Norhayati Kaprawi

The Position of Muslim Women in Malaysia

Malaysian women, like most South East Asian communities, have traditionally enjoyed  more freedoms and rights compared to our sisters in the Middle East and South Asia. Our  cultural traditions and customs affirm women’s public role and participation in politics and economy and social issues.  However, over the last twenty years, women in Malaysia have seen a steadying erosion of women’s freedom and rights in the areas of law and access to justice in the shariah system.

Malaysian context  

-  Malaysia is a multi-ethnic and multi-religious country with a population about 25 million, made up of :
  Ethnicity :  Malay 50.8%, Chinese 23.8%, Indigenous 10.9%, Indian 7.1%, non-Malaysian citizens 6.8 %, others 0.6%.

- Religions: Islam (60.4%), Buddhism (19.2%), Christianity (9.1%), Hinduism (6.3%),Confucianism (2.6%), Animism (0.8%), others (including Taoism, Sikhism, Baha'i faith -- 0.4%), none (2.8%).

The Legal System

The Malaysian legal system is based on English common law, with both Islamic law and custom constituting significant sources of law . The Federal Constitution declares itself to be the supreme law of the nation and the Constitution creates a system of dual government, where there is a division between Centre and the 14 States of Malaysia on matters of legislative, executive, judicial and financial powers .

All Muslims are subjected to Islamic law of personal status, which is under the jurisdiction of the States and it has been understood and practiced that Muslims cannot opt out of the Syariah law (of personal status) into civil law.


i) Civil Courts

* Laws are under Federal jurisdiction, and are enacted by Parliament. 
* There is a central criminal legal system that all citizens are subjected to.
*There is a central civil legal system that all citizens are subjected to, apart Islamic personal law relating to marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law, gifts or succession, testate and intestate (Federal Constitution, 9th Schedule, List I, 4(e)(ii)). 
* There is a central enforcement arm (e.g. police, probation officers, prison personnel, intelligence service etc)

ii) Syariah Courts

* Syariah Laws are under the jurisdiction of each State, which means there are 14 separate jurisdictions on Islamic Family Law in Malaysia.

* Common structures of the Syariah legal system in all 14 states are:

1. Majlis Agama Islam (The Council for Islamic Affairs) : general body (made up of 16 members) responsible for administration of Islam, main role is to advice the Sultan on matters related to Islam except on hukum syara’ and administration of justice, chief authority of Islam after the Sultan. Includes Jabatan Agama Islam (Department of Islamic Affairs), whose function (amongst other things) is to be the enforcement arm of the Majlis.

2. Mufti: responsible for determination of hukum syara’, advices Sultan on these matters, issues fatwas which becomes binding upon every Muslim upon publication in the Gazette, consults Islamic Consultative Committee (7 members) to discuss proposed fatwas. 

3. Syariah Courts: responsible for the administration of justice to enforce and implement Syariah laws, three levels – lower, high and appeals court.

* Only those who professes to be Muslims are (necessarily) subjected to the jurisdiction of Syariah courts.

 
Sisters in Islam Advocacy Work

Sisters in Islam (SIS) was informally formed in 1988 and officially registered in 1993, in response to primarily address the injustices and discriminations faced by Muslim women in the Shariah system.

Objectives

The objective of the group is to promote the rights of women within the Islamic framework that takes into consideration women’s experiences and realities, and to create public awareness on women’s issues.  It is thus necessary to approach Islam in a holistic or wider context i.e. examine & re-examine shari'ah towards a more progressive interpretation of the religion as whole, and not look at women's issues in isolation.  

Approach

The founding members of SIS re-read the Qur’an, studied the hermeneutics, a model which looks at the socio-historical context of revelation as a whole and of relevant Qur’anic verses; and looked at the language structure of the text, in understanding the world-view.

They explored the rich Islamic intellectual heritage and include the female experiences and alternative opinions on modern Islamic circumstances and challenges in the discourse.

They found the process to be the liberating and spiritually uplifting. It affirmed their belief that Islam is a religion that is based on justice, equality and most of all, mercy and compassion.  It became increasingly clear that apart from the socio-historical context, it is the interpretations of the Qur’an, influenced by patriarchal values that have contributed towards the oppression of Muslim women.

Thus SIS started the journey of advocating women’s rights within the Islamic framework.  Through readings, consultations and studies with national and international Islamic scholars, theologians and jurists, SIS managed to develop a framework and methodology, forming arguments for justice and equality for Muslim women in contentious areas such as polygamy, equal rights, dress and modesty, domestic violence, hudud law, fundamental human rights such as freedom of expression, freedom of religion and other fundamental liberties.

Challenges

SIS has to face the complex challenges of Malaysian political and Islamic scene, which presents itself to be modern and progressive, but is actually comprised of various problems such as ethnic politics and conservatism.

If once upon a time the challenge was within us, to find courage and intellectual strength to speak out, the challenge later came from the dominant forces by the state and non-state actors, in trying to silent dissenting voices.  Some of the challenges are:

State politics and laws 

- “Out-Islamising” race in a state run along ethnic and religious lines.
- Draconian laws such as Internal Security Act, Seditious Act, Shariah Criminal Offences Act (SCOA), charge for “Insulting Islam”

Bureaucracy and quasi-govt bodies.

- Religious authorities very conservative in approach, resist change or reform.
- Government officials do not embrace the Prime Minister’s vision of progress in regards to women’s issues.

