Islamic Family Law and Justice for Muslim Women
This report was contributed by Sisters In Islam, Malaysia, from their Regional Workshop on Conference on Islamic Family Law and Justice for Muslim Women held in Kuala Lumpur, Malaysia in June 2001. Discussants from a variety of countries consider marriage, polygamy, divorce, financial provisions and custody under the laws of each of their nations.
Sisters in Islam organised a Regional Workshop on Islamic Family Law and Justice for Muslim Women in June 2001 in Malaysia. The workshop focused on areas of discrimination against women in the substantive provisions as well as the implementation of Islamic Family Law legislations, highlighted best practices and put forward strategies for reform. Experiences were drawn mainly from four ASEAN countries: Malaysia, Indonesia, Singapore and the Philippines. There was also input from other experiences in Egypt, Jordan, Iran, Morocco and Pakistan. About 50 activists, Syariah lawyers and policy makers from the above ASEAN countries and from Egypt, Iran, Pakistan and the USA participated in the workshop.
Some of the international participants are well known in their countries and also in the international arena for their outstanding scholarship or activism on Islam and women’s rights, and the struggle for the development of a more progressive Islam in the Muslim World, such as Dr. Amina Wadud (USA), Dr Nasaruddin Umar (Indonesia) and others. Dr Amina Wadud is an Associate Professor of Philosophy and Religious Studies, Virginia Commonwealth University and also a founding member of Sisters in Islam. She is a theologian whose book “Qur’an and Woman”, is now a standard text in the study of Islam and women’s rights in various different parts of the world. This book has been translated into Arabic, Persian, Turkish and Bahasa Indonesia. Dr Nasaruddin is a Vice Rector and Professor at the Faculty of Usuluddin (Theology), State Institute for Islamic Studies (IAIN), Jakarta. He is a well-known Islamic scholar who is actively involved in promoting the growth of a more progressive Islam in Indonesia. He is also a great supporter of women’s rights in Islam and has written a book on Religion and Gender Equity as well as numerous articles and seminars papers on issues such as Gender Bias in Religious Interpretation, Approaching God with Feminist Perspective, Gender Equity on Inheritance and Testimony, and Criticising the Established Classical Islamic Law on Women.
The workshop was opened with a welcoming speech by Zainah Anwar, Executive Director of Sisters in Islam. In her opening remarks, several important points were highlighted:
- The injustice that so frequently occurs in the name of Islam is due to human weaknesses in understanding the true message of God.
- The point that to question the interpretation of the Syariah Law and its implementation does not mean that we are anti-Islam or we are questioning the word of God.
- Interpretation of the message of the Qur’an must evolve with changing times and circumstances and must include the voices and experiences of the ummah, men and women.
She also hoped that the workshop would be of acquiring and developing human knowledge to enable the participants to understand and give real meaning to the eternal principles of justice and equality that are enjoined in the Qur’an, in the light of today’s changing times and circumstances and in particular, the changing realities of women’s lives in the new millennium.
After the opening speech, the workshop proceeded with the country presentations by the presenters from Malaysia, Indonesia, Singapore and the Philippines on the topic of Marriage, followed by the topics of Polygamy, Divorce, Financial Provisions and finally on the topic of Custody/Guardianship/Child Maintenance. This was followed by a special presentation on Procedure and Case Management highlighting the best practices in the Singapore experience. The final sessions focused on strategies for reform through theology and fiqh by Amina Wadud from USA, Ziba Mir-Hosseini from Iran and Amira Sonbol from Egypt.
Norma A. Maruhom, the Philippines
Several issues were raised under the broad heading of ‘Essential Requisites of Marriage’ and the subsequent ‘Rights and Obligations between Spouses.’ On the legal capacity to contract marriage, problems arise when the woman’s wali refuses to give his consent. It is proposed that the consent of the woman, whether virgin, widowed or divorced should be sought first, and in case of conflict with the wali, the woman’s consent should prevail. To circumvent the inability of a child bride to annul her marriageif the wali is her father or paternal grandfather, it is also proposed to abolish child marriages. As for the rights and obligations during marriage, the discriminatory provisions barring wives from accepting gifts without the husbands’ consent should also apply to husbands, and both husband and wife should consult each other on either’s involvement in lawful engagement or business.
