TAKING THE LEAD ON THE MUSLIM MARRIAGES BILL
AL JAMA-AH submitted a proposal to the State in 2008 to change the Constitution so that religious communities can have limited self determination to practice their family laws without judicial and state interference. This is not out of step with the Constitution which provides for “reasonable accommodation” when such laws differ with the Constitution. However it is not ANC policy at present. The ANC can be lobbied to make the change which is not out of line with best practice on how to deal with Muslim marital matters. The Philippine Code is the benchmark and certainly an example to be followed.
PRESIDENTIAL DECREE 1083 (CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES)
Whereas, pursuant to the provisions of the Constitution of the Philippines that in order to promote the advancement and effective participation of the national cultural communities in the building of the new society the State shall consider their customs, traditions beliefs and interests in the formulation of its policies.
Whereas Islamic law and its principles of equity and justice to which the Filippino community adhere, provide an essential basis for the fuller development of said communities in relation to the search for harmonious relationships in all sectors of the Filippino nation to enhance national unity.
Whereas the enforcement with the full sanction of the State of the legal system of the Filippino Muslim shall redound to the attainment of a more ordered life amongst them
Whereas it is the intense desire of the new Society to strengthen all the ethno religious communities of the Phillipines within the context of their respective way of live in order to bring about a cumulative result satisfying the requirements of national solidarity and social justice
Now therefore I , Ferdinand Marcos President of the Republic of the Philppines by virtue of the powers vested in me by the Constitution of the Philippines do hereby ordain and promulgate the code of the Muslim personal laws of the Philippines as part of the law of the land hereby decree:
(1) In cases of conflict between any provision of this code and any laws of general application, the former shall prevail.
(2) The provisions of this code shall be applicable only to Muslims and nothing herein shall be construed to operate to the prejudice of a non muslim.
When the ALJAMA submission was tabled at the invitation of the Review Committee the response was as follows:
TO: Chairperson, Joint Constitutional Review Committee [Hon Mr S D Montsitsi MP]
FROM: Parliamentary Legal Services [Adv F S Jenkins, Parliamentary Legal Adviser]
DATE: 15 August 2008
SUBJECT: Submission to the Joint Constitutional Review Committee from Aljama concerning recognition for Muslim personal and family law
1. Aljama, a registered political party, submits that section 15(3) of the Constitution should be reviewed to allow legislation providing for Shariah compliant marriages and personal law.
2. Section 15 of the Constitution provides for freedom of religion, belief and opinion. Subsection (3)(a) specifically provides that the .section does not prevent legislation recognising marriages concluded under any tradition, or system of religious, personal or family law; or systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.” Aljama’s specific issue is with subsection (3)(b) which requires the said legislation to be consistent with the rest of the section and other provisions of the Constitution.
3. As indicated in the submission, the South Africa Law Commission has reported on this matter. However, it appears from the submission that the process of legislating based on the report was resisted by the Muslim community as there were concerns that the said Bill would be amended .under the guise that it has to comply with the Equality Laws of the Constitution:
4. Allowance for legislation that falls outside the provisions of the Constitution requires a constitutional amendment. In other words, the Constitution itself would have to contain such a provision.
5. Whether to amend the Constitution to make provision for the Shariah compliant legislation relating to family and personal law without having to comply with other provisions of the Constitution is a matter of policy.
6. Aljama also requests that the Committee establish a statutory commission of enquiry and consider holding a referendum amongst Muslims testing their resolve to have Shariah compliant marriages..
Adv F S Jenkins: Parliamentary Legal Adviser
As indicated in the above memorandum the draft Muslim Marriages Bill was put on hold because of resistance in the Muslim community. Jurisdiction (wilaayat) remained a thorny issue.
The Law Commission of South Africa had a very clear position that the way forward was a shariah court putting wilaayat firmly in Muslim hands. It was clear that one had to wait for the Superior Courts Bill to be approved by the cabinet before dealing with wilaayat . This AL JAMA-AH did in June 2010 when the invitation went out by the cabinet fro comments. The Party took advice by Muslim senior counsel to ensure constitutional muster and the best religious minds in the country was consulted to ensure shariah compliance including the MJC. The Gauteng Jamiatul Ulema is studying the model. The following submission(abridged) was made to government.
