WLC submissions ‘deficient’
THE WOMEN’S Legal Centre (WLC) is surprisingly leading the campaign to get Parliament to debate and approve the Muslim Marriages Bill, while its position is that the bill is irreconcilably unconstitutional and accepting Islamic Marriage Law would be an abandonment of South Africa’s democratic laws.
The WLC demanded that the Muslim community compromise their religious beliefs, so that the Muslim Marriage Bill could fully comply with the Constitution. This hostile attitude to change, reshape and remodel Shariah marriage law has angered many Muslims, who have now rejected the bill. The WLC submissions are deficient from the Islamic perspective.
Al Jama-ah rejects the bill and any state codification of the Shariah (Islamic law) and wants it scrapped. It has made a proposal to the Justice and Constitutional Development portfolio committee in Parliament to establish a Muslim Marriages Special Division staffed by a Muslim Bench of Islamic jurists, who are experts in Islamic law and can develop case law to govern matters in relation to Muslim marriages, divorce and Muslim personal law.
Al Jama-ah approached the Joint Constitutional Review Committee of the two houses of Parliament, the portfolio committee and the South Gauteng High Court to promote its position on a Muslim Bench and Muslim Marriage division.
It submitted a written proposal to the Review Committee in 2008 to change the Constitution, so that religious communities can have limited self-determination to practice their family laws.
This would not have been out of step with the constitution, which provided for “reasonable accommodation” when such laws differ with the constitution. In the Philippines this aspiration is accommodated, and in cases of conflict between the Code of Muslim Personal Laws and the other laws of the country, the former prevails.
It was the view of the party that Parliament should stick to providing structures to facilitate the aspiration of communities to give effect to and practise their religious beliefs (Section 31 of the Bill of Rights), and leave it to those communities and religious leaders to deal with ecclesiastical matters.
This was also in line with the mandate of the National Planning Commission to get communities to chart the way they want to live as part of the country’s long term vision.
The high court in 2011, in an order, required Al Jama-ah to submit its proposals and the attitude of the Muslim community to the enactment of the bill to the minister of justice.
Some criticisms of the Muslim Marriages Bill are:
Any judge or family advocate will rule on the Shariah and be mediator in marital and divorce matters. They can be male, female, gay, lesbian, atheists, secular and of another faith. The secular court will give fatwas and pronounce on Shariah law. They will take over the functions of the Muslim religious fraternity. The act and not the Shariah will deal with the cases where there is conflict in interpretation. The secular court will dissolve marriages.
Religious leaders will be criminalised if they disobey the act even if they conduct Shariah-compliant marriages.
A judge must give permission for a second marriage.
Women must pay maintenance to men if a man justifies it in court. Ganief Hendricks, party
leader, Al Jama-ah