Ratna Batara Munti, Indonesia
The marriage register or ‘itsbat’, was discussed, whereby the current tradition of marriage being performed according to religious rites without being officially recorded subjects the system to abuse, especially by the men. As illustrated by the case of Mandra vs. Rina 1996, the husband promised to register his marriage but did not do so. After having had a child born as a result of the marriage, the husband conveniently claimed that the marriage was null and void. This situation naturally presents a dilemma to women, and the problem is multiplied when there are children involved. In this particular case, the court ruled in favour of the man. One proposal for reform is that the Religious Issues Office should be pro-active and go to the ground to approach couples who were married without the recording process. She also touched upon the issue of the return of half the dowry (to the man) in the case of the break-up of an un-consummated marriage. The dowry in itself is already being perceived as a symbol of the man’s ‘ownership’ of his wife, and the woman who has to return half the dowry is dealt a double blow, as the ensuing divorce often arises from circumstances involving victimization of the woman.
Nik Noriani Nik Badlishah, Malaysia
According to the Federal Constitution of Malaysia, Islamic family law is not under federal jurisdiction but under the jurisdiction of each State. Therefore, there are 14 separate jurisdictions (including the federal territories) on Islamic family law in Malaysia. She expressed particular concern over the state of Kelantan’s enactment, which contains provisions different from that of the other states. While most states require the consent of the woman and do not allow marriages by compulsion, the Kelantan enactment allows a virgin’s marriage to be solemnized without her consent, when the wali is her father or paternal grandfather. This particular juristic view is most difficult to justify in present day conditions, especially given the actual circumstances of Kelantanese women who in general are economically independent and actively engaged in business. It can be seen from the actual realities that the women are relatively self-reliant and certainly quite aware of their own interests. Another issue that was touched upon is the issue of marriage contracts, where women’s groups in Malaysia have proposed the inclusion and registration of optional terms in individual marriage contracts, e.g. stipulation against the husband taking another wife during the subsistence of the marriage.
Halijah Mohammad, Singapore
The Singapore state is secular, marriages and divorces are covered both by Civil and Syariah courts. Of particular interest are ‘mixed marriage’ and ‘double marriage’ cases. A ‘mixed marriage’ occurs when a couple from different religious backgrounds marry each other. The problem arises when the Muslim party e.g. the husband dies, leaving the non-Muslim widow and children in a quandary as regards inheritance. A variant of this is the ‘double marriage’ i.e. when a mixed couple were first married under the civil law and later, upon one partner’s conversion to Islam, went through another marriage ceremony, this time according to Syariah law. Subsequently, if the marriage breaks down, the couple would have to go through the divorce process twice, both at the Syariah and the Civil courts.
Ratna Batara Munti, Indonesia
According to Munti, the permission of wife is not essential in the provisions on polygamy, as it is actually for the court to decide whether the husband can practise polygamy or not. Decisions are rather subjective as different judges can give different opinions as to when a husband may be allowed to practise polygamy. There are cases where the husband’s excuse for polygamy is because of the absence of the wife, even though she went away to work due to their economic circumstances. The husband may also apply to the court for permission by saying that he could not get the permission from his wife, and this may be accepted as an excuse, without any further explanation, although the wife is not present or she may be sick or disagree with polygamy. The decisions are made subjectively by the courts.
Nik Noriani Nik Badlishah, Malaysia
Polygamy becomes a problem when men mistakenly think that it is their absolute “male right.” The situation is aggravated due to the fact that Islamic family law is under the separate jurisdiction of each state. Men find it easier to go to another state to contract a polygamous marriage and later apply for registration rather than applying for the court permission before contracting the polygamous marriage. Since the Federal Territories Islamic Family Law Act was amended in 1994, polygamous marriages may be registered even though they were contracted without court permission. Men find it easier to pay a fine when applying for registration after contracting the marriage rather than applying for permission from the court before contracting the marriage. Therefore, her suggestion is that, before the court allows registration of the polygamous marriage that was contracted without permission, the court should also make orders as to the arrangements for the provisions of maintenance for the first wife and children as well as for the first wife’s share of the husband’s property that was acquired before his new marriage. These proposals are to ensure justice to the wife, which is in accordance with the letter and spirit of the Qur’an, which place great importance on justice to the wife.
Halijah Mohammad, Singapore
When a husband wants to practise polygamy, there are certain conditions that must be met. The first criterion is that the husband must prove to the court that he is financially capable of marrying a second wife and at the same time to maintain the first wife. The husband must produce his income tax statement and salary slip as the supportive documents. It is compulsory to satisfy this criterion before going to the other criteria. Secondly, the husband must have the ability to treat both families equally and fairly. For example, in the cases where the first wife complains that during the year in which the husband was cavorting with the other woman, he rarely returned home, the application will usually be rejected. If the two criteria are satisfied, the third criterion is whether there is any lawful benefit to society in the proposed union. If there is, the application is allowed; for example, in cases where the first wife is sick and the second wife is apparently able to assist the husband in his business.
