Regional Conference on Advancing Gender Equality and Women’s Empowerment in Muslim Societies

11-12 March 2009, Jakarta, Indonesia
Striving to measure improved gender equality and empowerment of women in Muslim societies- CEDAW Legislative Indicators for State Islamic Laws
By Salbiah Ahmad
Striving to measure improved gender equality and empowerment of women in Muslim societies- CEDAW Legislative Indicators for State Islamic Laws
by Salbiah Ahmad *
Introduction
The Convention on the Elimination of All Forms of Violence against Women (CEDAW)1 remains the most comprehensive international human rights instrument addressing discrimination against women. CEDAW has been ratified by 185 countries, about over ninety percent of the members of the United Nations.2
The number of signatories to CEDAW reflects the remarkable achievement of international cooperation in affirming the principle of equality between women and men and eliminating discrimination in line with the UN Charter:
“To achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction, as to race, sex, language or religion.”
The United Nations Fund for Women (UNIFEM) and the United Nations Development Programme (UNDP) had initiated a groundbreaking work in the Pacific in developing legislative indicators to measure legislative compliance with CEDAW. Indicators are a tool by which the question of how much or whether progress is being made towards a certain objective is measured. Indicators provide a means of monitoring progress in the future. A total of 113 indicators were developed. 3
In furthering the international cooperation on the elimination of discrimination against women and promoting gender equality, this paper moots the use of CEDAW legislative indicators for Islamic law where Islamic law operates at the domestic level.
Towards this end, the paper seeks to explore common ground between gender equality notions and analysis in the Islamic frame of reference with principles enshrined in CEDAW and elaborated in recommendations of the Committee on the Elimination of All Forms of Discrimination Against Women (UN CEDAW).
It is acknowledged that there are Muslim intellectuals and human rights defenders who have expressed ambivalence in pursuing an engagement with Islam and Islamic law in gender equality and women’s empowerment in Muslim societies.
* LLB (Hons.) University of Singapore, Masters in Comparative Law, IIU Malaysia
1 It was adopted by the General Assembly on 18 December, 1979 and opened for signature, ratification and accession in March 1980.
2 The latest signatory is San Marino, having signed on 26 Sept. 2003. The 13 States Parties in East Asia and Southeast Asia are Brunei Darussalam, Cambodia, China, Indonesia, Japan, Lao People’s Democratic Rep., Malaysia, Philippines, Republic of Korea, Singapore, Thailand, Timor-Leste and Vietnam.
3 Jivan, Vedna et. al. 2007. Translating CEDAW into Law: CEDAW Legislative Compliance in Nine Pacific Island Countries. UNDP Pacific Centre: Unifem Pacific Regional Office. 2
However, in recognising that the freedom of religion and belief is a basic human right, a constructive engagement is proposed. “Secular scholars of religion” or “religiously committed scholars and lay persons”, are involved in projects on religion and human rights because there is no “abyss separating the two realms”. The dreams and goals of those who pursue and defend human rights are clear echoes of ancient prophetic voices which also hoped for an ideal society based on justice and truth. The laying bare of assumptions and premises of each system (religious tradition and modern human rights) and examination of those premises will allow a contemplation of a fruitful intersection. 4
The conversation between Islam and CEDAW and other human rights treaties is crucial due to the place of Islam and Islamic law in the social, cultural, political and legal affairs of states parties who identify themselves as Islamic nations and in Muslim societies. The 1990 Organisation of Islamic Conference (OIC) Cairo Declaration on Human Rights in Islam, the 1994 Arab Charter on Human Rights, and the 2005 OIC Covenant on the Rights of the Child in Islam references Islam as an important factor in the human rights discourse. “Islam recognizes the religious, social, economic, legal and political rights of women”. 5 Islam can play a significant positive role towards the practical realization of human rights in Muslim societies. 6
The discourse of human rights and religion is the exploration of the core-irreconcilable differences in religious values and to work through an internal dialogue with religion and cross-cultural exchanges to minimize the differences. The expansion of the penumbra for dialogue would help inform strategies and principles towards gender equality. The conversation between Islam and human rights would shrink the core (if any) of irreconcilable differences.7
This current exercise hopes to bring Muslim civil society actors and their governments in conversations and consensus around standards of equality through the CEDAW legislative indicators.
The paper is developed in two parts. Part I discusses among others, the internal discourse in Islam on reformation of Islamic law and on gender equality. Part II is the proposed CEDAW legislative Indicators for Islamic Law.
PART I
1.
Reservations Based on Islam, Islamic Law
CEDAW has the most reservations placed on it than any other human rights treaty. States parties who have identified themselves as Islamic such as OIC member countries have however, placed
4 Michael S. Berger (et. al), Women in Judaism from the Perspective of Human Rights in Religious Human Rights in Global Perspective: Religious Perspectives. John Witte Jr et.al. (ed), The Hague: Kluwer Law International, 1996. 295-322: 296.
5 Statement of the Secretary-General of the OIC on International Day for the Elimination of Violence Against Women. November 25, 2007
6 Baderin, Mashood . 2007. Islam and the Realisation of Human Rights in the Muslim World: A Reflection on Two Essential Approaches and Two Divergent Perspectives. MWJHR. Vol 4. Issue 1 at p. 5. Baderin emphasised that reformers do not make the claim that it is only through Islam or Islamic law that human rights can be realized in Muslim countries.
7 Ahmad, Salbiah. 2005. Gender Equality under Art. 8: Human Rights, Islam and “Feminisms” 13 Malaysian Law Conference. Bar Council of Malaysia. 16-18 November 3
reservations that are broader in scope and ground their reservations on “legal foundations that are absolute or difficult to change (for example, God-given Islamic law)”, as compared to other states parties. There is very little movement in OIC member countries in removing the reservations. Four countries have modified their reservations. 8
Morocco took an important step in 2008 to mark International Human Rights Day by announcing that it would remove all its reservations to CEDAW. It had in 2003 reformed its Islamic Family Law by among others, increasing women’s legal rights.
The countries in South East Asia enforcing Islamic law for its Muslim populace are Indonesia, Malaysia, Brunei Darussalam, Philippines, Singapore and Thailand. The Islamic law in these countries, generally reflect the dictates of the Sunni-Shafii school of thought. 9 Forty-six out of the fifty-six member countries of the OIC have ratified CEDAW. Singapore, Thailand and the Philippines are not members of the OIC.
The states parties in Southeast Asia, invoking Islamic law, the Sharia or personal law as justifying blanket or specific reservations are Brunei, Malaysia and Singapore. For purposes of this paper, the term, sharia is used as synonymous to Islamic law which in this context, are fiqh formulations. Fiqh are legal principles which are derived through an interpretation of the Qur’an and Sunnah (words and deeds) of the Prophet Muhammad. The Qur’an and Sunnah are the primary sources of Islamic law.
Reservations to CEDAW by States Parties
in Southeast Asian countries that enforces Islamic law
Brunei Darussalam
(2006)
"The Government of Brunei Darussalam expresses its reservations regarding those provisions of the said Convention that may be contrary to the Constitution of Brunei Darussalam and to the beliefs
and principles of Islam, the official religion of Brunei Darussalam and, without prejudice to the generality of the said reservations, expresses its reservations regarding paragraph 2 of Article 9 and paragraph 1 of Article 29 of the Convention."
Indonesia
(1984)
"The Government of the Republic of Indonesia does not consider itself bound by the provisions of article 29, paragraph 1 of this Convention and takes the position that any dispute relating to the interpretation or application of the
8 Arat, Zehra F. Kabasakal, 2003. “Women’s Rights Against Patriarchal Cultural Claims”, Human Rights and Diversity: Area Studies Revisited. ed. Forsythe, David et.al University of Nebraska Press. p 233. She states that while 71.3 per cent of non-Muslim states parties will implement the Convention without reservations, that position is taken by 58.7 per cent of Muslim states parties. Fourteen (14) per cent of non-Muslim states removed all their reservations while none of the Muslim states did so for all of the reservations.
