Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.
Amendment to Article 8(2) of the Federal Constitution
This constitutional amendment is a major step forward in implementing the Government’s commitment to uphold the principle of equality between men and women in Malaysia. It is hoped that all Malaysian women, Muslims as well as non-Muslims, will no longer suffer discrimination based on the grounds of religion and sex.
With regard to the syariah system, SIS with other women NGOs have submitted several memoranda on discrimination against women, including the Memorandum on Reform of the Islamic Family Laws and Justice in the Syariah System in 1997 and Memorandum Pembaharuan Proses Perceraian dan Tuntutan Sampingan Dalam Prosiding Mahkamah Syariah in 2000.
Islamic Family Law
There is a general misconception that polygamy is the “right’ of every Muslim male and that to challenge this right is to challenge the word of Allah swt. However, a reading of verse 4:3 in the Qur’an clearly shows that polygamy is not an unconditional right of the Muslim man. On the contrary, it is a responsibility to ensure that justice should be done to widows and orphans. It has therefore been suggested that polygamy in Islam should be looked at not as a “male right” but as a “female privilege”. As such, it is thus necessary that all the parties to be involved in a polygamous marriage – the husband, the existing wife and the prospective wife – should be aware of the potential responsibilities and consequences and agree to it before such a marriage could be contracted. It is frequently forgotten that polygamy is not special to Muslims. Prior to the Law Reform (Marriage and Divorce) Act 1976, non-Muslim men in Malaysia were able to enter into polygamous marriages under their respective customary laws. The Law Reform Act drastically reformed the family law for the non-Muslims – from unlimited polygamy under customary laws to absolute monogamy under civil law.
On the attempts to control polygamy and prevent its abuse among the Muslims it is often reported that Syariah judges merely tend to give emphasis to a man’s financial capacity to support more than one family in deciding whether he should be given permission to contract a polygamous marriage. Scant regard is given to the other conditions which are aimed at securing justice to wives, and justice is mandatory in the Qur’an, as stated in the 1990 judgment of the Selangor Syariah Appeals Committee in the case of Aishah Abdul Rauf vs Wan Mohd Yusof Wan Othman.
ii. Divorce and ancillary reliefs
There have been numerous complaints by Muslim women as to the lengthy divorce proceedings when an application for divorce is made by a woman. A woman has to endure endless delays to obtain a divorce. No time limit has been set at each step of the process a woman has to go through in herapplication for divorce. The husband’s failure to attend counseling sessions, to be present at court hearings, to attend arbitration proceedings can delay the divorce by several years. Even though the law provides that the hakam appointed by the court can pronounce divorce on behalf of the husband if the parties fail to effect reconciliation, the court is most reluctant to use this provision.
In contrast, husbands can easily and quickly divorce their wives as divorce pronouncements made outside the court may be registered under section 55A. There is at present no provision under section 55A that the court, in approving the unpermitted divorce, to make orders to ensure that the divorced wife’s financial rights are secured. The court order in this case should cover the divorced wife’s right to iddah maintenance, mutaah and harta sepencarian. There should be a presumption in the law that a husband who pronounces talaq without the permission of the court has divorced his wife without just cause.
There have also been numerous complaints by women regarding the delays they often face when seeking ancillary reliefs such as. arrears of maintenance, iddah maintenance, mutaah and harta sepencarian, and the problems and complications in having to file separate applications for the various claims.
Part of the problem faced by women in seeking redress is the provision on nusyuz which states that a wife is not entitled to maintenance when she “unreasonably refuses to obey the lawful wishes and commands of the husband.” Many unjust allegations of nusyuz are made against a woman by the husband who neglects to pay maintenance to the wife, and at the same time disputes her right to apply for divorce. We have received reports of many cases of wives who have been accused of nusyuz even when they have left the marital home with their husbands’ permission or because of fear of physical violence or mental abuse.
