By P.K.Balachandran/Ceylon Today
Colombo, August 23: Shreen Abdul Saroor, a doughty campaigner for Sri Lankan women’s rights, especially Muslim women’s rights, wrote in 2016, that the Muslim Marriage and Divorce Act (MMDA) facilitates discrimination against women. And the Islamic Quazi court system in Sri Lanka (which allows only males to be Quazis or judges) sharpens the blow on women. Though appointed by the Ministry of Justice, the Quazis lack proper legal training and also the kind of gender sensitivity needed to handle females’ issues with finesse, she said.
A survey conducted by Saroor’s Women’s Action Network (WAN) found that half the women interviewed on their experience in Quazi courts felt that they did not get a fair hearing and that their privacy was not ensured. Women were uncomfortable speaking on issues relating to intimate relationships to male Quazis. Open hearings only made this worse. Saroor wanted women to be appointed Quazis and advocated allowing appeals to the country’s mainstream courts. In Sri Lanka, women cannot be appointed Quazis.
In March 2021, the cabinet decided to repeal the Quazi courts and establish family courts. If family courts could not be established, the Muslim Marriage and Divorce Act (MMDA) might be administered through the district courts, the Cabinet said. But these decisions are yet to be implemented. As Justice Minister Ali Sabry told a local daily, the conservative Muslim lobby headed by the All Ceylon Jamiyathul Ulema (ACJU) is dead against ending the Quazi system. They would not countenance women as Quazis. If women could not be made Quazis how could a female judge in a mainstream court of law adjudicate on matters relating to women under the MMDA which is based on the Sahriah?
Muslim theologians are, and have been, divided on the issue of women Quazis from the earliest times in Islamic history. A section has strongly argued that there is nothing in the Quran and Hadith explicitly barring women from becoming judges, while another has held that there is enough material to justify a ban. The two sides are presented by Mohammad Ismath Ramzy and Simin Ghavifekr, researchers from the University of Malaya’s Department of Education in their 2019 paper: Women Quazi in a Minority Context: An Overview of Sri Lankan Experience ( https://ideas.repec.org/a/gam/jsoctx/v9y2019i1p13-d202205.html).
Ramzy and Ghavifekr found no explicit verses in the Quran and Hadiths allowing or disallowing women Quazis. But down the ages Islamic scholars have interpreted verses as per their understanding, with the result, females Quazis are found in some countries and not in others. Muslim countries Malaysia, Sudan, Egypt, Tunisia, Yemen, Bangladesh, Pakistan, Indonesia and the Maldives have allowed qualified women to preside over Shariah courts. In India, where the Muslims are a large minority, there are female Quazis. The 73rd conference of the National Fatwa Committee Council of Malaysia held in April 2006, ruled that a woman could be appointed as a Shariah court judge, but would be barred from hearing Hudud (criminal) cases and Qisas (retaliation) cases.
This was done in accordance with the basic principles of Shariah that “all things are originally deemed permissible as long as there is no Shariah text that prohibits them,” Ramzy and Ghavifekr point out. “Scholars who allowed women judges are not required to provide any evidence to support their view. But their opponents need to provide evidence to prohibit the appointment of women as judges,” they add.
Shariah law comprises the law of Ibadat—religious duties; penal law including Hudud – criminal cases; Qisas-retaliation cases; and Ta’zir—disciplinary cases such as insulting religion, threatening peace etc., transaction law, family law and succession law. Family law is an important part of Shariah. Sri Lanka does not have a Shariah court, but Lankan Muslims go through marriage and divorce as per Islamic matrimonial law and matters are adjudicated by the Quazi courts.
From the time of Ibn Jarir al-Tabari (AD 835–923) to a modern-day scholar like Ghulam Murtaza Azad, experts have relied on the qualifications prescribed for being a judge to determine whether a woman could be made a Quazi. For Ibn Qudamah, the judge needs only three qualifications: (1) Kamal (Perfection)—Kamal al-Ahkam (Mental Perfection, which refers to an adult male who is eligible to observe religious duties, and Kamal al-Khilqah (Physical Perfection, which refers to a person who does not suffer from physical deficiency; (2) Adalah-(sense of Justice, which refers to the genuineness of a judge in his sayings, doings and jurisdictions; and (3) Ijtihad—the ability to process legal material on the basis of the primary sources of Islam.
However from the 13 th.Century to modern times, the tendency to bar women from becoming a Quazi has been there. Muhammad Abdul Qadir Abu Faris (b.1956); Al-Shiekh Salam Bin Fahd al-Awdah (b.1955), Abdul Majid Al-Zindani (b.1942), the former President of the Fatwa Committee, Al Azhar University, and Mustafa Siba’I (1915–1964) have been among the objectors.
Scholars who oppose the appointment of women judges consider men to be the protectors of women and feel that women are subordinate to men based on the interpretation verse 4:34 of the Quran. From this verse, the principle that the guardianship of women should be given to men is derived. Men are seen as financial providers. And they are also considered to be intellectually better equipped to handle complex issues. Ramzy and Ghavifekr say that the opponents of women judges support their position with several Hadiths that deny women’s superiority over men.
In response to these arguments, the supporters of women judges showed that the said Hadiths could be interpreted differently. According to Ramzy and Ghavifekr in regard to verse 4:34 of the Quran, they argued that this verse contained instructions and guidance in family disputes and that these could not be interpreted to mean a general subordination of women to men. Mohammad Fadel (2011), who studied the Hadith: “Never shall a folk prosper who has appointed a woman to rule them” said that this Hadith did not reject female leadership in the judiciary. Citing this Hadith to refuse to appoint women judges would be inappropriate, Fadel argued. His argument might be further expanded to point out that women’s leadership is willingly accepted by men in many other walks of life.
It is pointed out that the Prophet Mohammad (PBUH) appointed Samra binti Nuhaik Al-Asadiyyah as the administrator (Muhtasib) of commercial law, an area where the violation of rights and potential for transgression in dealings were high. She continued to be in the same position during the reign of the first two Caliphs: Abu Bakar (R.A) and Umar (R.A). Similarly, Caliph Umar appointed a woman, Al-Shifa Binti ‘Abdullah (Laila), to administer commercial law. Aiysah (R.A) and other women distinguished themselves in different areas of social leadership.
Scholars who supported the appointment of women Judges laid emphasis on non-gender attributes and qualifications for being appointed a judge. According to Ramzy and Ghavifekr, scholars of the Hanafi School have allowed women judges to administrate Shariah Law except in Hudud (criminal cases) and Qisas (retaliation cases in penal Law referring to corporal punishment).
In the modern period, Yusuf al-Qardawi has said that there is no clear evidence in the Shariah for prohibition of women. Ramzy and Ghavifekr cite Muhammad al-Ghazzali (AD.1917–1996), Abdul Careem Zaidan (AD.1917–2014), Muhammad Baltaji and Tawfeeq al-Wai as significant scholars who approved the appointment of women judges.
Today when the performance of girls in Sri Lankan schools and universities is often better than that of males, and when women are qualified to hold a wide range of responsible positions in the State, why put a bar on the post of Quazi, ask Ramzy and Ghavifekr.