Sri Lankan personal laws between justice and freedom – A value based perspective Featured

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Sri Lankan personal laws between justice and freedom – A value based perspective
01 December
2016
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Published in: Opinion

No century in recorded history has experienced so many social transformations and such radical ones as the twentieth century (Peter, 2016). Over this period, without any exception every human culture has been transformed from within, due to globalisation and rapid geopolitical changes. Unlike the past, today the universe is increasingly transforming into closely connected villages where all social groups and nations are compelled to find commonalities among them with mutual understanding and respect to each other. Identifying a common ground in terms of the immutable values and common goals which enable attainment of those values is the missing task that plural nations need to fulfill.

Throughout the human history to date social groups have had certain ways of life shaped by codes of conduct, both unwritten and written. Without exception every such code has undergone changes; and change will be the only constant factor that never changes. This article attempts to analyse various personal laws and family laws in common and Muslim personal law in particular in line with perceived higher objectives or immutable values in compliance with the divine texts and prophetic traditions. Furthermore, this article tries to unfold mere dogmatic and cultural practices and open Muslim eyes in particular to move towards common goals and a common framework to reach those goals in terms of personal laws of Sri Lankan in common and the Muslim personal law in particular.

Background and origin of Sri Lankan Personal Laws

Sri Lanka’s legal system was significantly influenced by colonial powers that concurred and ruled the country for centuries. Today the personal laws in effect in Sri Lanka includes a combination of English common law, Roman-Dutch civil law and customary laws such as Kandyan’ Law, ‘Thesawalamai’ Law and Muslim personal Law. Customary laws are applicable to various communities: the Kandyan Sinhalese, Tamils of Jaffna and Muslims respectively. Without exception, the customary practices and customary laws of all these communities have transformed with time.

According to Marsoof (n.d.) ‘Kandyan Law is another name for the laws and customs that were in force under the Sinhalese Kings, whose sovereign power was confined to the central hilly regions of Sri Lanka from 1505 to 1815’. Further, Bari (2013) reveals that from 1815 to 1835, the British regarded the Kandyan Law as a territorial law instead of personal law, which applied to those who lived in the territory including Hindus and Europeans domiciled in the territory. Munasinghe (1990) states that ‘prior to 1859, the Kandyans had no written laws and marriages were contracted according to customary rites and by public recognition of the unions’. He further states that the practices of polygamy and polyandry were also prevalent within the ‘Kandyan law.’ Further Bari (2013) notes that ‘it has been decided judicially that the ‘Kandiyan’ Law is applicable as a personal law to ‘Kandyan’ Sinhalese’’.

According to Thambiah (2004), ‘Thesawalamai’ law is applicable to the Malabari inhabitants of the province of Jaffna, and before it was codified by the Dutch it was a customary law applicable to the Tamils who inhabited Jaffna district. When it comes to judicial interpretation, Bari (2013) states that the ‘Thesawalamai’ law was applicable to the ‘Tamil community who have permanent home in the Jaffna province’. Shivaji Felix states that ‘the law of ‘Thesawalamai’ also strives toward reaching its pre-determined end’, and ‘unless regularly amended it will not be able to fulfill the aspiration and expectation of the society in which it exists’ (Thambiah, 2004).

‘Muslim personal law governs the family affairs of the Muslims which specifically includes marriage, divorce and inheritance and derived from Shariah, a legal and customary system, that was evolved and finally codified during the 8th and 9th centuries by the four Imaams namely Abu Hanifa (700 – 767), Malik Ibn Anes (710 – 795), Mohamed Al Shafee (767 – 820) and Ahamad Ibn Hanbal (780 – 855) based on the Quran and the traditions of the Prophet’ (Nuhman, 2016). Another point of view being put forward by Mahanama and Naufel (2016) states that ‘the Muslim law adapted in Sri Lanka is different from Sharia law or the Islamic law but contains certain features of the Sharia law’. Accordingly it is clear that the Muslim law was established based on understanding of religion of Islam in general and mostly the customs of Muslims in particular which will be elaborated in detail later in this article.

