Memorandum on the Administration of Justice in Malaysia
20 February 2001
YB Dato’ Dr Rais Yatim
Prime Minister’s Department
Aras 3, Blok Barat
Bangunan Perdana Putra
Pusat Pentadbiran Kerajaan Persekutuan
Dear YB Dato’,
In reference to newspaper reports that you will be submitting a report to the Cabinet on the administration of justice in the country, we would like to request that you would also take into consideration the situation in the syariah system. Even though this does not directly fall under your jurisdiction, as the Minister in charge of law in this country, we believe you do have the power and the influence to present this case to the cabinet. Any effort to improve the administration of justice in this country must include the syariah system.
There must be one standard of justice and administration of justice for all, Muslims and non-Muslims. Muslims cannot be treated as second class citizens and provided with second class service in this country in the name of religion, or rather misinterpretation of the religion.
Since 1993, Sisters in Islam, either alone or jointly with other women’s groups, has submitted seven memoranda to the Government on various issues of concern in the administration of justice in the syariah system, especially where it affects women. These memoranda are on: the Kelantan Shari’ah Criminal Bill (1993); the Domestic Violence Bill (1994); the Islamic Family Law on Polygamy (jointly, 1996); the Islamic Family Law and Administration of Justice in the Syari’ah System (jointly, 1997); the Syariah Criminal Offences Act and Fundamental Liberties (1997); the equal right to guardianship for Muslim women (jointly, 1998), Syariah Court Proceedings and the Experience of Single Mothers in Selangor and the Federal Territories (2000), and the fatwa on faraidh distribution of EPF and SOCSO monies (jointly, 2000).
We enclose the last five memoranda for your consideration.
The women’s groups in the country are very concerned with the growing intolerance, conservatism and discrimination against Muslim women in the name of Islam. This is reflected in several actions by the Government and various state religious authorities in the past 10 years:
- the amendments to the Islamic Family Law and the Syariah Criminal Offences Act made in the 1990s which discriminate against women and infringe constitutional guarantees of fundamental liberties (see the memoranda on the Islamic Family Law, 1997 and on the Syari’ah Criminal Offences Act and Fundamental Liberties,1997.)
- the gender bias women suffer in the syariah courts in cases when they initiate divorce proceedings without the agreement of their husbands (see the memorandum on Islamic Family Law and also the summary on the on-going five-year judicial process in Aida Melly Tan Mutalib’s case).
- The Kelantan Hudud Enactment which disqualifies women as witnesses and presumes that a pregnant unmarried woman has committed adultery even though she might have been raped
- the amendment to the Guardianship of Infants Act to give non-Muslim mothers the equal right to guardianship with no parallel measure for Muslim mothers. While the Government has issued an administrative directive to partially redress this act of discrimination, we still await amendments to the Islamic Family Law to grant Muslim mothers equal right to guardianship. (see letter to the Prime Minister on the equal right to guardianship for Muslim women,1998)
- the fatwa issued by the Majlis Fatwa Kebangsaan on 23 September 2000 in which the EPF and SOCSO savings of a deceased should be distributed according to the faraidh system. These savings are deducted monthly from the deceased’s salary and therefore should be regarded as income for the benefit of the immediate family, and not as harta pusaka to be distributed according to faraidh. (see letter to the Chairman, National Fatwa Council, 2000).
- the gender bias in the arrest of young women for all kinds of offences. In June 2000 we witnessed a woman pub singer arrested and charged for insulting Islam, while the male members of the band were let off. Muslim women who take part in beauty contests are arrested and charged, but not Muslim men who take part in body-building contests. Female juveniles caught in alleged sex parties have been sent to rehabilitation centres, but not their juvenile male partners who were only fined. Female sex workers are arrested but not their male clients. Women who abandon babies are arrested and charged but not the men who made them pregnant. The list of discrimination goes on both in the syariah and civil systems.
- vigilante action by Islamist groups or individuals in the universities, the workplace, and also in public spaces which constitute harassment of Muslim women who leave their heads uncovered, who mix with non-Muslims, who take part in activities where men and women interact, and also harassment of non-Muslim women who have been denied entry into public buildings for the way they dress.
