Equal Right to Guardianship for Muslim Women
18 December 1998
YAB Datuk Seri Dr Mahathir Mohamad
Perdana Menteri Malaysia
Jabatan Perdana Menteri
Jalan Dato’ Onn
Re: Equal Right to Guardianship for Muslim Women
While we welcome this effort to grant non-Muslim women equal right to guardianship, we strongly feel that Muslim women of this country must also benefit from the growing sphere of rights of citizenship accorded to their non-Muslim sisters. The Government’s official commitment to equal rights is reinforced in the Sixth Malaysia Plan, in the National Policy for Women and in the Government’s ascension to the Convention on the Elimination of Discrimination Against Women, and adoption of the Declaration and Platform for Action of the Beijing World Conference on Women.
Moreover Islam recognises equality between women and men (Qur’an 33:35, 9:71-72, 4:124, 4:32, 3:195, 40:40, 49:11, 16:97) and enjoins mutual consultation and consideration in parental responsibilities (2:233). Based on these considerations, we see no reason why this equal right to guardianship should not be accorded to all women in Malaysia.
We therefore propose two courses for action. First, as an immediate measure, we propose that the cabinet issues an administrative directive to government departments to amend all official forms and legal documents which require the signature of the legal guardian to include the words: “signature of mother, father or legal guardian”.
Second, a longer term solution will be to amend the Islamic Family Law/Enactments to give women equal right to guardianship, and to provide that whoever gets the custody of the child should also get the guardianship. We will be submitting a memorandum to the Government on this at a later date.
However, given the urgency of the issue and so as not to delay the amendment to the Guardianship Act that will enable our non-Muslim sisters the benefit of equal right to guardianship, we urge that a Cabinet decision be made to issue an administrative directive to ensure that the same rights be extended to Muslim women. Such an administrative directive will be the fastest way to redress this anomaly because it will take years to amend the Islamic Family Law, and even then there is no guarantee that all 13 states and the Federal Territories will abide by any model statute drafted by JAKIM that will grant Muslim women equal right to guardianship.
1. The current Islamic Family Law gives the mother the right to physical custody of the children, but legal guardianship is vested upon the father. This has led to single mothers facing numerous problems when fathers cannot be traced or are uncooperative in providing the guardian’s approval that is required for the child’s application for a passport and for school registration (If the father signed the original registration form at the first school, the transfer document to a new school in the event the mother moves to a new location after a divorce, still requires the signature of the father) and other official transactions which need the signature of the legal guardian. This problem confronts both Muslim and non-Muslim mothers.
2. Women’s groups have received complaints from women who faced such problems in managing their children’s affairs because of missing or uncooperative fathers. In most of these cases, the fathers have failed to contribute financially, physically or emotionally to the upbringing and well being of the children. Some Immigration Departments allow the mother to sign the application form for a passport if she can produce a court document to show that she has legal custody of the child. But very often, the mother might have physical custody of the child but legal custody has not been awarded to her because the court takes years to process her application for divorce, thus delaying her application for legal custody.
She might also face delays or other problems in getting interim custody of the child. In many more cases, however, mothers do not even apply for interim or legal custody because the fathers have abandoned the children and the women cannot afford the legal fees or the time to go through the legal process.
3. We have also received complaints from married women who are not allowed to sign the application for their children’s passports. These women feel particularly aggrieved because in many instances they are working mothers who contribute equally to the financial maintenance of their children. In some cases, the women earn more than their husbands and therefore contribute more to the family expenses, besides being primarily responsible for the upbringing of their children. And yet they don’t have the right to put their signature to their children’s legal documents.
4. The requirement for the signature of the legal guardian in matters such as the application for a passport and for school registration are civil matters. They do not come under syariah jurisdiction. Therefore, the concern over conflict of jurisdiction does not arise. The Muslim mother should be given the right to act in the best interest of her children in these civil matters.
It is unfortunate that Islam, very often, is used or misused to deny Muslim women their rights. This reinforces the misconception that Islam is a religion which discriminates against women, when Islam is actually a religion which promotes equality and justice between women and men. It is this misconception that has led to laws, policies and decision-making that discriminate against women.
While we appreciate that the Government at the leadership level has been responsive to concerns expressed by women’s groups with regard to discrimination against Muslim women, there is still a propensity among many in Government to declare any matter which touches on religion as sensitive and therefore untouchable. This amendment to the Guardianship Act is a case in point. Are Muslim women expected to turn over and play dead while their non-Muslim sisters are accorded the right to be treated as equal to men? In the long run, such action will produce a sector of third class citizens in this country: oppressed Muslim women who fail to realise their full potential and therefore unable to contribute fully to the prosperity and well-being of the family and country just because they were born female.
Given the fear, prejudice and uncertainty that surrounds the understanding of Islam, especially in its teachings on women, we appeal to the Government that a process of consultation be put in place to ensure that women’s groups and progressive Islamic scholars are consulted when it drafts laws and policies that affect the status and rights of women.
We thank you for your attention and support.
Sisters in Islam (SIS) on behalf of:
National Council of Women’s Organisations (NCWO)
All Women’s Action Group (AWAM)
Association of Women Lawyers (AWL)
Pusat Khidmat Wanita Pertiwi (PKW)
Women’s Aid Organisation (WAO)
Women’s Crisis Centre (WCC)
cc YB Datin Paduka Zaleha Ismail, Menteri Perpaduan Negara dan Pembangunan Masyarakat
YBhg Tan Sri Halim Ali, Ketua Setiausaha Negara
YBhg Tan Sri Prof Ahmad Ibrahim, Pengerusi, Jawantankuasa Teknikal Undang-undang Syariah dan Civil, JAKIM