The customary laws within the Sri Lankan legal system were applicable to selected communities, and the Roman Dutch laws became applicable to fill gaps left by the customary laws; Roman Dutch laws were thus often called common law or residuary law (Bari, 2013). Accordingly ‘the earliest British enactment in this direction was Regulation No. 7 of 1815, the year in which the whole Island passed under the colonial rule of Britain. The Ordinance No. 6 of 1847, which followed, was the first attempt to provide a general system of registration, and applied to all births, deaths and marriages, other than those of the Kandyan Sinhalese and the Muslims’.

Acceptance of diverse legal systems and laws

Looking at the diverse laws being combined in to the Sri Lankan legal system, we have to understand the motives of the European colonial powers as well as the successive post-colonial government of the social republic of Sri Lanka in incorporating laws and amending them from time to time.

Without exception throughout the world colonial powers maintain the maximum exploitation of resources and commercial profit from colonised countries. ‘The legal system was continued to be the sphere that determined and set the tone of economic domination. But most importantly for the British, the avid desire to reduce the economic costs of controlling the country led them to maximize the role of law. Law was simply more financially rewarding than brute power’ (Hallaq, 2009). Contrary to this, even today entire laws in Britain are not codified, and there are binding unwritten conventions in operation.. Further in 2007, the coalition government came to power in Britain with a commitment to codify prerogatives; however, this commitment was not fulfilled.

Meanwhile, post-colonial governments of Sri Lanka had shown their willingness to incorporate diverse customary practices within the accepted legal framework. Late Prime Minister S W R D Bandaranaike at the opening of Sri Lanka’s first parliament states that “no people can live on memories alone; it is equally true that history often provides a source of both strength and inspiration to guide them in the future’. Professor Savitri Goonesekere (2012) was citing the late Prime Minister S W R D Bandaranaike’s speech states that the government had the ‘political will’ to adopt various customary laws. However despite the political will mentioned above, in practice exploitative philosophy-based laws and jurisprudence left by the British were largely absorbed by the post-colonial governments of Sri Lanka. Many of the prevailing laws, including various customary laws, were codified by the same colonizers to maximize colonial control. These laws have not undergone gradual reform since, as is happening in Britain today where abolishing prerogatives and unwritten conventions are still under public discussion and academic scrutiny.

Calls for amendments to Personal Laws over two centuries

Customary practices of all communities have changed over the last two centuries in Sri Lanka. The resulting common law and customary laws have changed gradually both with and without resistance to change. When it comes to common law enacted in 1815, for instance Regulation No. 7 of 1815 has been amended at least 13 times in 18th century, and 16 times during 19th century till the passage of Marriage Registration (Amendment) Act No. 12 of 1997. From 2000 to 2016, there was at least one amendment, with the Marriage Registration (Amendment) Act No. 11 of 2001.Despite this history of revision, there is still the demand for change. Continued academic and legal studies enrich and enhance this change process in accordance with the changing contextual ground realities, ultimately enabling that rule of law prevails. In a recent research article, Ekanayaka (2016) calls for amending the ‘irretrievable breakdown of marriage’ as a ground for divorce in the general law of Sri Lanka. Previously, in 2007 the Law Commission proposed a Matrimonial Causes Act relating to family matters applicable to all marriages except those contracted under Kandyan and Muslim law. Calls for reform of Kandyan law were not new in the legal domain: Savitri Goonesekara (2004) states that ‘… law of Kandyan Sinhalese community and Tamil communities in Sri Lanka need to be modified as a parallel process of Law reform. Further so called customary laws contain many provisions which are in fact derived from English colonial law and the colonial Roman-Dutch law and these are in clear conflict with constitutional and human right standards’.

Thambiah (2004), writing about the sources of ‘Thesawalamai’ law, states that ‘every positive system of law that came in contact with the ‘Thesawalamai’ left its imprint on it. The Hindu Law, the Mohammedan law, the Roman-Dutch Law and even the English Law have in turn made their contributions in development of the Thesawalamai’. Thesawalamai was codified by the Dutch in 1706. Subsequently the British enacted the Thesawalami Regulation No. 18 of 1806. Other relevant laws are Ordinance No. 5 of 1869, the Matrimonial Rights and Inheritance Ordinance of 1911, amended by Ordinance No. 58 of 1947, the Thesawalamai Ordinance and Thesawalamai Pre-Emption Ordinance, and the Jaffna Matrimonial Rights and Inheritance Ordinance No.1 of 1911 (Tambimuttu, 2009). Further Thambiah (2004), citing the commissioners of Thesawalami, stating that ‘the particular portions of the Thesawalamai Code necessarily become inoperative by such amendments. It is also possible in certain clear cases to point to particular portions of the Code which have become obsolete … and some of the provisions have fallen into disuse and the common law is applicable to these subjects’.