29 June 2010/ JAMADI THANI 1431.
FROM THE PARTY LEADER AL JAMA-AH
TO THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
THE HONOURABLE MR J.T. RADEBE MP. PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA.
COMMENT: SUPERIOR COURTS BILL 2010 (Deadline 30 June 2010)
- The Muslim community has been engaging government more formally over the past 11 years to get legal consequences for Muslim marriages. The Muslim Marriages Bill was seen as a vehicle to achieve this. It appears that this Bill was premature now that the Superior Courts Bill 2010 will shape our court structure for the future. It also appears that the Muslim Marriages Bill (MMB) will be scrapped because of the diverse and opposing views in the Muslim Community.
- The better option is the MPL Matters Special Division which will be staffed with Alims( expert jurists in Islamic law) at the level of a judge. The summary to the objects of the Bill (rule 258(3) acknowledges that the staffing of courts like specialist courts may take some time and that training and development over the long term must not be overlooked and in fact is a reality because of limited state resources. Similarly it may take a decade or two to have Alims at the level of a judge but then if the Muslim Community could struggle for over 300 years in South Africa for their freedoms they can be patient for another decade or two and eventually get what they want.
- It is the view of the AL JAMA-AH Political Party that the legislature should stick to providing structures to facilitate the aspirations of communities to give effect to and practice their religious beliefs(section 31 Bill of Rights) and leave it to those communities to deal with ecclesiastical matters
- The Superior Courts Bill 2010 must not ignore the mandate of the National Planning Commission to get communities to chart the way they want to live in by 2025 as part of the country’s VISION 2025. For Muslims this will a Muslim Personal Law (MPL) Matters Special Division staffed by Alims (expert jurists in Islamic Law) at the level of a judge. This is also accepted by the Law Commission of South Africa which found that “ …the ideal method of legally enforcing Islamic marriages is through the establishment of separate courts presided over by competent Qadis(judges) who are expert jurists in Islamic law but not now possible because of limited state resources”.( Chapter 5 clause 5.1: The rationale behind and the principles underlying the draft bill on Islamic Marriages.)
The Superior Courts Bill 2010 has been approved by cabinet and presented to parliament for adoption. If the AL JAMA-AH proposal is not accepted the Party will continue to campaign for its adoption. If approved the Muslim Marriages Matters Division of the High Court will put to rest the divisions with regard to wilaayat(jurisdiction) as there will be no interference by the non Musliim judiciary and the government in the adjudication of Muslim marital matters.
Some of the main criticisms of the Bill are:
SHARIAH UNDER FIRE
- Any judge or Family Advocate will rule on the shariah and be mediators in marital and divorce matters. They can be male, female, gay, lesbian, atheists, secular and of another faith. The secular court will give fatwa’s and pronounce on Shar’i masaa-il. They will take over the functions of the Ulema. The Act and not the shariah will deal with cases where there is conflict in interpretation. The secular court will issue faskh and men can also apply for one.
- Alims will be criminalized if they disobey the Act even if they conduct shariah compliant marriages.
- Women must nafaka their husbands after a divorce if a man justifies it in court and maintenance will fall outside shariah provisions. Females may be required to contribute to the maintenance of children (reciprocal maintenance).
- Girls must be over 18 to get married and exemptions are not easy. Nikah under 18 years is criminalized without judicial or state approval.
- A judge must give permission for a second marriage.
- A sheriff of the court must deliver a talaq to a woman to cancel an existing marriage,
- The shariah is changed so males and females have equal rights and benefits.
The cabinet invited comments on the Muslim Marriages Bill 2011. It became clear to ALJAMA close to the deadline for comments that there was no consensus on even one clause in the Bill by the Ulema. Civil society also demanded that Muslims anted males and females to be treated equally in all Muslim marriage laws.
The “war against the shariah” was led by the Legal Resources Centre who boasts membership of the legal eagles in the country. They said in their submission to the Minister of Justice and Constitutional Development:
“…. The Muslim Marriages Bill is irreconciliably unconstitutional. Accepting Islamic marriage law as contained in the Bill would be an absolute abandonment of many of our most democratic principles. The Bill must be brought into line with every aspect of our constitution. There is no compromise solution.” (abridged)
With no Ulema consensus in sight and a hostile civil society never seen before in post apartheid South Africa there is not even a glimmer of hope that the Bill will become law. If it does there will be many constitutional challenges and a divisive Muslim community.