Carmen A. Abu Bakar, the Philippines
In the Philippines, there are two conditions for polygamy under the Code of Muslim Personal Law (Article 27) which are: (i) equal companionship; and (ii) justice treatment. Nevertheless, the conditions have not been explained in detail. Nor is it explained what are the exceptional circumstances in which polygamous marriages may be allowed to be contracted. Her recommendation for reform is that the law should make provision for prenuptial agreements, in order for the husband and wife to decide whether a subsequent marriage may be contracted, by the husband, and giving the option of divorce to the wife.
Saadiah Din, Malaysia
As a practitioner in the civil courts for six years before practicing in the Syariah courts, Saadiah Din found that divorce proceedings in Syariah courts are more lengthy and difficult. There are also complaints of the wife filing for divorce being subjected to unfair bargaining during negotiations. If the wife who has filed for divorce agrees not to apply for mutaah and maintenance, the husband may agree not to object to the divorce application, thus making it much easier for the wife to obtain her divorce. If the wife refuses to renounce her financial claim, the husband would object to her divorce application, resulting in complicated and lengthy proceedings. Therefore, she feels that the court should recognize the women’s rights so that women should not be intimidated into renouncing their financial rights in order to get a divorce.
Norma A. Maruhom, the Philippines
The forms of divorce in the Philippines and in Malaysia are quite similar. In the Philippines the forms of divorce are through talaq (divorce pronouncement by the man), khul’ (divorce requested by the wife through payment of a certain amount of money to the husband), fasakh, (where the wife applies for divorce under one of the grounds provided in the Code) tafwid, (where the wife exercises a delegated right of divorce) ila (where the husband takes an oath of abstinence) and zihar (injurious assimilation of the wife by the husband). In the Philippines change of religion is not provided for as a ground for divorce and there is also no provision for ta’liq (divorce for breach of condition in the marriage contract). However, tafwid and ta’liq may be similar in that the conditions under which the wife may exercise the delegated right of divorce may be provided for in the tafwid. The speaker pointed out that in the case of talaq (when the husband divorces the wife), there are no grounds mentioned in the Code of Muslim Personal Laws (CMPL). The man can, at anytime, anywhere, and for whatever reason, repudiate the wife. Therefore, it is recommended that to be fair to the parties, the reasons for talaq should also be enumerated in the Code in the same manner as the reasons for are enumerated.
Halijah Mohammad, Singapore
Compared with other communities, the divorce rates are highest among the Muslims in her Singapore. One out of four Muslim marriages end up in divorce. Even though divorce is discouraged, it is also fortunate that the Syariah Courts do not make concerted efforts to put obstacles in divorce proceedings. The divorce process is quite expeditious in Singapore, where the rules for divorce are statutorily provided. However, Halijah also touched upon the problem of the implementation of the legal provisions and the burden of proof required. For instance, if the husband does not provide the wife with maintenance for more than 4 months, under the law, she can get a divorce. The provision in the law is all very well, but the question is: how is it to be proved in Court? Lawyers in Singapore have always had this problem because the judges sometimes come up with very strange ways to see whether the lack of maintenance has been proven or not.
Hindun Anisah, Indonesia
The divorce rate is highest among Muslims compared to that among the other communities in Indonesia. The law provides that a divorce is only valid when it is pronounced in the Syariah Court. Both husband and wife have the rights to apply for divorce. There are eight grounds of divorce; i.e. either party indulging in vice such as drinking alcohol or gambling; husband deserting the wife for more than 2 years; husband being imprisoned for 5 years or more; domestic violence; illness affecting conjugal relations; continuous disputes between husband and wife; breach of the ta’liq (condition in the marriage contract) and apostasy. However, when divorce is granted due to the husband’s violation of a ta’liq, the judgement is discriminatory against women because the wife has to pay R1000.00 to the husband. The question is, why should payment be made by the wife to the husband when the divorce took place because of the husband’s fault? The court construes this to be fair because the divorce is demanded by the wife and not the husband. This attitude highlights the inequality that exists between the husband and the wife.
There was mention of a Malaysian case in which a woman was unable to obtain a divorce by fasakh even though the husband had been convicted of causing grievous bodily harm to her and had been sentenced to 10 years imprisonment. (The woman was finally granted a divorce by talaq after the husband agreed to pronounce talaq upon her agreeing not to claim for mutaah and iddah maintenance). Tuan Haji Mohd Naim (a Malaysian Syariah Court Judge) said that this is unfortunate and strange since it should have been sufficient for the Court to uphold the application for fasakh. In cases of failure by the husband to maintain the wife, in one of his judgements, he has shifted the burden of proof to the husband to prove that he has been providing maintenance for the wife, instead of the wife having to prove that the husband has not been providing maintenance, even though it was the wife filed the divorce application. The principle he applies is that if the husband has failed to prove the provision of maintenance, then the wife is asked to take an oath (on the lack of maintenance) and the divorce is granted by the Court upon the wife’s solemn oath.
