—Dian A H Shah, National University Singapore Faculty of Law
[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2019, see here. This post is inspired by the proceedings and discussions at the ‘Gender Equality and Freedom of Religion’ Workshop in Colombo, Sri Lanka. The author would like to thank the Centre for Asian Legal Studies at NUS Faculty of Law, the International Centre for Ethnic Studies (ICES), the Ralph Bunche Institute, and the Special Rapporteur for the Freedom of Religion and Belief, Dr Ahmad Shaheed, and his team for supporting and organizing the Workshop.]
The Easter Sunday bombings have generated fresh attention on religious relations and the delicate task of managing religion in Sri Lanka. Within a month after the bombings, anti-Muslim violence escalated in parts of the country, which eventually led to an extension of the state of emergency and government-imposed bans on social media in a bid to restrict the spread of hate speech, fake news, and incitement to violence. At the same time, there was a strong sense that the state had been slow to react against the violence and protect Muslim minorities from increasing (and organized) persecution and discrimination following the terror attacks in April. In particular, human rights and civil society organizations have highlighted the ways in which right-wing Sinhala-Buddhist groups have continued to lead and perpetrate anti-Muslim mobilization and attacks with a great degree of impunity. The series of events in May 2019 marked the second anti-Muslim riots in Sri Lanka after the political change in January 2015, and with the growing populist and anti-minority discourse in the country, the promise of democratization and rule of law remains difficult to fulfil in the shadow of ethnic politics.
Amidst the ongoing inter-religious tensions, Sri Lankan Muslims are facing another uphill battle that implicates the relationship between law, religion, and politics. It concerns an important issue that has received far less attention globally: the reform of Muslim personal law – the Marriage and Divorce (Muslim) Act 1951 (commonly referred to as the MMDA). Efforts to reform have spanned over three decades, and while a number of committees have been set up at various points in time to study and propose changes to the MMDA, these have not been successful. The most recent attempt at reforming the MMDA, which continues today, emerged from the establishment of a committee by the government in 2009. The constitutional reform process in Sri Lanka – which was among the new government’s key electoral pledges and began in 2016 – breathed new life into debates on MMDA reforms. In 2018, the Marsoof Committee finally submitted its report to the government, but even then it failed to reach a consensus on several key issues, most of which involve women’s rights and interests. This stalemate raises several constitutional issues with regard to the protection of Muslim women in Sri Lanka, but more broadly, they elicit questions about the ways in which the state manages religion, religious freedom, and the right to non-discrimination, particularly for vulnerable groups.
Constitutional Questions and Comparative Experiences
Among the most fiercely debated issues for reform have revolved around: (1) introducing a minimum age of marriage for Muslims; (2) instituting the requirement of mandatory and written consent from the bride to enter into marriage; (3) conditions for practicing polygamy; (4) allowing women to be appointed as quazis (Muslim judges); and (5) setting specific standards and qualification requirements for the appointment of quazis.
Under the MMDA, Sri Lanka operates religious courts (quazi courts) to adjudicate marriage and divorce matters (including maintenance), and these courts are overseen by the Board of Quazis, which entertains appeals from the courts. While the Judicial Services Commission is responsible for the appointment of quazis, the pool of applicants is limited to ‘any Muslim male’ who meets vaguely defined standards: he should be ‘of good character and position and of suitable attainments’. A more pressing problem, however, concerns the practice of child marriage within the Muslim community, which is enabled by the absence of a minimum age of marriage in the MMDA. This has been highlighted as a key aspect for reform since the 1970s, and although legal reforms in 1995 increased the minimum age of marriage to 18 years for Sri Lankan citizens, Muslims were excluded from this requirement, ostensibly out of respect for the customs and cultural traditions of the community. Compounding this problem is the fact that the MMDA allows brides to be married off without their consent, thus raising concerns about forced marriages, particularly amongst young girls. They then become vulnerable to another loophole in the MMDA that frustrates the protection of women and children: the liberal provisions for polygamy that allow Muslim men to marry without the consent of their existing or future wife/wives.