9 There are four Sunni schools of thought; Hanafi, Maliki, Shafii and Hanbali. In one school there could be several trends developed by the students of these four master jurists. 4
Reservations to CEDAW by States Parties
in Southeast Asian countries that enforces Islamic law
Convention may only be submitted to arbitration or to the International Court of Justice with the agreement of all the parties to the dispute."
Malaysia
(1995)
The original reservations read as follows: “The Government of Malaysia declares that Malaysia's accession is subject to the understanding that the provisions of the Convention do not conflict with the provisions of the Islamic Sharia' law and the Federal Constitution of Malaysia. With regards thereto, further, the Government of Malaysia does not consider itself bound by the provisions of articles 2 (f), 5 (a), 7 (b), 9 and 16 of the aforesaid Convention. In relation to article 11, Malaysia interprets the provisions of this article as a reference to the prohibition of discrimination on the basis of equality between men and women only.”
On 6 February 1998, the Governnment of Malaysia notified the Secretary-General of a partial withdrawal as follows: "The Government of Malaysia withdraws its reservation in respect of article 2(f), 9(1), 16(b), 16(d), 16(e) and 16(h).”
Philippines
(1981)
None
Singapore
(1995)
Reservations: (part)
“(1) In the context of Singapore 's multi-racial and multi-religious society and the need to respect the freedom of minorities to practise their religious and personal laws, the Republic of Singapore reserves the right not to apply the provisions of articles 2 and 16 where compliance with these provisions would be contrary to their religious or personal laws.
(4) The Republic of Singapore declares, in pursuance of article 29, paragraph 2 of the Convention that it will not be bound by the provisions of article 29, paragraph 1.”
Thailand
(1965)
Reservations:
“The Royal Thai Government does not consider itself bound by the provisions of [...] article 16 and article 29, paragraph 1, of the Convention.”
5
Reservations to CEDAW by States Parties
in Southeast Asian countries that enforces Islamic law
2. Justiciability of Islamic law and the Diversity of Interpretations
Reservations made on the ground of Islamic law or the sharia is problematic on several counts. There are pre-modern views that Islamic law cannot be questioned, or it is non-justiciable as Islamic law represents the divine will. The practical application of this perspective would mean that once a state party makes this type of reservation, there is no scrutiny allowed on the reservation itself and on the reserved article in CEDAW.
This pre-modern view of the non-justiciability of Islamic law has been contested by Muslim intellectuals and reformers.
“Even when a religion is, like Islam, believed to have been founded on divine scripture and the traditions of the Prophet and other significant communities or personalities, the human interpretation of those sources remains significant.” 10 Islamic law in many of the countries enforcing it, is in the form of state legislation passed by its legislature. The provisions in the IFL of countries from Morocco to Indonesia, for instance, show some commonalities and diversity of interpretations because of the agency of human beings in interpreting and selecting meanings of the text. 11
More importantly, “(a)s long as Islamic law relies on the subjective agency of the state for its articulation and enforcement, any law enforced by the state is necessarily not God’s law. Otherwise we must be willing to admit that the failure of the law of the state is, in fact the failure of God’s law and, ultimately God himself. In Islamic theology, this possibility cannot be entertained.”12 All texts are ultimately engaged, experienced and understood by human beings.
The statement of the Norwegian government made on 16 July 1990, in response to a sharia-based justification by Libya remains current: “The Norwegian government will stress that by acceding to the Convention, a state commits itself to adopt the measures required for the elimination of discrimination, in all its forms and manifestations against women. A reservation by which a State Party limits its responsibilities under the Convention by invoking religious law (Shariah), which is subject to interpretation, modification and selective application in different states adhering to Islamic principles, may create doubts about the commitments of the reserving state to the object and purpose of the Convention. It may also undermine the basis of international treaty law. All states have common interest in securing that all parties respect treaties to which they have chosen to become parties.”
10 An-Naim, Abdullahi. 1994. What do we mean by universal? Index on Censorship 4/5 p. 123.
11 WLUML. 2006. Knowing Our Rights: Women, family, laws and customs in the Muslim World; Dupret, Baudoiun et.al eds. 1999. Legal Pluralism in the Arab World. Kluwer Law International.
12 El Fadl, Khaled A. 2003. “The Human Rights Commitment in Modern Islam,” Human Rights and Responsibilities in the World Religions. Ed. Runzo, Joseph et. al. Oxford. 301-364 6
An observation can be made that states parties have not made special effort to explain why the reservations are necessary, they do not explain the particulars as to how and why CEDAW provisions are contrary to Islamic law and they do not report on the effect and interpretation of their reservations. 13 Such blanket reservations deny the efficacy of the treaty as an instrument for international cooperation.
Nevertheless, in recognizing the diversity of interpretations of fiqh across nations applying Islamic law, UN CEDAW has encouraged States parties to adopt alternative interpretations to advance women’s equality.
The Concluding comments to Malaysia’s combined initial and second periodic report in part reads: “ (I)t encourages the State Party to obtain information on comparative jurisprudence and legislation, where more progressive interpretations of Islamic law have been codified in legislative reforms.” 14 The Concluding comments to Indonesia’s fourth and fifth periodic report have a similar comment on law reform with progressive interpretations that are supportive of women’s equality.15
3. Framing the Issue, Strategies for Engagement
International cooperation in the elimination of discrimination against women require the international community to be arbiter in safeguarding certain minimum standards. Standard setting requires agreement, and international cooperation requires states parties or member countries to encourage and support each other in the process.
The traditional approach of human rights protection has been state-centric, placing emphasis on the human rights obligations of the State. Equal emphasis should be made on the socio-cultural approach in order to effect social change and build linkages between cultures.16 The socio-cultural approach should not be mistaken for the traditional cultural relativist argument (in opposition to universal principles) advanced by states parties to justify human rights violations. 17
The Internal and Cross-Cultural Dialogue
If human rights and in this case, women’s human rights are to be at all universal, they must be integral to the culture and experience of all societies everywhere. It would be untenable to coerce people into accepting a human rights system that they do not consider legitimate. The norms of the international system require cultural validation in terms of values in each culture and in terms of shared or similar values of all cultures.18
13 Connors, Jane. 1997. “The Women’s Convention in the Muslim World,” Human Rights as General Norms, and a State’s Right to Opt Out: Reservations and Objections to Human Rights Conventions. ed. Gardner, J.P. British Institute of International and Comparative Law. 85-103
14 UN CEDAW 35th Session, 15 May – 2 June, 2006. CEDAW/C/MYS/CO/2 para. 14.
15 UN CEDAW 39th Session 23 July – 10 August 2007. CEDAW/C/IDN/CO/5 para.13
16 Baderin op.cit at 6
17 John Kelsey et.al (eds). 1994. Religion and Human Rights Project. New York: The Project on Religion and Human Rights. at p.37-39; Baderin op.cit.
18 An-Naim, Abdullahi. 1994. State Responsibility to Change Religious and Customary Laws. Human Rights of Women. Rebecca Cook (ed.) 85-115 at 174 7
An internal dialogue within the framework of Islam is necessary for cultural legitimacy or internal validation and to avoid any suspicion or ambivalence of an external cultural imposition or imperialism in Muslim societies. 19 A cross-cultural dialogue among cultures will enhance the understanding of and commitment to the values of a common moral and political foundation for international human rights and women’s human rights standards. This will enhance understanding of, and commitment to, the values and norms of human dignity shared by all human cultures. 20
Framing the issue in human rights terms does not however mean that it is the standard by which Islam itself should be judged. The engagement proposes that human rights constitute an appropriate framework for human understanding of Islam and interpretation of Islamic law. 21
This will work towards congruence, convergences and consensus between local beliefs and practices to international norms and standards.