Unlike ‘Kandyan’ and ‘Thesawalamai’ laws, changes to the Muslim personal law have been relatively fewer during the last two centuries. The Mohammadan Code of 1806 was amended in 1929, nearly after 120 years after its enactment. It was then repealed around 20 years later, by the Muslim Marriage and Divorce Act of 1951 (Numan, 2002). Subsequently, several efforts were made to reform the act, in 1959, 1973 and 1992. In 1992, the recommendation of the ministerial committee on Muslim Personal Law, initiated by a memorandum submitted to it by Muslim Women’s Research and Action Forum (MWRAF), were met with outrage by conservative groups. Reform efforts were ultimately shelved.

Comparative Studies of Personal Laws

Comparative studies of diverse personal law have emerged in the legal domain, focusing on legal values such as protection of human rights, safeguarding the institution of marriage, ensuring the dignity of spouse while at marriage and at times of divorce (Ekanayaka, 2016), justice and fairness over distribution of inheritance among families, protection of religious freedom (Skanthakumar, 2003), protection of illegitimate children’s right to intestate inheritance and dignity divorce (Ekanayaka, 2016), (Menaka, 2013) etc.

For example when discussing the objective behind the common personal laws, Ekanayaka (2016) states that its ‘real purpose is of safeguarding the institution of marriage’. ‘Earlier in England, marriage was considered as holy sacrament for lifetime because of the influence of the Christian church’(Ekanayaka, 2016). When comparing the same with Kandyan Law, the latter recognizes illegitimate children’s right to intestate inheritance on their natural father’s intestate property with some limitations (Menaka, 2013).

In countries such as South Africa, Nambia, and Pakistan, various customary laws are administered by a single system of administration. In Sri Lanka, there is a combination of a formal administrative system as well as subordinated alternate mechanisms such as existence of Quasi system for Muslim personal law, resulting in administrative and procedural hurdles. Furthermore, the ability of the common law court to come with new laws to fill any gaps in the law was not available with the Quasi system; and gaps left by the existing Muslim personal law will not be filled by Quasi made laws.

Muslim Personal Law: a matter of controversy and ways to unfold

‘In plural societies such as in Sri Lanka the duty to protect religious/customary belief and protecting the rights of Muslims is a matter of controversy’ (Skanthakumar, 2003). The provisions of various international human rights instruments ratified by Sri Lanka that guarantee the rights of children is another point of contention with the customary laws of Sri Lanka (Menaka, 2013). However the process of reforming the law and ensuring the application of legal values in a changing context is a lifetime process that the human civilizations should continuously engage in. As Menaka (2013) states ‘natural justice based on human principles or justice determined by human sense of justice or in a broad sense an inherent right to have fair and just treatment at the hand of law should be a continuous process until the law seeks to produce a reasonable decision’. This is very important to understand in order to unfold the controversies that arise and shape societies within.

Understanding the legal values embodied within the customary laws of Sri Lanka, extent of reform initiatives undertaken within the diverse communities, and the resistance within to reforming the customary law will give some insight as to how to set the path toward reforming the personal law in compliance with the immutable legal values that were embodied within.

It is worth studying in depth the legal values within the customary laws. In plural societies like Sri Lanka, we as Sri Lankans with diverse cultures and traditions should devise a new framework that is itself plural in nature and complementary to each social/customary group to reform within, and to confirm compliance of the legal values pertain to each customary practice. This is of course a challenging task when these customary groups have diverse internal sub-groups including caste-based groupings, but it is not impossible to achieve. Today it is important to understand that without exception, resistance from almost all these groups stems from fear and lack of knowledge of legal values within their own traditions and customary practices.

