THE CASE AGAINST THE SO-CALLED ‘MUSLIM’ MARRIAGES BILL

Posted: February 22, 2011 in Muslim Marriages Bill, Reader Submissions, Social, Sourced
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Religion and the State, the Case Against the Muslim Personal
Law Bill

Over the past decade, an intense debate has raged within the Muslim community on the
question of legislating Muslim Personal Law (MPL). At its core, the debate implicates can
one reach the “correct” interpretation of religion and who has the legitimacy to render that
interpretation. The rancor has occurred before any law has been passed or any decision
rendered by any court as to what MPL means. The government has now put forward a Bill
for comment.

Our constitution guarantees freedom of religion. It further permits the state to recognise
religious marriages. Under apartheid, Muslims did not enjoy the same degree of legal
acceptance, which resulted in great hardship to Muslims married under Islamic law. Any
attempt to redress this inequity is laudable. There is however a great difference between
redressing this inequity by recognizing Muslim marriages, versus what the MPL Bill
represents namely the state legislating on matters of religious doctrine, with the penalty of
sanctions for departure from the Bill.

The European Court of Human Rights in a number of cases has affirmed that state officials
have a duty to maintain strict neutrality and impartiality vis-à-vis religious communities. For
example, in the Moldova case, it ruled that where there is a difference in belief, the role of
the state is not to choose one belief over another. The state cannot assess the legitimacy
of religious beliefs or the ways in which those beliefs are expressed. The court further ruled
that in democratic societies, state measures favoring particular leadership, beliefs, specific
organs of the divided religious community, or seeking to compel the community, or a part of
the community against its will to fall under a single belief, constitutes an infringement of the
freedom of religion even within the same denomination.

Our Constitutional Court has adopted the above position. In Minister of Home Affairs and
Another v Fourie, Sachs J held that “between and within religions there are vastly different
and at times highly disputed views” and “Judges would be placed in an intolerable situation
if they were called upon to construe religious texts and take sides on issues which have
caused deep schisms within religious bodies.”

In medieval times, serious penalties were imposed upon the clergy if they engaged in
any practice, or subscribed to any Canon in opposition to the Kings assent. Catholics
persecuted Protestants, Protestants persecuted Catholics, and within the sects, one sect
persecuted another sect. Each group tried to impose loyalty to whatever religious group
happened to be on top and in league with the government of the particular time and place.
Those who did not show loyalty were fined, cast in jail, tortured, and killed. A Muslim

can opt out of the Bill. On the other hand, the prospect of penalties for departure from
the provisions of the Bill loom ominously which push towards adherence to the Bill. For
example, the Bill mandates under penalty of sanctions that “Any person who facilitates
the conclusion of a Muslim marriage, irrespective of whether that person is a marriage
officer or not, must inform the prospective spouses that they have a choice whether or not
to be bound by the provisions of this Act.” This means, a Muslim cleric who performs a
marriage but believes the Bill is un-Islamic and fails to adhere to these and other provisions
could be penalised for practising their religion differently from the way the Bill prescribes.
Any person that prevents another from exercising rights under the Bill shall be guilty of
an offence and liable to a fine or imprisonment. A mother, who dissuades her son from
marrying under the Bill because she thinks it is un-Islamic, could face the prospect of one
year in jail.

The Bill takes us back to the medieval period of compulsion and coercion with the state
taking sides on religious doctrine. Under the definition and other sections of the Bill, the
state has chosen definitions of various religious terms on which religious scholars disagree.
If a Muslim practices his/her religion in a way he/she honestly feels obliged to practice it,
and if this practice departs from the provisions and definitions in the Bill, this individual is
treated differently from the one that accepts the state chosen definition of religion.

The English philosopher John Locke wrote in the 16th century that religion pertains to the
inward preservation of the mind and the soul, which couldn’t be prescribed by a judge or a
ruler. These ideas influenced the writings of Thomas Jefferson when the US Constitution
was drawn up giving rise to a core idea in western constitutionalism namely, the idea of
a secular state. Under this understanding, the US Supreme Court in a litany of cases has
declared that the government may not place its prestige, authority, and resources behind a
single religious belief. That conclusion was recognized by Justice Ngcobo (now our Chief
Justice) in Prince I where he stated the courts (and by extension the state) should not be
engaged in deciding what is part of a religion, or what is central to a religion.