The statutory provision apparently regards nusyuz as the wife’s disobedience to the husband, even though in Islam, nusyuz is actually the disruption of marital harmony by either spouse.
iv. Guardianship of children
The amendments to the Guardianship of Infants Act granting mothers the equal right to guardianship of their children only apply to non-Muslims as Muslim women come under the jurisdiction of syariah law which currently recognizes only the right of men to be guardians. Even though an administrative directive was issued to enable all mothers, including Muslim mothers, to sign official documents on matters related to their children, it is hoped that the right of Muslim mothers to be guardians of their children will also be explicitly recognized by law.
The administration of the syariah laws on inheritance emphasize the provision that male heirs be given a double share under the faraid distribution, without emphasizing on the rationale for this rule — that the man has the legal responsibility to provide maintenance for the family, and thus every female should always have a man to provide for her needs, be he a father, a brother, a husband or a son. In today’s society, however, many women have to earn their own living and provide for their own needs, and widowed and divorced mothers often have to provide for their children’s needs. There is no mechanism in the present legal system for women to obtain the redress that would reflect on the balance and justice that was originally intended by the syariah.
In pre-Islamic Arabia, women had no inheritance rights and Islam introduced the rule that women should also have the right to inherit property. The concept of men receiving a greater share in inheritance was not a feature that was special to Islamic law. The Distribution Act 1958 for the non-Muslims in this country previously provided that the husband of a deceased woman would receive the whole of her estate, while the wife of a deceased man would only receive one third of his estate if he had children, or one half if he had no children. However, this discrimination against non-Muslim women has been removed in the 1990s with the amendment to the Distribution Act.
Discriminatory effect of gender neutral provisions
SIS is also concerned with the possible discriminatory effect of certain legal provisions that are gender neutral in the language used, but which, due to certain other factors, have the effect of discriminating against Muslim women. An example of this may be seen in the provisions regarding harta sepencarian. The traditional view on harta sepencarian is that a wife may claim a share of the properties acquired by the husband during the marriage in recognition of her contributions in looking after the family. The gender neutral language in the Islamic family law statutes however, enables either spouse to claim a share in the properties acquired by the other spouse during the marriage. The gender neutral language is similar to the provisions on matrimonial property in the Law Reform Act.
However, the effect is discriminatory to Muslim women because the other provisions in the Islamic family law are not gender neutral. For instance, unlike the divorce process under the Law Reform Act, the divorce process under the Islamic family law is not gender neutral, and while husbands can easily divorce the wife even without the permission of the court, wives often face numerous difficulties when the husbands do not consent to their application for divorce. Thus, the Muslim wife’s negotiating position on divorce and ancillary reliefs would be further weakened if the husband disputes her application for divorce and could also bring a claim for harta sepencarian against her.
Lack of uniform jurisdiction
The existence of separate State jurisdictions enables men to take advantage of the most convenient law for personal gain. Thus in the case ofAishah Abdul Rauf vs Wan Mohd Yusof Wan Othman, the husband was able to circumvent the decision of the Selangor Syariah Appeal Committee which rejected his application to marry another woman by simply crossing to the State of Terengganu to get married.
In a similar manner, a man who has been ordered to pay maintenance to his wife and children can easily evade payment by moving to another jurisdiction
With the proposal for the establishment of a Family Court to handle all matrimonial and family matters, it should be emphasized that such a Family Court must have two parallel divisions the Syariah Family Division and the Civil Family Division. The two divisions of the Family Court should share common facilities and services, as part of an effort to upgrade the Syariah Courts and to minimize the differences in the two parallel systems of law in this country.
Status of Muslim and non-Muslim women
SIS is concerned that the use of religion has often perpetuated discrimination against Muslim women and denied them the increasing sphere of rights that is being granted to their non-Muslim counterparts. It would be most unreasonable for Muslim women to find themselves occupying a civil status that would be legally inferior not only to the status of Muslim men but also to that of non-Muslim women, and to find that they are unable to exercise some of the rights that may be exercised by all the other citizens in Malaysia i.e. the men and non-Muslim women.
We are therefore concerned that while the amendment to Article 8(2) may prohibit discrimination that is solely on the basis of sex, discrimination may still be allowed if the basis for such discrimination is said to be on the ground of sex coupled with that of religion.
Nik Noriani bt Nik Badli Shah
Sisters in Islam
13th August 2001