Mass L. Usuf LL. B (Hons.) U.K., ACIS (U.K.) Attorney at Law (Ex-Advisor to the former Private Department of the President of U.A.E.)
Continuing worries of the Muslims of this country regarding the Government’s plan to meddle with the Muslim personal laws raised some concerns among the Arab and other Muslim nations worldwide. The Muslims have been practicing their personal laws from time immemorial from the times of ancient kings of Sri Lanka. With the several invasions by foreigners, the Muslim laws took the shape of codifications for example like the present Muslim Marriage and Divorce Act No. 13 of 1951 (MMDA). This was done to the other personal laws too.
It is an undisputable reality that these laws are deeply embedded within the psyche and ethos of the Muslim community. Moreover, since the MMDA also carries certain provisions directly relevant to the religion of Islam, such areas are considered sanctimonious. Tinkering with such provisions will be a violation of the principles of fundamental rights enshrined in Article 10 of the Constitution.
“Every person is entitled to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice.”
The substantive aspects of the MMDA laws, as is prevalent today, have been handed down from one generation to the other in an unbroken chain of succession. As a law, it has been received by the Muslims in toto and fully complied with in the highest spirit, giving it the true effect and meaning, of an accomplished piece of legislation.
In the Report of the UN High Commissioner for Human Rights, Michele Bachelet, dated 28 February-1 April 2022, which is before the Human Rights Council’s 49th sessions in Geneva, she highlights continuing trends towards militarisation and ethno-religious nationalism that undermine democratic institutions, increase the anxiety of minorities, and impede reconciliation.
Among the several recommendations made by her, relevant to the subject is:
“Ensure inclusive and broad-based consultation in the drafting and amendment of key laws, including … the Muslim Marriage and Divorce Act and other personal laws;” (VI. Recommendations – 67. (i))
Basically, what it means in undiplomatic language, “no sham consultations to achieve objectives already decided”.
Until the emergence of Sinhala Buddhist extremism around 2008, there was absolutely no issue with regard to the MMDA. Sensing the imminent defeat of the LTTE, in its separatist war, certain monks with extreme views disseminated hate, suspicion and hostility against the Muslims. A clear racist agenda evolved targeting the Muslim community which found acceptance among the racist elements of the Sinhala majority. Ever since, anything and everything ranging from MMDA to women’s brassieres were used as a tool to malign, marginalise and ostracise the Muslims. The bitter truth is that the majority of the Sinhala people either believed or chose to remain silent in a state of ambivalence.
To this end, a section of monks with extremist racist views were seen carrying forward the agenda. It must be frankly stated that the monks who were involved in this un-Buddhistic exercise abused their position of veneration among the Sinhala people who were used to accepting whatever the monks say without questioning. All these are not top secrets or new revelations but already known – publicly written and spoken about. Sometimes publicly acknowledged by some of these several actors who are today remorseful for the damage done by them for coexistence, peace and the image of Sri Lanka as a Buddhist country in the international arena.
Just like misunderstandings between the husband and wife is resolved within the family or extended family, the MMDA issue is something that had to be addressed from within the community. As is common to any other law, MMDA was not immune from being abused and unfairly administered. Major reforms were identified and recommendations made with dissenting views. The task got delayed and could not be completed within the expected timeline. Also, some of the reforms were not to the satisfaction of a minority group of Muslim women within the community. Briefly stated the Muslims wanted reforms and were fully supportive of it, though delayed, it was work in progress.
Like a giant wave crashing on the shore suddenly, there was an insidious move by interested parties to remove certain substantive portions from the MMDA. Yet, worse, some vested interests were clamouring for the abolition of the MMDA wholesale. The entire community spontaneously mobilised to express its absolute displeasure and resentment at this sinister plan.
Women up in arms
The Muslim women folk were vehemently protesting against the attempt to deny them their personal laws. Their argument, inter alia, was that this is not something new that the Muslims are clamouring for. They said that this is a right that has been faithfully and religiously practiced throughout the centuries. How come something that has gained credibility, legitimacy and gross acceptance can be denied without any justification, they questioned.
Reinforcing their position further, they say that the MMDA does no harm to the interests of any other community or their religious beliefs, it does not interfere with the matrimonial rights of others, it does not impose any legal obligations on those who do not belong to the religion of Islam. In this context, it is very clear that this attempt constitutes an act of intransigence and gross disrespect to the sensitivities of the over two million Muslims living in this country. This is nothing short of shameful behaviour on all those who are directly or indirectly part of this manipulative conduct.
For whose benefit?
It will be naive to accept this interference with the rights of an entire community as being done for the benefit of the community. There is the talk by some politicians that this was an election promise and, therefore, it has to be implemented. Such uncouth politicians do not focus on the election promises relating to the daily living of the 22 million citizens but are judicious about denying minority community of its basic rights. Is this a big joke?
Analysts ask whether scheming against the personal laws of the Muslims is of any benefit to the Sinhala people? The answer is a big “No”! Is it of benefit to the country as a whole? Again, the answer is a big “No”! In fact, it will be detrimental to the interests of Sri Lanka. The Muslim countries will not look such actions positively. Specifically, Pakistan, Bangladesh and other Muslim countries not to mention the many Arab states.
This is where the promise made and the assurance given to the Heads of Mission of Islamic States in Colombo on 30 November 2021 by the Foreign Minister G.L. Peiris becomes relevant. He said, “Sri Lanka will continue to uphold its rich democratic tradition as a society where every person irrespective of their religion, ethnicity or race enjoys the freedom to express their identity by practicing their own religion, culture and language. This is also reflected in the rich and varied legal tradition of Sri Lanka which includes personal laws specific to Muslim, Kandyan and Tamil communities, which Sri Lanka will continue to retain.”
Giving this assurance with the tacit acknowledgment of Prime Minister Mahinda Rajapaksa, who was also present at the dinner as Guest of Honour adds much value and enhances credibility among the diplomatic circle.
The positive stance of the Government in relation to the ethnic and religious issues is reflected in the statement of the Foreign Minister to the Human Rights Council, 49th Regular Session dated 1 March 2022, “We continue to ensure the promotion and protection of human rights and social justice for all our citizens, irrespective of ethnic and religious identity and political affiliations.” (All emphasis mine).
This test of credibility will be crucial for Sri Lanka’s foreign policy engagements and the dignity of the personalities involved.