 ‘Exclusivist’ Islamist organisations
 - claims that women’s rights are Western concept
 - discourse belong to a selected few – ulama, religious leaders and
scholars
 - using logic rather than faith is touted as being unIslamic, and
labelled as liberal (negative connotation)

 Media

-Controlled media (English media slightly more open)
- Most Malay(predominantly Muslims)  media support the traditional views

 Academicians

- Perpetuating traditional views and ideological
- Some with differing views fear making their opinion public and may cause career suicide

Public
- Individuals who think it is not worth using religious arguments.
-  Individuals leaving the discourse to the ulama.
-  Muslim women themselves do not support reform due to the entrenched traditional positions.

SIS Advocacy Programmes

From the experience and knowledge, SIS gained the confidence to formulate our advocacy work which includes law and policy reforms, on the basis of equality, justice, freedom, dignity and democracy in Islam.

SIS’s experience and network with religious scholars and activists around the globe proved to be very useful.   Taking into consideration our limited resources, SIS carefully outlines our advocacy programmes and works closely with other women’s groups, human rights and civil society groups as well as international Muslim scholars.  We tailor each programme in accordance to the participants’ need and objectives. Our objective is to put forward progressive knowledge that is based on the principles of justice and equality to other groups and individuals.

We adopt a multi-prong approach of lobbying and advocating through the media, sending memorandums to the government bodies, disseminating information through publications and website as well as carrying out public education programmes such as forums and workshops. Our legal clinic receives good response from Muslim women and men.  We also do regular campaigns on various issues that affect Muslim women and Malaysians in general, such as Malaysians against Moral Policing by the State and Freedom of Religion. 

SIS trainings, in particular, are appreciated by many – women, men, Muslims, non Muslims, at local and international level. We owe this to the wealth and pool of knowledge, skill, talent and expertise brought in by passionate SIS members, who come from diverse backgrounds. 

SIS works with various groups such as with other activists, lawyers, journalists, community and religious leaders.

SIS public education involves :

• sharing the wider and deeper perspective of Islamic history and the science of  Islamic Jurisprudence,
• informing on the diversity of laws in the Islamic jurisprudence and the different implementations throughout the Islamic world over the centuries - illustrating the rich diversity of  the Shariah law amongst Muslim countries, influenced by human reasoning and social and cultural contexts.

SIS also carries out research on the comparison of Shariah laws amongst Muslim countries. We then translate the information into a reader-friendly format.  Our audience, particularly Muslim women, find this to be a revelation or even shocked to know that their sisters in other parts of the world enjoy more rights, or deprived of their rights in the name of Islam. 
 

Achievements

Some of the achievements made by SIS are in the issues of:

Domestic Violence Act

The women's groups had to lobby the Government hard for many years, to make domestic violence a crime whether it is committed by a Muslim, Buddhist, Hindu or Christian man. The negotiations for a Domestic Violence Act in the early 1990s, however,  saw attempts by the Islamic groups to exclude Muslims from the jurisdiction of the Act because of the belief that Muslim men have a right to beat their wives.  Even after the law was passed by Parliament, Sisters in Islam had to go through two more years of pressure and lobbying to get it implemented because of objections that it should not apply to Muslims because domestic violence was a family matter and therefore should come under Shariah jurisdiction of the states, rather than a criminal matter under federal jurisdiction.  After a concerted campaign, in providing arguments from the religious perspective, including publishing a booklet on “Are Muslim Men Allowed to Beat Their Wives?”, the DVA was finally applied to all Malaysians, including the Muslim community.

Guardianship of Infants Act

The Malaysian Guardianship of Infants Act (under Civil law) was amended in 1999 to give non-Muslim mothers the equal right to guardianship of their children, but no similar amendment was made to the Islamic Family Law to  accord the same right to Muslim mothers.  This kind of discrimination that is done in the name of religion is unacceptable and SIS thus lobbied the Cabinet for which it later issued a directive to various Ministries such as the Education Ministry (for registration and transfer of school), Health Ministry (for surgery cases) and Immigration (passports) to include Muslim mothers as one of the signatories in all the forms.

Islamic Family Law

Sisters In Islam (SIS), have long been working towards the reviewing and streamlining of the Malaysian Islamic Family Laws.  The latest Islamic Family Law (Amendment) Bill in December 2005 has shown a regressive trend where some of women’s rights have been violated. SIS strongly objected to some of the discriminative provisions and launched a campaign to ensure Muslim women’s rights are respected.  SIS thus publicised its concerns to the decision-makers and the public. All the female Senators supported SIS campaign and spoke strongly in the Parliament against the discriminative provisions and it quickly drew public attention. SIS then began to mobilise women and men who were concerned with the developments, to write to the media and relevant ministries including the Prime Minister. The objective was to inform the government that there was a significant portion of the Malaysian public that deeply opposed Parliament’s decision in passing the draft law.

Finally, due to an unprecedented public outcry, the Cabinet decided not to gazette the Islamic Family Law (Federal Territory) (Amendment) Bill 2005. In addition, the government also directed the Attorney-General to hold a dialogue and consultation with the Shariah Community (comprising several bodies such as JAKIM, Shariah Judiciary Department, Non-Government Organisations) on the necessary amendments to the draft law. SIS was actively involved in the talks and the latest amendments will hopefully be tabled in the Parliament and benefit the Muslim women in the near future. 

* Paper applied in the Conference "Towards a Civic Islamic Discourse"