Malaysia: Comment - a setback for Muslim women

New Straits Times
As a Muslim mother with a teenage daughter, I am chilled by the passage of the Islamic Family Law (Federal Territories) (Amendment) Bill 2005 on 22 December 2005.
When my daughter marries, she places her future at risk as the law now contains five contentious amendments that can undermine her financial and personal security.
My concerns as a mother stem from the fact that it is now easier for her future husband to take a second wife. If he does, he can take a share of my daughter’s property, presumably for the benefit of his second marriage. If he wants to, he can also stop her from accessing her own bank account, as well as any property in her name — even property she receives from me.

The amendments also make it easier for her husband to divorce her, and in the event that he does — or takes a second wife — my daughter will be forced to choose either to receive maintenance from him or divide their joint property.

Before the amendments, my daughter would have been entitled to both maintenance and a portion of the joint property, as mandated by Syariah law.

These amendments weaken the increasingly fragile institution of the family. One senator who vehemently opposed the Bill said that when a man marries her daughter, she would wonder if he truly loves her or her property. An MP who also thought it unconscionable to support the Bill said he did not wish his daughter ever to say: "My father was in a position to prevent this, but didn’t."

In a country like ours — which promotes itself as modern — this is a setback for Muslim women and all Malaysians. Five amendments in the Bill are clearly unjust, offensive and show scant regard for women as human beings.

Despite the fact that women have made advances in every sphere of society, at no point were they consulted in the drafting of these amendments.

What is truly worrying is the warped understanding of gender equality that forms the basis for these amendments. In the stormy Senate session on Dec 22, the minister charged with religious affairs in the Prime Minister’s Department said that it was on the basis of "gender equality" that men should be granted the right to a fasakh divorce. Since fasakh is an instrument available only to women, he argued that it was fair that men should have access to it.

As one senator said, however, men already have talaq, and if they are now granted fasakh rights, is it not logical to grant women the right to talaq as well?

The Prime Minister has rightly said that "we can make suitable changes if necessary" to the amendments. The concern now, however, is how quickly these changes can be made — the amendments are not only open to abuse, they encourage them.

The fact that we are now seeking to amend amendments betrays a fundamental failure in the process of legislation and civil debate.

How did it come to this? First, women were not consulted and the few who spoke up were obviously not taken seriously.

Second, the process by which Bills pass needs an urgent and critical review — it is clear that the Cabinet as well as MPs were inadequately briefed, and MPs were not given enough time to consider the Bill’s passage. Its damaging potential became apparent only when it reached the Senate — because of intense lobbying from women’s groups — and it is only in the last phase of legislative review that the public became aware of this contentious Bill.

Adding to the confusion is the Government’s need to comply with the Rulers’ Council’s orders to standardise all Islamic laws, which are under state jurisdiction. This Bill will be used as the exemplar in this exercise, and any defects will likely be repeated in state legislation.

It seems odd that we should pass this Bill and then make amendments. An appropriate analogy would be to put a car with defects on the road, knowing that it can break down, and fixing it only after there has been a general public outcry.

The media could have helped highlight the Bill’s defects had it paid close attention to the issue from the beginning. However, it has a long tradition of ignoring social issues such as gender in favour of what makes a sensational headline.

This case also emphasises the importance of how decisions are made in Government. Civil servants no longer have a monopoly over knowledge; decision-making must be transparent and involve those affected.

The minister in charge of religion told senators that he consulted his officers in the Islamic Development Department (Jakim), but these were the same officers who drafted the Bill. Consultation should have included all stakeholders — experts outside Government, interest groups, and women who have experienced the Syariah Court system.

The process of consultation will soon become ever more important as Jakim hopes to bring technically challenging Islamic banking and financial laws under its jurisdiction. All we can do now is hope to control the fallout. The Joint Action Group for Gender Equality (Jagge), which has protested these amendments since 2002, urges that the new Bill not be enforced.

Jagge also seeks a new model Muslim family law capable of dealing with changing realities, and they propose that Parliament establish a select committee on Islamic family law to obtain feedback from women on their experiences with the Syariah system.

While this has been a dis- piriting experience for me, I take comfort in the determined actions of the women senators who immediately perceived the danger to women’s rights in these controversial amendments.

Who said the Senate was just a rubber stamp?

Originally published in the New Straits Times on 25 December 2005.