Accordingly, transforming the diverse groups, from their dogmatic understanding of traditions and customs to value-based societies, needs extensive amount of homework, geared towards introducing a new discourse from scratch within and among the cultural groups at various levels including academic, theological, legal domains as well as reforming the education system of Sri Lanka. As a part of this effort, the next part of this paper attempt to address the Muslim personal law of Sri Lankan in terms of the challenges to reform from within the community, and propose a framework to unfold the dogmatic practices and steps to reform that will uphold Islamic legal values that are constitutional and universal values at the same time.

Why resistance to reform personal laws

Today the customary laws of various communities in Sri Lanka are seen as a part of self-identity of each group, and increasing molded as part of their constitutional right of freedom to practice religion. Calls for reform are perceived as efforts of other communities, including the west, to erase their identity. Contrary to this perception, all those personal laws were drafted by the same west during their colonial rule to curtail the flexibility embodied within the customary laws. During the colonial era, the fear of losing the religious beliefs and customs was common among all three communities, and resulted in them adopting a strategy of defensiveness and self-isolation to protect their individual cultures and customs. With all these factors put together, each community embraces negative perceptions of the other, and any call to reform is perceived as conspiracy to wipe-off their identity. Resistance of the Sri Lankan Muslim community is not exception to this home grown mindset. Whenever there is a demand for reform by some segment of Muslims, another segment of the same resists, in turn preventing politicians from taking any proposals for reform forward out of fear of the political costs of losing their vote banks.

Furthermore, reform initiatives by a segment of Muslim society over a decade also failed to succeed in their effort due public outcry within the same customary group. MWRAF took this as a women’s rights violation issue and failed to invest in appropriate lobbying considering the sensitivities of the people of that custom i.e. the colonial era mindset of fear and self-defense with regard to women’s activism or feminists, as many Muslims think these projects also part of the western agenda of systematic abolishing of Muslims’ customary and religious practices and identity.

Meanwhile, the Muslims religious studies of today in Sri Lanka also have its own share of drawbacks when it comes to understanding of Islamic legal values, law and jurisprudence. In order to understand this drawback, and the emotional and fear-based mindset, it is essential to understand the background of Muslim law and jurisprudence in general and how that ended with aspects of family law and property rights as Muslim personal law.

As Professor Nuhman (2016) states, the ‘Muslim personal law written during the 8th and 9th centuries by the four Imaams’ who ‘referred as mufti and author-jurists were the main source of study of Law and the legal systems’ (Hallaq, 2009) which is the reference point for present Muslim personal law. The four Imaams were living before the dawn of modernity, and were not subjected to the authority of estate as such authority was non-existent at that time. State administration was thin, mostly limited to urban sites, and largely confined to matters such as the army of the ruler, his assistants, tax collection and often land tenure (Hallaq, 2009). During this era, people were not registered at birth, had no citizenship status, and could travel and move to other lands and regions freely – there being no borders, no passports, no nationalities, and no geographic fixity to residential status (Hallaq, 2009). In this context, where there is no court system administered by present style governments, society and its communities produced their own legal experts, persons who were qualified to fulfill a variety of functions that, in totality, made up the Islamic legal system. The profession of jurists and professors were brought up in a platform of law schools called in Arabic language as ‘MADRASA’. These Madrasas became the point of contact between law and politics and it was the venue for ruling class to sustain political and religious legitimacy (Hallaq, 2009). Further Hallaq (2009) points to an important observation that, ‘until the introduction to the Muslim world during the nineteenth century – of the modern state and its ubiquitous institutions, Muslims lived under a different conception and practice of government; which had confined to role of ensuring security from internal and external threats being army of the ruler, his assistants, tax collection and often land tenure. During the eighth-century community of jurists not only formulated law independently but also administered it in the name of the ruling dynasty (Hallaq, 2009).

These madrasa settings were free scholarly gatherings of a professor and students during the late 10th century have exhibited a tendency to superimpose itself over the study circle. There were two set of madrasas, in which the one engaged with legal education is increasingly subjected to systematic control of the rulers. While the ordinary men and women founded many such madrasas, they remained limited to educational projects having no effect or influence beyond local neighborhoods (Hallaq, 2009). The dramatic change toward the end of the 16th century was that the Ottoman empire introduced a change to their method of governance – they unified administrative and legal powers within the jurisdiction of the Shariʿa judge and adopted the Hanafi School as the official law of the empire. During this era, Ottomans were the first in Islamic history to commit the court to a particular residence, a courthouse so to speak (Hallaq, 2009).