Halijah Mohammad, Singapore
The law provides for the payment of mutaah (compensation) and eddah (maintenance for waiting period of three months) by the husband to the wife upon the divorce. If the husband could prove that the wife was nusyuz (disobedient), the husband has to pay only the mutaah. Quantum of mutaah is based on the number of days of the marriage. It started off with one dollar per day, some years ago, was subsequently increased to one dollar fifty cents and recently increased to three dollars per day. There are two points of view on the assessment of quantum. For long-term marriages, the rate of three dollars per day can result in an enormous for husbands with moderate means, but on the other hand, for rich husbands, three dollars per day is a very pathetic little sum. The issue in Singapore is still controversial - whether to fix the sum to three dollars per day or get another formula. There are also those who argue that domestic maids in Singapore are being paid more than three dollars per day, so why should the wife be paid less? (It might be suggested that it would be fairer to adopt a formula where the rate per day should also take the husband’s means into consideration - different rates for men of different income levels.)
The law also provides of the division of matrimonial assets upon divorce. In Singapore, the division appears to be fairly generous to the wife as her non-financial contributions are also taken into account, as well as the welfare of the children in her custody.
Ratna Batara Munti, Indonesia
In Indonesia, the wife has no right for maintenance if the husband could prove that she was nusyuz. Nusyuz of the wife has always been connected with their role as sex provider. Only those wives who serve their husbands sexually will receive mutaah. Similarly, in the case of mahar (dowry), the payment would be made if the woman has served the husband sexually in their marital relationship; otherwise the husband would not consider it his duty to pay the mahar. The enforcement of financial payments is also a problem, except in the case of civil servants employed by the government, where one-third of the husband’s salary may be deducted for maintenance.
The law provides for the division of matrimonial assets; however, the wife often has problems in providing the evidence regarding the properties, due to the confidentiality of bank accounts and the fact that the properties are often registered in the sole name of the husband.
Isabelita Solamo Antonio, the Philippines
The general property regime for Muslims is that of separation of properties. In a way, this is favourable to women in that any properties that was brought into the marriage by the wife, remains the wife’s properties. It is also clearly defined that her income during the marriage is also hers. However, on the other hand it is unfavourable to women when there is a question of common properties, and the women lack the evidence to claim a share of the common properties. The other problem is that even though the wife has the legal right for maintenance by the husband during the marriage, in reality, the women often contribute a great deal towards the household expenses. In the case where the wife is pregnant at the time of the divorce, she should be supported by the husband for a period of up to two years after the divorce.
Nik Noriani Nik Badlishah, Malaysia
In Malaysia, if the wife is found nusyuz by the court, she is denied the three months of nafkah eddah. According to her, in a case reported in 1983 from the state of Perlis, Piah v. Che Lah, where the Court found that the wife was nusyuz, it dismissed her claim for eddah maintenance but allowed her claim for mutaah. In many cases, there is a large disparity between the amount of mutaah claimed by the wife and the amount offered by the husband -- where the wife would claim a very high sum for mutaah while the husband would offer a very small sum. The tendency of the Courts is to award a rather low sum for mutaah.
The law provides for the division of matrimonial assets and the wife’s non-financial contribution is supposed to be taken into account, although greater consideration is to be given to each party’s financial contributions. The problem is that nowadays the wife often gives double contribution as she does the housework as well as contribute towards the financial expenses. However, the prevailing idea is that the husband’s contribution is greater. Women also face difficulties in tracing the properties that were registered in the husband’s sole name.
Custody / Guardianship / Child Maintenance
Saadiah Din, Malaysia
Under the Islamic Family Law (Federal Territories) Act, provisions for physical custody are governed in Sections 81 to 87. Under the law, a child below the age ‘mumaiyyiz’ (puberty) will go to the mother while a child above the age of ‘mumaiyyiz’ has a right to choose between either the mother or the father. Section 83 enumerate several circumstances where the mother loses her right to custody of a child, including where the mother has remarried and her remarriage would affect the welfare of the child. The paramount consideration is supposed to be the welfare of the child. However, it was pointed out during the discussion that mothers who were converts to Islam often face discrimination as there tend to be a perception that a mother who is a convert would be unable to raise the child according to the Muslim way of life.
