Sri Lankan personal laws between

justice and freedom A value based

perspective

Featured image courtesy Colombo Telegraph

M.H.M. FIRDOUS on 12/01/2016

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 Lankas 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 Lankas 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 Bandaranaikes 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 19thcentury
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

Womens 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 childrens 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 childrens right to intestate inheritance on their
natural fathers 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 wipeoff 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
womens 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 womens 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 fearbased 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 Sharia 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 decisiswas 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 quranic
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 Imaams 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 publics understanding of the evolution within
family and the importance of ensuring family values. Our school
system doesnt 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 lifes intricate situations or
the worlds 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
islands 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
5thcentury, 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 its 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 Quran 21:7), upholding justice being linked as a part
of faith on god (Al Quran 4:135), and entire mankind as being
dignified and honored (Al Quran 17:70), assuring freedom of
belief and practicing faiths (Al Quran 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 9thcentury. 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.
Todays 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.
If you enjoyed this article, you might find Muslim Personal Law
Reforms: On or not? and A podium to spit venom illuminating.
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