The notion that Islam is inherently the main cause of all human rights violations in Muslim states, has not found support in current scholarly research. Factors such as colonialism, patriarchal social relations that pre-existed Islam, structures and trends in the world’s economy are cited to have played major roles in the realities of women’s lives. 22
The poor human rights practices of Muslim states claiming justification of human rights violations by reference to Islam or Islamic law should not be seen as reflecting the values in Islam or Islamic law but should be seen as conservative governments striving to preserve patriarchal societies in place.23
An informed engagement with religion is important as religious considerations are important for a majority of people and we cannot dismiss them as insignificant or problematic.24
4. Islamic law in Southeast Asia
There are two main types of Islamic law applied in Southeast Asia, Muslim personal law and Islamic offences.25
19 The OIC had occasion to call upon member states to “ continue their coordination and cooperation in the area of human rights in the relevant international for a with a view to enhance Islamic solidarity in confronting attempts to use human rights as a means to politically pressurize any of its member states”. See Baderin (2007) op. cit at p. 14 citing UN Doc.A/59/425/S/2004/808 (11 Oct 2004) para.57.
20 An-Naim 1994. (op.cit) idem. 2005. Human Rights and Scholarship for Social Change in Islamic Communities. 2 MWJHR No. 1 Article 2
21 An-Naim. Abdullahi. 2008. Islam and the Secular State: Negotiating the Future of Sharia. Harvard University Press at p. 112:
22 Offenhauser, Priscilla. 2005. Women in Islamic Societies: A Selected Review of Social Literature. The Library of Congress; Afsaruddin, Asma. (ed.) 1999. Hermeneutics of Honor: Negotiating Female Public Space in Islamicate Societies. Harvard University Press; Karam, Azza. 1999. Women, Islamisms and the State. St. Martin’s Press; Kandiyoti, Deniz. 1991. Women, Islam and the State. Macmillan Press Ltd.
23 Entelis, J. 1997. International Human Rights: Islam’s Friend or Foe?: Algeria as an Example of the Compatibility of International Human Rights Regarding Women’s equality and Islamic Law. 20 Fordham International Law Journal .pp 1251-1305
24 An-Naim, Abdullahi. 2008. op.cit at p. 114; idem. (2000) Islam and Human Rights: Beyond the Universality Debate. 94 ASIL Proceedings pp 95-101; Baderin op. cit also cites the Netherlands Scientific Council for Government Policy report. 2006. Dynamism in Islamic Activism: Reference Points for Democratisation and Human Rights. Amsterdan University Press (notes that human rights in Muslim countries are easier to accept if it is embedded in the local tradition and culture). at .p 9 8
The longest serving Islamic law in these countries is Muslim personal law (MPL) or law on personal status. MPL is the generic reference to Islamic family law (IFL), endowments, property, intestate succession, observance of Islamic ibadat and etiquette (spirituality, rituals) such as fasting, prayers, observance of modesty. MPL may include administrative matters, such as the setting up of bodies, courts, supervision of mosques and minor offences related to these.
MPL in these countries is in the form of legislation, codes of practice and case law decided in the state sharia courts or state religious courts. In the predominantly Muslim communities in the provinces in South Thailand,26 MPL is basically case law in nature, that is, judges in the state sharia courts administer the law according to fiqh interpretations based on the facts presented to the judge.
IFL include betrothal, marriage, divorce, guardianship, custody, maintenance of wives and children, division of matrimonial property and inheritance. The jurisdiction of state sharia courts is mainly in family matters. Increasingly, in counties like Malaysia and in certain provinces in Indonesia the jurisdiction has been extended to criminal matters.
Islamic offences may include the penalties imposed under hudud (fixed offences/punishments) and qisas (retaliation). Hudud laws are theft (sariqah), illicit sexual intercourse (zina), armed robbery (hirabah), false accusations of unchasity (qadhf), drinking wine (shrub khamr) and apostasy (ridda).27 Qisas pertains to homicide and bodily injury. Apart from hudud and qisas, all other offences are punishable by discretionary punishments known as ta’azir. Ta’azir punishment includes fines, imprisonment, reprimand and counseling.
(i) Indonesia
Indonesia is the most populous single Muslim majority nation. 28 It did not make any reservation to CEDAW based on Islam or Islamic law.29 Islam is not formally declared as a state religion. Modern Islamic law in Indonesia formed under the period of the New Order under President Suharto’s rule (1966 to 1998), is limited to elements that are viewed as private Islamic law. This concerns marriage, inheritance, waqf (charitable trusts of land), the religious court system, Islamic banking, the administration of hajj pilgrimage and zakat (tax) administration.30
In providing for Islamic law and its implementation, the government “has to take Islamic teachings and Muslims’ opinion” or face opposition from its Muslim majority population.31
25 Islamic commercial law (for example interest free banking and related) is not within the purview of this paper.
26 Muslims are a minority in Thailand and most reside in what is referred to as the ‘deep south’: the provinces of Narathiwat, Pattani and Yala (main Muslim areas), together with Satun and Songkla.
27 El Awa, Mohamed. 1982. Punishment in Islamic Law. American Trust Publications.
28 Fealy, Greg et.al 2006. Indonesia in Voices of Islam in Southeast Asia. in Fealy, Greg and Hooker, Virginia. Et.al eds ISEAS. p. 39. According to the 2000 census, Muslims make up 177.5 million about 88.2 per cent of the total population. That is about 13 per cent of the world’s 1.3 billion Muslims. The census is conducted once in every 10 years.
29 Its reservation is on Art. 29 CEDAW
30 Salim, Arskal et.al, 2003.The State and Sharia in the Perspective of Indonesian Legal Politics in Sharia and Politics in Modern Indonesia, Salim, Arskal et.al eds. ISEAS. pp 1-16. This book has English translations of the 1974 Act and the KHI in its appendices.
31 Azra, Ayzumardi, 2003. The Indonesian Marriage Law of 1974 in Sharia and Politics. op.cit. pp 76-95 at 90.
9
Islamic law is applied in the religious courts (pengadilan agama) throughout Indonesia.32 These courts administer family law under the Marriage Law Act of 1974 (Law 1 of 1974). The 1974 Act was to provide a unification of Indonesian marriage laws applicable to all irrespective of ethnic origins, religions and social conditions. However, the 1974 Act became closely linked to demands of Muslims and its provisions “amended almost completely in order to be in line with the doctrines of the sharia.” 33
In 1991 the Compilation of Islamic Law (KHI) was issued under Presidential Decree (No. 1 of 1991). The KHI operates as a guide to application law for religious (sharia) judges. The KHI is contained in three books, Marriage, Inheritance and Waqf (charitable trusts of land). The KHI did not accept reforms relating to among others, registration of Muslim marriage, restrictions to polygamy, divorce-by-talaq (a male-issued dissolution) applications in court (as opposed to divorce at will at anytime, anywhere), recognition of adopted children and children born out of wedlock, marriage where one party is not Muslim.34
The KHI was not intended to fetter the judicial discretion of Sharia judges. It however limits the works of classical scholars of fiqh (predominantly Shafii school of thought) that would be applicable in the decision-making to thirty-eight books. In this way, debates and differences of opinions were eliminated to bring legal certainty. The KHI is a step in the government regulation of private family lives of Muslims. 35
A draft law on the Application of Islamic Family Law has been drawn up. 36 Drafted by the Ministry of Religion, the draft law among others, will place restrictions on polygamy and ban unregistered marriages. This draft law will replace the KHI as it has the force of a national law. 37 The Gender Unit of the Ministry of Religion was reported to have said that the draft law falls short of the CEDAW standards and ought to be revised before being passed.38
The 1974 Act in part did bring about important changes in the “creation of stable families, the control of population growth, the control of divorce and polygamy”.39 However, both the 1974 Act and the KHI did not meet the gender equality standard set out under CEDAW.40 Indonesian women’s human rights accounts say that although the 1974 Act has reflected conservative gender roles, the Act is a turning-point for Indonesian women. However, much more has to be
32 Law No. 7 of 1989 On Religious Judicature. In Aceh, the regional courts are called sharia courts.
33 Azra, Azyumardi. (2003) op.cit
34 Ibid. at 84-85
35 Mawardi, Ahmad Imam (2003) The Political Backdrop of the Enactment of the Compilation of Islamic Laws`in Indonesia, in Sharia and Politics in Modern Indonesia up.cit. pp 124-147
36 RUU Tentang Hukum Terapan Peradilan Agama Bidang Perkahwinan.
37 Wardany, Irawaty, New Bill on Marriage Gets Mixed Reactions. The Jakarta Post March 3, 2009.
38 The Jakarta Post, March 2, 2009.
39 Azra, Azyumardi (2003) op.cit. Government servants require approval from their department superiors before contracting a polygamous marriage after the KHI..