When it comes to the question of legal guardianship, the father is the primary guardian under the Islamic Family Law Act and enactments. The previous provision in the Guardianship of Infants Act for non-Muslims also declared the father to be the primary guardian of his child. However, in 1999, the Guardianship Act was amended to provide for equal guardianship rights for both father and mother. Unfortunately this amendment is not applicable to Muslims. The women’s groups are now advocating for an amendment to the guardianship provisions in the Islamic Family law Act and enactments. In the meantime, there is an administrative directive issued by the government authorising Muslim mothers as well as other mothers to sign any necessary documents for the child e.g. school registration, identity card registration and passport application.
Regarding financial support, under the law, the father is obliged to pay for the maintenance of his children. The law provides for the court to take into account the financial means of father. However, in practice it is often difficult to produce the evidence to prove the financial means of the father. The law also allows maintenance order to be varied due to change in circumstances e.g. if the children are going for further study, or need special care for medical reasons etc. The court is able to order deductions for maintenance from the husband’s salary if the husband is a salaried employee, especially where the husband is employed in the government service. If the husband is employed by a private employer, the employer’s cooperation could facilitate enforcement of the maintenance order. Problems of enforcement often arise where the husband is employed by his own family company or is self-employed.
Hindun Anisah, Indonesia
When the parents are divorced the legal provisions on custody are as follows; (i) the custody of children not yet mumaiyyiz or under reaching 12 years is the right of the mother. (ii) the custody of children already mumaiyyiz is based on the choice of the children between either the father or the mother. Regarding financial support, the father is responsible to pay for the maintenance of his children. However, the problem arises when the father has failed to pay maintenance and there is no enforcement officer to force him to do so. Although it is possible for the mother to go to court for maintenance of the children, in many cases the mother could not afford to incur the legal costs involved in going to court.
Halijah Mohammad, Singapore
The civil and syariah laws state that the welfare of the child is a paramount consideration. From the decided cases, physical custody is often granted to the mother as the Chief Justice has stressed the importance of the bonding relationship between mother and child. The court may either make an order for sole custody solely or for joint custody. In the case of joint custody, the care and control of the child is still with one parent, although the other parent will also be involved in the decisions related to the upbringing of the child. The parent who does not have custody i.e. usually the father is entitled to have access to the child, unless the mother can prove that abuse has taken on the child during the access period.
In Singapore, maintenance orders for Muslims are also within the jurisdiction of the civil Family Court. In the civil court, if both parents have their own incomes, then they both have the legal duty to provide maintenance for their child. The court would determine the proportion of each parent’s contribution for the child’s maintenance. There is a High Court decision in a case where the mother earnings is very much higher than the father’s earnings, and the court decided that a proportion of 2/3 of the child’s maintenance should be contributed by the mother.
Norma A. Maruhom, the Philippines
The custody of a child, either male or female, who is below 7 years old belongs to the mother or maternal grandmother, paternal grandmother, sister and aunt. A child, either male or female, who is above 7 years old but below the age of puberty may choose the parent with whom she / he would want to stay with. However, when a daughter has reached the age of puberty the law provides that she shall stay with the father and when a son has reached the age of puberty the law provides that he shall stay with the mother. Norma (the paper presenter) put forward the recommendation that the children (daughters and sons) should continue to be allowed to choose either to stay with the mother or the father after they have attained the age of puberty.
When it comes to guardianship, it is actually divided into three categories; i.e. guardianship as to the person of a young child, guardianship upon the puberty of the child and guardianship as to the marriage of the child. The first type is usually given to the mother or other female relatives, while the other two types are by operation of law given to the father or male relatives. On the issue of maintenance, the father is responsible to provide maintenance for a child, in respect of his education, clothing etc until the age of maturity, unless the maintenance has ceased upon the death of the recipient or when the recipient commits any act which would give rise to disqualification to inherit or denial of support under Muslim law. The amount of support shall be in proportion to the resources of the giver and the needs of the recipient.
During the discussion session, one of the participants from Pakistan, Cassandra, explained that in Pakistan, the guardianship is with the father and the custody is with the mother. However, if the mother is a foreigner or convert to Islam (not Muslim by birth) then the custody will not usually be given to her. However, a few years ago in 1994, there was a case when the court granted custody to the mother even though she was a foreigner. The father was given access to the child. In the year 2000, a Japanese mother was given custody and the court allowed her to take the child back to Japan as the court gave consideration to the welfare of the child. Cases of “children snatching” are rampant in Pakistan, and the High Court allows habeus corpus for the child to be returned as soon as possible.
