Islamic Family Law Bill Fundamentally Unjust

Nik Noriani Nik Badlishah-Mkini
Feb 24, 06 3:30pm

In reference to the letter Family law – women’s groups ignorant, the Joint Action Group on Gender Equality (JAG) agrees with Aliyah Ahmad that the Islamic Family Law (IFL) debate is not yet over.

What she and other critics of JAG’s efforts fail to acknowledge, however, is that the law’s problems run much deeper than the current debate indicates. For this reason, JAG calls for a comprehensive review of the entire IFL and the introduction of a new Muslim Family Law based on the Islamic principles of justice, fairness and equality.

Most of the family laws codified in the Muslim world are based on conceptions of marriage that were not introduced by the Quran or the Sunnah of the Prophet (s.a.w.), but reflect medieval cultural practices and customs. They are not the sacred, infallible, divinely revealed laws of the shariah, but man-made fiqh, or interpretations of the shariah, that have changed throughout the generations and can be reformed today.

In classical fiqh texts, gender inequality was taken for granted. Marriage was conceived in terms of commerce and ownership, with jurists making analogies between marriage and the institution of slavery (husbands = masters, wives = slaves), and entrenching male privilege as a fundamental part of marriage.

Although some reform of these laws has occurred, it has generally focused on substituting individual provisions with interpretations from other schools of law. But this approach to law reform remains a “patchwork” or “band-aid” method to redress an outdated and flawed conception of marriage.

This view of marriage and gender roles cannot remain acceptable today, where women are educated, work outside the homes, contribute to the economy, participate in politics and perform public functions. Continuing to use such models will never allow for stable and sustainable Muslim marriages.

Some of those defending the IFL amendments do so in the name of gender equality, arguing that the law is equitable because the provisions are gender neutral. However, gender neutrality is not the same as gender equality, and in fact can lead to further discrimination against women.

Furthermore, reading the IFL “in toto” reveals that the balance of the law is not gender neutral, despite the presence of selective gender-neutral provisions. Muslim men may contract polygamous marriages, unilaterally divorce their wives and demand obedience. Muslim women, on the other hand, are expected to obey their husbands’ wishes, accept polygamous marriages and submit to being divorced upon the whims of their husbands.

Women also must contend with numerous delays in court, even when they have valid complaints. As Chief Judge Datuk Siti Norma Yaakob has stated, “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 [religious] law.”

The real concern is not as simple as what provision or procedure a party uses to pursue a claim or whether select provisions are gender neutral. The critical issue is gender discrimination that is deeply embedded in the codified law. If the key principles in Islam are justice, fairness and equality between all believers – men and women, how can we continue to embrace an IFL that is fundamentally unjust?

Amending the IFL one provision at a time has failed to bring about a just and equitable law. A new law, built upon a framework of gender equality, is the only way to realign Malaysia’s man-made Muslim family laws with the sacred and immutable shariah. The several Quranic verses that declare equality between men and women before the eyes of God, mutual protection between men and women (Surah al-Taubah 9:71), and men and women acting as each other’s garments (Surah al-Baqarah 2:187), can provide an Islamic framework in which to ground this reform effort.

This is not a unique or radical concept – such reform is occurring in other parts of the Muslim world. Morocco recently used Quranic principles to provide for equality between men and women in its family law. A new provision in Turkey’s constitution defines the family as an entity “based on equality between the spouses”. Indonesia has drafted a new model law that embraces gender equality.
In fact, our prime minister stated in a speech last year at the Women’s Institute of Management, “Ensuring the rights of women will require reform and renewal in Islamic thought. The problems that contemporary Muslim societies are confronted with today are not the problems of the 6th century, and the solutions we need today do not lie with the notion of a shariah purportedly final and complete 1,400 years ago – particularly in the case of women.”

Reasoned, comprehensive reform of the law is essential for effectively, justly and equitably addressing contemporary problems using the tools of the faith.

Let us – men, women, lawyers, non-lawyers, scholars, believers and citizens – work together to move past the chaos caused by the patchwork amendments of the last 20 years and instead develop a law that is based on a framework of justice and equality. Following our prime minister’s call that:

“When the history of the 21st century is recorded, let Malaysia be mentioned in the context of not only progress and achievement for the country, but also the advancement, empowerment and emancipation of women. Let us therefore not shirk from the trust and responsibility placed upon us. Let us always be ready to take the bold and brave steps necessary to build a just and equal world, for all women and men.”

The author is writing on behalf of the Joint Action Group on Gender Equality (JAG) which comprises Sisters in Islam (SIS), Women’s Aid Organisation (WAO), Women’s Centre for Change, Penang (WCC), Women’s Development Collective (WDC), All Women’s Action Society (Awam) and Malaysian Trades Union Congress, Women’s Committee.

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