40 Jones, Oliver Richard. 1999. Kedudukan Wanita Dalam Hukum Negara Dan Hukum Islam Di Republik Indonesia Ditinjau Dari Hukum Internasional. ACICIS, Murdoch University.
http://www.acicis.murdoch.edu.au/hi/field_topics/ojones.doc 10
done to change the “gendered distribution of social and political power” in women’s social position.41
After Suharto, the Indonesian government introduced the idea of decentralization through two laws, the Law No. 22 of 1999 and Law No. 25 of 1999. These established a model for extending broad regional autonomy within the existing unitary constitution. Law No. 22 of 1999 delegates seven areas of authority to the local governments (province, district (kabupaten) and cities (kotamadya)). Although religious affairs is not one of the delegated items, local autonomy through decentralization has provided avenues for the implementation of sharia. Regional autonomy began in January 2001. Several areas have expressed aspirations for the full implementation of the sharia. These are Aceh, South Sulawesi, Cianjur, Tasikmalaya, Banten, West Sumatra and South Kalimantan.42
Aceh under Law No. 44 of 1999 and Law No. 18 of 2001, has the power to implement sharia. This is confirmed by the Law of Governing Aceh (LoGA), Law No. 11 of 2006, a law passed after Aceh held its first free elections in thirty-years. Aceh in recent months drafted its draft qanun43 compilation of Jinayah encompassing hudud, qisas and ta’azir punishments.44 The draft law has included a selection of fiqh opinions including one which disallows a rape victim from naming the abuser-perpetrator. This provision is not known in other Muslim jurisdictions where Islamic offences are in force as state-issued ta’azir law. 45 The provision is not in the hudud and qisas enactments in Malaysia (states of Kelantan and Terengganu).
(ii) Malaysia
Malaysia, is a federation of thirteen states and three federal territories. Islam is the official religion of the federation under the Federal Constitution of 1957.46 The Federal Constitution was amended in 2001 to include a non-discrimination clause based on gender in Article 8. However the same Article 8 provides that it does not invalidate any provision regulating personal law. 47
Islamic law is a state and not a federal matter. Each state has autonomy over the Islamic law to be administered in each state. The IFL was revamped in the 1980s. A federal level institution, the Department of Advancement of Islamic Affairs in Malaysia (JAKIM) was set up to have overall oversight of the administration of Islamic law. JAKIM has an Islamic and Civil Law Technical Committee, which was tasked among others to facilitate the development of draft laws. The
41 O’Shaughnessy, Kate. 2009. Gender, State and Social Power in Contemporary Indonesia: Divorce and Marriage Law. Routledge
42 Salim, Arskal. 2003, Epilogue: Sharia in Indonesia’s Current Transition in Sharia and Politics in Modern Indonesia up.cit.pp.213-232 at 222; Hooker, MB. 2008. Indonesian Syariah: Defining a National School of Islamic Law. ISEAS. See chap 6 on a review of the Islamic regulations in Aceh, South Sulawesi and West Sumatra pp 243-283.
43 Qanun is a term specific to Aceh to mean district regulation (peraturan daerah or PERDA). A qanun is not Sharia-specific as all Aceh’s district regulations uses the term, qanun.
44 Rancangan Qanun Aceh Tentang Kompilasi Hukum Jinayat Aceh, Tahun 2008. This compilation will repeal current jinayah qanun Nos. 11, 12 and 13.
45 Section 28 of the draft Qanun. See Ahmad, Salbiah. 2008. The Rancangan Qanun Aceh Tentang Kompilasi Hukum Jinayat Aceh, Tahun 2008, for a critique. Unpublished paper prepared for UNIFEM ESEARO. August, 2008. A work in progress.
46 Article 3 (1). Islam is religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.
47 See Ahmad, Salbiah. 2005 op.cit on the ramifications of this equality clause with “Islam as religion of the Federation” in the Malaysian context. 11
deliberation of these drafts included state muftis (politically appointed bureaucrat to head the administration of Islam in the state), and chief shari judges of the states. All drafts are submitted to the Attorney-General’s chambers for approval of state legislatures.
All states and federal territories have passed IFLs and Islamic offences incorporating ta’azir punishments. Two states in Malaysia have passed a hudud and qisas law each, in addition to the existing ta’azir punishments.48 These hudud and qisas laws have however not been enforced as its constitutionality is contested.49
In existing ta’azir laws, offences include close proximity (khalwat), failure to fast during the month of Ramadan, failure to attend Friday prayers 3 times consecutively, illicit sexual intercourse and apostasy.50 The prescribed hudud punishments are not provided in these ta’azir laws.51
These laws on Islamic offences have provisions on evidence from mainstream pre-modern fiqh views. Men and women are competent witnesses for confessions (iqrar), oaths (al-yamin), expert evidence (ra’yu al-khabir).52 However fiqh does differentiate women’s and men’s evidence in relation to specific offences in hudud and qisas. For instance the evidence from four male eyewitnesses to zina (illicit sex) is required to prove the case.53 A witness evidence is called shahadah. A confession (iqrar) from the accused (male or female) of the offence of zina is also conclusive evidence of the offence against him/her. In Malaysia, the IFL provides that women are not competent witnesses to the contract of marriage (aqad nikah).
These provisions on witnesses and competency to witness or give evidence are fiqh from the Shafii school in general. These evidentiary rules are applied in Southeast Asia as general fiqh where there is no specific law or regulation on the matter.
The IFLs in Malaysia are quite comprehensive. The reforms include registration of marriages, application for dissolution in court, restrictions to polygamous marriages, increased women’s access to divorce by fasakh (court ordered divorce upon proof of fasakh grounds) in addition to khul’ (divorce by redemption) and ta’lik (divorce upon proof of conditions.54 The IFL has provisions on maintenance, custody, guardianship, division of matrimonial and offences related to family. All IFLs have a provision on injunction against molestation, a euphemism for domestic violence. Enforcement on such injunctions have been lackluster as sharia courts have
48 The state of Kelantan’s hudud and qisas law was passed in its state legislature in1993, the state of Terengganu passed a similar state law in 2002.
49 Ahmad, Salbiah. 2006.Islam in Malaysia, Constitutional and Human Rights Perspectives in Islam and Human Rights, Advocacy for Social Change in Local Context. Ed Baderin, Mashood et.al pp179-226. Global Media Publications.
50 The states of Kelantan and Terengganu have these ta’azir laws as well and these are enforced.
51 Thus apostasy is not sanctioned by death or illicit intercourse by 100 lashes (the fixed punishments) in the ta’azir laws.
52 Othman, Mahmud Saedon..1990. Undang-Undang Keterangan Islam. Dewan Bahasa dan Pustaka; Abdul Rahman, Abdul Muin. 1999. Witnesses in Islamic Law of Evidence. Pelanduk Publications.
53 Interpretation arising from Qur’an 24: 4 on eyewitnesses. The sex of the eyewitnesses is not expressed in the Qur’an. Male eyewitness evidence for zina is a juristic interpretation.
54 Ta’lik divorce is common to Southeast Asian family law and in Sri Lanka, where the majority of Muslim observe the Shafii fiqh. 12
poor powers and institutional support to enforce injunctions. 55 The grounds in fasakh (court-ordered dissolution) and in ta’lik (conditional divorce) include domestic violence. Violence is a matrimonial offence in the IFLs.