Procedure and Case Management, Singapore
Special presentation by Halijah Mohammad from Singapore
This session is basically centred upon the efficiency of the Singapore Syariah court system, and the possibilities of its adaptability in other countries. There are several basic factors facilitating the efficiency of the system in Singapore. Firstly, the physical size of the country is very small. Secondly, due to the physical size of the country, it is easy to control the population and to enforce court orders. A small number of Syariah judges are sufficient to deal with all the Syariah matters. Thirdly, the Syariah courts are placed under the Ministry of Community Development, not under the Ministry of Law. This facilitates the efficiency of the counselling department. The main points to be noted may be summarised as follows:
The Amendments to the law in 1999 introduced the office of Registrar, to enhance the efficiency of the existing system. Currently, two court presidents are assisted by one registrar.
- Counselling is a mandatory process and the counsellors are trained social workers. The process begins with the lodging of complaints to the Registrar at the Syariah courts. After going through the mandatory counselling, the parties are asked as to whether they still wish to proceed with the divorce. If that is the case, the legal process commences with the issue of divorce summons (upon payment of $45).
- Case statement is included in the divorce summons, that is, a list of various particulars such as the grounds for divorce; the matrimonial properties; the names and ages of children, etc. The summons and case statement are served on the defendant and both parties, husband and wife, are required to attend the hearing. This helps to avoid the problem of “missing defendants”.
- The defendant is required to submit a statement for a “cross-petition” purpose. This system is very helpful, giving a chance for the defendant to express his/her side of story (especially in the case where the husband is divorcing the wife). On the hearing day, the court would hear the plaintiff’s claim and the defendant’s cross-petition. If a party does not have legal counsel, the court officials would assist in filling out the required forms. In the mediation session, there are two full-time mediators in the Syariah courts; one is an ustaz and the other a trained legal officer.
- Pre-trial conference is a process of discussion before trial with the Registrar. Some terms of agreement may be recorded regarding some of the issues in the divorce, such as custody, etc., thus minimising the contentious issues.
- Interlocutory application can be made on, for instance: Production of documents before hearing or for interim custody.
- Use of Affidavit --.the value of affidavit evidence is to avoid or minimise oral evidence. After the case is heard, the lawyers may provide written submission. The full use of affidavit evidence can result in a case being completed within one-year.
- There is a Right to Appeal to the Appeal Board. The decision of Appeal Board is final. The appeal judgment is usually completed within 6 months.
- Night courts - The system was introduced to help clear up the backlog of cases. Four ad-hoc judges were appointed to hear cases in the evening. There is no backlog of cases in Singapore now.
- Hakam - In 90% of the cases, the hakam would ask the husbands to pronounce divorce. This facilitates the divorce process, and shows an understanding attitude towards women who would usually file for divorce only when the marriage has irrevocably broken down.
In looking at the legal reforms, the speaker, Halijah, reminded the participants that the larger socio-economic and political circumstances which are peculiar to Singapore must also be taken into account. The government is extremely obsessed with ‘efficiency’ as it ultimately affects economic productivity and investments. One important ingredient in this regard is the legal infrastructure. Moreover, Singapore is a first world country where ‘institutionalized corruption’ is not allowed to exist. The problems that Singapore has to deal with, are thus different from those problems faced by other developing countries such as Pakistan. The government also has the political will to ensure the efficient administration of the Syariah family law and the smooth functioning of the Syariah court system. The 17% Muslim population - albeit a minority - cannot be ignored by the government.
Strategies for Reform
The Panel Discussion on Strategies for Reform Through Theology and Fiqh consisted of two presenters (Dr Amina Wadud and Ziba Mir-Hosseni) and one discussant (Dr Amira Sonbol). Amina Wadud presented her paper on “What's Interpretation Got To Do With It: The Relationship between Theory and Practice in Gender Reform”, and Ziba Mir-Hosseini on “The Construction of Gender in Islamic Legal Thought and Strategies for Reform”.
Amina Wadud, Reform and Reinterpretation of Texts
She explained that the work on reinterpretation of the texts is also a part of the reform movement. She positions her thoughts on this topic from her own experience as a theorist exploring theological ideas about gender in the Qur’an.
She stressed the need to understand the relationship between theory and practice. The theory or idea underlying a set of actions needs to be explained in order to understand rationale for the work or action. Islam is a religion that emphasizes both right thought (iman) and right action (amal). This integral relationship means that reform movements are not merely about making changes to policies and procedures and policies, but involve the question of how to re-conceptualize the meaning of Islam.
