Malaysian Muslim Women Overwhelmed With Uncertainties Under Syariah Laws

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By Marina Mahathir,Womens Feature Service

[Excerpted from ‘Power, Voice and Rights: A Turning Point For Gender Equality In Asia and the Pacific’, Asia-Pacific Human Development Report (UNDP, Macmillan)]

Malaysia is a country that can be justifiably proud of the achievements of her female citizens. Education is virtually free in government schools and most girls attend school and go on to higher education, resulting in a majority of the enrolment in universities being female. Many women work outside the home and some hold high posts in Government and the private sector, ranging from the Governor of the Central Bank to various corporate executives.

Malaysia’s population is multiethnic, multicultural and multi-religious, with Muslims forming the majority faith. Historically, when it comes to family laws governing marriage, divorce, custody and inheritance, Muslims are subjected to syariah laws while civil laws govern the personal lives of non-Muslims. This has resulted in a disparity in the rights between the two groups, particularly for women.

For instance, civil law has outlawed polygamy for non-Muslims while it is still allowed for Muslims. However even for Muslims, polygamists had to comply with several conditions that protect existing wives before they were allowed to take additional wives. Unfortunately these laws, considered the most progressive in the world in the 1980s, have now been amended in a regressive direction, offering less protection for women than before. For instance, previously men intending to take on another wife had to obtain the written permission of his first wife but this requirement is now no longer necessary.

Although the Federal Constitution was amended in 2001 to disallow discrimination on the basis of gender, there still remain vestiges of such discrimination especially for Muslim women. For example, it is till unclear whether Muslim women can now be guardians to their own children including the right to sign legal papers for them. Previously much hardship was caused by the need to have fathers’ signatures on school registration forms, for instance.

Muslim women seeking divorces and maintenance have had to suffer an inefficient and lackadaisical syariah court system, often leaving them impoverished when husbands have neglected or simply refused to comply with court orders to provide for their children. Efforts to pursue these errant husbands have had some success but the majority of cases remain frustrated. As one female syariah lawyer ruefully remarked, ‘If I can get RM300 (less than US$100) a month for my client and her kids, I would consider that a success already’.

Part of the problem is Malaysia’s federal system where Muslim religious issues are controlled by the individual 13 states and Federal Territory. This has resulted in discrepancies between the Muslim Family Laws in each state which has in turn allowed men to ‘shop around’ to find the most suitable laws to suit them. For instance, if the conditions for polygamy proved too difficult in one state, men have gotten married in another with more lax laws, or eloped to southern Thailand. All he needs to do upon his return to his home state is to register the marriage and it will be considered valid.

In recent years, efforts have been made to standardize these laws in all states to prevent these abuses. Unfortunately the standardization has not resulted in a better deal for women when the result has been amendments to the laws that are detrimental to them. In 2006, the Federal Territory Islamic Family Law was passed through Parliament despite strong protests by women Senators in the Upper House and by many women’s groups. Amendments made to the laws in the interests of ‘gender-neutrality’ resulted in many women’s rights being given to men without reciprocal men’s rights being also given to women.

As an example, previously whatever assets a woman brought into a marriage remained hers and were not regarded as communal property to be divided equally in the event of a divorce. With the amendments, these assets are included in communal property resulting in men being able to freeze them upon dissolution pending division. However men’s rights to polygamy or to pronounce divorce by using the right of ‘talak’ have not been given to women.

The Federal Territory Islamic Law was not gazetted pending further discussions between the Attorney General’s Chambers, NGOs and religious bodies to amend them to make them fairer to women. The FT laws provide the template for the other states; thus it is imperative that they are improved substantially so as not to discriminate against women.

Apart from the laws, society’s attitudes towards women have not changed despite the many advances that Malaysian Muslim women have enjoyed. Their roles as wife and mother still remain the primary expectation of most women and ‘failure’ to play these roles ‘adequately’ sometimes result in violence. Despite the passing of the Domestic Violence Act in 1996, Muslim women still face obstacles ranging from husbands who believe their religion gives them the right to beat their wives, to uncooperative police when women complain. Groups like Sisters in Islam, a women’s group that has been fighting for justice and equality for Muslim women for 20 years, have had some success countering these beliefs by providing alternative interpretations of the Quran. Having the Domestic Violence Act has also helped to highlight the right of women not to be abused by their husbands or other relatives.

On example of the patriarchal attitudes towards women, especially Muslim women, is the mandatory premarital HIV testing for all Muslim couples. Although it is touted as one that would help prevent women from getting infected, there has been no evidence that it has worked, nor does it empower women to protect themselves. Indeed it has not stopped women from becoming infected by their husbands later in their marriage after having had several children. A study in Kota Bharu, Kelantan state among 300 HIV-positive widows showed that many of them married drug users without knowing their vulnerability to HIV and subsequently became infected after several years of marriage. Their AIDS widowhood brought on the additional hardship of stigma and discrimination on top of poverty. Some of them remarried HIV-negative men but could not convince their new husbands to use condoms out of fear of being left once again, so great was their dependency on these men.

Efforts to prevent women, Muslim or not, from infection must hinge on an overall change in attitudes towards women. Laws that are non-discriminatory help as well as greater understanding that sexist beliefs do not have any basis in religion. Thus the work by women’s groups such as Sisters in Islam is highly important in providing alternative interpretations of the Quran that reinforce the equality of women to men.

(The writer is an HIV/AIDS and women’s rights activist, writer and blogger.)

Excerpted from ‘Power, Voice and Rights: A Turning Point For Gender Equality In Asia and the Pacific’, Asia-Pacific Human Development Report (UNDP, Macmillan)