As in many modern constitutions, the 1978 Sri Lankan Constitution guarantees the right to equality and non-discrimination. Article 12 provides that ‘all persons are equal before the law’, prohibits discrimination on the grounds of sex, and stipulates that this provision shall not prevent law or regulations for the ‘advancement of women’. A cursory reading of this provision tells us that the MMDA belies constitutional guarantees for equality. In addition, having ratified the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC), the government bears the responsibility to ensure that domestic laws comply with principles underpinning these international treaties. Yet, a crucial hurdle in reforming discriminatory personal laws emerges from the Constitution itself: Article 16 validates the operation of all existing written and unwritten laws at the time the 1978 Constitution came into effect, even if they conflict with fundamental rights guarantees. This has facilitated the continued operation of the MMDA (promulgated in 1951 based on personal laws applicable during the colonial period) and secured its immunity from being challenged in a court of law. The 2016 constitutional reforms process triggered demands to repeal Article 16, but these were never addressed in the Interim Report of the Steering Committee of the Constitutional Assembly tasked to draft a new constitution for Sri Lanka. In fact, even as the Sub-Committee on Fundamental Rights proposed a provision in the bill of rights requiring ‘free and full consent’ of spouses intending to marry, concerns were raised about the effect of this provision on existing Muslim personal law.
As perverse as it may sound, those who are pushing for reforms in Sri Lanka may take comfort in the fact that these issues are not unique to their country. Muslim-majority countries such as Malaysia, Indonesia, and Tunisia, have faced or are continuing to face similar problems, but there have been success stories in the struggle to reconcile religion and gender equality. For instance, in 2010, for the first time two women were appointed as sharia court judges in the Federal Territories of Malaysia, and there have been several other appointments to the Sharia High Court in other states thereafter. This followed a government decision in 2003 allowing the appointment of women as sharia court judges and a fatwa by the National Fatwa Council stipulating that qualified women may be appointed as sharia judges. As a result of wide-ranging Muslim personal law reforms in the 1980s, conditions for polygamy in Malaysia were tightened – in the Federal Territories, for instance, polygamy requires an in camera hearing where the husband and any existing wife or wives are present and the approval of the kadi, who must be satisfied – among other conditions – that the marriage is just and necessary and that husband is able to support all dependents (existing and forthcoming) without compromising their standard of living. Similarly, in Indonesia, the 1974 Law on Marriage requires a man to obtain the permission of the court before he can take on more than one wife and stipulates the conditions in which permission may be granted. In Tunisia, the Code of Personal Status criminalizes polygamy and this was established as far back as 1956.
The Continuing Challenge of Politics in Law Reform
Much of the effort to reform the MMDA has been stymied by the lack of political will and courage, particularly in the face of pressures from dominant religious organizations and opinions. For instance, the All Ceylon Jamiyyathul Ulama (ACJU) – the leading religious body for Sri Lankan Muslims – have been lobbying the public and political leaders against MMDA reforms especially on issues concerning female quazis and minimum age of marriage. In 2017, the ACJU issued a press statement reiterating its position that the MMDA ought to be reformed, but it is also duty-bound to comply with sharia principles. In July 2019, Muslim members of parliament finally reached a consensus on reforms (including on the issues that the ACJU had been advocating against), and they subsequently drafted reform proposals for cabinet approval. The ACJU then reportedly wrote to the Muslim MPs, stressing that their political survival was at stake without the ACJU’s support and mobilization of Muslim voters and that they should not proceed without clergy recommendations.
This series of events on the MMDA reform in Sri Lanka reflect ongoing, worldwide debates on constitutional law and religion in at least two respects. The first concerns the boundaries of religious freedom and its relationship with other fundamental rights such as equality and non-discrimination in modern democracies. Of particular significance is the argument that carrying out one’s religious duties according to the principles of one’s religion is a manifestation of religious freedom that the state ought to respect. This became the subject of a constitutional challenge in Indonesia in 2008, where the petitioner argued that the limited jurisdiction of religious courts under the Religious Courts Law infringed his right to religious freedom. The Indonesian Constitutional Court rejected the argument and emphasized instead that the state must not draw any distinctions between the majority and minority when dealing with its citizens. The second point concerns the growing role of religion (and by extension, religious clergy) in shaping law and policy-making in secular, democratic societies. In this respect, a recent case in Malaysia is noteworthy: the High Court of Selangor, on 27 August 2019, declared that the civil courts have no jurisdiction to review the legality of a fatwa labelling a Muslim women’s organization as ‘deviant’. For the court, such issues concerning Islamic law – even if they overlap with constitutional rights questions – should be dealt with by the sharia courts. This offers potent lessons – for Sri Lanka and similarly-situated countries elsewhere – on how the competition between secular and religious authorities for prominence in the public sphere could ultimately shape states’ political and constitutional fundamentals.