These developments are of concern to us as they infringe our constitutional guarantee that all persons are equal before the law and are entitled to the equal protection of the law and they also infringe the fundamental liberties of the citizen in a democratic state.
Permit us to highlight to you some of the many proposals for reform in the administration of justice in the syariah system that we have submitted to the Government in the past several years (further details are in the various memoranda):
- Introduce a uniform Islamic Family Law in the country. This must, however, be accompanied with arrangements for reciprocal enforcement of syariah court judgments among all the states in the Federation. Without this corresponding move to extend enforcement across state boundaries, the injustice that women suffer under the administration of syariah law will not be addressed. (see page 10, Memorandum on the Syari’ah Criminal Offences Act and Fundamental Liberties, 1997).
- Introduce a Federal Syariah Court of Appeal which will be served by a panel of circuit judges, who will travel to the states to hear appeal cases and make judgments based on the syariah laws of each state. This will promote some uniformity in judgments, and eventually lead to the emergence of a common Islamic jurisprudence and standard of justice across the Federation. (see page 11, above memorandum)
- Establish a select committee on syariah legislation in Parliament and in all State Assemblies. Such a committee can appoint outside experts and call on members of the public to testify and comment on the proposed legislation. This will go a long way to help improve the substantive content of draft bills and democratise the legislative process through shura. Given the political constraints and limited knowledge among many of our elected representatives on matters of religion, we strongly suggest that such a committee be established soonest.
One reason why the doctrine of binding precedent did not evolve in Islam is due to the belief that the opinion of one mujtahid can never be regarded as the final wisdom in understanding the infinite message of the Qur’an.
Another ‘alim can give an equally valid opinion based on his learned understanding of the text. In the context of law-making in a democracy, these differences of opinion should be debated and the legislative body will then decide which opinion it wants to turn into law.
- Appoint representatives of women’s groups to all policy and decision- making religious institutions, councils and committees, including the Majlis Agama, the Syariah and Civil Laws Technical Committee, and the National Committee on Religious Affairs. While women played active roles in the very early days of Islam, men reasserted their dominance soon after the passing away of the Prophet saw and his Companions. For nearly 1400 years, as men interpreted the Qur’an for the ummah, the woman’s voice, experience and realities had been silent and silenced. This must be redressed. The participation of Malaysian women as full and equal partners in the country’s socio-economic development must also include their right to participate fully and equally in matters of religion.
- Review and reform Islamic Family Laws and practices to ensure justice and protection of women’s rights. The two memoranda submitted by Sisters in Islam, the Association of Women Lawyers and the National Council of Women’s Organisations should form a basis of the review and reform. Women’s groups must be represented in this process. (for full details, see the Memorandum on the Islamic Family Law on Polygamy, 1996 and the Memorandum on the Islamic Family Law and Administration of Justice in the Shari’ah System, 1997).
- Ensure that the establishment of a Family Court system in Malaysia will encompass both the civil and syariah divisions under one roof, sharing common procedures, services and facilities.
- Introduce gender sensitisation training of all Syariah Court judges and officials both in the Syariah Courts and Religious Affairs Departments.
We do hope YB Datuk will be able to play a major role in ensuring that the administration of justice in the syariah system will improve and that eventually Malaysian citizens can enjoy the same high standard of justice and quality of services provided by both the civil and syariah systems.
We look forward to meeting with you to discuss all these issues of concern.
Sisters in Islam
Association of Women Lawyers
c.c: YB Datuk Shahrizat Abdul Jalil, Minister, Ministry of Women and Family Development.
Y Bhg Dato’ Ainom Said, Attorney General, Jabatan Peguam Negara Malaysia.
o/b: All Women’s Action Society (AWAM)
National Council of Women’s Organisation (NCWO)
Pertubuhan Tindakan Wanita Islam (Pertiwi)
Pan Pacific and Southeast Asia Women Association of Malaysia (Persewa)
Pusat Khidmat Wanita (PKW)
Women’s Aid Organisation (WAO)