7 March 2011
Sisters in Islam calls on the Federal and state governments to make good on their promises to revise the discriminatory amendments to the Islamic Family Law (the IFL) statutes passed from 2003-2005. As women around the world mark the centennial celebration of International Women’s Day, it is no longer acceptable for Muslim women in this country to be deprived of rights enjoyed by men and their sisters of other faiths.
In February 2009, Datuk Seri Shahrizat Abdul Jalil announced that amendments to the IFL statutes that would countermand the discriminatory provisions would soon be tabled in Parliament. These would be tabled alongside amendments to the Law Reform (Marriage and Divorce) Act 1976 (the LRA) to safeguard the interests of non-Muslim women upon the conversion of their spouses to Islam. However, these amendments bills were subsequently withdrawn as the Conference of Rulers wanted time to consult their respective state religious councils. The proposed amendments to the IFL statutes and LRA have since languished in limbo.
Malaysia’s 1984 Islamic Family Law was once regarded as among the most progressive in the Muslim world. Subsequent amendments to the law in 1994 and 2003, instead of strengthening the recognition of the rights of women, have diminished the rights of Muslim women in Malaysia. While women of other faiths are treated as equals with reform of the civil family law, Muslim women suffer increasing discrimination with each round of amendments to the Islamic Family Law statutes. More legal rights were given to men and the use of gender-neutral language extended to men the legal rights that historically were seen as the rights of women.
For example, in the Islamic Family Law (FT) (Amendment) Act 2005, existing provisions under Section 2(a) and Section 23(9) with regards to harta sepencarian (matrimonial property) have been made gender-neutral. This meant that husbands are able to freeze women’s bank accounts and assets in order to claim his share of harta sepencarian, and file a claim for a share of harta sepencarian upon contracting a polygamous marriage. However, other provisions in the IFL statutes remain discriminatory towards women. For example, only husbands are able to unilaterally divorce their wives and only fathers have the right to guardianship of their children.
Furthermore, a husband can now get a court order to stop his wife from disposing her property (Section 107A). Historically, one of the most remarkable ways in which the shari’ah was far ahead of western legislation by many centuries was its recognition and protection of a wife’s rights over her own property. But with this recent amendment, a wife’s own property is no longer protected for her to deal with as she chooses. A woman who is financially dependent on her husband and has no independent source of income, is put in dire straits as she has no access to her own savings and assets in order to maintain herself and her children.
The Islamic Family Law (Federal Territories) Act 1984, section 23, previously stated that the proposed (polygamous) marriage must be ‘just and necessary’, but this has now been amended to “just or necessary”. This significantly reduces the husband’s burden of proof to justify a polygamous marriage. He merely now has to tell the Syariah court that the marriage is necessary (the usual excuse being ‘to prevent zina’); he no longer has to convince the court that it will be a ‘just’ act on his part. Justice in polygamous marriages is not optional, but mandatory according to hukum syara’.
In response to the critical situation faced by women, SIS has drafted a model Muslim Family Law drawing on best practices from Muslim countries, a national consultation on the IFL, and the lived realities of Malaysian women. Alongside other women’s groups, we have also sent countless memoranda and letters to government ministries and agencies urging them to address discrimination faced by women in law and in practice.
While SIS appreciates the Federal Government’s responsiveness to the issues brought up by women in relation to the IFL amendments, we wish to remind our lawmakers that law and policy reforms must be coupled with the political will to see them through. The effects of the discriminatory provisions in the IFL statutes are not merely theoretical, as evidenced by cases handled by SIS and other women’s groups. We have documented cases in which women with children were left impoverished after their bank accounts were frozen by their husbands, and others wherein the men absconded to other states to escape court orders.
In 2008, the Joint Action Group for Gender Equality campaigned for MPs to “Kotakan Kata” (“Keep Your Promises”) in looking into urgent reforms related to women’s human rights. The silence on amendments to the IFL statutes and the LRA is a regrettable indication that despite the events lined up for International Women’s Day this year, issues affecting women that are seen as contentious remain low on the hierarchy of priorities.
Acting Executive Director
Sisters in Islam