The recent amendment to the Federal Constitution to prohibit discrimination on the basis of gender poses a special challenge to the Syariah Court and the Islamic religious authorities in Malaysia to take steps to end all forms of discrimination against Muslim women in law and in practice, committed in the name of Islam.
The right to equality before the law and equal protection of the law and now the right to non-discrimination on the basis of gender are constitutional guarantees for all Malaysians to enjoy, Muslims and non-Muslims.
Sisters in Islam believes that nothing in these constitutional provisions conflict with Islam, a religion that upholds the principles of equality and justice for all.
In order to fulfil the demands of these constitutional guarantees, Sisters in Islam is launching a campaign to end the delays and injustice women suffer in the Syariah Courts in divorce proceedings.
This is a long standing problem and Muslim women today want this gross injustice and discrimination against them to end. We acknowledge that the Islamic Family Law in Malaysia enables women to get a divorce by ta’liq, and also provides for 12 different grounds to enable women to get a divorce by fasakh. However, there are many shortcomings in the implementation of the law which contribute to the delays and injustice suffered by Muslim women. These include:
1. Gender bias in the attitude of the Court.
While a man faces no obstacles in getting a divorce, the Court very often appears reluctant to grant a divorce to a woman without the agreement of her husband, even though the grounds for divorce are clear. (see cases of Aida and Esah and Siti). When a woman initiates divorce, the Court seems over anxious to preserve the sanctity of the marriage, even though it has irrevocably broken down. This attitude, however, does not seem to cloud the court’s judgement when a man initiates divorce.
2. Weaknesses in procedure
– Court’s insistence on use of lawyers even though the law allows for women to represent themselves.
– Court’s insistence on mediation, even though parties have not been able to reach agreement thro mediation.
– Court’s insistence on husband’s presence and allowing several postponements of cases because of husband’s absence.
3. Counselling sessions
Counselling sessions organised by the Religious Department (RD) are not mandatory under the law, but women are sometimes required to attend such sessions before their cases are heard in court, even in a case where the husband was violently abusive and had already been sentenced to imprisonment (see Esah’s case).
4. Problems with lawyers
Women sometimes receive unwarranted advice from their lawyers who tell them to go back to their husbands. Therefore, those women feel as though their own lawyers are on the husbands’ side rather than on their side. Women also face the problem of mounting legal fees when their cases are delayed. Women who cannot afford to hire the services of a private lawyer have to go to the Legal Aid Bureau (LAB) for help. The inadequate number of legal officers and staff at the LAB further aggravate the problem of backlog of cases and delays in the hearing of cases in court.
5. Lack of information
Women are often accused of being ignorant of their rights under the law, as well as being ignorant of the correct procedures in making their applications. Women cannot be expected to be aware of all the legal technicalities and the lack of information on certain basic procedures (filling the correct forms, etc) contributes to the delays.
6. Administrative weaknesses
Delays are also caused by administrative weaknesses e.g. the difficulties in obtaining a copy of the marriage certificate required by the court before the case could be heard.
We acknowledge that various positive steps have been taken by the Syariah Judicial Department under Dato’ Sheikh Ghazali, through the Practice Directions issued to the Syariah Courts to reduce the problem of delays. In particular Practice Direction No. 2 of 2001 directs the mention of cases within 21 days after the case has been filed, and Practice Direction No. 4 of 2001 directs that postponements should only be granted on reasonable grounds and that a date should be given for the next hearing. We are concerned, however, as to the proper implementation of these directions.
The following proposals are made with the hope that they will assist in overcoming or reducing the problems of delays in divorce proceedings.
Process and procedure
- Uniform procedures in all Syariah Courts to overcome the problems and confusion caused by lack of uniformity.
- Counselling sessions should be voluntary, not mandatory, and should be conducted by qualified and gender sensitive counsellors. Time limits of 3 to 6 months should be set.
- Summary proceedings should be provided for in ta’liq cases, as they are provided for in talaq cases. In cases of discrepancy over evidence, the wife’s solemn oath that the husband has breached any of the conditions in the marriage contract, should be sufficient for the judge to grant the divorce.
- Divorce, once granted by a Syariah Court, should not be appealable. While a decision rejecting a divorce application may be appealed against, if a divorce has already been granted, then appealable issues should only relate to the question of ancillary reliefs.
Appointment of judges and officers
- Increase the number of Syariah judges and court officers. Include the appointment of women as Syariah judges. Better incentives should be provided for these posts to attract more qualified persons.
- Gender sensitisation courses to be conducted for Syariah Judges and court officers.
- Increase the number of officers at the Legal Aid Bureau.
- Set up a body such as a Syariah Bar Council to monitor the Syariah lawyers and to provide an avenue to settle clients’ grievances.
- Provide the space for Legal Aid Clinics to be set up at the courts to assist women who are representing themselves
We reiterate our hope that the recent amendment to the Federal Constitution will be a major step forward in the process to end all forms of discrimination against Muslim women in law and in practice, and to ensure the realization of the principles of equality and justice that is enshrined in the teachings of Islam.
SISTERS IN ISLAM,
24th August 2001