courts. Unlike conjoined twins, where in most cases they can be separated by surgery, Law and Justice are an inseparable combination. Law and justice bring to mind equality, fairness, reasonableness and the doctrine of presumption of innocence. For these noble principles of law and justice, racism is a complete stranger. However, the fact of the matter is that racism is being practised in the sanctum sanctorum of justice itself! The imperfection in man.
The Police Station is a place where most of the times the citizens are not been treated as they should be. There is no need to explain this fact. Then the free medical health and the hospital system are fraught with its own positives and negatives. The unequal application of traffic rules on the road by the traffic policeman is also part of this defectiveness. The subject of Law is not an exception to this phenomenon. The number of statutes and their frequent amendments are ample proof that man is not perfect.
Rules Of Interpretation
This imperfection is the reason why there has to be reforms, reorganisation, restructuring, alterations and so on in many areas. This is also one of the reasons why there is the need for regulatory authorities, independent commissions and ombudsmen in the various fields.
Legal practitioners and others with knowledge of the law are aware that in law there are several Rules of Interpretations. An exercise where a judge or a lawyer tries to make sense of what someone else has written. In law there are the standard Literal, Golden and Mischief rules and also the Purposive approach. Some of these rules have evolved over centuries in order to give meaning to the intent of the law Giver – the Legislature. When we speak of a Rule, the understanding is that when the rule is followed you cannot go wrong. The irony in the ‘Rules’ of interpretation is that there is always the tendency for the interpretation to go wrong even though you may be following the ‘rule’. This shows the complexity of law not to mention, word or phraseology ambiguity.
MMDA Not Different
It is common knowledge that the Muslim Marriage and Divorce Act (MMDA) is not any different from these imperfections. Even the MMDA is subject to amendments and the rules of interpretation to the extent of that human imperfection, barring some of the Islamic jurisprudential laws. Therefore, MMDA is not a strange animal from an unknown planet. What needs to be appreciated is that under the regular law also there is unfairness, unreasonableness, injustice etc. For example, the principles of natural justice and the Wednesbury principles are doctrines that came about to address the deficiencies in the regular law.
Muslim or not, we are social animals and are nurtured by several socio-cultural-religious subtleties. Whether the women activists like it or not, the reality is that Sri Lanka is a male dominant society. Going by research, what is indicated is that up to 97% of Sri Lankan men believed women should obey their husbands, and the majority of participants (both men and women) consider men to be the decision-makers in the family. Another study found that obeying the husband was associated with a lower risk of intimate partner violence (IPV). (Ceylon Medical Journal 2015; 60: 133-138). So, accusing only the Muslim men as being patriarchal is perpetuating a misleading impression. The Muslim women activists may have to be prudent and refrain from making sweeping statements in their unbounded enthusiasm.
It is also morally incorrect to showcase MMDA as a piece of law which has the intent of causing hurt to the Muslim women, to oppress them and to deprive them of their rights. The public is privy to a lot of noise being made that the rights of the Muslim women are being suppressed. In general, it gives a very distorted image about Muslim men to the average person on the street. Has the Muslim community ever been instrumental in suppressing the rights of the Muslim women? They enjoy the right to cast their own votes, the right to go before courts, the right to choose their religion, the right to select their partner, the right to have their own political opinion, the right to equality before the law etc. It is clear that she enjoys all the rights that any citizen of this country enjoys.
Why Only Muslim Women?
This does not in anyway imply that every affair relating to the Muslim women is hunky-dory. As much as other women folks have their own issues, the Muslim women, too, have their share but, not to the extent that is exaggerated. Women from other communities also face problems relating to marriage, divorce, maintenance, domestic violence, adulterous union, fornication, drunkenness, drug addiction etc. The above research indicates that intimate partner violence is a widespread problem in Sri Lanka affecting 1 in 3 women in the country. Based on the recent, most representative data, the overall prevalence of intimate partner violence in Sri Lanka is about 25–30%. Proportionately, the number of Muslim women who are subjected to IPV must certainly be very less especially, since alcohol abuse is less prevalent among Muslims.
One may give thought to the situation whether it is civil behaviour, in the name of women’s rights, to isolate only the affairs of the Muslim women and, that too, at a national level while ignoring the welfare of the other women who are not Muslims. Do not they also have women’s rights?
Resolving the Issue
Pointing fingers at each other is called the blame game. The masters of the blame game are the politicians. The politicians have now entered the MMDA fray. As for the Muslim politician, the word on the street is that the Muslim community is not too happy about this interference. They will do something which is not needed or not do something which is needed and continue to debate on it. Nikita Khrushchev famously said, “Politicians are the same all over. They promise to build bridges even when there are no rivers.”
It is a tragedy that those who call themselves intellects, professionals and experts whether religious or secular supported by their cohorts are indulging in this game. Reforms are needed and each side must walk that distance towards the centre which will bring them closer towards resolution.
It must reiterated that certain administrative, procedural and substantive parts of the MMDA do need revisiting. The call for reforms by the Muslim women and men are therefore, reasonable to that extent. One striking example is the payment of compensation (Matha) to the woman at the time of divorce. It has to be recorded that the majority of Muslims do not oppose reforms. However, one thing is clear, they are absolutely against MMDA being excessively tinkered. All those who are directly or indirectly involved in reforms may need to acknowledge this increasingly growing popular sentiment.
My next column will focus on suggestions as to how to facilitate a resolution to this issue.