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Bipin Adhikari
The Kathmandu Post
November 8, 2009
From: constituentassembly.blogspot.com

"Nepal could study the Turkish model amind demands to communalise personal laws. The importance of secular laws and institutions cannot be over-emphasized in a progressive society. They are important because they are essential for the protection and promotion of human rights of all the people. But many democratic countries have conceded to the pressure and created exceptions in their legal systems to remain politically correct. The most recent example is Britain, which has officially adopted Islamic law, with sharia courts given powers to rule on Muslim civil cases. "

A Muslim social activist in Lahan was asking this critique why the Muslims in the Constituent Assembly had not been able to garner enough support to make sure that the Muslims of Nepal, as many other Muslims of the world, were guaranteed the right to be governed by their own personal laws as far as their communities were concerned.

The forum that this author was participating in was on the theme of local self-government in the scheme of state restructuring, which was not something that attracted his attention at that moment. The question was very simple, but the answer remains difficult for many reasons.

Nepal has been practicing a uniform civil code from the very beginning. The National Civil Code (known to Nepalis as the New Muluki Ain) prescribes uniform rules for all Nepali communities and cultures. The code covers most of the laws governing rights relating to property and personal matters like marriage, divorce, maintenance, adoption and inheritance. The code allows communities and cultures to act according to their traditions in these matters, but the standard rules apply to everybody in the country, and the law courts in Nepal administer them uniformly except when exceptions are permitted by the code itself. As such, the code has been applied to Muslims as well since a very long time.

It was early this year when the Nepal Muslim Sangh, a federation of Nepali Muslim communities, made a request to the government to accept its six-point demand. These demands were intended to protect the interest of Muslims as a minority community in the country. The federation wanted the country's Maoist government at that time to acknowledge that Nepali Muslims had a separate identity, and that this warranted the creation of a separate Islamic Affairs Commission, an Islamic School (Madrassah) Board, a Hajj Committee (for annual pilgrimages to Mecca) and the introduction of Islamic personal law based on the sharia for Muslim communities.

The Muslims, who number just over 800,000 or about 3.5 percent out of a population of 26 million, constitute Nepal's second largest religious minority after Buddhists. On March 15, the government even signed an agreement with their representatives which, however, declined to accept their demand for recognition of sharia-based personal law in the new constitution.

Many Nepali Muslims in recent years are in touch with Muslims in other countries through their civil society organizations. A significant portion of Indian Muslims were able to receive citizenship certificates before the Constituent Assembly elections in 2007. Those who are familiar with the legal arrangements in India question why Nepal's legal system cannot afford the same treatment to Nepali Muslims what the Indian legal system has afforded to Indian Muslims. They are aware that in India, family law is still determined by the religion of the parties concerned, despite many advances made by the legal system in other sectors.

While Muslims and Christians in India have their own personal laws, Hindus, Sikhs, Jains and Buddhists come under the Hindu law enacted by parliament. India accepted communalizing family law as an extraordinary measure of protection to minorities for healing the wounds of the partition caused by communal polarization. The question is whether India should be followed as the best example in this case.

One must also not forget that the constitution of India directs the state to work towards a uniform civil code for the country (assuming that these arrangements are temporary interventions). This demand essentially means unifying all these personal laws to have one set of secular code that will apply to all citizens of India irrespective of the community they belong to. Though the exact contours of such a uniform code have not been spelt out, it should presumably incorporate the most modern and progressive aspects of all existing personal laws while discarding those which are discriminatory and violative of the basic rights of Indian citizens.

The Indian Supreme Court, which has established a very sublime image for itself as the guardian of fundamental rights of Indian citizens, has repeatedly regretted the fact that the state has not implemented this provision even after all these years. It has indeed been bold enough to instruct the government that it must move forward towards a secular regime.

The importance of secular laws and institutions cannot be over-emphasized in a progressive society. They are important because they are essential for the protection and promotion of human rights of all the people. But many democratic countries have conceded to the pressure and created exceptions in their legal systems to remain politically correct. The most recent example is Britain, which has officially adopted Islamic law, with sharia courts given powers to rule on Muslim civil cases.

The British government has sanctioned the powers for sharia judges to rule on cases ranging from divorce and financial disputes to those involving domestic violence. Rulings issued by a network of five sharia courts are enforceable with the full power of the judicial system, through the county courts or High Court. These courts are hearing cases where Muslims involved agree to be bound by traditional sharia law; and under the 1996 Arbitration Act, the court's decisions can then be enforced by the county courts or the High Court. Previously, the rulings of sharia courts in Britain could not be enforced, and depended on voluntary compliance among Muslims.

So a sort of parallel legal system has already come into the picture there. Critics fear that Britain's Islamic hardliners will now try to make sharia law the dominant legal system in Muslim neighborhoods, and warn that women often receive less favorable treatment at the hands of the traditional Islamic courts.

It is good that this country already has a system of uniform civil law. One possible alternative for Nepali Muslims would be to review the provisions of this national civil code and ask the government to revise and streamline the provisions which are objectionable from a secular point of view. Sharia law has certain religious values for Muslims, but then secular laws would have that value for every community.

It is interesting to note that Turkey, a predominantly Muslim state, has a secular constitution which provides for freedom of religion and many other human rights. It has very carefully worked out a civil code that very keenly secures the rights of all communities. The government, however, imposes some restrictions on all religious expression in its offices and state-run institutions, including universities, usually for the stated reason of preserving the state's secular character.

The secularity, bearing the meaning of protection of beliefs, plays an important role to protect the state in Turkey. The region has a long and rich Islamic tradition stretching back to the dawn of the Seljuk period and the Ottoman Empire. Yet it still believes that secular institutions can serve all. This model could definitely be studied.

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