Invasion of colonial powers such as the British in India, the Dutch in Indonesia, the French in Algeria as well as military defeat of Ottomans in the hands of Russian colonization caused a radical shift in the way the court system worked at the time. From the beginning of 16th century Britain began its penetration of India through the agency of the East India Company (EIC). In the eyes of the British, economic and commercial ambitions were intimately connected with the particular vision of a legal system structured and geared in such a manner as to accommodate an ‘open’ economic market. Most importantly for the British, the avid desire to reduce the economic costs of controlling the country led them to maximize the role of law. In order to curtail the variety of opinion and pliability if Islamic and Hindu law, features that was seen as uncontrollable or a corrupted mass of individual juristic opinion, the British codified the Islamic law but justified such action by stating that the Islamic law was unsystematic, inconsistent and mostly arbitrary (Hallaq, 2009) .Subsequently, by this act the British disposed Muftis and Muslim jurists who served in the system and entire customary laws were transformed as state law and then gradually replaced them with British counterparts. The doctrine of stare decisis was enforced as legal authority instead of calling upon juristic authorities such as Muftis. By end of 18th century, except family law and certain elements of property transaction, all indigenous laws had been supplanted by British law. Ultimately the post-colonial structure of governance of the entire social fabric including rule of law, military, education, trade and commerce were concentrated in the hands government of nation states with border control and citizenship, in which the Madrasa system became mere educational projects and lost the spirit of being an authority of law and jurisprudence around the Muslim world.

The Madrasa situated in Sri Lanka was not exception to this trend. They have mere educational projects that provide the qur’anic teachings as well as the law books written by four imams and their successors of that era. These Madrasas are highly sensitive in relation to prevailing Muslim personal law as well as any attempt to reform the same, despite the fact the same Act was codified by colonizers at the start.

Today most of Sri Lankan Muslim Madrasa curricula include one or combination of the four Imaam’s teaching of law and jurisprudence (fiqh). While the Madrasas stick to those studies as law and jurisprudence, they paradoxically fail to understand that the same four scholars in general and the Imaam Shafie in particular addressed the need for inventions or continued reform in law and jurisprudence (fiqh) in order to ensure the immutable higher objectives or legal values in line with changing contexts. Further the studies of law and jurisprudence (fiqh) in these Madrasas have no mechanism to study about the existing legal systems and laws (fiqh studies) in their curriculum. Accordingly students complete their studies from these madrasas having learnt little about the contemporary law and jurisprudence, knowledge of which their teachers lack. This is the background from which Sri Lankan Muslim religious scholars emerge, reflecting why their resistance is relatively greater than their contributions on Muslim personal law reform.

In addition, Muslim lawyers, judges as well as students of law in Sri Lanka too lack the quest for learning of Islamic legal values that were fundamentals of the law and jurisprudence (fiqh), and the commonalities between various legal systems that continuously evolve around the world. Furthermore, these legal professionals also believe as part to their custom and faith that the legal systems and law around the world of today are not in line with Islam as they were imposed by colonial powers to attain worldly commercial gains; while the written laws of the four imaams were the religiously right ones. Exceptionally few of them who are of the other opinion would not vocally express their views as it will be seen as betrayal of religious faith, placing them at the risk of isolation. Hence there is a reluctance to engage with studies exploring Islamic legal values and the law and jurisprudence of various times, and consequently comparative studies of legal values, laws and jurisprudence among Sri Lankan Muslim legal practitioners are very rare, despite the fact it should be their ethical and moral responsibility.

Today all men and women as citizens need to have understanding of law and jurisprudence as ‘it is not only relevant to intellectuals, but also it is essential to society at large including the uneducated man or woman as much as to the highly learned (Hallaq, 2009). In Sri Lanka, there is currently no effective project, educational or otherwise, to make awareness about the prevailing law and jurisprudence in general and personal laws in particular. Family studies are totally outside the entire education curriculum, which limits the general public’s understanding of the evolution within family and the importance of ensuring family values. Our school system doesn’t touch any aspects of law and jurisprudence and the legal values behind them, and students thus produced do not possess the means to think through life’s intricate situations or the world’s more complex problems – and make informed decisions in that regard. Currently, studies of law and jurisprudence in Sri Lanka are limited to the undergraduate and post-graduate education levels at law faculties of universities and Law College, which are accessible to less than 1% of the total island’s student population. Ordinary citizens of this country are completely being denied any forum to gain some basic education about the prevailing laws and jurisprudence except traffic rules in Sri Lanka.