All sharia matters under IFL and Islamic offences are heard in state sharia courts. All sharia court decisions are reported.
(iii) Philippines
The Philippines is a unitary state. The IFL is contained in the 1977 Code of Muslim Personal Laws which was enacted by Presidential Decree 1083. The 1977 Code is “an operative model of the eclectic selection” from formulations of sharia of fiqh. 56 The Code covers marriage, divorce and property and is applied over Muslims in ten provinces and six cities of the Autonomous Region of Muslim Mindanao in Southern Philippines.
The Code has included talaq tafwid as a ground of dissolution by the wife. This is where the husband has delegated to his wife his right of talaq at the time of marriage or subsequent to that. This is a ground absent in the expressed provisions in the IFL in Malaysia, Indonesia and Singapore. “Unusual cruelty” which includes domestic violence by the husband is a ground under fasakh in the Code.
IFL is administered by sharia circuit and district sharia courts with appeal to the Sharia Appellate Court. The final appeal lies with the Supreme Court (civil).
(iv) Thailand
Thailand is a constitutional monarchy with the King as patron to all religions. The administration of Muslim personal law for the Muslim minority communities are through Enactments and Royal Decrees governing administrative structure and administering religious institutions. The Ministries of the Interior and Education are charged with the administrative supervision and financial responsibility for the functioning of Muslim affairs. 57
Issues on “faith and practice, familial connection, birth and death of a Muslim, marriage and divorce….heritage” are Islamic law matters in the Southern provinces. A Royal Proclamation in 1902 during the reign of Chulalongkorn shifted the authority of the reigning Malay-Muslim sultans to the central authority in Bangkok. The IFL pertaining to family and inheritance is applied in ordinary courts presided by a dato’ justice or the dato’ yutitham who after hearing the case prepares a legal brief with the relevant sharia principles on the facts. This is submitted to the civil court judge to hand a decision. 58
55 A national law, The Domestic Violence Act, 1994, an Act of general application to Muslims and non-Muslims, has superceded the IFL on matters of domestic violence.
56 Mastura, Datu Michael. 1984. The Administration of Muslim Personal Laws in a Muslim Minority Country (Philippines). SEASA. Syariah Law Journal. Nov. IIUM pp 25-38.
57 Suwanakkijboriharn, Amnuey. 1985. Shariah and Society-Thailand. SEASA. Syariah Law Journal No. 23/9/85. IIUM pp. 115-123.
58 ibid at 122
13
The dato’ yutitham is elected by the village imam in the respective province after passing an examination. A compilation of Islamic family law and inheritance was made in 1946. General Islamic law (uncodified) has been recognized since 1902. 59
(v) Singapore
Singapore is a unitary state. The Administration of Muslim Law Act, 1966 (AMLA) governs the family law of Muslims, and is administered in the sharia court. Appeals are heard by an Appeal Board. AMLA has no substantive fiqh provisions in the body of the law. AMLA deals mostly with administration of Islamic Law and has been amended to strengthen the institutions which administer Islamic law.
As substantive aspects of IFL have not been included in AMLA, the Sharia judges have been crucial in developing the law through judicial decisions. The IFL under AMLA is related to marriage, divorces (mutual consent, talaq, ta’lik, khul’ and fasakh), betrothal, nullity of marriages, mahr and maintenance. Selection of fiqh principles are by judicial fiat unless there is an express provision in AMLA. Thus while the AMLA provisions appear vague and limited, “judge-made law” has been proactive in the protection of the rights of women and children. 60 Violence is a ground for ta’lik which upon proof, entitles the woman-petitioner to divorce. The marriage certificate in Singapore contains a standard ta’lik which requires signature of the male spouse after the marriage ceremony for it to be valid.
Decisions of the sharia court have not been reported although some decisions of the Singapore Appeal Board have been reported in isolated cases. The sharia court in Singapore is not independent court of record unlike the civil court. Its status is similar to a magistrate’s courts.
(vii) Brunei
Brunei styles itself as an “Islamic monarchy”.61 Its IFL is contained in the Courts and State Customs Enactment 1955 (no. 20/55) and administered by the sharia court.
5. Ottomon inspired IFL reforms
Islamic law especially IFL in Southeast Asia drew its inspiration from the nineteenth century reform of the Ottoman period. Reform is twofold. Firstly, selected fiqh views are passed as pieces of legislation by elected representatives to be the law to be applied, as opposed to juristic law. This also serves to limit the discretion of the Sharia judge in choosing between differences of fiqh opinions on an issue, with the intention of bringing more certainty to the decision-making process.
The move to codify Islamic law in Ottoman-Turkey was influenced by the codification efforts of the French, German and Swiss at that period. However, the foreign codes were seen as
59 Funston, John. 2006. Thailand in Voices of Islam in Southeast Asia. ed. Fealy, Greg and Hooker, op.cit. p. 84
60 Ahmad, Salbiah. 1988. The Administration of Muslim Family Law in Singapore. Dissertation for a Masters Degree in Comparative Law. IIUM.
61 Fealy, Greg. op. cit. at p. 19 14
inadequate for a Muslim society that was fundamentally different from those societies for which the codes originated.
The Ottoman reformers acknowledged that the doctrine of one school of thought, will not serve the purpose of reformation. A second feature of this reform is to have recourse to takhayyur and talfiq to shape the state-issued law.62
Takhayyur is an amalgamated selection from several traditional doctrines held by a variety of schools. Talfiq is the process of combining parts of a doctrine of one school with a part of doctrine of another school. The Ottomon Law of Family Rights 1917 is the product of this experiment. The same style is followed in Malaysia in the late 1980s with its various IFLs at state level. 63
The Indonesian KHI in 1991 and the Philippines Code of Muslim Personal Laws of 1977 are of a similar mold.
The IFL in Southeast Asia has a preponderance of the fiqh of the Shafii school infused with part doctrines from the other schools. Some of the IFL in the Middle East and North Africa (MENA) have included Shii doctrines to augment Sunni views.64
6. The Challenges in the Internal Discourse
(i) The Problem of Authority and Authencity in Reform Methodology
While the end result of the science of deriving legal principles from the Qur’an and Sunnah (usul al-fiqh) is fiqh or legal principles, that science is also about the use, authority and interpretation of different sources of knowledge, and who can represent, express and direct the authority of sources. 65 Authority is a conversation about sources and about the moral, social authority that the internal discourse represents. The reform of Islamic law has to address authority and authencity (competence) of the interpreter to “execute the intent of the Principal (i.e. God)”. 66
The mechanisms used in the nineteenth century which dictates the reformation of IFL in all Muslim societies today has its critics. There are studied opinions that the device of selection and
62 Hallaq, Wael B. 1997. Islamic Legal Theories: An Introduction to Sunni usul al-fiqh. Cambridge University Press
63 The efforts in Malaysia and Singapore were made possible through the work of Ahmad bin Mohd Ibrahim, former Solicitor General of Singapore and subsequently Shaykh al-Kulliyyah of IIUM until his death in 1997. Ahmad Ibrahim started the Southeast Asian Sharia Association or SEASA comprising of Sharia practitioners, Sharia judges, lawmakers and related government officials from Malaysia, Indonesia, Singapore, Philippines, Thailand and Sri Lanka. It met once in two years to discuss developments in Islamic law and the Islamic legal system in the region. Papers at SEASA conferences are published in the Syariah Law Journal of the Kulliyyah of Laws, IIUM.
64 Hallaq. op. cit. Also Anderson, J.N.D. 1976. Law Reform in the Muslim World. Athlone Press. London. The Moroccan Family Code (Moudawana), 2004 has received much acclaim. A perusal of its provisions indicated that it has also been fashioned from the selection and amalgamation (takhayyur-talfiq) mechanisms aforesaid, but has incorporated more options for women than the earlier 1957 IFL.