Language is a special gift given uniquely to humans at the time of creation. The problem, however, is that every word has a wide spectrum of potential meanings. She quotes one scholar, Kenneth Burke, who said that “Human language is insufficient for discussion about the Divine”. For example, the Arabic use of the male gender for the generic does not mean that God is male. “Syams”, the sun, is considered feminine in Arabic and “qamar”, the moon, is considered masculine while the opposite holds true in the English language, i.e. the moon is considered feminine and the sun masculine. Arabic is a gender-specific language; you cannot have a table without it being designated either a “he” or ‘she”. This framework creates a way of thinking about the world that is sometimes taken in a very narrow or literal sense which will naturally create contradictions. In the discourse on the actualisation of gender justice in society, therefore, language and the perception of language influence the understandings, conclusions, implementations and indications that arise from the actual living relationship between the males and females in society. Therefore, understanding both the strengths and shortcomings of language is important in changing restrictive policies and laws. This is not a violation of the integrity of Islam but rather a broadening of the Islamic possibilities.
In the case of gender justice, we have perpetuated within the tradition of Islam for 14 centuries the idea that women and men are distinct beings and that those distinctions indicate values in and of themselves. Our choice is either to live within that limitation or to challenge that limitation as a product of human thinking that is not divine and therefore not only worthy of but in need of challenge until we open up the greater possibilities of what Allah has granted to us as agents.
Amina stated that she has worked with Qur’anic language and semantic usage. The Qu’ran’s own world view to determine the rationale for defeating every form of injustice that is perpetuated on others is that no person is in a status that is greater than, or lesser than, another for the mere reason of their membership in any one category. A category of “gender” cannot be presumed across the board to indicate superiority and inferiority because in fact it violates the very nature of the Qur’anic articulation of our responsibility to act as agents to give service to Allah on behalf of His creation.
Ziba Mir-Hosseini, Gender Rights
Ziba’s highlighted two main arguments from her paper. Firstly, the conceptions of gender rights in Islamic legal thought are neither uniform nor coherent. Instead they are very contradictory and biased. Secondly, the conceptions of gender rights, as constructed by Islamic jurisprudence (fiqh), not only negate and neglect the basic objectives of the Syariah, but are also unsustainable under the prevailing conditions in Muslim societies today. In fact they bear little relation to the present realities in the Muslim world.
Two main questions are asked in Ziba’s paper. Firstly, if justice and fairness are indisputable objective of the Syariah, should they not be reflected in the laws on the rights each sex as well as the laws regulating the relations between men and women. Why should the notion of justice not be reflected in these laws if it is a part of the Syariah? Secondly, can there be an equal construction of gender rights in Islamic law, and if so, what are the strategies needed to achieve it.
Three preliminary points should be noted: Firstly, the distinction between Syariah and fiqh is emphasized. Syariah is the divine law revealed to the Prophet. Fiqh, however, is not part of revelation but is a legal science that is developed with other branches of science. Fiqh was historically developed by the fuquha for the purpose of extracting and interpreting legal rules from the Qur’an and Sunnah. Secondly, the premise is that gender rights are neither fixed, given nor absolute, but are created (and deconstructed as well) within the social and cultural contexts. Thirdly, Ziba approaches fiqh rules by examining their validity in the light of contemporary gender theories and realities. She also attempts to highlight that the male-centeredness of these rules has caused what has been called an epistemological crisis today
There are broadly three discourses in Islam. The first discourse is the traditionalist (the discourse of classical fiqh texts). The second is the neo-traditionalist discourse (development of legal codes in the 20th century). Both are premised on various forms of gender inequality. The third discourse, the reformist discourse, is still in the process of formation, and is premised on gender equality.
In classical fiqh texts, gender inequality is taken for granted. In contracts of marriage, the logic of the sale underlies the fiqh conception of women’s rights: it is the duty of the husband to pay maintenance to the wife, in return for his rights of access to her sexually. It is important to ask the questions of how and why this logic asserts itself and how fuqaha modelled the family according to this notion.
There are three interacting sets of answers: First, ideological - the strong patriarchal ethos that informs the fuqaha conceptions and reading of the sacred sources. Second, epistemological - the fuqaha came to see the status of women as something fixed in fiqh that is the subject to divine ruling, that couldn’t be changed. Third, political - related to the exclusion of women from production of religious knowledge, their inability to have their voices heard and their interests reflected in the law.