These realities explain that all of the windows are currently closed for the Muslim community of Sri Lanka to understand the aspects of existing personal laws, with its merits and areas of reform. The community is yet immature as a majority of Muslims lacks understanding of the legal system and law. Accordingly it is the inevitable reality that ‘demands for equality and justice in family law have meant both reform as well as resistance to reform’ (Balchin, n.d.).

Re-building value based capability

In countering this deadlock and re-building value-based capability that would result in a value-addition to the nation, it is essential that Sri Lankan Muslims in general undergo three milestones. . First, Sri Lankan Muslims need to understand ‘what is the social vision they share for the nation as a whole in line with their faith’ and ‘what are the legal values they are going to uphold to add value to the nation and beyond’. Second, they should understand the linkages between those Islamic legal values, and how those values are shared within other customs and constitutional and universal settings, including laws and jurisprudence, diverse legal systems of various contexts in the human history in general and the prevailing Sri Lankan context-related laws and jurisprudence in particular. Third, they have to devise with common goals in line with their identified social vision and the appropriate means to attain the same.

Understanding the Social Vision of Islam

Today it is essential for the Sri Lankan Muslim mind to re-visit their understanding of the social vision revealed in the scriptures of Quran and the tradition of the Prophet Mohamed. Centuries of subjectively defensive and victimized understanding of religious and cultural practices by the Muslim mind have resulted in a loss of focus on the objective take of Islam and its teaching of immutable values. The ongoing call for reforming the Muslim personal law and the reaction of the Muslim community, including demand for application of lump sum of laws pertaining to 8th and 9th century addressed by four Imaams schools of thought on law and Jurisprudence, shows that there is a disconnect between the understanding of the hierarchy between the social vision and the Islamic legal values that are immutable with that goals and means that are contextual. Today the Muslim mind in particular is in dire need of reconciling the journey between the immutable values carried in the Quranic teaching and prophetic tradition of 5th century, passing the 8th and 9th centuries to the present 21st century without any discontinuity. In fact those Quranic teachings of the 5th century itself endorses the immutable values of justice, freedom, protection, dignity as their fundamental theme, throughout the human history with diverse laws and jurisprudence of various contexts.

The prime reason for letting the various interpretations open to the Quranic text and prophetic tradition over 14 centuries is to ensure the continuation of identification of immutable values and flexibility to struggle at varying context for the attainment of the values by appropriate goals and means. Accordingly it is important to understand the immutable element i.e., the social vision and the contextual element i.e., law and jurisprudence of various times that keeps on shaping the vision will give confidence and motivation to follow the same trend and keep the struggle of setting the goals and means in line with legal values and vision continue over time.

The social vision of Islam is flowing throughout the Quran and prophetic traditions. Wherever Quranic verses deal with certain ruling to apply in the society, it never fails to link such ruling with corresponding immutable values. The entire teachings of Quran are aligned with it’s greater social vision for humanity such as mercy, justice, dignity and freedom. Quranic verses such as ‘we have not sent you, [O Muhammad], except as a mercy to the worlds’ (Al Qur’an 21:7), upholding justice being linked as a part of faith on god (Al Qur’an 4:135), and entire mankind as being dignified and honored (Al Qur’an 17:70), assuring freedom of belief and practicing faiths (Al Qur’an 2:256) set the broader social vision of Islam. Furthermore, Muslims believe that the prophetic traditions were nothing but the mirror image of the Quranic teaching. From the very start, Prophet Mohamed struggled to build a plural society that upholds the social vision and rule of law. Today the great struggle that rests within the Muslim mind in general is to self-reconcile the aspect of social vision cited above with rest of the Quran verses and every aspect of prophet life, without any contradiction with wisdom and rationality. Absorbing such a social vision is the radical reform the Muslim mind should undergo today. The companions of prophet were able to understand this well, and were able distinguish between those elements precisely of immutable social values and that of contextual law and jurisprudence. One of the classical examples was that of the third successor of Prophet Mohamed, namely Omar, was able to suspend the punishment of theft during famine as he was able to understand the ruling of punishment was not just to punish but to build a just community that is free from poverty and theft.