65 The science or usul al-fiqh was developed in the span of several hundred years after the death of the Prophet, between the middle eighth and the end of the ninth centuries, coinciding with the deaths of the four master jurists, Abu Hanifa, Malik, Shafii and Ibn Hanbal.
66 El Fadl, Khaled Abou. 2001. And God Knows the Soldiers: The Authoritative and Authoritarian in Islamic Discourses. University Press of America; idem. 2001.Speaking in God’s Name: Islamic Law, Authority and Women. One World Publications. 15
amalgamation (takhyayyur-talfiq) and other quasi-ijtihad efforts cannot be sustained as “any type of cohesive legal methodology” and “suffers from a serious methodological flaw”. 67
The introduction of European Codes by ruling elites in the nineteenth century, faced much dissatisfaction and is seen as an affront to time honoured Islamic values. The laws of personal status took the path of selection and amalgamation without studied recourse to the authority and authenticity of pre-modern methodology to meet the exigencies of the day. There is an assumption that pre-modern methodology, having gone through rigorous debates and the test of time, affords a normative framework free of manipulation.
An adequate reform methodology remains elusive to the Muslim reformer if we are looking to fashion a reform methodology using the pre-modern analysis and tools fashioned in historical Islam in the days of the great founding imams, the master jurists.
While arguments of authority and authenticity are respected, contemporary reformers maintain that the classical or pre-modern methodologies are perceived as too obscure, obsolete or simply difficult to apply today.68 The pre-modern fiqh reflects a historically-conditioned interpretation of Islamic scriptures in the sense that the founding jurists had to understand those sources in accordance with their own social, economic, and political circumstances.69
It is suggested that while it might not be practical “to resuscitate the body of traditional Islamic law so that it may live as a historical oddity in the modern age”, pre-modern methods may inspire and guide a normative framework for today. 70 Additionally, the fact that Islamic law today is state mandated implies that law should be treated like any other civil law and should be subject to negotiation through the political process and subject to reform.
Contemporary reformers make the claim that development of fiqh, like the Common law system, was always a “work in progress”. There was a strong resistance to codification because of the acceptance of diversity and interpretation. Codification stultifies the development of fiqh. 71
(ii) Absence of Women’s Voices in Pre-Modern Methodology
The absence of women’s voices in usul al-fiqh is a major part of the present epistemological crisis concern women’s concerns and rights in Islamic law. Women are recognized in authoritative accounts of transmitters of the Prophet’s Sunnah (words and deeds), the ‘ilm al-rijal (the science of the scrutiny of transmitters). Women’s narratives have formed the basis from which fiqh were deducted, yet women were not participants in the intellectual process of developing fiqh. 72
67 Hallaq op.cit at p 211
68 Ibid at p. 111
69 An Naim, Abdullahi. 1990. Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law. Syracuse University Press.
70 El Fadl .2001.op.cit at p. 111
71 El Fadl .2001. op.cit at p. 108
72 Sachedina, Abdul Aziz. Women Half-the-Man? Crisis of Male Epistemology in Islamic Jurisprudence. http://people.virginia.edu/~aas/article/article1.htm . There are two aspects in fiqh literature (i) the ibadat (relationship with the Divine) and (ii) mu’amalat (literally transactions, technically meaning interpersonal-human relationships). The IFL, Islamic offences and evidentiary rules fall within mu’amalat. 16
The legal language constituting the female “other” is mediated through male representations of interpersonal relations. The legal principle or ruling is made without taking full account of the concerns and conditions peculiar to female life and is promulgated and interpreted by a male jurist to apply to all women in a society. Reformers raise the question if the male dominated epistemology can provide an authentic voice in the interpretive process connected with the female. 73
The corpus juris of Islamic law forged during the period of the master jurists Abu Hanifa (d. 767), Malik (d. 795), Shafii (d. 819) and Ibn Hanbal (d.855) that is, between the middle of the eight century and the end of the ninth century, thus shaped, is patriarchal in nature. Males in that historical period when usul al-fiqh was formed, were given wide authority over females as grandfather, father, uncle, husband, brother, son. 74
The patriarchal gender system is not unique to Muslim societies. It is prominent across the entire so-called belt of classic patriarchy from North Africa, across the Middle East (including Turkey and Iran) to South and East Asia (Pakistan, Afghanistan, northern India and rural China). The belt regardless of religion, is characterised by kin-based patrilineal extended families, male domination, early marriage (high fertility), son preference, restrictive codes of behaviour for women, and the association of family honor with female virtue. 75
(iii) Implications of Privileging the Male in Islamic Law
In the spirit of respectful inquiry, the male-centred epistemology may have considered both male and female as part of humanity and had acknowledged the essential humanness of males and females. The pre-modern legal discourse did not however discuss male-female equation in terms of power relations. That analysis has not evolved at that period in time.
Modern critique on hadith (reports of the words and deeds of the Prophet Muhammad), literature selected and interpreted by pre-modern jurists, show that it contributes “to the general denigration of the moral status of women.” 76 Much of the hadith literature described by contemporary reformers as the ‘prostrating and submission’ hadith contributed to fiqh related to segregation (ikhtilat), employment of women outside the home (with permission of her husband) and veiling.
Some of the selected hadith even circumscribe her spiritual status as being dependent on the “extent of her obedience to her husband.” 77 At no point does the Qur’an uses the word ta’ah (obedience) in characterizing the marital relationship. Marriage in Islam is characterised as a relationship of companionship and compassion (mawaddah wa rahmah), not a relationship between a superior and an inferior.
73 ibid.
74 ibid.
75 Offenhauser. op.cit at 10. Author cites the work of social scientists in this regard.
76 El Fadl. 2001 op.cit. See the chapter, Faith-based assumptions and determinations demeaning to women. pp. 209-261 at 212.
77 ibid. at 210 17
This privileging of males over females in fiqh will mean that the impulse of any reform through amalgamation-selection from the Ottoman period in the codification of personal status laws, subsequently the IFLs, would be essentially patriarchal.
As a further illustration, IFLs in Southeast Asia privileges the talaq (dissolution by males only). Most systems recognise the talaq as a unilateral divorce, which can be exercised at will. The wife need not be present at the time the husband pronounces the formula of dissolution by talaq. Reform has insisted that both parties attend a court hearing with the talaq pronounced before the court in the presence of the wife. An unreasonable talaq is met with fines or compensation (muta’ah).
Even when reform provided for the female dissolution of marriage by way of khul’ (divorce by redemption by return of mahr or dower) and ta’lik (conditional divorce) and subsequently by limiting fasakh78 for females in IFL codes, the female has to prove her case. There is no divorce at will. In older cases in Malaysia, sharia judges would prefer males to pronounce the talaq, even in an application by women citing khul’, ta’lik or fasakh. Most rely on the point that the Qur’an mentioned only mentioned talaq in its text and the text was addressing males.79
Polygamy for males is restricted in Malaysian IFLs. Thus conditions are placed (procedural law) on the right of polygamy, instead of outlawing polygamy. In the Tunisian Family Code, polygamy is outlawed by a fresh interpretation of the Qur’anic text. Thus the substantive law or the principle in Tunisia is monogamy and not polygamy.80
There are myriad examples of the patriarchal reading of the sources of Islamic law in family law, including custody for females (wife, grandmother, sister, aunt), while guardianship belongs to males (father, grandfather, brother, uncle), polygamy, and inheritance. In the public sphere, leadership and political participation are major concerns.
The examples on divorce and polygamy are set here to illustrate the point made in this sub-section. The paper does not propose an exhaustive gender analysis of IFL, Islamic offences, the evidentiary rules as between males and females and leadership issues.
It should be emphasised that the reform efforts through an eclectic selection-amalgamation in the IFLs in Southeast Asia has increased women’s access to justice in many areas in the family law including the enforcement of her claims during the marriage and at dissolution. These are important advances in IFL from Morocco to Malaysia. However reformers remain vigilant to concerns that the IFL reforms retain the wide authority of males over females and laws were enacted to give women “unprecedented respect and protection in the patriarchal context.” 81
78 Court ordered dissolution. Grounds include polygamy without consent, violence, non-maintenance, cruelty, insanity, whereabouts of husband unknown. Malaysian IFL sources.
