The Domestic Violence Act and Conflict of Jurisdiction
In reference to the letter from Dr Rahmah Hashim, the Head of the Women’s Affairs Bureau of the Muslim Youth Movement of Malaysia (NST 11 May 1996), we would like to make the following statement:
The current opposition to the Domestic Violence Act 1994 (DVA) seems to be centred over the question of a conflict of jurisdiction between Shari’ah and Civil Courts.
It has been stated often enough that domestic violence is not a family matter, but a crime. A conflict of jurisdiction therefore does not arise as a crime against persons is appropriately dealt with under the Penal Code which is a Federal Law, administered by the Civil Courts of our country. (Sisters in Islam, NST 16 March 1996).
To stretch the logic of those who oppose the application of the DVA to Muslims is to say that murder and rape of family members are just family matters and therefore should fall within the jurisdiction of the Islamic Family Law of each state.
We are concerned that the preoccupation with jurisdiction has clouded the real issue we have to address here: the need to provide adequate redress for victims of violence which was not addressed by our legal system.
The campaign for a DVA was to address the inadequacies and injustice women suffered in their search for redress in the existing system, both Civil and Shari’ah. The campaign for one law to apply to all Malaysians arose out of the experience of women who have sought refuge, counselling and assistance from crisis centres and hotlines operated by various groups in the country, in particular in Kuala Lumpur and Penang.
The DVA is a significant achievement as it is one of the few pieces of legislation where a process of consultation and negotiation had involved both the state and victims of violence and their support groups. The campaign for a DVA began in 1985 and the negotiation for the legislation, which began in 1989, took five long years, not least because all issues over conflict of jurisdiction had to be meticulously considered by all those involved.
We agree that the need to upgrade the status of the Shari’ah Courts and improve the administration of Islamic law in the country is long overdue. However, the debate over conflict of jurisdiction between Civil and Shari’ah Courts and the move to enhance the powers of the Shari’ah Courts should be a separate debate from the implementation of the DVA.
The DVA and Muslim women should not be turned into victims, yet again, in this battle over turf. We do not believe that the Civil Courts, in their dispensation of justice, are any less Islamic. Placing the DVA under the Civil Courts does not reduce the importance of the Shari’ah system.
That is not the issue here. Instead, what we are most concerned about is the critical problem of domestic violence that needs to be addressed immediately. Now that we have in our hands the instrument to do so, there should not be any more delays in implementing this long-awaited legislation.
Those who work with Muslim women in crisis are confronted by a litany of complaints from women seeking redress in the Shari’ah Court system. While we acknowledge that not all court officials and religious departments are unfair or insensitive to women’s problems, the overwhelming picture that has emerged from these long-held complaints is that women are often denied access to the rights and justice already granted to them in the state enactments because of entrenched prejudices in the implementation of the laws.
In numerous cases handled by the refuge and crisis centres, in research done, and in stories told, battered Muslim women report that religious officials often advise them to “go home and be patient” when they file a complaint of domestic violence. Many have been told, too, that it is a sin for a Muslim woman to ask for divorce, this, in spite of several grounds for divorce that are granted to women under the Shari’ah laws.
They suffer long and uncertain delays in their search for redress within the system. They suffer humiliation and fear in their dealings with religious officials who are legally and spiritually bound to dispense justice.
In the worst scenarios, some Muslim women, out of desperation, have considered apostasising to qualify themselves to seek redress in the Civil Courts – thus exposing themselves to the charge of apostasy under some state Shari’ah laws.
We therefore urge that the move to enhance and increase the jurisdiction of the Shari’ah Court should not be confined only to the technicalities of law. Neither should the discussion and decision-making be confined only to those in the rarified preserve of academia, religious authority and legal fraternity.
The overriding consideration in any such move must be justice. How can the rule of Shari’ah law provide justice to those it is meant to serve? In the meantime, there is an urgent need to review the implementation of Islamic family laws as they affect women.
We urge the authorities to conduct research to identify gender biases in the administration of Shari’ah laws, in particular to review the handling of cases filed with the religious departments and to study the judgements of the court. Preliminary findings from an on-going research on procedure in the administration of Islamic law have found that the overwhelming majority of those who file applications for redress under the Shari’ah civil law are women, while the men who use the system are there largely to pay a fine and register an illegally conducted polygamous marriage.
The majority of the women also have to make several trips to the religious departments before any action is taken. The research finds, too, that it is a rare occasion that an errant husband ever appears for counselling in the religious department even though his appearance is a requirement, thus causing more grief to the wife. Instead she is often pressured to withdraw her divorce petition and to go home and be an obedient and patient wife.
Justice is not served when women cannot access their legal rights because of social prejudices. What is needed here is urgent gender-training for judges and religious officials, men and women, so that they are more sensitive to the special needs and circumstances of the citizens they serve. There is also an urgent need to improve women’s access to legal aid in the Shari’ah Courts to assist them to obtain their rights under the law.
We strongly support Dr Rahmah’s call for the Shari’ah Courts to be centralised under one federal system to provide for a uniform and systematic implementation of Islamic law. This call has already been made by many in authority, including the Prime Minister, the Director-General of Pusat Islam (the Islamic Centre) and the Director-General of IKIM (Malaysian Institute for Islamic Understanding). We hope the federal Government will now find the political will to implement this immediately as the first step in providing the ummah with one standard of justice.
Sisters in Islam
18 May 1996
This letter was published in the New Straits Times.