Sisters in Islam support the appointment of women as judges for the following reasons:
There is no specific and direct injuction in the Qur’an and Sunnah concerning this matter. There are only conflicting opinions of the jurists.
Verses 4:58 and 5:42 talk about the need for judges to conduct themselves with justice and equity in deciding between two disputing parties. No distinction is made between man and woman judges. Sura al Imran 3:104 enjoin both men and women to do good and prevent evil.
Imam Hanifah supports the appointment of women as judges in all cases, except hudud and qisas cases. He disqualifies the appointment of women as judges in hudud and qisas cases because traditional historical syariah as constructed by the founding jurists of Islam disqualifies women as witnesses in such cases.
Imam Shafii, Malik and Hanbali do not support the appointment of women as judges based on an interpretation of Surah An-Nisa 4:34 which talks about men having responsibility over women. The traditional interpretation of this verse that men have authority over women is now widely challenged. The alternative interpretation is that the verse intends to establish a responsibility of men for the protection and maintenance of women in a restricted social context. Biologically, only women can bear the future generations of Muslims. The Qur’an creates a harmonious balance in society by establishing a functional responsibility for males to facilitate this biological function of females.
This verse does not give men inherent superiority or authority over women. It establishes mutual responsibility in society. Responsibility is not superiority. Even though men are responsible for women in this restricted context, the verse is not intended to mean that women cannot handle their own affairs, control themselves or become leaders, whether among women, men and women or even of nations, as has been assumed.
Given the level of education and exposure achieved by the women of Malaysia, there is no reason why they should be disqualified as judges just because of their sex.
Indonesia, which follows the Shafii school, has appointed over 100 women judges in the syariah courts following the enforcement of the Marriage Law of 1974. Other Muslim countries, including Pakistan and Bangladesh also have women judges in the family courts.