79 The other view is that the word ‘talaq’ could refer to dissolution (generic) and not limit it to a male-specific divorce.
80 The draft law on the Application of Islamic Family Law’s proposal to make changes, including banning unregistered marriages and restricting polygamy has mixed reactions among the Muslim elite and intellectuals. Din Syamsuddin, chairman of one of the largest Muslim group, Muhammadiyah was reported calling for caution to avoid violating religious principles. The Jakarta Post March 3, 2009 op.cit.
81 Sachedina, Abdulaziz. op.cit at p. 6 18
Pre-modern fiqh, patriarchal in its outlook, thus confers legal personality to women. She has a right not to be subject to acts that may impair her health, a right to perform her religious duties and rituals, the right to own and administer her own property, the right to have family relations with her parents and relatives and the right to socialize within her home including entitlement to female companionship. 82
Pre-modern fiqh designed different levels of capacities in the historical context of that time. There are different capacities between men and women and between free persons and slaves. The fullest capacity is that of a free Muslim male. As in the case of non-Muslims and slaves, women are inferior to free Muslim males. 83
This pre-modern paradigm has also infomed a particular vision of “human rights in Islam”. The Cairo Declaration of Human Rights in Islam, 1990, advocates that equality of women and men is not absolute. Article 6 of the Cairo Declaration reads:
(a)
Woman is equal to man in human dignity and has rights to enjoy as well as duties to perform; she has her own civil entity and financial independence, and the right to retain her name and lineage.
(b)
The husband is responsible for the support for the welfare of the family.
The guarantee of equality ‘in human dignity’ under the Cairo Declaration falls short of UN human rights guarantee under the ICCPR and CEDAW. 84 Muslim scholars who support the no-absolute equality approach premise their view of male privilege (on the fiqh understanding that males are providers and maintainers of women). The pre-modern family context is premised in the Cairo Declaration as the basis of gender relations in Islam. This understanding of family is not ‘universal’ and of general application “because family is a social institution and subject to change relative to social development.” 85
(iv) Deconstructing Patriarchal Fiqh/Islamic Reformation
In advocating for change to Islamic law, Muslim reformers, male and female, have proposed alternative methodologies. Several of these are carefully placed within the parameters of pre-modern usul al-fiqh 86 (the science/methodology of deriving fiqh from Qur’an and Sunnah) and some have not.
82 Peters, Rudd. 1999. Islamic Law and Human Rights: a contribution to an on-going debate. Islam and Christian Relations. Vol 1-. No. 1 pp 5-14
83 ibid.
84 Baderin, Mashood. 2003. International Human Rights and Islamic Law. Baderin cites other views (Muslim and non-Muslim secular and religious views) in the chapter on equality under the ICCPR. P. 60
85 Wadud, Amina. 2006. Inside the Gender Jihad: Women’s Reform in Islam. One World Publications. at p. 194
86 Hasyim, Syafiq, 2006. Understanding Women in Islam: An Indonesia Perspective. ICIP. proposing the thinking the grouping of Qur’an of clear (qat’iy) and unclear verses (zhanniy) and the Indonesian reformist call of ‘text in context’, that realities of the day to day conditions of women and men in the country context should premise the making of a rule; Sachedina op.cit citing the rethinking of mawdu’ (the actual state of a thing before a ruling can de deduced); An –Naim 2008 op. cit. It is proposed that the Medinan verses of the Qur’an do not necessarily abrogate the earlier verses of the Meccan period. citing the original work of Taha, Mahmoud Mohamed. 1987. The Second Message of Islam. Syracuse University Press; 19
Not all reformers have worked these ideas through in current IFL or Islamic offences or evidentiary rules as a whole. 87 Or if they did deconstruct patriarchal fiqh to meet the imperative of gender equality, it is not disclosed, if reliance is made to some aspects of pre-modern usul al-fiqh or not at all.
Most reformers insist that reformation of Islamic law/fiqh is necessary but are careful to emphasise that they do not claim that each has the ultimate methodological approach in responding to modernity or gender equality issues. This is one feature which modern day reformers share with the pre-modern period, that no one methodology is held supreme over others.
The test of scholarship and the political correctness (my choice of phrase over the word “authority”) of a method or opinion should be tested by rigorous, scholarly debate. The freedom to debate views in agreement or in dissent should be protected.88
It might not be realistic to assume that there is indeed a single methodology in reforming patriarchal fiqh. This makes the course of law reform more challenging than answering to the critics of transformation of Islamic law.
(v) Re-constructing Gender Equality in Reformation
It is important at the outset to make the point that the text of the Qur’an does not address male-female relationships in the context of equality of the sexes. The Qur’an does not use the idea of sexual sameness and difference to privilege men or to discriminate against women. 89
The Qur’an affirms the sameness of women and men. It recognizes sexual differences but does not advocate inequality on the basis of sexual differences. It does not use man as the paradigm for defining sameness. The Qur’an contains principles which are conducive to building a theory of equality of women and men.90
Women and men have the same capacity for moral agency, choice and individuality. The Qur’an commands that women and men are each other’s awliya (guides and protectors), both have the same function of guardianship over one another. 91 The only differentiation between man and woman before God is taqwa (God consciousness/faith).92
87 Hasyim, Syafiq, 2006. ibid. This work is useful in the deconstruction of patriarchal fiqh in family law, inheritance, evidentiary rules and political participation with gender justice in mind; Ali, Kecia. 2003. Progressive Muslims and Islamic Jurisprudence in Progressive Muslims ed Safi, Omid. One World Publications pp 163-189.
88 An-Naim cautioned that there must be secure conditions under which views can be presented and debated by others plus the necessity of ‘civic reason’. This may be said in view of pre-modern fiqh views on apostasy, an offence in Islamic law and punishable by death in some Muslim countries and Muslim societies. An-Naim (2008) op. cit at p. 277
89 Barlas, Asma. 2002. “Believing Women” in Islam: Unreading Patriarchal Interpretations of the Qu’ran. University of Texas Press. at p. 133
90 ibid
91 Qur’an 9:17
92 Wadud, Amina. 1992.Qur’an and Women. Fajar Bakti 20
The social constructions of “roles” of males and females are a reflection of the historical context of what exegetes and reformers call ‘the time or occasion of Qur’anic revelation’. Gender was not a category of thought at the time of revelation. The pre-modern fiqh is fiqh al-waqidah or the fiqh of lived reality as understood by Muslims of that period to facilitate what was conceived/interpreted as the achievement of a just and moral social order. 93
The Qur’an answers to the context of the modern women as it did to the original Muslim community fourteen centuries ago. No community will ever be exactly like another. The goal is not to make communities the same. The goal is to emulate key principles of human development. These include justice, equity, harmony, moral responsibility, spiritual awareness and development. 94
Indonesian reformers suggest that reformation of fiqh be guided by a new understanding of the maqasid sharia (objectives/purpose of Islamic law). These are justice (adl), equality (musawah), democracy (shura) and good behaviour towards others (mu’ashara bi al-maruf). 95 It might be relevant to include the principle of reciprocity (mu’awadhah). In this context reciprocity would encompass pluralism, taking into account one’s actions on others, one’s actions on the world at large. 96 There are overlaps among the notions of equality (musawah), equity, good behaviour towards others (mu’ashara bi al-maruf) and reciprocity (mu’awadhah).