Becoming a value adding community to the nation

Today Sri Lankan Muslims as believers of Islam, if embracing the social vision and the immutable values of justice, dignity and freedom as a part of their faith, cannot restrict themselves in to an isolated community. Their utmost responsibility is to the nation both as citizens and a faith-based community having ethical and moral obligation to learn and understand the Sri Lankan context better, and to come with common goals including law and jurisprudence to add value. Accordingly Sri Lankan Muslims of today need a U-turn and radical reform in a way they look at law and jurisprudence. Reformers within Muslim community should try to understand that the immutable Islamic legal values that are common to other communities and empower within. Eventually this understanding would reverse their thinking and demand to apply some aspects of laws developed by four Imaams during 8th and 9th century. Sri Lankan Muslims should engage in studies of law and jurisprudence very actively and should look at the entire legal values and law and jurisprudence that were largely set by British with the spirit of exploitation of wealth and commercial profit, and direct efforts toward the visionary reform that is fully compliance with Islamic legal values that are universal values and adding more flavors on a continuous basis to shape the law and jurisprudence of the nation and ensure the rule of law prevail where every domain and citizens are guaranteed freedom, dignity and justice.

Identifying the target stakeholder group

The expected radical reform within Sri Lankan Muslims proposed in the article is not a straightforward task. It instead demands transformation in entirety starting from renewing their understanding of what the social vision and immutable values of Islam and common goals mean in plural contexts.

Today’s Muslim madrasas in Sri Lankan are yet to incorporate to their studies about contemporary law and jurisprudence. What they have at present is some selected aspect of law and jurisprudence (fiqh) written by one or few of the four Imaams of 8th and 9th centuries. At present, these madrasas’ educational project does not include studies of existing Muslim Marriage and Divorce Act of 1951. Looking at these madrasas as an active stakeholder in reform efforts may only be possible in long run if they build needed capability in line with the social vision and immutable values of Islam.

Sri Lankan Muslims legal practitioners such as lawyers, judges and academics who possess systematic learning and practice could play a major role in short term to medium term, as they hold relatively more insight on the prevailing context including the present laws and jurisprudence. Looking at the context with the eyes of social vision of Islam will open more widows to work with fellow citizens in legal domain and come with common goals and means and keep adding value to enrich the law and jurisprudence.

Further, students of law and jurisprudence, professionals and academics, interested local and international bodies and journalists in legal domain can add value by their constant critical reading of alignment between social vision, immutable values and contextual goals and means. These kinds of external pressures are the mirrors that provide continuous fuel to keep the spirit of reforming and renewing the goals and means toward better ends.

Toward a common goal

In a pluralistic nation like Sri Lanka, where various faiths and ideology-based communities live side by side – including Buddhists, Christians, Muslims, Hindus, atheists, agnostics and other communities – it is very important to identify common goals in line with the values. Eventually this will open many windows of opportunity to address various means to reach the common goals that are pluralistic and secular at the same time. Knowing that justice, dignity, freedom and common good are shared values of all communities, and seeking to realize these values through the eyes of their own customs and cultures could bring a space to accept common goals; a means to reach those values is the way forward to build the pluralistic nation. However this journey demands that every cultural group in Sri Lanka initiate a new discourse within to renew the understanding of their own cultures, customs and differentiate legal values. Moving in this direction would eventually bring confidence among all individuals and communities that having common goals and means can fulfill the values they uphold based on their faith and customs, and accordingly build a pluralistic nation where every community can live side by side flourishing with prosperity and love.

 

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Courtesy GroundViews.org

Read 709 times Last modified on Wednesday, 14 June 2017 19:51
UmmuHana

UmmuHana is a reformer, political analyst and social and human rights activist who writes in English and Tamil. UmmuHana contributes on various domains including Pluralism, Reform, Policy review & development and  and cultural studies.

Email: info@ummuhana.com

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