The ALJAMA position is to continue with its campaign for a constitutional change to get the shariah to trump the constitution in relgious marriage matters including muslim marital law and for a Muslim Marriages Matters Court in terms of the Superior Courts Act 2010 or any other legal instrument. Further the Party will call for a Dispute Resolution structure like the CCMA strenghtening existing Muslim marital judicial structures. The Party wil also get more support of Ulema throughout the country for a “Commisison of Enquiry “to establish “what women want” and to sign a pledge to do so in compliance with Islamic laws. The Party seeks funding for a legal helpdesk to assist females to get their shariah rights in marital disputes and persuade Muslim legal practitioners to set up a pro-bona office in the maintenance courts, family courts and the High Courts. This will not have to wait for a decision on the fate of the Bill.
The Party took strong exception after taking advice from a cross section of Ulema to the fatwa that stated “ take what we can get and let the Bill become a law and then engage government further after the Bil is a law to get more of what we want”. To get the State to amend the Act later inorder to get more shariah compliance is a pipedream. Adoption of such a flawed Bill for the sake of expediency will be a blot against all Muslims. We cannot compromise the shariah to satisfy the Legal Resources centre and the gender activists.
The deadline of 15 March 2011 was too soon under these circumstances and the Party succesfully lobbied for an extension which was granted until 31 May 2011. The Gauteng High Court also made an order recognising the Party as a national political party representing Muslims and a representative body of Muslims and required the Party to educate its constituency about the Bill and communicate the comments it got to the Minister of Justice and Constitutional Development. Below follows an abridged version of the Court Order.
IN THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO : 8829/11
Before the Learned Bhika J
On the 11 March 2011 In the matter between :
SOCIETY FOR THE PROTECTION OF OUR CONSTITUTION APPLICANT
AL JAMA-AH PARTY 6TH RESPONDENT
It is hereby ordered :
1. It is declared that the 6th Respondent, that is a political party and that operates nationally, has an obligation to make known to the public and the 5th Respondent, the attitude of the Muslim communities in South Africa to the enactment of the Muslim Marriages Bill;
2. The 6th Respondents are declared to have an obligation to consult with people in their jurisdiction and to convey the views of their constituencies regarding the enactment of the proposed Bill to the 5th Respondent.
3. It is recorded that the 6th Respondent have given their views on the Muslim Marriages Bill to the 5th Respondent.
4. The 6th Respondents are ordered to provide the results of their engagement with the public to the 5th Respondent.
5. The 5th Respondent has agreed to and is ordered to extend the date for public comment on the Muslim Marriages Bill
COMMENTS OF THE AL JAMA-AH ON THE MUSLIM MARRIAGES BILL
Alims at the level of judge should adjudicate disputes relating to Muslim Marriages and Divorces. This will best be served by amending the Superior Courts Bill 2010 to include a 6th specialist division called the MUSLIM MARRIAGES MATTERS DIVISION and that only judges on a special list hear cases and appeals. A special presidential decree or Bill is an alternative.
- The Judicial Education Institute should play an oversight and capacity building role to build a strong Muslim Bench.
- Muslims who die today get a death certificate with an entry that sate they were never married in spite of a Muslim compliant marriage. Children born of a Muslim marriage are considered illegitimate so the humiliation lasts from the cradle to the grave The Party wants the entry to be scapped and replaced with a new entry “married”. It has laid a formal complaint with the Human Rights Council of South Africa against the Minister of Home Affairs for harming the dignity of Muslims on Human Rights Day 2011.
- The “reasonable accommodation” provision in the Constitution creates the space that allows the shariah to trump the Constitution in Muslim marital matters.
- Eccleciastical matters should not be the domain of Parliament but in the hands of the religious communities and government should not legislate into these sensitive areas.
CLAIM YOUR MUSLIM VOICE. VOTE ALJAMA!
Head office: 1A Forest Place, Pinelands, 7405, Cape Town
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