On the ideological side, there was a wide debate about the position of women in pre-Islamic Arabia. The gender relations in the fiqh model were really influenced by the model of pre-Islamic Arabia. For example, the nikah contract is a somewhat modified form of a marriage agreement that existed in pre-Islamic times which was known as “marriage of dominion”. In this type of marriage the woman became the property of the husband, and before marriage she was the property of her father or brother or close male relatives. To accommodate the voice of revelation, certain modifications were made, for instance by giving the dower to the woman instead of to her father, and certain restrictions were made over the men’s dominion over women.
The subjugation of women that is condemned in the Qur’an, is reproduced in fiqh, though in modified terms. In producing their rulings, fuqaha also relied on a number of philosophical and theological arguments that “women are created of and for men”, although there is actually no basis for these arguments in the sacred text of the Qur’an. For instance, the story that the woman was created from Adam’s rib does not exist in the Qur’an, but is often accepted as the basis on the creation of women. There are also a number of theories on women’s greater sexuality and the need for men to control women’s sexuality.
Women’s voices were submerged and by the time the law schools or mazhabs were developed in the Muslim world, women were totally excluded from the intellectual process and the production of knowledge. The further we move form the time of revelation, the more women’s voices were excluded from the political life in Muslim society. We have women reporters on hadith, but not women in the fiqh sphere. By the 19th century, these fiqh conceptions and the model of gender relations came increasingly under serious criticism as they became increasingly irrelevant to modern realities.
The strategies for reform need to be addressed and explored within the new reformist discourse. This new discourse is still in the formative stage and its future depends on the balance of power between the traditionalists and modernists among the Muslims and the ability of women’s organisations to have their voices heard and the role of the civil society in relation to it.
Amira Sonbol, Discussant
The discussant drew attention to the two methodological approaches that are common between Dr Amina’s and Ziba’s papers: She felt that the two papers are important because they pointed out that any change or reform on the lives of Muslim women must come from within the Islamic tradition. Through our reading and understanding of the textual sources, we can promote and develop changes. Even when addressing change in relation to human rights, Muslims will have to find our way to the realization of human rights through the Islamic tradition.
The second important methodology suggested in the two papers is that women would have to become involved. The fact that women had not been involved suggests that this has been the problem all along. Muslim women need to become involved in theology, and in interpreting the Qur’an; they should not merely wait for the men to undertake it.
A third methodology was suggested by quoting an Egyptian proverb, “He who does not remember his past is lost.” It is thus important to study the actual history and discover the practices that existed in the pre-colonial times. We should not simply take the paradigm that the west has given us about our own past. It is up to us to discover our past in order to understand what we are all about. For instance, Amira’s researches have shown some surprisingly progressive attitudes in her society regarding women during some periods in pre-colonial times, and the reinforcement of patriarchal attitudes in the colonial era.
An Indonesian participant from the floor said that when she asked her seven-year old daughter to describe God, her daughter said that “God is like father”, because according to her teacher “God does not go through reproductive process and therefore must be a man (father)”. In other words, ideas about religion are rooted in the early education of children. In effect, within all the world’s major religions, maintaining a patriarchal notion of God appears to be part of an intentional strategy to prevent women’s full experiences in the religious sphere. In the Qur’an, Allah is both powerful and nurturing, yet in the history of patriarchal thinking among the Muslims, the punitive notion of Allah prevailed and the nurturing notion was neglected.
How Islam is defined through history is a product literally of men’s discourse with other men. Historically, authority has always been regarded as belonging to men. Women who attempt to challenge male interpretations are often viewed with suspicion, and the qualifications questioned and doubted even when those women are qualified with various branches of knowledge and some of the men who challenge them are themselves less qualified with knowledge than these women.
Amina felt that the key to understanding theology is by understanding the whole revelation. Western feminist theology, based on Judaism and Christianity, has different opinions regarding revelations and as such cannot be applied to Islam.
One respondent from the floor highlighted the need for women to be political. She has not seen enough women’s issues being brought forward in the political movement and felt that women are unfortunately reluctant to raise their concerns through political strategies, as they may not wish to be seen as challenging the State establishment.
In respect to equality, equity and fairness, Ziba concludes that in principle it is all about justice. She stressed however, that equality does not necessarily mean “sameness” in the law. (For instance, gender neutral provisions in the law may lead to the result of unintended discrimination against women. Therefore, “equality” is meant to be substantive equality and non-discrimination). As a strategy, it is important to argue for equality and apply the concept because it gives women the legitimacy to pursue their rights. Women of all ages have also played a role in making compromises with patriarchy and in perpetuating patriarchy.
The workshop was an outstanding success and most of the people who attended were impressed by the level of debate, openness and participation. The participants expressed the hope that this kind of workshop would continue in the future for the benefit of Muslim women in particular and of Muslim society in general.