Implementing Women's Human Rights in Malaysia
Human Rights Dialogue 1.9 (Summer 1997): "Innovative Human Rights Strategies in East Asia"
June 5, 1997
SIS asserts that women’s human rights are inherent to Islamic religious teachings and that actions taken in the name of Islam to circumscribe those rights are not based on true Islamic principles or their animating concepts. The central Koranic notion of a common ontology, fitrah, supports arguments for gender equality and the rights of women and counteracts the prevailing tendency in Islamic societies to define rights and obligations of citizens on the basis of gender and faith. Modern Muslim women face a gap between the ethical principles of the Koran on gender equality and the retrogressive, male-centered interpretations that have been codified into Islamic standards, or Shari’a law.
As a strategy for ending women’s subordination and implementing human rights in Malaysia, SIS advocates revisiting and reinterpreting Islamic teachings and texts so that women’s equality may be understood in religious terms that are authentic and locally persuasive. This process of “cultural mediation,” a term coined by Abdullahi An-Na’im, involves recognizing that human rights are conditioned by their sociocultural context. It requires a search for local cultural sources of rights and an open discourse about the meaning and implications of the relevant cultural norms.
The first step in cultural mediation is to acknowledge the power politics behind the formation of cultural norms and their interpretations. What is done in the name of Islam today often contravenes Islam’s central ideas and animating principles in order to justify patriarchal practices. Generally speaking, women’s rights have been distorted by the increasingly powerful conservative faction of predominantly male Muslims heavily influenced by the dominant parochial views of Islam’s Middle Eastern heartlands. What especially concerns Muslim modernists in Malaysia today is the readiness of some of their leaders, who at the overtly political level directly oppose the “Islamist” agenda and the parties advocating it, to accommodate these tendencies and capitulate piecemeal to fundamentalists’ demands for the recodification of modern state law, especially that affecting women.
To counter such biased interpretations and recodifications, SIS has actively engaged in cultural mediation with regard to a number of disputes over gender equality in Malaysia. A necessary part of mediation turns upon understanding what is divine in the Shari’a law and what, in the scholarly tradition interpreting it, is of human origin. What is divine is the word of Allah in the Koran, the text and all its intention and purposes. The act of interpreting the text—through critical reason, analogy, and consensus—and deriving its meaning and intentions is human, and can therefore be reassessed and reevaluated. Members of SIS, as modern Muslims, seek to develop further the corpus of interpreted material. In doing so, their work focuses on cultural and religious reinterpretations of women’s roles and rights in the family, community, and society; women's legal and citizenship rights; and women’s sexual and reproductive roles and rights.
In reference to the ongoing debate on polygamy in Malaysia, for example, SIS and the Association of Women Lawyers submitted comments and recommendations to Prime Minister Mahathir Mohamad in December 1996 to reform Islamic family laws on polygamy. Malaysia in the early 1970s and 1980s conducted a remarkable recodification of its family laws, according to a religious doctrine that allows the state to choose from the opinions of differing schools of law to derive the most socially beneficial standards. Among the reform measures introduced were restrictions on polygamy, which gave the state the power to scrutinize applications by Muslim males to marry a second or subsequent wife to ensure that justice be done to women and children. Subsequent amendments by some states, however, have made it possible for a man merely to make a written or verbal declaration in front of a Shari’a judge that he has the economic means to support and provide equally for his wives and treat them fairly, without having to offer proof.
The ongoing debate on polygamy in Malaysia illustrates perfectly the popular misconceptions and fallacious arguments about men’s rights, based on assertions of women’s inferiority sanctified by religion. Muslim theologians and masters of juristic reasoning have interpreted the Koran’s injunctions as allowing polygamy virtually at will. SIS has put forth alternative religious arguments based on Koranic verses, such as 4:3, that state that polygamy is not an unconditional right of every man, but a responsibility to ensure the welfare and protection of widows and orphans, and one to be entered into only if the man could “deal justly” with his wives. Moreover, verse 4:129, which states, “You are never able to be fair and just as between women, even if it is your ardent desire,” recognizes the impossibility of men treating all their wives equally and justly. These verses in effect express the Koranic view that polygamy is an occasional and circumstantially warranted responsibility, rather than an inalienable right of a Muslim male.