Suggested citation: Dian A H Shah, Challenging “Divine” Law: Protecting Gender
Rights in Sri Lanka and Beyond, Int’l J. Const. L. Blog, Sept. 4, 2019, at: http://www.iconnectblog.com/2019/09/challenging-divine-law-protecting-gender-rights-in-sri-lanka-and-beyond/
 The first was the anti-Muslim riots in the Central Province in March 2018. However, prior to the March 2018 riots, anti-Muslim violence broke out in Gintota (Southern Province) in November 2017. See Neil DeVotta, ‘Religious Intolerance in Post-Civil War Sri Lanka’ (2018) 49(2) Asian Affairs 278, 294.
 The Committee is headed by a former Supreme Court judge, Justice Saleem Marsoof.
 See also Chulani Kodikara and Hyshyama Hamin, ‘Gender-just laws versus “divine” law in Sri Lanka’ (openDemocracy, 4 April 2017) <https://www.opendemocracy.net/en/5050/battling-sri-lankan-state-gender-just-laws-vs-divine-law/>.
 Section 12(1) of the MMDA. There is a comparable provision in Singapore’s Administration of Muslim Law Act 1966: section 91 (1) stipulates that ‘the President of Singapore may appoint suitable male Muslims of good character and position and of suitable attainments to be Kadis and Naib Kadis.’ A Kadi is responsible for solemnizing Muslim marriages.
 The reforms in 1995 amended minimum age limit for marriages under the General Marriage Registration Ordinance 1907 and the Kandyan Marriage and Divorce Act 1952. See also Kodikara and Hamin (n 4).
 The Constitutional Assembly of Sri Lanka, ‘Report of the Sub-Committee on Fundamental Rights’ (tabled on 19 November 2016), <https://english.constitutionalassembly.lk/images/pdf/reports-2018/Fundamental%20rights%20report%20English%20final.pdf>.
 See Najiban Mohd Zin, ‘Female Judges in Malaysian Shari’a Courts: A Problem of Gender or Legal Interpretation?’ in Nadia Sonneveld and Monika Lindbekk (eds), Women Judge sin the Muslim World: A Comparative Study of Discourse and Practice (Brill 2017) 153, 167, and Farid S Shuaib, ‘The Islamic Legal System in Malaysia’ (2012) 21(1) Pacific Rim Law & Policy Journal 85, 97.
 Nik Noriani Nik Badlishah and Yasmin Masidi, Women as Judges (Sisters in Islam 2002, rev edn 2009) 1. Judges in sharia courts in Malaysia do not only preside over personal law matters such as marriage, inheritance, and divorce; they also adjudicate matters involving Islamic criminal law.
 Donald L Horowitz, ‘The Qur’an and the Common Law: Islamic Law Reform and the Theory of Legal Change’ (1994) 42(2) American Journal of Comparative Law 233, 285.
 See arts. 3 and 4. Polygamy is illegal for civil servants in Indonesia, except in very limited circumstances.
 Shreen Abdul Saroor, ‘Why is the ACJU blocking MMDA reforms?’ (DailyFT, 2 August 2019) <http://www.ft.lk/opinion/Why-is-the-ACJU-blocking-MMDA-reforms-/14-683174>.
 All Ceylon Jammiyathul Ulama, ‘ACJU and the MMDA’ (ACJU, Media Release, 3 April 2017) <https://acju.lk/en/news/acju-news/itemlist/tag/MMDA%20Clarification> .
 Constitutional Court of Indonesia, Decision No. 19/PUU-VI/2008, Examination of Law No. 7 Year 1989 on the Religious Courts as amended by Law No. 3, Year 2006 (12 August 2008),pp. 4–5.