Malaysia Moving Forward on Women in Islam
In early July, the Prime Minister of Malaysia, Najib Tun Razak, announced that two women had been appointed judges in the country's shariah Courts. One of two court systems in Malaysia, these judicial bodies rule on cases that are subject to shariah law, which is based on Islamic principles.
Women's groups, including Sisters in Islam (SIS), the group I belong to, hailed this as a long-awaited move given the many problems that women face in the shariah courts, especially in matters related to the family. Long an advocate for justice and equality for Muslim women, SIS has been calling for female appointments since at least 1999.
Malaysia's civil laws are under the province of the federal government. But the federal constitution gives its 13 states jurisdiction over two areas: land and laws governing "persons professing the Islamic faith," which involve family matters such as marriages, divorce, custody and inheritance. Shariah courts have no jurisdiction over non-Muslims and matters related to Islamic practices are not heard in the civil courts.
The government has talked about reforming the court system for some time, and although the appointment of women to the shariah courts was made only last month, the actual decision to appoint female judges was made in 2006. Though these two judges practice in the federal-level courts, this is an important move as their appointments set an example for shariah courts to follow at the state level.
Unfortunately, the initial euphoria women's groups felt about these female appointments was much dampened about two weeks after the July announcement: a committee of 20 shariah court judges – all men – held a meeting to discuss which cases female judges could preside over.
An Islamic Appeals Court Judge, Md Yusup Che The, stated that this needed to be straightened out because there were certain cases that women could not preside over, such as divorce and wali hakim cases, which concern the role of male guardians.
The problem is that it is primarily in divorce cases that many Malaysian women face injustice, whether in issues of custody or division of assets. Furthermore, cases involving male guardians naturally affect only women who, for example, are not allowed to get married without the guardians' consent. In most cases, guardians are their own fathers, but in cases where fathers are absent and no other male relatives are available, courts need to appoint guardians for the bride, which can cause delays.
Women's rights groups were excited about the prospect of having female judges precisely because they could oversee such cases in which women feel they are treated unfairly. The hope is that female judges would rule more fairly when dividing assets in cases of divorce or custody, and would confirm the appointment of guardians more quickly in cases where the biological fathers of brides are missing.
"The appointments were made to enhance justice in cases involving family and women's rights, and to meet current needs," Najib said. And while this move seems to have alarmed some of the more conservative judges in the shariah courts, the concerns of women's groups have turned out to be unfounded: at the end of July, a special panel decided that female judges do indeed have jurisdiction over the same cases as male judges.
It should be noted that the Qur'an enjoins judges to use their wisdom to ensure justice, stating that "…if ye judge between mankind, that ye judge justly" (4:58). The verse emphasizes justice without stating whether judges should be male or female. There is therefore no barrier for women to be judges in the shariah court system, as they have long been in Malaysia's civil courts. The task now is to ensure that male or female, judges uphold justice.
Marina Mahathir is a columnist, women's rights advocate, board member of Sisters in Islam, daughter of Malaysia's fourth Prime Minister and United Nations Global Expert (www.globalexpertfinder.org). This article was written for the Common Ground News Service (CGNews).