Based on this modernist interpretation, SIS submitted numerous recommendations to the Malaysian government for revising the family laws concerning polygamy, among them greater penalties for men who violate Islamic family law; provisions to ensure that all wives and their dependents are fairly and adequately provided for; a standardized and extensive application process that allows the court to judge a request for a second marriage according to established criteria; provision for a wife to divorce her husband if he takes another wife; the adoption of uniform laws on polygamy by all states; and gender sensitization training for judges, religious officials, and counselors. These recommendations have been received favorably by the Malaysian prime minister’s office. Those states that had not yet amended their polygamy laws must now wait until a statewide, federal review of the Shari’a judicial system is completed.
While Malaysia’s reformed Islamic family law is one of the most enlightened among Muslim countries, women are unable to exercise their rights fully because of prejudices and weaknesses in the implementation of the law and the Shari’a system itself. In March 1997 SIS, in cooperation with two other women’s groups, submitted a second memorandum to the Malaysian government; it took a comprehensive look at the Islamic family laws as a whole and proposed reform of the substantive law (or the “letter and spirit of the law”), Shari’a court procedures and administration of the courts, and the state religious departments. Again the prime minister has stated publicly that all positive amendments of the Muslim family laws will be considered for the federal government’s review of the Shari’a system. And SIS, along with other women’s groups, is working to publicize its memorandum and conducting training sessions to ensure that women at the grassroots level are informed about the movement to reform family laws and the Shari’a justice system. Importantly, male voices are also increasingly joining the call for reform, both to improve the image of Muslim courts and to ensure justice for women.
The reforms suggested by SIS are intended to improve the delivery and administration of justice in the Shari’a system. In Malaysia a parallel legal system of common law courts inherited from British colonialists and Shari’a courts, which have primacy over civil matters, exists. The problems that arise as a result of this division are best exemplified by debates over the application of the controversial Domestic Violence Act, which became law in April 1995. SIS, in cooperation with all major Malaysian women’s groups, participated in multilateral consultations on the drafting of the law, mobilized women to lobby members of Parliament to pass it, and helped run legal literacy workshops for women to explain the law’s importance. At the time of its passing, a number of Islamic scholars and state functionaries within the various Islamic departments maintained that the act would only apply to non-Muslims because of the primacy of the Shari’a court in Islamic family matters.
SIS responded by saying that in all matters the primary principle is justice. The rejection by Muslim scholars of common law in the name of Islamization is perverse because it violates Koranic principles of social justice. Muslim family laws usually leave women unprotected; Shari’a courts generally send the victimized woman home to reconcile with her husband and preserve her marriage.
Compounding the inadequacy of Shari’a courts in dealing with women’s issues is the dominant practice in Malaysia of only appointing men to be judges under Shari’a law. Neither the Koran nor the remarks attributed to the Prophet Muhammad holds that a woman cannot be a leader or by extension hold public office. Rather, SIS and other groups have identified numerous religious sources that do not discriminate between men and women in their abilities to serve the public.
In opposing the Domestic Violence Act in the name of the Shari’a and continuing to prevent Muslim women from becoming Shari’a court judges, Islamists are failing to uphold one of Islam’s central tenets—that Muslims must continuously apply Islam’s broad legal principles to emerging social and historical realities. They are ignoring the vast changes that have occurred in the lives of all Muslims, especially Muslim women, during the 1,400 years since the formative movement of Islam.
By grounding human rights in Islamic cultural traditions and religious teachings, SIS hopes that the women’s movement in Malaysia can avoid being construed as an unwelcome foreign or secular idea and come to be understood in the context of local religious norms, requirements, and laws. Like many modernist groups, SIS is encouraging a discourse among all Muslims in which informed critical reasoning and cultural mediation can take place. Muslims today must confront the claim by militant resurgent Islamist forces that their interpretation of Islam is “universal” and the only legitimate view for all Muslims at all times. As with Western conceptions of universal human rights, this claim of universality needs to be negotiated and challenged within the internal discourse of contemporary Muslim societies.