An exegetic dilemma in is posed in the literal word used in the Qur’an. Seen as the divine will, the Qur’an cannot be rewritten. An example mentioned earlier in this paper is the utterance of the word ‘talaq’. Pre-modern patriarchal fiqh has applied a literal meaning to the utterance of talaq as reserving it as the primary of dissolution and construing it as a male privilege. However, words in the Qur’an are subject to multiple meanings and interpretations. The objective of interpretation is to unveil the meanings.97
(vi) Saying “No” to violence against women
Women exegetes have occasion to boldly suggest saying “no” to the text in its literal meaning, or holding a “conscientious pause” to rediscover the most appropriate meaning from the current human development and understandings.98 An example of this may be illustrated by using the so-called ‘beating verse’ in 4: 34. Part of this verse reads, “As for those women from which you fear [nushuz], admonish them, banish them to beads apart, and scourge (to strike) [darab] them. Then, if they obey you, seek not a way against them.”
“In the light of the excessive violence towards women indicated in the biographies of the Companions and by practices condemned in the Qur’an (like female infanticide), this verse should be taken as prohibiting unchecked violence against females. Thus, this is not permission,
93 Wadud, Amina. 2006. op.cit at p. 205
94 Ibid at 199
95 Hasyim, Syafiq. 2006 .op.cit at 187-190.
96 Wadud, Amina. 2009. Islam Beyond Patriarchy Through Gender Inclusive Qur’anic Analysis.Unpublished
97 Ibid at 204
98 Ibid at 190-191. Author cites El Fadl. 2003.op.cit for the “conscientious pause”. 21
but a severe restriction of existing practices.” 99 This part of the verse provides an example of an utterance or “text in progress”. 100
Women exegetes have termed their methodology in un-reading violence out of the text as “feminist hermeneutics”. This is a theory, method or understanding and interpretation which is sensitive to and critical of sexism. 101 In re-examining the pre-modern tafsir texts (exegesis), women exegetes apply a “hermeneutic of suspicion” which is alert to both explicit and implicit patriarchal bias. Another mode of feminist hermeneutics involves “reading behind the text”. This mode focuses on sociological and historical reconstructions of the society behind the text. The aim is to redress the silences on women’s lives, to lift out the marginalized voices, to reconstruct the absent female and to be vigilant of the patriarchal assumptions. 102
In reading the part on striking women, resort is had to the occasion of revelation (sabab ul-nuzul), which we now know to be in seventh century Arabia. The verse-text was revealed taking into consideration the socio-historical context of that period in time. The male exegetes premised their interpretation on cases where wives refuse to have sexual relations with their husbands or refuse to submit to his authority, a situation an exegete classified as nushuz (disobedience). “(I)t may well be purely subjective male suspicion of female infidelity..This suspicion creates the space for irrational and often unjustified male jealousy, which is often among the primary reasons for men beating their wives.” 103
“The disobedient woman (nashiza) is seen as aberrant and the religious psychology inherent in the exegesis condones corporal punishment against her. Normativity demands that the female be docile and obedient and the non-conformist who contravenes this order of things needs to be disciplined even if such discipline includes violence.”104
The explorations of Islamic feminist hermeneutics on violence against women should be extended to concerns on marital rape and sexual violence to women in conflict situations.105
vii. The concept of awliya (partners, guides, protectors) in the Qur’an
The Qur’an commands that women and men are each other’s awliya (guides and protectors), both have the same function of guardianship over one another (9: 71).
99 Wadud, Amina. 1992.op.cit at p 76.
100 Wadud, Amina.2006. at p. 191, Barlas, Asma. pp cit at p. 188
101 Shaikh, Sa’diyya. 1997. Exegetical Violence: Nushuz in Quranic Gender Ideology. Journal for Islamic Studies, 17, 49-73. http://theothervoices.org.za/religionsa/jotafs.htm ; Jeenah, Na’eem. 2002. Towards an Islamic Hermerneutic. Journal for Islamic Studies. 21, 36-79
102 ibid
103 Shaikh, Sa’diyya. 1997 op.cit
104 Ibid.
105 In the campaign for a national civil law on domestic violence in Malaysia, the proposed inclusion of marital-rape as domestic violence was objected to be Malaysian religious scholars in government and in ulama associations. The inclusion of marital-rape as part of the amendments to the Penal Code (a civil law of general application) was similarly opposed. These proposals were perceived as an attack on Islamic family institutions and “God’s law”.
22
Contemporary exegetes agree that verse 9:71 of the Qur’an lays the foundation for gender equality and should be the principle in un-reading patriarchy in historical or pre-modern fiqh and for “feminist fiqh”. Feminism in current literature on feminist hermeneutics includes “a critical awareness of the structural marginalization of women in society and engaging in activities directed at transforming gender power relations in order to strive for a society that facilitates human wholeness for all, based on principles of gender justice, human equality, and freedom from structures of oppression.”106
The awliya verse in 9:71, has displaced the pre-modern understanding that verse 4:24 is the parent verse on male-female relations. Verse 4:34 reads,
“Men are [qawwamuna ‘ala] women [on the basis] of what Allah has [preferred] (faddala) some of them over others, and [on the basis] of what they spend of their property (for the support of women). So good women are [qanitat], guarding in secret that which Allah has guarded.” 107
Exegetes construe qiwama as ‘those who provide a means of support or livelihood’. It does not charge the husband with being the breadwinner nor designate him as head of the household. Men are not as a class ‘qawwamun’ over women as a class. The verse speaks about some men who are breadwinners, not all men. It may be interpreted as being limited to the situation where pregnant women may require financial support from their husbands. Some men may prefer to provide support to women in any situation and some women may prefer to be financially supported by men in any situation. This verse however does not mean that men are superior to women or that men are heads of the household just by being male.108
This interpretation opens possibilities of re-engaging notions in IFL and Islamic law in general which were derived from the pre-modern understanding of male superiority. As each other’s partners, protectors and guardians, an assumption arises in the equal sharing of responsibilities such as guardianship and custody and inheritance.
In fact, reformers view the fixed shares expressly stated in the Qur’an (text) as speaking to the socio-historical context of seventh century Arab society. In Indonesia, reformers have made a plea that the Indonesian context is different from that Arab history and the fixed shares in the Qur’an is capable of being reformed to suit the context in Indonesia.109 In Indonesia, Javanese culture (adat/customary law) renders equal inheritance for women and men. Married women keep the property inherited from their parents and dispose of it, at will. Upon divorce, a married woman may take with her this property and also the property she earned during marriage. 110
Women reformers in Indonesia have suggested that the inheritance verses in the Qur’an, by detailing the fixed shares for vesting to the prescribed inheritors is actually setting “temporary special measures” in the language and standard of substantive equality in CEDAW. The Qur’an
106 Shaikh, Sa’diyya. 2003. Transforming Feminisms in Progressive Muslims. Omid Safi ed. One World Publications. 147-162 at 148
107 Wadud, Amina. 1992. Women and Qur’an op.cit
108 ibid.; Barlas, Asma. 2002.op.cit. Shaikh, Sa’diyya. 1997.op.cit
109 Hasyim, Syafiq. 2006. op.cit at p. 168-169.
110 Geertz, Hildred. 1961, The Javanese Family: A study of kinship and socialisation. Free Press of Glencoe. 23
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recognizes that women’s right to inherit has to be set, but not set in stone. 111 This view agrees with the idea among women exegetes that the Qur’anic text, is a “text in progress”.
The conclusion that can be drawn from the current scholarship of Muslim reformers, women exegetes and Islamic feminists on gender equality suggests a common ground with the vision of CEDAW on gender equality. The standard of substantive equality in CEDAW emanates from a gender analysis which examines the relationships between females and males.
The analysis examines roles, access to and control of resources and the constraints women and men face relative to each other. The standard of substantive equality is three-fold: (i) equality of opportunity, (ii) equality of access to the opportunity, and (iii) equality of results/outcomes.
Following from the internal discourse in this paper, these principles do not contradict the imperative of gender equality in the Islamic frame of reference. The set of 113 legislative indicators developed for the Pacific could form the premises of the proposed CEDAW-Sharia legislative indicators for Southeast Asian countries implementing Islamic law.
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111 Conversation with Siti Ruhaini, Director of Women’s Studies of IAIN Sunan Kalijaga, Yogyakarta.