The German Constitutional Court has repeatedly affirmed that religious organizations have
the right to organize and administer themselves in an independent manner and in terms off
their own understanding of their religion. To rule otherwise would mean that secular laws
would undermine the constitutionally guaranteed right of self-determination of religious
organizations. The German Constitutional Court has also proclaimed that churches have
the power to make binding rules with regard to the credibility of the church and of its
proclamation of what the Gospel requires, what are the essential principles of dogma and
ethics, and what is to be regarded as a violation.

Those that drew up the MPL Bill ignored this consensus in mainstream democracies.
They disregarded the unqualified achievement of the twentieth century that government
cannot dictate religious doctrines. If the Bill becomes law and per chance it is found to
be constitutional, the judges are unlikely to be the most revered of deities. Religious
doctrines brim with complexities, uncertainties and very different disciplining rules and
procedures, which their interpretive community follows. Judges usually do not have insight
into religions and are not schooled in the books such as Genesis, Leviticus or the Islamic
works of Bukhari or Abu Dawud. In interpreting any statute, our Constitutional Court has
told us repeatedly that all laws must be interpreted against the ethos and values of the
Constitution including equality and human dignity. Developing religious law against the

ethos and values of the Constitution is unlikely to resonate well among the religious group
affected and is bound to inflame sectarian differences as exemplified from the experiences
in India.

The rights under Islamic law given to different genders, for example with respect to
(divorce) must be evaluated against the equality and human dignity provisions in our
Bill of Rights. On its face, if a law gives different rights to males and females, this would
constitute unfair discrimination under the Constitution, which could be counteracted only
by reliance on the limitation clause of the Constitution — a burden that has so far proved
difficult to overcome.

There are failings in Muslim marriages, which need to be addressed. There is a perception
that men, for the benefit of men interpret the religion. Women as a group have been short
changed. Constitutionally, the state has the power to make laws of general application
to advance important social interests, which prevent the oppression of any group in
society. Based on concepts of equality (and not interpretation of Jewish law), a divided
United Kingdom Supreme Court (in a highly controversial decision) ruled Jewish law of
matrilineality violates the country’s anti-discrimination laws. The perception of unequal
treatment of women through the denial of a divorce decree “get” and “talaq” occurs in
Jewish and Muslim societies. Recently, the Canadian Supreme Court sought to address
this problem through contract law in the Bruker case, rather than through interpretation of
Jewish scriptures, which the court recognised as completely inappropriate. We need to be
clear. The MPL Bill is not a neutral law of general application to advance general societal
interests. Nor are we talking about contract law to better protect vulnerable women about
their rights. Instead, the Bill prescribes religious conduct and targets Muslims specifically
under penalty of sanctions.

The notion that through “clever” lawyering, and through a mysterious consensus of certain
lawyers and scholars zeitgeist, one can deduce a preferred interpretation of religious law to
socially engineer a group to conform to the twenty first century fundamentally misconstrues
the essence of freedom of religion. Validation of the Bill does not come from counting
heads as to whether a majority supports the Bill. Religion involves the most personal and
sensitive rights on which the state cannot take sides. The sentiments expressed by Sachs
J for a unanimous Court in the Fourie case where he stated it is one thing “to acknowledge
the important role that religion plays in our public life. It is quite another to use religious
doctrine as a source for interpreting the Constitution. It would be out of order to employ
the religious sentiments of some as a guide to the constitutional rights of others. Between
and within religions there are vastly different and at times highly disputed views on how
to respond…” Hopefully, our lawmakers will be mindful of the words of our Constitutional
Court and not embark on an unprecedented project, not found in the main stream of democratic practice.

Source: Professor Ziyad Motala, Professor of Law Howard University, U.S.A.

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